Rushton v. Shulkin

Filing 17

ORDER granting 10 Motion to Dismiss for Lack of Jurisdiction, denying as moot 4 Motion to Dismiss for Lack of Jurisdiction and 8 Motion to Amend Complaint, and CLOSING this case. Signed by Chief Judge J. Randal Hall on 06/18/2018. (maa)

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

SABRINA RUSHTON,

Plaintiff,

*
*

V.

*

CV 117-171

*
*

UNITED STATES OF AMERICA,

*

Defendant.

*

ORDER

Before

("United

the

Court

States")

complaint.^

(Doc.

is

Defendant

motion

10.)

to

For

United

dismiss

the

States

of

America's

Plaintiff's

reasons

set forth

amended

below.

Defendant's motion is GRANTED.

I. BACKGROUND^
"Plaintiff

is/was

a

patient

Center" in Augusta, Georgia.

at

the

Charlie

Norwood

VA

(Am. Compl., Doc. 5, SISl 13, 15.)

^ On February 9, 2018, then-defendant David J. Shulkin, then-Secretary of the
Department of Veterans Affairs, filed a similar motion to dismiss in regards
to Plaintiff's initial complaint filed December 11, 2017.
(Doc. 4; see also
Doc. 1.)
Plaintiff subsequently filed an amended complaint as well as a
motion requesting leave to amend her initial complaint.
(Docs. 5, 8.)
Because she filed her amended complaint within 21 days of the service of
Secretary Shulkin's motion to dismiss, however. Plaintiff was entitled to
amend her complaint as a matter of right and her motion seeking leave to
amend was superfluous.
See Fed. R. Civ. P. 15(a)(1)(B).
Accordingly,
Plaintiff's motion for leave to amend her complaint (doc. 8) is DENIED AS
MOOT.
Further, the United States concedes in its present motion to dismiss
that the filing of the amended complaint mooted Secretary Shulkin's motion to
dismiss.

(See Doc. 10, at 1 n.l.)

Accordingly, Secretary Shulkin's motion

to dismiss (doc. 4) is also DENIED AS MOOT.

^ When reviewing a Rule 12(b)(6) motion to dismiss, courts must accept the
allegations in the complaint as true and construe them in the light most
favorable to the plaintiff.
See Belanger v. Salvation Army, 556 F.3d 1153,
1155 (11th Cir. 2009).

Plaintiff

was

treated

by

Dr.

Adrien

Nelson,

a

psychiatrist

employed by the United States Department of Veterans Affairs at
the Charlie Norwood VA Center.

(Id. S[Sl 14-15.)

''On or about

August 12, 2014, Plaintiff was sexually harassed by . . . [Dr.
Nelson,] who was phoning her for dates and following her around
in the grocery store."

(Id. 31 29.)

Plaintiff asserts that the

United States "has vicarious liability for the acts" - and was

negligent

in

the

supervision

and

retention - of

Dr.

Nelson.

(Id. 8ISI 18-20.)

On November 3, 2014, Plaintiff filed an administrative tort

claim

with

Nelson's

the

Department

conduct.

(Id.

of

SI

Veterans

9.)

On

Affairs

November

regarding
13,

2015,

Dr.
the

Department of Veterans Affairs denied Plaintiff's administrative
tort claim.

November 13,

(Id. SISI 10; see also Doc. 9-2 (denial letter dated

2015).)

On April 20,

2016, Plaintiff

moved for

reconsideration of the denial of her administrative tort claim.

(Id.

SI

11.)

On

June

16,

2017,

the

Department

of

Veterans

Affairs confirmed its denial of Plaintiff's administrative tort

claim.

(Id. SI 12; see also Doc. 5-1 (denial letter dated June

16, 2017).)

On December 11, 2017, Plaintiff filed her initial complaint
in

this

Court,

Secretary of
defendant.

in

the
(See

which

she

named

Department of
Doc.

1.)

David

Veterans

On

J.

Shulkin,

Affairs,

February

9,

as

2018,

the

then-

only

Secretary

Shulkin moved to dismiss Plaintiff's initial complaint pursuant
to Federal Rule

of

Civil Procedure 12(b)(1) & (6).

(Doc. 4.)

On February 20, 2018, Plaintiff filed her amended complaint, in
which she named the United States as the only defendant.

5.)

On

March

1,

2018,

the

United

States

moved

to

(Doc.

dismiss

Plaintiff's amended complaint pursuant to Rule 12(b)(1) & (6).
(Doc. 10.)

