Willett v. The Veterans Administration of the United States of America et al

Filing 22

MEMORANDUM OPINION AND ORDER GRANTING 19 MOTION to Dismiss; GRANTING plaintiff until 1/23/2013 to file an amended complaint that cures the defects addressed in this opinion, as further set out in order; further ORDERING that the 10 MOTION to Dismiss is DENIED as moot. Signed by Chief Judge William Keith Watkins on 1/9/13. (Attachments: # 1 civil appeals checklist)(djy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
CHARLIE MAE WILLETT,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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[WO]
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MEMORANDUM OPINION AND ORDER
Plaintiff Charlie Mae Willett brings this Federal Tort Claims Act action, see 28
U.S.C. § 1346(b), alleging that the United States’s negligence caused the injuries she
sustained when she was sexually assaulted while a patient in a veteran’s
administration hospital. The United States moves to dismiss Ms. Willett’s complaint
for lack of subject matter jurisdiction based upon sovereign immunity. (Doc. # 19.)
The motion has been fully briefed. After careful consideration of the arguments of
counsel and the relevant law, the motion is due to be granted with leave to amend.
I. JURISDICTION AND VENUE
The parties do not contest personal jurisdiction or venue. Subject matter
jurisdiction is at issue.

II. STANDARD OF REVIEW
A motion to dismiss under Rule 12(b)(1) may assert either a factual attack or
a facial attack to jurisdiction. McElmurray v. Consol. Gov’t of Augusta-Richmond
Cnty., 501 F.3d 1244, 1251 (11th Cir. 2007). Because the United States’s motion is
a facial attack, the court examines whether the complaint “sufficiently allege[s] a basis
of subject matter jurisdiction.” Id.
In defending a Rule 12(b)(1) facial attack, a plaintiff has procedural protections
similar to those offered by Rule 12(b)(6). See id. The court must take “the factual
allegations in the complaint as true and construe them in the light most favorable to
the plaintiff.”

Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008).

However, the “tenet that a court must accept as true all of the allegations contained in
a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009).
III. FACTUAL BACKGROUND
In April 2009, Ms. Willett was a patient at the Montgomery, Alabama campus
of the Central Alabama Veterans Health Care System (“the hospital”). While
hospitalized, she was sexually assaulted. Her assailant, Marvin Chappell, was a
hospital employee (Am. Compl. ¶ 8), and his supervisors were on notice that he had
“previously sexually molested patients.” (Am. Compl. ¶ 9.)
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Ms. Willett brings this FTCA action alleging that the United States is liable for
the negligence of two supervisory hospital employees with respect to their hiring and
supervision of Mr. Chappell. (Am. Compl. ¶¶ 14–15.) In Ms. Willett’s words, these
government employees “negligently fail[ed] to institute proper procedures for the
hiring, supervising and maintenance of male employees with female patients,
negligently permitted the sexual assault by Marvin Chappell, and negligently engaged
in a failed investigation of a prior incident, which, if investigated and disciplined,
might have prevented” the assault. (Am. Compl. ¶ 14.)
IV. DISCUSSION
Absent a waiver, sovereign immunity poses a jurisdictional bar to suit against
the United States. JBP Acquisitions, LP v. U.S. ex rel. F.D.I.C., 224 F.3d 1260, 1263,
(11th Cir. 2000). Under 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). Several exceptions in 28 U.S.C.
§ 2680 limit this waiver, however, and where the limitations apply, sovereign
immunity remains a jurisdictional bar to suit.
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The United States asserts that the court lacks subject matter jurisdiction over
Ms. Willett’s negligent hiring and supervision claims based upon two exceptions:
(1) the FTCA’s assault and battery exception, see § 2680(h), and (2) the FTCA’s
discretionary function exception, see § 2680(a). For the reasons that follow, the court
finds that the negligent hiring and supervision claims fall within § 2680(h) and,
therefore, are barred by sovereign immunity. Based on that finding, the court need not
address the arguments with respect to § 2680(a).
Section 2680(h) provides, in pertinent part, that the waiver of § 1346(b) “does
not apply to . . . [a]ny claim arising out of assault [or] battery . . . .” Ms. Willett
argues that her claims do not arise out of Mr. Chappell’s assault and battery, but rather
sound solely in the United States’s negligence in hiring and supervising Mr. Chappell.
She relies on Sheridan v. United States, 487 U.S. 392 (1988).
In Sheridan, the defendants were naval corpsmen who attempted to assist an
off-duty serviceman who they knew was armed and intoxicated. Id. at 395. When the
serviceman broke away and fled, the defendants did not pursue him or report his
condition to the appropriate governmental authority, as required by regulation. Id.
Later that evening, the drunken serviceman fired his weapon, injuring one of the
plaintiffs and damaging their car, and the plaintiffs brought suit against the United
States. They alleged liability based upon the negligence of the naval corpsmen who
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voluntarily assisted the serviceman, but then allegedly carelessly abandoned that
assistance. See id. at 398.
The Supreme Court of the United States held that the FTCA’s assault and
battery exception did not preclude the plaintiffs’ action because neither the assailant’s
“employment status nor his state of mind ha[d] any bearing on the basis for” the
plaintiffs’ claim. Id. at 403. “[I]n a case in which the employment status of the
assailant has nothing to do with the basis for imposing liability on the Government,
it would seem perverse to exonerate the Government because of the happenstance that
[the assailant] was on a federal payroll.” Id. at 402. The negligence claim arose not
from the employment relationship between the assailant and the United States, but
rather because of: (1) the government’s independent duty created by its voluntary
adoption of regulations with respect to weapons reporting; and (2) the duty owed by
the government once it “voluntarily under[took] to provide care to a person who was
visibly drunk and visibly armed.” Id. at 401.
The Fifth Circuit has summarized Sheridan’s holding as follows: “Sheridan
stands for the principle that negligence claims related to a Government employee’s §
2680(h) intentional tort may proceed where the negligence arises out of an
independent, antecedent duty unrelated to the employment relationship between the

