John Doe FW v. United States of America et al
MEMORANDUM AND ORDER granting in part and denying in part 6 Motion to Dismiss for Lack of Jurisdiction and for Failure to State a Claim. The motion is granted as to Count IV. 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. Finally, some of plaintiff's claims may be time-barred. Signed by District Judge Carlos Murguia on 4/11/2018. (hl)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOHN DOE FW,
UNITED STATES OF AMERICA and
Case No. 17-2608
MEMORANDUM AND ORDER
Plaintiff John Doe FW 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 elicited unnecessary private information. Plaintiff also alleges state law claims. This
matter is before the court on defendant United States of America’s Motion to Dismiss (Doc. 6).
Defendant argues that plaintiff’s 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). Plaintiff
initially failed to timely respond to the motion. But upon the court’s order, plaintiff showed good
cause for the oversight, and the court will therefore consider the merits of plaintiff’s response brief.
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: Negligence – Medical Malpractice; (2) Count II: Negligent Supervision, Retention and Hiring; (3)
Count III: Battery; and (4) Count IV: Invasion of Privacy.
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 Repose
Defendant claims that at least some of plaintiff’s claims are barred by Kansas’s four-year
statute of repose. See Kan. Stat. Ann. § 60-513(c) (stating that, with respect to a “cause of action
arising out of the rendering of or the failure to render professional services by a health care provider,”
“in no event shall such an action be commenced more than four years beyond the time of the act giving
rise to the cause of action”). Plaintiff disagrees, raising four arguments in opposition to defendant’s
position: (1) Section 60-513(c) does not apply to plaintiff’s claims because Wisner was not a “health
care provider”; (2) In any event, § 60-513(c) does not apply to plaintiff’s claim for battery; (3) The
FTCA’s administrative process tolls the statute of repose; and (4) Equitable estoppel tolls the statute of
The court has addressed all four of these arguments a number of times. First, Wisner was a
health care provider, making § 60-513(c) applicable. See, e.g., Doe BF, 2017 WL 4355577, at *2;
Almquist, 2017 WL 4269902, at *2. Second, § 60-513(c) applies to all of plaintiff’s claims, including
battery. See, e.g., Doe BF, 2017 WL 4355577, at *2; Almquist, 2017 WL 4269902, at *2. Third, the
FTCA administrative process tolls the statute of repose. See, e.g., Doe BF, 2017 WL 4355577, at *3;
Almquist, 2017 WL 4269902, at *3. And fourth, equitable estoppel does not further toll the statute of
repose. See, e.g., Doe BF, 2017 WL 4355577, at *3–*4; Almquist, 2017 WL 4269902, at *3–*4.
In this case, the impact of these rulings is that some of plaintiff’s claims may be barred by the
statute of repose. In his complaint, plaintiff alleges that he saw Wisner on multiple occasions between
2010 through 2014. Taking these allegations as true, some of plaintiff’s claims likely happened before
May 18, 2012, which was four years before plaintiff filed an administrative claim. Any such claims
are therefore barred by the statute of repose.
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 IV – 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, 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. 6) is granted in
part and denied in part. The motion is granted as to Count IV. 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. Finally, some of plaintiff’s claims may be time-barred.
Dated this 11th day of April, 2018, at Kansas City, Kansas.
s/ Carlos Murguia____________
United States District Judge
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