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

Filing 36

ORDER DENYING 27 MOTION to Dismiss; defendant may refile its motion on or before 9/9/2013; further ORDERING that plaintiff is GRANTED LEAVE to conduct limited jurisdictional discovery, as further set out in order; further ORDERING that based on said discovery, plaintiff should file any Response to any Motion to dismiss from defendant on or before 9/30/2013; the defendant's Reply Brief, if any, shall be filed on or before 10/7/2013, as further set out in order; further ORDERING that plaintiff's 33 MOTION to Strike is DENIED, as further set out in order. Signed by Chief Judge William Keith Watkins on 6/27/13. (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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) CASE NO. 2:12-CV-296-WKW
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[WO]
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MEMORANDUM OPINION AND ORDER
Plaintiff Charlie Mae Willett brings this Federal Tort Claims Act (“FTCA”)
action. In it, she alleges that the United States’s negligence caused the injuries she
sustained when a hospital employee sexual assaulted her while she was a patient at
the Central Alabama Veterans Health Care System (“CAVHCS”) facility in
Montgomery, Alabama.
In January 2013, the court dismissed the First Amended Complaint on the
United States’s motion and granted Ms. Willett leave to amend a second time. (Doc.
# 22.) Ms. Willett accepted that invitation, and the United States moved to dismiss
Ms. Willett’s Second Amended Complaint (Doc. # 23) for lack of subject matter
jurisdiction based upon sovereign immunity. (Doc. # 27.) The parties have fully
briefed the motion. (Docs. # 28, 32, 35.) After careful consideration of the

arguments of counsel and the relevant law, the motion is due to be denied with leave
to refile after limited jurisdictional discovery.
I. JURISDICTION AND VENUE
The parties do not contest personal jurisdiction or venue. Subject matter
jurisdiction is at issue, as set out below.
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). The United States frames its motion as
a facial attack, and thus asks the court to examine whether the complaint “sufficiently
allege[s] a basis of subject matter jurisdiction.” Id. Practically, however, Defendant’s
motion factually attacks subject matter jurisdiction, as it asks the court to consider the
pleadings and matters outside them. See Hogan v. U.S. Postmaster Gen., 492 F.
App’x 33, 34 (11th Cir. 2012) (“By arguing that Hogan’s claim is governed by the
discretionary function exception, the United States factually attacks our subject
matter jurisdiction.”); Rodriguez v. United States, 415 F. App’x 143, 145 (11th Cir.
2011) (noting, when reviewing a motion to dismiss based on the FTCA’s
discretionary function exception, the court’s authority to consider “matters outside
the pleadings, such as testimony and affidavits”).
2

A Rule 12(b)(6) motion tests the sufficiency of the complaint against the legal
standard articulated by Rule 8: “a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To survive a motion to
dismiss brought under Rule 12(b)(6), a complaint must contain sufficient factual
allegations, “accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). The standard requires the plaintiff to plead “enough fact to
raise a reasonable expectation that discovery will reveal evidence” of the plaintiff’s
claim. Twombly, 550 U.S. at 556.
III. FACTUAL BACKGROUND
The factual background is laid out in the court’s earlier order on the United
States’s first motion to dismiss. (Doc. # 22.) Ms. Willett alleges that while she was
an inpatient at CAVHCS, CAVHCS employee Marvin Chappell sexually assaulted
her while she was “heavily medicated.” (Doc. # 23 ¶ 12.) She alleges Chappell
“sexually molested” other patients, before and after her assault, and that CAVHCS
administrators were or should have been aware of those assaults. (Doc. # 23 ¶ 9.)
Ms. Willett’s FTCA action alleges that the United States is liable because her
hospitalization and sedation created a special relationship between her and the
CAVHCS, from which a duty of care flowed. In Ms. Willett’s words, this special
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relationship “[gave] rise to a duty to protect [her] from the criminal acts of third
parties” while she was in CAVHCS’s care. (Doc. # 23, ¶ 17.) Specifically, she
alleges that the United States “negligently failed to protect her” from a foreseeable
sexual assault. (Doc. # 23, ¶ 18.)
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).1 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.
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

Here, Alabama law is the source of substantive liability. See F.D.I.C. v. Meyer, 510
U.S. 471, 478 (1994) (holding that “law of the place where the act . . . occurred,” § 1346(b), is
the “source of substantive liability under the FTCA”).
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(1) the FTCA’s assault and battery exception, see § 2680(h), and (2) the FTCA’s
discretionary function exception, see § 2680(a). The court will address each in turn.
A.