II. LEGAL STANDARD

''Rule

12(b)(1)

motions

to

dismiss

for

lack

of

subject

matter jurisdiction can be asserted on either facial or factual
grounds."

Carmichael v. Kellogg, Brown & Root Servs., Inc., 572

F.3d 1271, 1279 (11th Cir. 2009) (citations omitted).
challenges

the

to subject matter

allegations

in

the

"Facial

jurisdiction are based solely on

complaint[;

w]hen

considering

such

challenges, the court must, as with a Rule 12(b)(6) motion, take

the complaint's allegations as true."

Id. (citations omitted).

"However, where a defendant raises a factual attack on subject

matter jurisdiction, the district court may consider extrinsic
evidence

such

(citations

as

deposition

omitted).

Here,

testimony
the

United

and

affidavits."

States'

assertion

Id.
that

this Court lacks subject-matter jurisdiction over this action is

based solely on the allegations in Plaintiff's amended complaint
and thus its jurisdictional challenge is facial.

Thus, for the

purposes of this Order, the Court has accepted as true all facts

alleged in the amended complaint and construed all reasonable
inferences

in

the

light

Belanger

v.

2009).

Nevertheless,

Court's

Salvation

jurisdiction,

most

Army,

favorable

556

Plaintiff,

''bears

F.3d
as

the

to

Plaintiff.

1153,
the

1155

party

burden

of

See

(llth

Cir.

invoking

proving,

the

by

a

preponderance of the evidence, facts supporting the existence of
federal

jurisdiction."

See

McCormick

v.

Aderholt,

293

F.3d

1254, 1257 (llth Cir. 2002).

III. DISCUSSION

"[T]he United States, as a sovereign entity, is immune from
suit unless it consents to be sued."

781

F.3d

"Through

1315,

the

1321

enactment

("FTCA")],

the

waived

immunity

its

claims."

(llth

federal

Cir.

of

the

2015)

tort

(citations

[Federal

government

from

Zelaya v. United States,

has,

suits

as

based

Tort
a
on

omitted).

Claims

general
state

Act

matter,
law

tort

Id. (citations omitted); see also id. at 1323 ("The

FTCA was enacted to provide redress to injured individuals for
ordinary torts recognized by state law but committed by federal

employees." (citations omitted)).
to

be

sued,

the

United

States

"But in offering its consent
has

the

power

to

condition

a

waiver of its immunity as broadly or narrowly as it wishes, and
according to whatever terms it chooses to impose."
22 (citations omitted).
observe

Id. at 1321-

"That being so, a court must strictly

the limitations and conditions
4

upon which

the [United

States]

consents

to

be

sued

and

cannot

present within the terms of the waiver."
omitted).

imply

exceptions

not

Id. at 1322 (citations

''If there is no specific waiver of sovereign immunity

as to a particular claim filed against the [United States], the
court lacks subject matter
(citations

omitted).

jurisdiction over

Where

an

the suit."

exception

exists

Id.
that

"neutralize[s] what would otherwise be a waiver of immunity, a

court will lack subject matter jurisdiction over the action."
Id. ("These exceptions must be strictly construed in favor of
the United States . . . ." (internal quotations and citations
omitted)).

"Any plaintiff seeking to sue the United States under the

FTCA

must satisfy two

jurisdiction,"

namely

initial

statutory burdens

identifying:

(1) "an

to

establish

explicit statutory

grant of subject matter jurisdiction, which in the case of the
FTCA is 28 U.S.C. § 1346(b)(1);" and (2) "a statute that waives

[the United States'] sovereign immunity[, which in the case of

the FTCA] is provided in chapter 171 of Title 28, which chapter
includes §§ 2671-2680."

U.S.C.

§

1346(b)(1)

jurisdiction
acting

within

circumstances
would

over

be

Id. (citations omitted).

only

torts

committed

the

scope

where

the

liable

to

the

provides

of

his

United
claimant

federal

by federal
office

States,
in

or
if

Notably, 28

courts

with

employees "while
employment,

a

accordance

private
with

the

under

person,
law

of

the place where the act or omission occurred."
1346(b)(1).
whether

''State

the

United

law,

therefore,

States

has

See 28 U.S.C. §

governs

waived

its

the

question

sovereign

of

immunity

against liability for the acts complained of by the plaintiff."
Lawrence

v.

Dunbar,

919

F.2d

1525,

1528

(11th

Cir.

