Gomez et al v. Wisner et al

Filing 19

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)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS SEAN GOMEZ and JOLISA GOMEZ, Plaintiffs, v. UNITED STATES OF AMERICA and MARK WISNER, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) 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. -1- 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. -2- 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 this case. 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. -3- 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 supervision. 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. -4- 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____________ CARLOS MURGUIA United States District Judge -5-

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