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tortfeasor and the United States.”1 Leleux v. United States, 178 F.3d 750, 757 (5th
Cir. 1999). In short, the United States would have owed the plaintiffs the same duty
even if the assailant had been a civilian.
The Supreme Court in Sheridan left open whether the FTCA always bars
negligent hiring and supervision claims when a plaintiff alleges a foreseeable assault
and battery by a government employee. See 487 U.S. at 403 n.8. An unpublished
decision from the Eleventh Circuit, however, indicates that Ms. Willett’s claims rest
on shaky ground. See Reed v. U.S. Postal Serv., 288 F. App’x 638, 640 (11th Cir.
2008).
In Reed, an FTCA action arising from an assault on the plaintiff by a
government employee, the plaintiff brought a negligent hiring claim against the
United States, which countered with a Rule 12(b)(1) motion to dismiss on the basis
of sovereign immunity. The Eleventh Circuit recognized that in a pre-Sheridan
decision it had held that “a plaintiff cannot avoid the § 2680(h) exclusions by
recasting a complaint in terms of a negligent failure to prevent assault or battery
because § 2680(h) bars any claim ‘arising out of’ assault or battery, including claims
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Sheridan also has been described as “an exception to an exception to an exception to a
general rule.” CNA v. United States, 535 F.3d 132, 148 (3d Cir. 2008). “The general rule is
sovereign immunity: the Government cannot be sued.” Id. “The FTCA creates an exception to
that rule by waiving sovereign immunity. That waiver of sovereign immunity comes with . . .
exceptions (such as the assault-and-battery exception of § 2680(h)).” Id. Sheridan then created
an exception to § 2680(h) by holding that “claims of independent negligence committed by
Government employees are not barred by the assault-and-battery exception.” Id.
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that sound in negligence but stem from a battery committed by a government
employee.” Id. at 639–40. The Reed court examined but distinguished Sheridan.
Unlike in Sheridan, “the only basis . . . for liability to attach to the United States as a
result of [the plaintiff’s] assailant’s actions would be via the employment relationship
itself.” Id. at 640. “Were the government aware of the assailant’s purportedly violent
history, it would only be as a result of the knowledge it gained as his employer and
any liability on the part of the government would inure solely because of its status as
[the plaintiff’s] and the assailant’s employer.” Id.
In her complaint, Ms. Willett does not allege any facts that bring her claim
within the holding of Sheridan, and Reed confirms Sheridan’s inapplicability here.
Ms. Willett argues that neither Mr. Chappell’s “employment status nor his state of
mind is at issue . . . because [she] is alleging that the employer failed in its (the
USA’s) duty to [Ms. Willett].” (Doc. # 17, at 4.) To the contrary, however, Mr.
Chappell’s employment status bears directly on the United States’s liability for the
negligent hiring and supervision claims. The very acts that Ms. Willett alleges were
negligent, i.e., the United States’s hiring and supervision of Mr. Chappell (Doc. # 16
¶ 14), are linked inextricably to and are entirely dependent upon Mr. Chappell’s status
as a government employee. But for the employment relationship between the United