1990)

(citations omitted); see also Stevens v. Battelle Mem'l Inst.,

488 F.3d 896, 899 n.3 (11th Cir. 2007) ("Liability in an FTCA
action

where

is

determined in

the

government's

(citations omitted)).

tortious

injuries

accordance

act

or

with

omission

the

law

of

occurred

the

.

.

place

.

."

Because all relevant tortious acts - and

resulting

therefrom

-

are

alleged

to

have

occurred in Georgia, the Court looks to Georgia law to determine
the United States' liability.

See Besada v. U.S. Citizenship &

Immigration Servs., 645 F. App'x 879, 880 (11th Cir. 2016) ("To
state

a

claim

under

the

FTCA,

a

plaintiff

must

allege

a

violation of state law by an employee of the federal government

acting within the scope of his employment." (citing Zelaya, 781
F.3d at 1323-24)).

A. Vicarious Liability/Respondeat Superior

In

Georgia,

intentional

torts

"[a]n

employer

committed by an

is

liable

employee

for

negligent

only if

the

or

torts

were committed in furtherance of, and within the scope of, the

employer's

business."

Hendrix

v.

Snow,

170

F.

App'x

68,

82

(11th Cir. 2006) (citing Piedmont Hosp., Inc. v. Palladino, 580

S.E.2d 215, 217
F.3d

386,

390

{Ga. 2003)); see also F1ohr v. Mackovjak, 84

(11th

Cir.

1996)

(''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."
(internal quotations and citations omitted)).

"Stated another

way, if the employee was authorized to accomplish the purpose in
pursuance

of

which

the

tort

liable."

Chorey, Taylor & Fell, P.C. v. Clark, 539 S.E.2d 139,

140 (Ga.

2000)

(citations

was

committed,

omitted).

the

employer

is

Conversely, "an employer

cannot be held liable [in Georgia] on the basis of respondeat

superior if the employee's acts (1) were committed for purely
personal

reasons

associated

solely

with

the

employee's

own

gratification, and (2) were entirely disconnected from the scope

of

the

employee's

employment."

Hendrix, 170 F.

App'x at 82

(citing Palladino, 580 S.E.2d at 217); see also Palladino, 580
S.E.2d at 217 ("Under Georgia law, if a servant steps aside from
his master's business to do an act entirely disconnected from
it, and injury to another results from the act, the servant may
be liable, but the master is not liable." (internal cjuotations
and citations omitted)).

Here, Plaintiff seeks to hold the United States vicariously

liable for the actions of Dr. Nelson in "sexually harass[ing]"

Plaintiff by "phoning her for dates and following her around in
the grocery store" on or about August 12, 2014.

(Am. Compl. SI

29.)

Yet ''it is well settled under Georgia law that an employer

is not responsible for

the sexual

misconduct

of

an

employee"

because "these types of torts, being purely personal in nature,
are

unrelated

outside

the

to

the

scope

employee's

of

employment

duties

because

furtherance of the master's business."^
Methodist

Church

v.

Stewart,

472

App. 1996) (citations omitted).

and,

therefore,

they

were

not

are

in

Alpharetta First United

S.E.2d

532,

535-36

(Ga.

Ct.

Further, Plaintiff has alleged

no facts that would indicate that Dr. Nelson's alleged tortious
conduct was committed in furtherance - or within the scope - of

his employment.

See Hendrix, 170 F. App'x at 82; Palladino, 580

S.E.2d at 217.

Nor has she alleged that Defendant authorized

Dr. Nelson to accomplish the purpose in pursuance of which he
committed his alleged tortious acts or otherwise authorized him

^ See, e.g., Palladino, 580 S.E.2d at 217 (hospital not vicariously liable for
employee's improper fondling of in-patient's genitals or attempts to perform
oral sex thereon, despite being authorized to inspect the in-patient's groin,
to clean the area, and to move the in-patient's testicles if necessary to

perform these tasks, because "[a]t that point, [the employee] was acting not
as a hospital employee, but rather purely for his own personal reasons");
Stewart, 472 S.E.2d at 533-36 (despite minister's "manipulation of the
transference phenomenon," church not vicariously liable for minister's
nonconsensual sexual encounters with a church member he was counselling
because such behavior "is not a part of, or in any way incidental to, a
minister's duties and responsibilities"); Rogers v. Carmike Cinemas, Inc.,
439 S.E.2d 663, 665 (Ga. Ct. App. 1993) (employer not vicariously liable for
sexual harassment of employee by company officers and employees "since the
harassment
was
not
committed
in
the
furtherance
of
[the
employer's]
business"); Mountain v. S. Bell Tel. & Tel. Co., 421 S.E.2d 284, 285 (Ga. Ct.

