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
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?