Litchfield et al v. Powell

Filing 20

OPINION AND ORDER granting 11 defendant's Motion to Dismiss. The Clerk shall enter judgment accordingly, terminate all pending motions and deadlines, and close the file. See Opinion and Order for details. Signed by Judge John E. Steele on 3/4/2016. (AMB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
KEITH
LITCHFIELD,
ANDREW
WASHKO, NARCISO MARTINEZ,
ROMONA HEFNER, and KEVIN
BAKER,
Plaintiffs,
v.

Case No: 2:15-cv-266-FtM-29CM

DARLENE POWELL,
Defendant.

OPINION AND ORDER
This matter comes before the Court on review of defendant’s
Motion to Dismiss Second Amended Complaint (Doc. #11) filed on
June 5, 2015.

Plaintiffs filed a Partial Objection to Motion for

Summary Judgment [sic] and Request for Remand (Doc. #15) on July
5, 2015.

Defendant filed a Reply (Doc. #18) on July 16, 2015.

This matter is ripe for review.
I.
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
must contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

This obligation “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
do.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(citation omitted).

To survive dismissal, the factual allegations

must be “plausible” and “must be enough to raise a right to relief
above the speculative level.”

Id. at 555.

See also Edwards v.

Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
“more

than

an

accusation.”

unadorned,

Ashcroft

v.

This requires

the-defendant-unlawfully-harmed-me
Iqbal,

556

U.S.

662,

678

(2009)

(citations omitted).
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take
them in the light most favorable to plaintiff, Erickson v. Pardus,
551 U.S. 89 (2007), but “[l]egal conclusions without adequate
factual support are entitled to no assumption of truth,”
v.

Berzain,

omitted).

654

F.3d

1148,

1153

(11th

Cir.

Mamani

2011)(citations

“Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678.
consistent

with

a

facially plausible.”

“Factual allegations that are merely

defendant’s

liability

fall

short

of

being

Chaparro v. Carnival Corp., 693 F.3d 1333,

1337 (11th Cir. 2012) (internal quotation marks and citations
omitted).

Thus, the Court engages in a two-step approach: “When

there are well-pleaded factual allegations, a court should assume
their veracity and then determine whether they plausibly give rise
to an entitlement to relief.”

Iqbal, 556 U.S. at 679.

2

II.
According to the Second Amended Complaint, plaintiffs are
current and former employees of the Bay Pines, VA Health Care
System (Bay Pines VA).

Plaintiffs allege that their supervisor,

Darlene Powell, Chief of Safety Services for the Bay Pines VA,
refused to take action to address environmental health problems,
which they connect to an outbreak of Legionaries’ Disease.

(Doc.

#10, ¶¶ 4-5.) Plaintiffs allege Powell responded to their concerns
by

attacking

them

with

“bogus

disciplinary

actions,

threats,

bringing a termination action and actually firing one of them.”
(Id. ¶ 7.) According to plaintiffs, Powell worked with the Veteran
Affairs Police Department to harass some of the plaintiffs.
¶¶ 41-49.)

(Id.

Plaintiffs allege Powell took these actions to silence

plaintiffs and prevent them from disclosing “gross mismanagement
and bad conduct.”

(Id. ¶ 24.)

Plaintiffs allegedly suffered

injuries including “loss of sleep, anxiety, exacerbation of high
blood

pressure,

gastritis,

conditions and stress.”

exacerbation

to

extant

medical

(Id. ¶ 29.)

Plaintiffs filed this action in state court alleging claims
of

intentional

against Powell.

infliction

of

emotion

distress

and

defamation

Pursuant to 28 U.S.C. § 2679, the United States

Attorney certified that Powell was acting within the course and
scope of her employment as an employee of the Department of
Veterans Affairs.

(Docs. ##1-2.)

3

The action was removed to

federal court (Doc. #1) and the United States was substituted as
the sole defendant in this action (Doc. #3).

See 28 U.S.C. §

2679(d)(2).
Plaintiffs filed a Second Amended Complaint alleging claims
for (1) intentional infliction of emotion distress (Count I); (2)
defamation

(Count

II);

(3)

negligent

hiring/supervision

and

retention under Florida common law (Count III); and (4) failure to
train/supervise under the Civil Rights Act (Count IV). (Doc. #10.)
Defendant

asserts

Counts

I,

II,

and

III

are

barred

by

sovereign immunity and seeks to dismiss Counts I-III of plaintiffs’
Second Amended Complaint for lack of jurisdiction. Defendant seeks
dismissal of Count VI for failure to state a claim for relief.

In

the alternative, defendant seeks to stay the action pending a
determination

whether

(FECA) applies.

the

Federal

Employees

Compensation

Act

(Doc. #11.)