App. 1992) (employer not vicariously liable for rape committed by employee
during

in-home

installation

employee's] employment and

because

did

the

"rape

was

not

related

not further [the employer's]

to

[the

business" and

"[t]he mere fact that the assault occurred during a time of ostensible
employment in the [victim's] home is not dispositive on the question of scope
of employment"); B.C.B. Co., Inc. v. Troutman, 409 S.E.2d 218, 219 (Ga. Ct.
App. 1991) (employer not vicariously liable for sexual harassment of employee
by supervisor because acts of sexual harassment were not committed by the
supervisor in furtherance of the employer's business).
8

to engage in identical behavior.
Auth. >

628

F.3d

1325,

1334-35

See Doe v. Fulton-DeKalb Hosp.
(11th

Cir.

2010)

(MW]hen

the

allegedly tortious behavior is identical to behavior authorized
by the employer — i.e., observing women in the restroom using a
hidden camera installed by the employer — a question of fact
remains whether the employee is acting within the scope of his
employment.

But

because

[the

employer]

did

not

mandate

the

behavior complained of and [the employee] abused his authority
to pursue his own sexual agenda, we conclude that his conduct
was analogous to that of the employee in Palladino and therefore
outside
140.

the scope

of

his

employment."); Clark,

539

S.E.2d at

Because Plaintiff has failed to allege facts under which

Georgia law would hold that Dr. Nelson's complained-of conduct
was within the scope of his employment, she has failed to carry
her

burden

to

demonstrate

that

this

Court

has

subject

matter

jurisdiction over her respondeat superior claim.
Further,

alleged

sexual

while

Plaintiff

harassment

by

has

Dr.

attempted

Nelson

as

to

a

recast

her

professional

malpractice claim, ''[i]t is the substance of the claim and not
the language used in stating it which controls."
United States,

omitted).

517

See Gaudet v.

F.2d 1034, 1035 (5th Cir. 1975) (citations

For example. Plaintiff cites St. Paul Fire & Marine

Ins. Co. V. Mitchell, 296 S.E.2d 126, 127 (Ga. Ct. App. 1982)

for the proposition that ''Georgia has recognized the negligent

allegation

against

a

psychiatrist

for

violating

limitations to his profession as viable."

the

boundary

(Doc. 11, at 5.)

Yet

even ignoring that this argument does not address the issue at

hand,^ the Georgia Court of Appeal's holding in Mitchell is not
so expansive; rather, as noted by the Georgia Court of Appeals

in a subsequent decision, ''Mitchell specifically dealt with a
psychiatrist's

improper

manipulation

of

the

transference

phenomenon" and whether such manipulation could constitute the
performance

of

"professional

insurance coverage dispute.

services"

in

the

context

of

an

See St. Paul Fire & Marine Ins. Co.

V. Alderman, 455 S.E.2d 852, 854 (Ga. Ct. App. 1995).

Indeed,

in

that

Alderman,

doctor

was

the

not

Georgia

Court

providing

of

Appeals

"professional

concluded

services"

when

a

he

improperly fondled his patient's vagina and breasts during an
otherwise routine examination; rather, that Court concluded that

such actions did not constitute medical

treatment, "in no way

involved the application of any specialized learning or skills,"
and

were

performed

"solely

for

doctor's] own prurient interests."
not

allege

that

Dr.

Nelson

the
Id.

satisfaction

of

[the

Here, Plaintiff does

manipulated

the

transference

phenomenon when he "phon[ed] her for dates and follow[ed] her
around in the grocery store" on or about August 12, 2014.
Am. Compl. SI 29.)

(See

Indeed, Plaintiff does not even allege that

^ i.e., whether sexual misconduct committed by an employee, even if such
misconduct constitutes professional malpractice, can be considered within the
scope of the employee's office or employment.
10

the transference phenomenon was at play - let alone that Dr.

Nelson

improperly

manipulated

interactions;

rather,

she

relationships,

like the

that

only

one

phenomenon
alleges

between

-

during

that

Plaintiff

these

[t]heraputic

and Dr.

Nelson

create a power inequality, transference, and/or dependence which
render patients, like the Plaintiff, vulnerable."

