D.S. v. Wisner et al
MEMORANDUM AND ORDER granting in part and denying in part 15 Motion to Dismiss for Lack of Jurisdiction. The motion is granted as to plaintiff's negligent hiring and retention claims in Count II, but denied as to plaintiff's negligent supervision claim in Count II, as well as Counts I and III. Signed by District Judge Carlos Murguia on 12/7/2017. (ydm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOHN DOE D.S.,
UNITED STATES OF AMERICA and
Case No. 17-2071
MEMORANDUM AND ORDER
Plaintiff John Doe D.S. brings this case against defendants United States of America and Mark
Wisner, pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671 and 38 U.S.C.
§ 7316(a), (f), alleging that Wisner conducted improper and/or unnecessary physical examinations of
plaintiff and made inappropriate sexual comments. Plaintiff also alleges a state law claim for
outrage/intentional infliction of emotional distress. This matter is before the court on defendant United
States of America’s Motion to Dismiss (Doc. 15). Defendant argues that plaintiff’s complaint should
be dismissed for lack of subject matter jurisdiction under Federal Rules of Civil Procedure 12(b)(1).
For the reasons set forth below, the court grants defendant’s motion in part and denies it in part.
Plaintiff is a veteran who sought treatment at the Dwight D. Eisenhower VA Medical Center
(“VA”) located in Leavenworth, Kansas. Wisner treated and provided medical care for plaintiff.
Wisner was a physician’s assistant for the VA, and is a defendant in more than eighty pending civil
suits before this court.
The claims in this case are similar to claims in a number of other cases this court has
considered. See, e.g., Anasazi v. United States, No. 16-2227, 2017 WL 2264441, at *1–*2 (D. Kan.
May 23, 2017); Doe D. E. v. United States, No. 16-2162, 2017 WL 1908591, at *1–*2 (D. Kan. May
10, 2017). The court will not repeat the details of them here. Highly summarized, they are: (1) Count
I: Medical Malpractice – Negligence; (2) Count II: Negligent Supervision, Retention, and Hiring; and
(3) Count III: Outrage/Intentional Infliction of Emotional Distress.
Likewise, the court has set forth the governing legal standards in a number of other cases
involving the same parties and similar claims. The court does not repeat them here, but applies them
as it has in the past. See, e.g., Anasazi, 2017 WL 2264441, at *2; Doe D. E., 2017 WL 1908591, at *2.
Scope of Employment
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).
This court has repeatedly held that plaintiffs with similar allegations to those here have
sufficiently alleged that Wisner’s conduct was within the scope of his employment. See, e.g., Doe BF
v. United States, No. 17-2088, 2017 WL 4355577, at *4–*5 (D. Kan. Oct. 2, 2017); Almquist v. United
States, No. 17-2108, 2017 WL 4269902, at *4–*5 (D. Kan. Sept. 25, 2017); Anasazi, 2017 WL
2264441, at *4; Doe D. E., 2017 WL 1908591, at *4. The court also has held that plaintiffs with
similar allegations have presented plausible claims that the VA Immunity Statute applies, allowing
them to pursue remedies under the FTCA for claims arising out of a battery. See, e.g., Doe BF, 2017
WL 4355577, at *5; Almquist, 2017 WL 4269902, at *5; Anasazi, 2017 WL 2264441, at *5; Doe D. E.,
2017 WL 1908591, at *4. The court likewise allows plaintiff to proceed in this case.
Statute of Limitations
It is unclear whether defendant still intends to pursue its arguments that some of plaintiff’s
claims are barred by the statute of limitations. Defendant did not address the issue in its reply brief.
Nevertheless, the court understands that defendant does not wish to waive this argument. For the
reasons the court has held in other similar cases, the court will not dismiss plaintiff’s claims at this
time for violation of the statute of limitations. See, e.g., Lamberth v. United States, No. 16-2709, 2017
WL 747871, at *6–*7 (D. Kan. Feb. 27, 2017); Mathis v. United States, No. 16-2322, 2017 WL
430074, at *7–*8 (D. Kan. Jan. 31, 2017).
Count II – Negligent Supervision, Hiring, and Retention
The court has previously dismissed other plaintiffs’ claims for negligent hiring and retention
based on the discretionary function exception to the FTCA. See, e.g., Anasazi, 2017 WL 2264441, at
*8–*9; Doe D. E., 2017 WL 1908591, at *8. This outcome remains appropriate despite plaintiff’s
argument that the VA had mandatory duties under the U.S. Constitution. Doe BF, 2017 WL 4355577,
at *5–*6; Almquist, 2017 WL 4269902, at *5–*6.
As for the negligent supervision claim, the court has allowed this claim to proceed in the past.
See, e.g., Doe BF, 2017 WL 4355577, at *6; Almquist, 2017 WL 4269902, at *6; Anasazi, 2017 WL
2264441, at *7; Doe D. E., 2017 WL 1908591, at *6. For the reasons the court has set forth in other
related opinions, defendant’s motion is denied with respect to plaintiff’s claim for negligent
Count III – Outrage/Intentional Infliction of Emotional Distress
Finally, the court has allowed plaintiffs to proceed with outrage claims in all of the cases
previously identified. See, e.g., Doe BF, 2017 WL 4355577, at *7; Almquist, 2017 WL 4269902, at
*7; Anasazi, 2017 WL 2264441, at *10; Doe D. E., 2017 WL 1908591, at *9–*10. Plaintiff has once
again placed his outrage claim outside the discretionary function exception.
IT IS THEREFORE ORDERED that defendant’s motion to dismiss (Doc. 15) is granted in
part and denied in part. The motion is granted as to plaintiff’s negligent hiring and retention claims in
Count II, but denied as to plaintiff’s negligent supervision claim in Count II, as well as Counts I and
Dated this 7th day of December, 2017, at Kansas City, Kansas.
s/ Carlos Murguia____________
United States District Judge
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