John Doe GB 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. 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 d enied as to plaintiff's negligent supervision claim in Count II. Plaintiff also may not pursue his unexhausted claim for mis-prescription or over-prescription of medication. Finally, some of plaintiff's claims may be time-barred. Signed by District Judge Carlos Murguia on 10/24/2018. Mailed to pro se party Mark Wisner by regular mail. (tvn)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOHN DOE GB,
UNITED STATES OF AMERICA and
Case No. 18-2287
MEMORANDUM AND ORDER
Plaintiff John Doe GB 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, elicited unnecessary private information, and mis-prescribed or over-prescribed medication.
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). 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 ninety 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 numerous occasions from
2010 onward.” Taking these allegations as true, some of plaintiff’s claims likely happened before
February 3, 2013, 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
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.
Mis-prescription/Over-prescription of Medication
Finally, defendant argues that plaintiff failed to administratively exhaust any claim for misprescription or over-prescription of medication. Plaintiff’s administrative claim does not refer to
medication at all.
“[T]he FTCA constitutes a waiver of the government’s sovereign immunity, [so] the notice
requirements established by the FTCA must be strictly construed. The requirements are jurisdictional
and cannot be waived.” Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 852 (10th
Cir. 2005) (quoting Bradley v. U.S. ex rel. Veterans Admin., 951 F.2d 268, 270 (10th Cir. 1991).
Section 2675(a) “requires that claims for damages against the government be presented to the
appropriate federal agency by filing ‘(1) a written statement sufficiently describing the injury to enable
the agency to begin its own investigation, and (2) a sum certain damages claim.’” Id. (citations
omitted). While the FTCA’s notice requirements should not be interpreted inflexibly, the goal of the
administrative claim requirement is to let the government know what it is facing. Id. at 853; Benjamin
v. United States, 85 F. Supp. 2d 1034, 1036 (D. Colo. 2000).
“[A]lthough a plaintiff’s administrative claim need not elaborate all possible causes of action or
theories of liability, it must provide notice of the facts and circumstances underlying the plaintiff’s
claims.” Trentadue, 397 F.3d at 853 (internal quotations omitted). In his administrative claim,
plaintiff did not claim that Wisner’s misconduct included mis-prescribing or over-prescribing
medication. The government could have reasonably concluded that an investigation into Wisner’s
prescription practices was unnecessary. Cf. Lopez v. United States, 823 F.3d 970, 977 (10th Cir. 2016)
(“Nothing in Lopez’s administrative claim provided the government with notice that it needed to
investigate whether the VA Hospital was negligent in credentialing and privileging Kindt, and it was in
turn deprived of any opportunity to settle this potential claim without litigation.”). Plaintiff argues that
in this instance, because of the numerous pending cases against Wisner and the VA’s own internal
investigations, the VA was otherwise on notice of Wisner’s negligent prescriptions. But when faced
with so many claims, each relating to various examinations of diverse plaintiffs on multiple dates, it
would be unfair to expect the VA to investigate claims of conduct mentioned in other administrative
claims but not this particular one. Plaintiff did not provide the government with sufficient notice of
this claim and failed to exhaust his administrative remedy on this matter.
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. Plaintiff also may not pursue his unexhausted claim for mis-prescription
or over-prescription of medication. Finally, some of plaintiff’s claims may be time-barred.
Dated this 24th day of October, 2018, at Kansas City, Kansas.
s/ Carlos Murguia____________
United States District Judge
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