(Am. Compl. SI

27

(''Dr.

(emphasis

added);

see

also

id.

SISI

30-32

Nelson

following the Plaintiff in the grocery store was a violation of
the standard of care.

Dr. Nelson phoning the Plaintiff, his

patient, for dates was a violation of the standard of care.

Dr.

Nelson was negligent in deviating from the standard of care when
he

committed

the

Nevertheless,

manipulated

even

the

professional

alleged
if

acts

against

Plaintiff

transference

malpractice

had

pled

phenomenon

under

the

Georgia

and

Plaintiff.").)

that

Dr.

Nelson

thereby committed

law,

it

would

not

necessarily follow that such professional malpractice was within
the

scope

of

vicariously

his

employment

liable

such

therefor.

that

the

United

Accordingly,

even

States

is

assuming

arguendo that Georgia law would categorize Dr. Nelson's alleged
sexual

harassment

Plaintiff

has

of

failed

Plaintiff
to

as

professional

demonstrate

that

such

malpractice.
professional

malpractice fell "within the scope of his office or employment"
at the Charlie Norwood VA Medical Center under Georgia law.
28 U.S.C. § 1346(b)(1).

See

Therefore, the Court is without subject

11

matter jurisdiction over Plaintiff's vicarious liability claim
against the United States.
B. Negligent Supervision/Retention
Plaintiff also seeks

to hold the United States liable by

alleging that it was negligent in its supervision/retention of
Dr. Nelson.

have

(See Am. Compl. SISI 19-24.)

considered

such

negligent

Several Circuit Courts

supervision/retention

claims,

where they arise solely from a tortfeasor-employee's employment

status, to be nothing more than ''disguised" respondeat superior
claims.

See, e.g.. Glade ex rel. Lundskow v. United States, 692

F.3d 718, 724 (7th Cir. 2012) (collecting cases).
Third Circuit has held that "plaintiffs under

Indeed, the

the FTCA cannot

use a negligent supervision [or retention] claim to circumvent
the scope-of-employment condition of § 1346(b)(1)."

See CNA v.

United States, 535 F.3d 132, 147-49 (3d Cir. 2008).

Rather, the

Third Circuit requires a plaintiff to "allege truly independent

negligence, analogous to the naval-base safety regulations and
'voluntary

undertaking

to

provide

care

to

a

visibly drunk' that were at issue in Sheridan.
Sheridan

v.

United

States,

487

U.S.

392,

401

person

who

was

Id. (quoting
(1988)).

The

^ "Independent negligence in this context means negligence irrespective of an
employment relationship."
397-98).

CNA, 535 F.3d at 149 {citing Sheridan, 487 U.S. at

"Negligent supervision claims . . ., on the other hand, are rooted

in supervisor-supervisee relationships at work; they relate closely to the
supervisee's . . . employment status."
Id. (footnote omitted) ("Unlike the
corpsmen in Sheridan, whose alleged negligence had nothing to do with the
drunk
serviceman's
employment
relationship
with
the
Navy,
Albrecht's
allegedly negligent supervision of Lewis had everything to do with Lewis's
employment relationship with the Army. Albrecht's only alleged connection to
the shooting results from Lewis's Status as his subordinate.").
12

Eleventh Circuit - at least in the context of

tort

exception

to

the

United

States

the intentional

waiver

of

sovereign

immunity, 28 U.S.C. § 2680(h) - appears to have adopted this

''independent

negligence"

requirement.

See

Alvarez v.

United

States, 862 F.3d 1297, 1307-10 (11th Cir. 2017).

Here, Plaintiff has failed to identify - and the Court is

unable to discern - any reason why the "independent negligence"
requirement adopted by the Eleventh Circuit in Alvarez would be

inapplicable

to

Plaintiff's present negligent supervision and

retention claims.

in

her

Further, the Court concludes that - as pled

amended

complaint

-

Plaintiff's

negligent

supervison/retention claims are "rooted in supervisor-supervisee
relationships at work" alone and therefore are closely related

to

Dr.