Plaintiff’s complaint avoids application of the assault and battery
exception.

The FTCA stands as an exception to the general rule of sovereign immunity.
The assault and battery exception is an exception to that exception; it preserves the
United States’s immunity from claims “arising out of” intentional torts, like battery.
28 U.S.C. § 2680(h). Ms. Willett relies on Sheridan v. United States, 487 U.S. 392
(1988), to argue that her claims arise not from her assailant’s intentional acts, but
from the United States’s failure to exercise a duty of reasonable care to protect her
from the foreseeable criminal acts of third parties during her hospitalization.
In Sheridan, the Supreme Court of the United States held that the FTCA’s
assault and battery exception does not preclude suit where 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. In Sheridan, naval corpsmen undertook to assist an
obviously armed and intoxicated serviceman, and they abandoned their efforts when
he broke away and fled, later firing into the plaintiffs’ car. 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

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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.
Under Sheridan, a claim for negligence may lie “where the negligence arises
out of an independent, antecedent duty unrelated to the employment relationship
between the tortfeasor and the United States.” Leleux v. United States, 178 F.3d 750,
757 (5th Cir. 1999). In short, if the United States would have owed a plaintiff the
same duty whether the assailant was a civilian or a government employee, the assault
and battery exception does not re-erect immunity as an obstacle to an FTCA claim.
If Ms. Willett’s allegations are proven, the United States would have owed her
the same duty, whether her assailant was a hospital orderly, a vending machine
serviceman, or a stranger who wandered into the hospital. Under Alabama law, the
hospital owes a general duty of care, Ala. Code § 6-5-484, in addition to a more
specific “duty to a sedated or anesthetized patient, who, because of such condition
and the circumstances surrounding it, is dependent on the hospital.” Young v.
Huntsville Hosp., 595 So. 2d 1386, 1390 (Ala. 1992). The employment status of Ms.
Willett’s assailant is irrelevant to the duty owed based on the special relationship.
Gess v. United States is instructive on this point. 952 F. Supp. 1529 (M.D. Ala.
1996).

In Gess, parents sued under the FTCA when a medical technician
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surreptitiously injected infants in an Air Force hospital’s nursery with toxic doses of
lidocaine. The court rejected the United States’s argument that the FTCA’s assault
and battery exception barred the action because the hospital owed the infants a duty
to protect them against the foreseeable criminal acts of third parties and, as in
Sheridan, that duty was independent of the medical technician’s status as a
government employee. Id. at 1551.
This is not to say that the employment relationship is wholly irrelevant to the
analysis. As illustrated by Gess, id. at 1558, information gained as a result of the
employment relationship may make criminal acts foreseeable, and the foreseeability
of the criminal acts is a necessary element for proving liability under Young and – by
extension – under the FTCA. Presented with no binding authority to the contrary,2
the court finds that applying the assault and battery exception to prevent liability
because criminal acts are foreseeable based in part3 on the employment relationship
2

Other district courts have found that Sheridan does not apply “where an allegedly
foreseeable battery was only foreseeable to the [United States] because it happened to be the
assailant’s employer.” Acosta v. United States, 207 F. Supp. 2d 1365, 1369 (S.D. Fla. 2001)
(discussing Bajkowski v. United States, 787 F. Supp. 539, 541–42 (E.D.N.C. 1991)), aff’d 52 F.
App’x 486 (11th Cir. 2002) (table decision). The Eleventh Circuit has too, but in an unpublished
opinion premised on negligent hiring and supervision, not based on an affirmative duty arising
from a special relationship. See Reed v. U.S. Postal Serv., 288 F. App’x 638, 640 (11th Cir.
2008) (holding that where awareness “of the assailant’s purportedly violent history” came only
from knowledge the United States gained as his employer, the assault and battery exception
under the FTCA barred a negligent hiring claim).
3

