United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA UNITED STATES DISTRICT JUDGE
Joshua Duckworth brings this case against defendants United
States of America and Mark Wisner, pursuant to the Federal
Tort Claims Act (“FTCA”), 28 U.S.C. §§
1346(b), 2671 and 38 U.S.C. § 7316(a), (f), alleging
that Wisner conducted improper and/or unnecessary physical
examinations of plaintiff, made inappropriate sexual comments
to plaintiff, improperly prescribed medications, and failed
to keep adequate records. Plaintiff also alleges a state law
claim. This matter is before the court on defendant United
States of America's Motion to Dismiss (Doc. 9). Defendant
argues that plaintiff's complaint should be dismissed for
lack of subject matter jurisdiction and because it fails to
state a claim under Federal Rules of Civil Procedure 12(b)(1)
and (6). For the reasons set forth below, the court grants
defendant's motion in part and denies it in part.
is a veteran who sought treatment at the Dwight D. Eisenhower
VA Medical Center (“VA”) located in Leavenworth,
Kansas. Wisner treated and provided medical care for
plaintiff. Wisner was a physician's assistant for the VA,
and is a defendant in more than ninety pending civil suits
before this court.
claims in this case are similar to claims in a number of
other cases this court has considered. See, e.g.,
Anasazi v. United States, No. 16-2227, 2017 WL
2264441, at *1-*2 (D. Kan. May 23, 2017); Doe D. E. v.
United States, No. 16-2162, 2017 WL 1908591, at *1-*2
(D. Kan. May 10, 2017). The court will not repeat the details
of them here. Highly summarized, they are: (1)
negligence/vicarious liability; (2) negligent supervision,
retention, and hiring; and (3) negligent infliction of
the court has set forth the governing legal standards in a
number of other cases involving the same parties and similar
claims. The court does not repeat them here, but applies them
as it has in the past. See, e.g., Anasazi,
2017 WL 2264441, at *2; Doe D. E., 2017 WL 1908591,
the FTCA, the United States has waived its sovereign immunity
for injuries caused by the “negligent or wrongful act
or omission” of a federal government employee while
that employee is “acting within the scope of his office
or employment, under circumstances where the United States,
if a private person, would be liable to the claimant in
accordance with the law of the place where the act or
omission occurred.” 28 U.S.C. § 1346(b).
court has repeatedly held that plaintiffs with similar
allegations to those here have sufficiently alleged that
Wisner's conduct was within the scope of his employment.
See, e.g., Doe BF v. United States, No.
17-2088, 2017 WL 4355577, at *4-*5 (D. Kan. Oct. 2, 2017);
Almquist v. United States, No. 17-2108, 2017 WL
4269902, at *4-*5 (D. Kan. Sept. 25, 2017); Anasazi,
2017 WL 2264441, at *4; Doe D. E., 2017 WL 1908591,
at *4. The court also has held that plaintiffs with similar
allegations have presented plausible claims that the VA
Immunity Statute applies, allowing them to pursue remedies
under the FTCA for claims arising out of a battery. See,
e.g., Doe BF, 2017 WL 4355577, at *5;
Almquist, 2017 WL 4269902, at *5; Anasazi,
2017 WL 2264441, at *5; Doe D. E., 2017 WL 1908591,
at *4. Defendant acknowledges these rulings, but wishes to
preserve its arguments. As in other cases, the court allows
plaintiff to proceed in this case.
claims that at least some of plaintiff's claims are
barred by Kansas's four-year statute of repose.
See Kan. Stat. Ann. § 60-513(c) (stating that,
with respect to a “cause of action arising out of the
rendering of or the failure to render professional services
by a health care provider, ” “in no event shall
such an action be commenced more than four years beyond the
time of the act giving rise to the cause of action”).
Plaintiff responds with arguments relating to the statute of
limitations instead of the statute of repose. Specifically,
plaintiff argues that he was (and is) an “incapacitated
person” under the provisions of Kan. Stat. Ann. §
60-515, thereby tolling the statute of limitations.
court has previously held that the court does not consider
state law in determining the applicable statute of
limitations in an FTCA case. See Mathis v. United States,
et al., No. 16-2322-CM-TJJ, 2017 WL 430074, at *8 (D.
Kan. Jan. 31, 2017). As in Mathis, plaintiff's
arguments for tolling under § 60-515 are not persuasive,
and the court turns to the impact of the statute of repose on
plaintiff's claims may be barred by the statute of
repose. In his complaint, plaintiff alleges that he saw
Wisner “from 2012 to 2014.” Taking these
allegations as true, some of plaintiff's claims likely
happened before July 11, 2013, which was four years before
plaintiff filed an administrative claim. Any such claims are
therefore barred by the statute of repose.
Supervision, Hiring, and Retention
court has previously dismissed other plaintiffs' claims
for negligent hiring and retention based on the discretionary
function exception to the FTCA. See, e.g.,
Anasazi, 2017 WL 2264441, at *8-*9; Doe D.
E., 2017 WL 1908591, at *8. Plaintiff acknowledges the