Nelson's

Accordingly,

employment

status.^

See

the Court lacks subject matter

id.

at

1310.

jurisdiction over

Plaintiff's negligent supervision/retention claims because they

are

not

sufficiently

"independent"

from

the

underlying

claim

upon which they are based and for which this Court also lacks
subject matter jurisdiction.
Nevertheless,

®

while

See id.; CNA, 535 F.3d at 149.

even assuming arguendo that the Court does have

Plaintiff

has

conclusorily

alleged

that

the

"Charlie

Norwood

VA

Medical Center owed Plaintiff a duty of care" (Am. Compl. 5 26), she has
failed to define the contours of that duty - let alone demonstrate that
undefined duty to be antecedent and independent of Dr. Nelson's employment
status.
Moreover, even if she had demonstrated an independent duty the
United States owed her. Plaintiff has failed to allege any breach of that

independent duty; rather, the only connection by the United States to the
alleged breaches results from Dr. Nelson's status as a government employee.
See CNA, 535 F.3d at 149.
13

subject

matter

jurisdiction

supervision/retention

claims,

over

they

Plaintiff's

would

still

negligent

be

subject

to

dismissal for failure to state a claim upon which relief can be

granted.^
WL

See, e.g., Chartis Ins. Co. of Canada v. Freeman, 2013

12121864,

at

*4

{S.D.

Ga.

Mar.

18,

2013).

Accordingly,

Plaintiff's negligent supervision/retention claims are also due
to be dismissed.

^ *'Under Georgia law, liability for negligent hiring or retention requires
evidence that the employer knew or should have known of the employee's
propensity to engage in the type of conduct that caused the plaintiff's
injury." Guthrie v. Waffle House, Inc., 460 F. App'x 803, 808-09 (11th Cir.
2012) (quoting Middlebrooks v. Hillcrest Foods, Inc., 256 F.3d 1241, 1247
(11th Cir. 2001)).
Similarly, "[a]n employer may be held liable for
negligent supervision only where there is sufficient evidence to establish
that the employer reasonably laiew or should have known of an employee's
tendencies to engage in certain behavior relevant to the injuries allegedly
incurred by the plaintiff."
Id. at 809 (quoting Leo v. Waffle House, Inc.,
681 S.E.2d 258, 262 (Ga. Ct. App. 2009))
.
"Although the Court must assume
the truth of the factual allegations in the Complaint, it should not assume
the truth of bare legal conclusions." See Freeman, 2013 WL 12121864, at *4
(citing S. Fla. Water Mgmt. Dist. v. Mentalvo, 84 F.3d 402, 409 n.lO (11th
Cir. 1996) ("As a general rule, conclusory allegations and unwarranted
deductions

of

fact

are

not

admitted

as

true

in

a

motion

to

dismiss.")).

Here, Plaintiff's bare allegations that Dr. Nelson "displayed a tendency" to
violate the relevant standard of care and sexually harass females and that
the

Charlie

Norwood

VA

Medical

Center

"knew

or

should

have

known"

of

Dr.

Nelson's "propensity" to engage in said conduct (Am. Compl. 53 19-22) are
nothing more than formulaic recitations of the elements of a negligent
supervision/retention claim; these legal conclusions, masquerading as facts,
are not entitled to the assumption of truth and are insufficient to survive a
motion

to

dismiss.

See

Ashcroft

v.

Iqbal,

556

U.S.

662,

678

(2009)

("A

pleading that offers 'labels and conclusions' or 'a formulaic recitation of
the elements of a cause of action will not do. Nor does a complaint suffice
'
if

it

tenders

'naked

assertions'

devoid

of

'further

factual

enhancement.'"

(internal citations omitted) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555, 557 (2007)); Novare Grp., Inc. v. Sarif, 718 S.E.2d 304, 30910 (Ga. 2011) (finding that allegations merely alleging that defendants "knew
or should have known" of the tortious conduct were legal conclusions).
Accordingly, Plaintiff's amended complaint lacks any factual allegations from
which a trier of fact could reasonably infer that the United States knew or
should have known of Dr. Nelson's purported tendency to sexually harass his
patients or otherwise breach his professional duties and therefore such
claims are subject to dismissal for failure to state a claim upon which
relief may be granted.
14

IV. CONCLUSION

Upon

the

foregoing

and

due

consideration,

IT

IS

HEREBY

ORDERED that the United States' motion to dismiss (doc. 10) is

GRANTED and Plaintiff's claims are hereby DISMISSED for lack of

subject-matter jurisdiction.

The Clerk is directed to TERMINATE

all motions and deadlines and CLOSE this case.

ORDER ENTERED at Augusta, Georgia, this

day of June,

2018.

J. RANBAL HALL, CHIEF JUDGE

UNIT^ STATES DISTRICT COURT
lERN DISTRICT OF GEORGIA

15