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States and the tortfeasor, Ms. Willett’s claim for negligent hiring and supervision
would not lie.
Based upon Sheridan and Reed, Ms. Willett must allege a duty owed to her that
is “entirely independent” of Mr. Chappell’s employment status to avoid application
of § 2680(h). Sheridan, 487 U.S. at 401. She has not done so. The United States’s
sovereign immunity bars, therefore, Ms. Willett’s negligent hiring and supervision
claims.
In her brief, Ms. Willett alludes to a potentially successful application of
Sheridan, however. Namely, relying on Young v. Huntsville Hospital, 595 So. 2d
1386 (Ala. 1992), she argues that under Alabama law, the hospital owed a duty –
regardless of Mr. Chappell’s government employment status – to protect her from the
foreseeable criminal acts of third parties.2 (See Doc. # 17, at 12.) In Young, a
premises liability case, the Alabama Supreme Court emphasized that absent “special
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The “law of the place where the act . . . occurred,” § 1346(b), is the “source of
substantive liability under the FTCA,” F.D.I.C. v. Meyer, 510 U.S. 471, 478 (1994). Courts also
have applied the law of the situs of the injury to determine under § 2680(h) whether the
government owed a duty to the plaintiff that was distinct from the tortfeasor’s status as a federal
government employee. See Bembenista v. United States, 866 F.2d 493, 498 (D.C. Cir. 1989)
(holding that the plaintiff’s FTCA claim was not barred by the assault and battery exception
because under District of Columbia law, the army medical center owed a duty to the plaintiff “to
protect her against foreseeable, injurious acts of third persons”); Malone v. United States, 61 F.
Supp. 2d 1372, 1381 (S.D. Ga. 1999) (discussing the FTCA’s assault and battery exception and
finding that the plaintiff “failed to establish a general duty to protect owed to her under Georgia
law”). Based upon this authority and absent any contrary argument from the parties, the court
will assume without deciding that it is appropriate to look to Alabama law in determining
whether Ms. Willett’s FTCA claim falls within the assault and battery exception to FTCA
liability.
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relationships or circumstances,” an individual cannot be held liable for failure to
protect another from a third party’s intentional criminals act. 595 So. 2d at 1387
(emphasis omitted). Young found the existence of a special relationship between the
patient and the hospital based upon evidence that the plaintiff “was anesthetized or
sedated and therefore unable, or less able, to protect herself from” the sexual assault.
Id. at 1388. This special relationship “create[d] a duty on the hospital’s . . . part to
protect the patient from criminal acts of third parties.” Id. at 1389.
At least one court in this district has applied Young to preclude application of
§ 2680(h). See Gess v. United States, 952 F. Supp. 1529 (M.D. Ala. 1996). In Gess,
the United States was sued under the FTCA for negligence when a medical technician
surreptitiously injected infants in an Air Force Hospital’s nursery ward with toxic
doses of lidocaine. The court rejected the United States’s argument that the FTCA’s
assault and battery exception barred the action. Applying Alabama law, the court
found that the hospital owed the infants a duty to protect them against the foreseeable
criminal acts of third parties and that, as in Sheridan, that duty was independent of the
medical technician’s status as a government employee. See id. at 1551. The Seventh
Circuit similarly has concluded: “Where the government affirmatively assumes a duty
to the victim prior to the assault, and the government breaches that duty causing injury
to the victim, we cannot say that her claim arises out of the assault. Rather, it arises
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out of the breach of that affirmative duty.” Doe v. United States, 838 F.2d 220, 223
(7th Cir. 1988).
The foregoing authority suggests that § 2680(h) would not bar a properly
pleaded claim alleging a government employee’s breach of a duty of protective care
under Alabama law. In that instance, the basis for liability would be independent of
Mr. Chappell’s employment status. However, the governing complaint does not plead
a claim that the United States negligently failed to protect Ms. Willett from the
criminal acts of Mr. Chappell. Rather, Ms. Willett merely alludes to such a claim in
her brief, but she may not amend her complaint in a brief. See Gilmour v. Gates,
McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004). Nor does the complaint
allege a condition of incapacitation sufficient to show a special relationship between
Ms. Willett and the hospital as contemplated by Young. Although Ms. Willett
indicates that when assaulted, she was “heavily medicated and asleep” (Doc. # 17, at
2), she again confines this assertion to her brief.
Given the early stage of this litigation, and persuaded that Ms. Willett may be
able to allege a viable FTCA claim that supports subject matter jurisdiction, the court
will permit Ms. Willett to amend her complaint should she desire to do so. On this
record, the interests of justice support the amendment, and the prejudice to the United
States is minimal.
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V. CONCLUSION
For the foregoing reasons, Plaintiff’s FTCA claims alleging negligent hiring
and supervision fail for lack of subject matter jurisdiction. Accordingly, it is
ORDERED that the United States’s Rule 12(b)(1) motion to dismiss (Doc. # 19) is
GRANTED. Plaintiff is GRANTED until January 23, 2013, to file an amended
complaint that cures the defects addressed in this opinion.
Failure to file an amended complaint by this deadline will result in dismissal of
this action.
It is further ORDERED that the earlier motion to dismiss (Doc. # 10) is
DENIED as moot.
DONE this 9th day of January, 2013.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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