DeLarosa v. USA et al
MEMORANDUM OPINION & ORDER: 1) 14 MOTION for Partial Dismissal by USA is GRANTED. 2) Ptf.'s claims for assault and battery, false imprisonment, and intention infliction of emotional distress are DISMISSED w/ prejudice. 3) USA is directed to file its answer to remaining claims w/in 14 days.. Signed by Judge Danny C. Reeves on 09/15/2022.(JER)cc: COR
Case: 5:22-cv-00116-DCR Doc #: 17 Filed: 09/15/22 Page: 1 of 8 - Page ID#: 153
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
LINDA MARIA DELAROSA,
UNITED STATES OF AMERICA, et al.,
Civil Action No. 5: 22-116-DCR
The United States has moved for a partial dismissal under Rules 12(b)(1) and 12(b)(6)
of the Federal Rules of Civil Procedure, arguing that it has not waived sovereign immunity for
Plaintiff Linda DeLarosa’s claims of assault and battery, false imprisonment, and intentional
infliction of emotional distress. [Record No. 14] But DeLarosa contends that the Federal Tort
Claims Act (“FTCA”) includes a waiver of sovereign immunity applicable to this case.
[Record No. 15] Having carefully reviewed the parties’ filings, the Court will grant the United
DeLarosa was an inmate at the Federal Medical Center-Lexington (“FMC-Lexington”),
assigned to work in the garage performing vehicle maintenance. [Record No. 13] Defendant
Christopher Goodwin, a corrections officer at the same facility, forced non-consensual sexual
activity upon DeLarosa while supervising her work. 1 DeLarosa filed a complaint asserting
Goodwin was convicted in a separate criminal action of one count of deprivation of rights in
violation of 18 U.S.C. § 242, and three counts of sexual abuse of a ward in violation of 18
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claims against the United States under the FTCA for negligence, assault and battery, false
imprisonment, intentional infliction of emotional distress, and an Eighth Amendment claim
against Goodwin. The United States moved for partial dismissal, contending that it has not
waived sovereign immunity under the FTCA for the alleged intentional torts. [Record No. 14]
“A motion to dismiss on the basis that plaintiff’s claim is barred by sovereign immunity
is a motion to dismiss for lack of subject matter jurisdiction.” Pyramid Mining, Inc. v. Hoke
Co., Civil Action No. 95-0010, 1997 U.S. Dist. LEXIS 17016, at *2 (W.D. Ky. Oct. 6, 1997).
“Challenges to subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1)
‘come in two varieties: a facial attack or a factual attack.’” Carrier Corp. v. Outokumpu Oyj,
673 F.3d 430, 440 (6th Cir. 2012) (quoting Gentek Bldg. Prods., Inc. v. Sherwin-Williams, Co.,
491 F.3d 320, 330 (6th Cir. 2007)). “A facial attack on the subject-matter jurisdiction alleged
in the complaint questions merely the sufficiency of the pleading.” Gentek Bldg. Prods., Inc.,
491 F.3d at 330 (citing Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.
1990)). Here, the motion constitutes a facial attack on DeLarosa’s claim of subject-matter
jurisdiction. Therefore, the factual allegations in the complaint are taken as true, and “[i]f
those allegations establish federal claims, jurisdiction exists.” Id.
To bring a claim against the Federal Government, the United States must waive
sovereign immunity. F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994) (“Absent a waiver,
sovereign immunity shields the Federal Government and its agencies from suit.”). Although
U.S.C § 2243(b). See United States v. Goodwin, United States District Court, Eastern District
of Kentucky, Central Division at Lexington, Criminal Action No. 5: 21-085.
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the FTCA provides a waiver of sovereign immunity for certain claims “‘caused by the
negligent or wrongful act or omission’ of federal employees acting within the scope of their
employment,” Levin v. United States, 568 U.S. 503, 506 (2013) (quoting 28 U.S.C. §
1346(b)(1)), it retains immunity for enumerated intentional torts listed under 28 U.S.C. §
2680(h). However, the FTCA does waive sovereign immunity for six intentional torts,
including assault, battery, and false imprisonment if those actions are committed by law
enforcement officers acting within the scope of employment. See Millbrook v. United States,
569 U.S. 50, 53 (2013) (citing 28 U.S.C. § 2680(h)).
The United States does not contest that Goodwin is a law enforcement officer within
the meaning of 28 U.S.C. § 2680(h). Instead, it argues that Goodwin’s actions were not within
the scope of his employment. The Court applies the law of the state where the act or omission
occurred in determining whether the officer’s actions were within the scope of his or her
employment. 28 U.S.C. § 1346(b)(1). 2 Under Kentucky law, “the focus is consistently on the
purpose or motive of the employee in determining whether he or she was acting within the
scope of employment.” O’Bryan v. Holy See, 556 F.3d 361, 383 (6th Cir. 2009) (quoting Papa
John’s Int’l v. McCoy, 244 S.W.3d 44, 56 (Ky. 2008)). An intentional tort may be within the
scope of employment if the employee’s “purpose, however misguided, is wholly or in part to
further the master’s business.” Patterson v. Blair, 172 S.W.3d 361, 369 (Ky. 2005) (quoting
W. Page Keeton et al., Prosser and Keeton on the Law of Torts 500, 505 (5th ed. 1984)).
However, “the conduct must be of the same general nature as that authorized or incidental to
The parties agree that Kentucky law applies.