In their response, plaintiffs request the original complaint
against Powell be remanded to state court. (Doc. #15.) Plaintiffs
stipulate that Count IV, failure to train/supervise under the Civil
Rights Act, should be dismissed.

(Id.)

Plaintiffs also state

they do not intend to pursue claims under FECA.

(Id.)

Defendant

filed a reply opposing plaintiffs’ request for remand. (Doc. #18.)

4

III.
A.

Plaintiffs’ Request for Remand
As

an

initial

matter,

plaintiffs

request

the

complaint against Powell be remanded to state court.

original

(Doc. #15.)

Defendant responds that so long as Powell was acting within the
scope

of

her

employment

the

exclusive

remedy

available

plaintiffs is a lawsuit against the United States.

to

(Doc. #18.)

Defendant asserts that plaintiffs have failed to meet their burden
of

proving

that

Powell

was

acting

outside

employment, and thus remand is not appropriate.

the

scope

of

her

The Court agrees.

A scope of employment certification is subject to judicial
review.

Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 420, 115

S. Ct. 2227, 132 L. Ed. 2d 375 (1995).

While the “certification

is prima facie evidence that the employee acted within the scope
of his employment,” the issue must be decided de novo.

Flohr v.

Mackovjak, 84 F.3d 386, 390 (11th Cir. 1996) (citation omitted).
“However, the burden of altering the status quo by proving that
the employee acted outside the scope of employment is ... on the
plaintiff.”

Id. (quotation and alterations omitted).

“The question of whether an employee's conduct was within the
scope of his employment is governed by the law of the state where
the incident occurred.”

Id. (quotation omitted).

Under Florida

law, “[c]onduct is within the scope of one's employment ... if it
is the type of conduct that the employee is hired to perform, the

5

conduct occurs substantially within the time and space limits
authorized or required by the job, and the conduct is activated at
least in part by the employee's purpose to serve his or her
employer.”

Thomas v. Tampa Bay Downs, Inc., 761 So.2d 401, 404

(Fla. 2d DCA 2000).
Plaintiffs do not present evidence or argument that Powell’s
actions

were

outside

the

scope

of

her

employment.

Rather,

plaintiffs argue that they filed in state court because they want
to

bring

intentional

tort

claims

against

Powell,

not

the

government. (Doc. #15, p. 3.) Plaintiffs allege that substituting
the United States as the defendant deprives them of their remedy
against

Powell

conduct.
of

for

her

(Id. at 4.)

their

position

extreme,

outrageous,

and

intentional

Plaintiffs provide no authority in support

that

this

would

justify

not

allowing

the

substitution of the United States for its employee.
Defendant

submits

the

Declaration

of

Kristine

Brown,

Associate Director of the Bay Pines VA, who states that the actions
alleged in this suit concern the management of the Emergency
Management Service and were within the scope of Powell’s employment
as Chief Safety/Emergency Management Service with the Bay Pines
VA.

(Doc. #18-1.)

Plaintiffs have failed to submit evidence or

make argument that Powell was acting outside the scope of her
employment, thus plaintiffs have failed to satisfy their burden of
proof.

The Court finds Powell’s conduct is the result of her

6

responsibilities as an employee of Bay Pine VA.

Furthermore,

Powell’s conduct was activated at least in part by her role as
Chief of Safety Services for the Bay Pines VA, and it is undisputed
that the majority of Powell’s actions occurred at Bay Pines VA
during work hours.

Therefore, the Court finds Powell’s actions

were within the scope of her employment.
Because Powell was acting within the scope of her employment,
the United States was properly substituted as a party defendant.
Consequently,

with

respect

to

the

tort

claims,

plaintiffs’

exclusive remedy against Powell is pursuant to the FTCA.

See 28

U.S.C. § 2679.4.
B.

Defendant’s Motion to Dismiss
Defendant seeks to dismiss Counts I-III for failure to exhaust

administrative remedies and Count IV for failure to state a claim
for relief.

Defendant also asserts Count II is barred by 28 U.S.C.

§ 2680(h).
“It is well settled that sovereign immunity bars suits against
the United States except to the extent that it consents to be
sued.”

Means v. United States, 176 F.3d 1376, 1378 (11th Cir.

1999).

The FTCA provides a “limited waiver” of this sovereign

immunity, “making the United States liable for ‘injury or loss of
property, or personal injury or death caused by the negligent or
wrongful act or omission of any employee of the Government while
acting within the scope of his office or employment.’”

7

JBP

Acquisitions, L.P. v. United States ex rel. FDIC, 224 F.3d 1260,
1263 (11th Cir. 2000) (quoting 28 U.S.C. § 1346(b)(1)).

FTCA

liability attaches “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.”
U.S.C. § 1346(b)(1).