An attack by an employee could be foreseeable simply because it had happened before,
the same way an earlier attack by hospital intruder might make a later attack by a hospital
intruder foreseeable. Here, foreseeability based on a prior similar act would be only incidentally
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between the assailant and the Government perversely exonerates “the Government
because of the happenstance that [the assailant] was on a federal payroll.” Sheridan,
487 U.S. at 402. So long as the duty arises independent of the employment
relationship, it is of no moment that the employment relationship – rather than some
other means – made the attack foreseeable. Sheridan focused on the independence
of the employment status, not the independence of the foreseeability. Id. at 401
(“[T]he negligence of other Government employees who allowed a foreseeable
assault and battery to occur may furnish a basis for Government liability that is
entirely independent of [the assailant’s] employment status.”).
Ms. Willett’s earlier complaint lacked allegations allowing reliance on
Sheridan. The allegations of her Second Amended Complaint, however, comport
with Sheridan and are consistent with Young. Ms. Willett’s claim, therefore, survives
application of the assault and battery exception. The court must still decide whether
the discretionary function exception applies.
B.

The court lacks sufficient information to rule on the discretionary
function exception, making limited jurisdictional discovery
appropriate.

The discretionary function exception is another exception to the FTCA’s broad
waiver of immunity. It bars claims based on “the exercise or performance or the

linked to the employment relationship.
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failure to exercise or perform a discretionary function or duty on the part of a federal
agency or the employee of the Government, whether the discretion involved be
abused.” 28 U.S.C. § 2680(a).
A two-part test determines whether the discretionary function exception applies
to re-erect sovereign immunity as a bar to suit. United States v. Gaubert, 499 U.S.
315, 322 (1991), Autery v. United States, 992 F.2d 1523, 1526 (11th Cir. 1993).
First, the court asks whether the nature of the government actor’s conduct “involves
an element of judgment or choice.” Ochran v. United States, 117 F.3d 495, 499 (11th
Cir. 1997) (internal quotations omitted). Where “a federal statute, regulation, or
policy specifically prescribes a course of action for an employee to follow,” there is
no element of judgment or choice, and the discretionary function exception therefore
does not apply. Id. (internal quotations omitted). If, however, nothing expressly
prescribes the conduct, the court moves to the second step to ask whether the
judgment at issue “is of the kind that the discretionary function exception was
designed to shield.” Gaubert, 499 U.S. at 322–23 (internal quotations omitted). The
exception exists “to prevent judicial second-guessing of legislative and administrative
decisions grounded in social, economic, and political policy.” Id. at 323 (internal
quotations omitted).

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Defendant has asserted affirmatively “that there are no federal statutes,
regulations, or policies mandating specific security features or procedures that
[Defendant] must follow to prevent violent crimes by third parties.” (Doc. # 28 at 11;
Doc. # 35 at 9.) Plaintiff has not successfully contested that assertion, but absent
publicly available statutes or regulations, it is practically difficult for her to do so.
The court will grant Plaintiff an opportunity to contest Defendant’s assertion after
limited jurisdictional discovery.4
Dismissals for lack of subject matter jurisdiction are disfavored where, as here,
“the factual and jurisdictional issues are completely intermeshed.” Chatham Condo.
Ass’ns v. Century Village, Inc., 597 F.2d 1002, 1011 (5th Cir. 1979).5 Defendant is
in the best position to know whether an internal hospital policy or procedure exists
that would have prevented the assault suffered by Plaintiff. The court will not

4

Because Defendant challenges the court’s subject matter jurisdiction rather than the
merits of Plaintiff’s claim at this point, Plaintiff may not conduct discovery on the merits of her
claim. Jurisdictional discovery will be permitted only to investigate whether CAVHCS
employees and administrators were under a mandatory duty to avoid allegedly tortious acts or
omissions. See Loughlin v. United States, 286 F. Supp. 2d 1, 7–8, n.9 (D.D.C. 2003) (recounting
a similar allowance for jurisdictional discovery).
5

