Gomez et al v. Wisner et al
MEMORANDUM AND ORDER granting in part and denying in part 13 Motion to Dismiss for Lack of Jurisdiction.The motion is granted as to all claims raised by plaintiff Jolisa Gomez. Jolisa Gomez is dismissed as a plaintiff. The motion is granted as to Counts III and VI. The motion is also granted as to plaintiff's negligent hiring and retention claim in Count II, but denied as to plaintiff's negligent supervision claim in Count II, as well as Counts IV and V. Signed by District Judge Carlos Murguia on 4/11/2018. Mailed to pro se party Mark Wisner by regular mail. (ydm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SEAN GOMEZ and
UNITED STATES OF AMERICA and
Case No. 17-2263
MEMORANDUM AND ORDER
Plaintiffs Sean Gomez and Jolisa Gomez bring 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 Sean Gomez and elicited unnecessary private information. Plaintiffs
also allege several state law claims. This matter is before the court on defendant United States of
America’s Motion to Dismiss (Doc. 13). Defendant argues that plaintiffs’ complaint should be
dismissed for lack of subject matter jurisdiction and because it fails to state a claim under Federal
Rules of Civil Procedure 12(b)(1) and (6). For the reasons set forth below, the court grants defendant’s
motion in part and denies it in part.
Plaintiff Sean Gomez 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
Sean. Plaintiff Jolisa Gomez is Sean’s wife. Wisner was a physician’s assistant (“PA”) for the VA,
and is a defendant in more than eighty pending civil suits before this court.
The claims in this case are virtually identical to those in a number of other cases this court has
considered. See, e.g., Anasazi v. United States, No. 16-2227-CM, 2017 WL 2264441, at *1–*2 (D.
Kan. May 23, 2017); Doe D. E. v. United States, No. 16-2162-CM, 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: Negligence – Medical Malpractice; (2) Count II: Negligent Supervision, Retention and
Hiring; (3) Count III: Negligent Infliction of Emotional Distress; (4) Count IV: Outrage; (5) Count V:
Battery; and (6) Count VI: Invasion of Privacy – Intrusion Upon Seclusion.
Likewise, the court has set forth the governing legal standards in a number of other cases
involving the same parties and 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.
Plaintiff Jolisa Gomez
Defendant moves to dismiss the claims of plaintiff Jolisa Gomez because she failed to file an
administrative claim. Plaintiffs did not respond this argument.
To establish subject matter jurisdiction under the FTCA, a plaintiff must present all causes of
action in an administrative claim. Haceesa v. United States, 309 F.3d 722, 734 (10th Cir. 2002) (“If
there are multiple claimants in an FTCA case, each claimant must individually satisfy the jurisdictional
requirements of filing a proper claim.”) Jolisa Gomez did not file an administrative claim, and the
court therefore dismisses her claims for lack of subject matter jurisdiction. In any event, as this court
has previously held, Kansas does not recognize a separate cause of action for spousal loss of
consortium due to injuries to the other spouse. Sayre v. City of Lawrence, No. 13-2291-RDR, 2013
WL 4482703, at *2 (D. Kan. Aug. 21, 2013) (citation omitted). The court would therefore dismiss
Jolisa Gomez’s claims for loss of consortium even if she had properly exhausted them.
Because the court dismisses the claims of plaintiff Jolisa Gomez in their entirety, the references
to “plaintiff” throughout the remainder of this order pertain to plaintiff Sean Gomez.
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).
As defendant acknowledges, 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
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., Doe BF, 2017 WL 4355577, at
*5–*6; Almquist, 2017 WL 4269902, at *5–*6; Anasazi, 2017 WL 2264441, at *8–*9; Doe D. E., 2017
WL 1908591, at *8. The same analysis applies here.
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
Counts III and IV – Negligent Infliction of Emotional Distress and Outrage
As this court has previously held, a claim for negligent infliction of emotional distress must
include a qualifying physical injury. Majors v. Hillebrand, 349 P.3d 1283, 1285 (Kan. Ct. App. 2015).
This rule does not apply, however, when the conduct is willful or wanton. Id. (citing Hoard v.
Shawnee Mission Med. Ctr., 662 P.2d 1214, 1219–20 (Kan. 1983)). Plaintiff attempts again to plead a
plausible claim by alleging willful conduct, but this court has already held that this characterization of
plaintiff’s claim is duplicative of plaintiff’s outrage claim. Again, the court dismisses plaintiff’s claim
for negligent infliction of emotional distress in part for failure to allege a physical injury and in part as
duplicative of the outrage claim.
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.
Count VI – Invasion of Privacy
Finally, the court has repeatedly addressed plaintiff’s allegations for invasion of privacy and
found that they fail to state a claim. See, e.g., Anasazi, 2017 WL 2264441, at *10–*11; Doe D. E.,
2017 WL 1908591, at *10. Plaintiff has not made any arguments here that justify altering the court’s
analysis. This claim is therefore dismissed for the same reasons previously given.
IT IS THEREFORE ORDERED that defendant’s motion to dismiss (Doc. 13) is granted in
part and denied in part. The motion is granted as to all claims raised by plaintiff Jolisa Gomez. Jolisa
Gomez is dismissed as a plaintiff. Further, the motion is granted as to Counts III and VI. The motion
is also granted as to plaintiff’s negligent hiring and retention claim in Count II, but denied as to
plaintiff’s negligent supervision claim in Count II, as well as Counts IV and V.
Dated this 11th day of April, 2018, at Kansas City, Kansas.
s/ Carlos Murguia____________
United States District Judge
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