28

In other words, “[t]he FTCA was designed to

provide redress for ordinary torts recognized by state law.”
Ochran v. United States, 273 F.3d 1315, 1317 (11th Cir. 2001)
(internal quotation marks and citations omitted).

In analyzing an

FTCA claim, the court applies the law of the state where the
alleged tort occurred.

Lambert v. United States, 198 F. App’x

835, 838 (11th Cir. 2006) (citing Stone v. United States, 373 F.2d
1129, 1130 (11th Cir. 2004)).
1.

Exhaustion Requirement for FTCA Claims

A prerequisite to filing suit under the FTCA is that “[a]n
action shall not be instituted ... unless the claimant [has] first
presented the claim to the appropriate Federal agency and [their]
claim [has] been finally denied by the agency in writing and sent
by certified or registered mail.”

28 U.S.C. § 2675(a).

See Turner

ex rel. Turner v. United States, 514 F.3d 1194, 1200 (11th Cir.
2008).

See also Dalrymple v. United States, 460 F.3d 1318, 1324

(11th Cir. 2006); Pompey v. Coad, 314 F. App’x. 176, 179 (11th
Cir. 2008) (“A claimant under the FTCA, however, must meet certain
exhaustion

requirements

before

a

8

federal

court

may

exercise

jurisdiction over a suit under the FTCA, including presentation of
a claim to the appropriate agency and denial of the claim by the
agency.”).

This administrative prerequisite is jurisdictional and

cannot be waived.
1237

(11th

Cir.

Barnett v. Okeechobee Hosp., 283 F.3d 1232,
2002)

(administrative

notice

requirement

is

jurisdictional and not subject to waiver); Lykins v. Pointer, Inc.,
725 F.2d 645, 646 (11th Cir. 1984) (same). 1
In response to defendant’s motion to dismiss, plaintiffs
object to the removal of the case to this Court but do not dispute
defendant’s contention that they have failed to exhaust their
administrative remedies.

(Doc. #15.)

Plaintiffs do not allege

that they filed an administrative claim with the appropriate
authorities.

Therefore,

plaintiffs

have

not

established that the prerequisite has been satisfied.

sufficiently
See Lykins,

725 F.2d at 646 (a plaintiff must provide proof that she satisfied
the jurisdictional requirements to institute suit against the
government).

See also Suarez v. United States, 22 F.3d 1064, 1065

(11th Cir. 1994) (“A federal court may not exercise jurisdiction
over a suit under the FTCA unless the claimant first files an
administrative claim with the appropriate agency.”).

Therefore,

plaintiffs have failed to exhaust their administrative remedies

1

Even if not jurisdictional, the exhaustion requirement is a
claims-processing rule which must be satisfied if asserted by the
government.

9

and

defendant’s

motion

to

dismiss

for

failure

to

exhaust

administrative remedies as to Counts I-III is granted without
prejudice.
2.

Count II: Defamation

Defendant also argues that Count II, plaintiff's defamation
claim, should

be

dismissed

cognizable under the FTCA.

with

prejudice

The Court agrees.

because

it

is

not

FTCA provides that

the grant of jurisdiction under § 1346 “shall not apply to ...
[a]ny claim arising out of assault, battery, false imprisonment,
false arrest, malicious prosecution, abuse of process, libel,
slander, misrepresentation, deceit, or interference with contract
rights[.]”

28 U.S.C. § 2680(h) (emphasis added).

Therefore, any

claims of defamation are expressly excluded from the FTCA's limited
waiver of sovereign immunity, and must be dismissed for lack of
subject matter jurisdiction.

See id.; see also Nadler v. Mann,

951 F.2d 301, 304 (11th Cir. 1992).

Accordingly, Count II is

dismissed with prejudice.
3.

Count VI: Failure to Train/Supervise under the Civil
Rights Act

Finally, defendant asserts that Count VI, plaintiffs claim
under 42 U.S.C. § 1983 for failure to train/supervise should be
dismissed because it fails as a matter of law.

(Doc. #11, p. 6.)

Plaintiffs agree and stipulate to the dismissal of this claim (Doc.

10

#15, p. 5.)

Accordingly, the Court dismisses Count VI with

prejudice.
Accordingly, it is now
ORDERED:
1.

Defendant’s Motion to Dismiss Second Amended Complaint

(Doc. #11) is GRANTED as follows: Counts I and III are dismissed
without

prejudice;

and

Counts

II

and

VI

are

dismissed

with

prejudice.
2.

The Clerk shall enter judgment accordingly, terminate all

pending motions and deadlines as moot, and close the file.
DONE AND ORDERED at Fort Myers, Florida, this __4th__ day of
March, 2016.

Copies: Counsel of record

11