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed
down prior to October 1, 1981.
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foreclose her the opportunity to discover such a policy or to come forward with an
applicable mandatory statute or regulation.6
The policies cited by Plaintiff do not allow her to overcome the discretionary
function exception for two reasons. First, they apply to medical centers participating
in Medicare and Medicaid services, of which CAVHCS is not one. United States v.
Blue Cross/Blue Shield of Ala., 999 F.2d 1542, 1546 (11th Cir. 1993) (remarking that
“VA hospitals may not recover expenses from Medicare”). Second, the regulations
do not demand a prescribed course of conduct sufficient to overcome immunity based
on the discretionary function exception. Only regulations that mandate a specific
course of conduct will apply. Ochran, 117 F.3d at 499. A mandatory duty of care is
not, itself, a prescribed course of conduct. See Cohen v. United States, 151 F.3d
1338, 1342 (11th Cir. 1998) (“[E]ven if [a statute] imposes on the BOP a general duty
of care to safeguard prisoners, the BOP retains sufficient discretion in the means it
may use to fulfill that duty to trigger the discretionary function exception.”).
The court has not expressed, and does not now express, any opinion on the
merits of Plaintiff’s claim, and nothing in this or its earlier order (Doc. # 22) should
6

If Plaintiff cannot identify a mandatory duty with the benefit of discovery, the court will
move to the second step of the discretionary function analysis and ask whether Defendant’s
alleged negligence was borne of a decision grounded in considerations of public policy.
Gaubert, 499 U.S. at 322–23. “Burden of production on policy considerations that might
influence challenged conduct must be on government.” Ochran, 117 F.3d at 504 n.4 (discussing
the burden on a motion to dismiss for lack of subject matter jurisdiction based on the
discretionary function exception to the FTCA).
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be construed to the contrary. In allowing Ms. Willett’s claim to advance, the court
does not “foreclose the possibility that, when the facts are developed, it will turn out
that governmental discretion is involved to the point where the discretionary function
exception in fact applies.” Collazo v. United States, 850 F.2d 1, 3 (1st Cir. 1986)
(reversing grant of motion to dismiss granted by the district court based on
discretionary function exception because the plaintiff’s claim rested on medical
malpractice, not the type of decision meant to be protected by § 2680(a)).
C.

Plaintiffs have stated a claim upon which relief can be granted.

Defendant’s Rule 12(b)(6) motion is due to be denied. Plaintiff’s Second
Amended Complaint (Doc. # 23) satisfies Rule 8’s requirement that a complaint offer
a short and plain statement of Plaintiff’s claim. Plaintiff pleads facts indicating that
a special relationship existed between her and CAVHCS. She alleges that CAVHCS
employees and administrators were aware of the dangerous propensities of her
assailant and that they nonetheless failed to protect her. Her pleading – while short
and plain – is enough to create a reasonable expectation discovery will reveal
evidence in her favor. See Twombly, 550 U.S. at 556 (stating the standard for a Rule
12(b)(6) motion and for pleading under Rule 8).

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V. CONCLUSION
Accordingly, it is ORDERED that Defendant’s Motion to Dismiss (Doc. # 27)
is DENIED. Defendant may refile its motion on or before September 9, 2013.
It is further ORDERED that Plaintiff is GRANTED LEAVE to conduct limited
jurisdictional discovery. Discovery is limited to the existence of a statute, regulation,
or policy specifically prescribing a course of action such that there was no element
of judgment or choice for CAVHCS employees and administrators. Discovery on the
merits will not be permitted.
It is further ORDERED that based on said discovery, Plaintiff should file a
response to any motion to dismiss from Defendant on or before September 30, 2013.
The Defendant’s reply brief, if any, shall be filed on or before October 7, 2013. The
court’s General Briefing Order (Doc. # 29) otherwise remains in effect.
It is further ORDERED that Plaintiff’s Motion to Strike (Doc. # 33) is
DENIED. Motions to strike are permissible only to ask the court to “strike from a
pleading an insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter.” Fed. R. Civ. P. 12(f) (emphasis added). A motion is not a
pleading. Fed. R. Civ. P. 7(a) (listing types of pleadings).

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DONE this 27th day of June, 2013.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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