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the conduct authorized.” Osborne v. Payne, 31 S.W.3d 911, 915 (Ky. 2000) (citing Wood v.
Southeastern Greyhound Lines, 194 S.W.2d 81 (Ky. 1946)).
DeLarosa argues that Goodwin “used sexual coercion and abuse to further the goals of
the [Bureau of Prisons], namely, to control and subdue inmates and force compliance with
their forced employment duties while acting under the color of law enforcement capacity.”
[Record no. 15] But as this Court previously concluded in a separate case Goodwin’s actions
were not within the scope of his employment when he sexually assaulted an inmate. See B.A.
v. United States, No. 5: 21-106, 2021 WL 4768248, at *4-5 (E.D. Ky. Oct. 12, 2021). The
undersigned explained that the United States Court of Appeals for the Sixth Circuit has
concluded that a sexual assault is not within the scope of employment under Kentucky law
“because there is no conceivable way that intentionally committing sexual assault can be
motivated by a desire to serve the employer.” Id. at *3 (citing Flechsig v. United States, 991
F.2d 300, 302-03 (6th Cir. 1993). Further, an employer is not typically “vicariously liable for
an intentional tort of an employee not actuated by a purpose to serve the employer but
motivated, as solely by a desire to serve the employee’s own sexual proclivities.” Id. (citing
American Gen. Life & Acc. Ins. Co. v. Hall, 74 S.W.3d 688, 692 (Ky. 2002)).
The United States relies on Flechsig in support of its argument that Goodwin’s conduct
was outside of the scope of his employment. 991 F.2d 300 (6th Cir. 1993). There, an inmate
at FMC-Lexington alleged that, while on her way to an off-premises CAT scan, a correctional
officer sexually assaulted her. 991 F.2d at 302. She then filed suit asserting a claim for assault
and battery under the FTCA. Id. at 301-02. The Court dismissed the plaintiff’s claim because
the action was not within the scope of her employment. Id. at 302. Thereafter, the United
States Court of Appeals for the Sixth Circuit affirmed, explaining that: (1) sexual assault was
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outside the conduct the officer was hired to perform; (2) the conduct took place outside of the
spatial limits of his employment; and (3) he was not motivated to serve his employer in any
way. Id. at 303.
In this case, the Court concludes that committing a sexual assault against DeLarosa is
outside the scope of Goodwin’s employment because it is not reasonably incident to the work
that he was hired to do and was not motivated by any purpose to serve the Bureau of Prisons.
See Flechsig, 991 F.2d at 303 (citing John v. Lococo, 76 S.W.2d 897, 898 (Ky. 1934)).
Consequently, the United States has not waived sovereign immunity for the assault and battery
claim or the false imprisonment claim asserted by the plaintiff.
The United States also seeks to dismiss the plaintiff’s claim for intentional infliction of
emotional distress (“IIED”). It asserts that the claim should be dismissed because, under
Kentucky law, IIED can only be brought when another common law tort does not cover the
action. [Record No. 14, fn. 2] It also includes IIED in its sovereign immunity argument.
[Record No. 14, p. 6]
DeLarosa does not contest the United States’ characterization of IIED under Kentucky
Law. She instead argues that: (1) the United States forfeited its request for dismissal of the
IIED claim “by not including that argument in the body of its [motion]”; and (2) the IIED claim
survives under the plain language of §2680(h). [Record No. 15]
DeLarosa essentially contends that the United States made its IIED argument in a
perfunctory manner. Cf. Carter v. Toyota Tsusho Am., Inc., 529 F. App’x. 601, 612 n. 2 (6th
Cir.2013) (“Generally, an argument raised in a footnote without further development is
deemed waived.” (citing United States v. Johnson, 440 F.3d 832, 845-46 (6th Cir. 2006))). An
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issue must be accompanied “by some effort at developed argumentation” to be considered.
Powell v. Fugate, 364 F.Supp.3d 709, 731 (E.D. Ky. 2019) (quoting McPherson v. Kelsey, 125
F.3d 989, 995-96 (6th Cir. 1997)). “It is not sufficient for a party to mention a possible
argument in the most skeletal way, leaving the court to . . . put flesh on its bones.” Id. In
Fugate, the Court found a plaintiff’s argument perfunctory when he “devote[d] one line to his
IIED argument.” 364 F.Supp.3d at 731. In this case, however, the United States’ single-spaced
footnote contains twelve lines of information addressing IIED under Kentucky law, and its
motion discussed IIED at least six other times throughout the body of its fourteen-page motion.
This is not an argument raised in a perfunctory manner.
DeLarosa also contends that 28 U.S.C. §2680(h) provides for a general waiver of
sovereign immunity and IIED “survive[s] under the plain language of the FTCA.” [Record No.
15, p.3] However, IIED is not listed in the plain language of 28 U.S.C. §2680. Further, the
rule of construction, expressio unius est exclusio alterius, has been applied by various courts
of appeal for the general rule that IIED claims are not barred by sovereign immunity because
it is not listed in §2680(h). See, e.g., Truman v. United States, 26 F.3d 592 (5th Cir. Tex.
1994); Gross v. United States, 676 F.2d 295, 303-04 (8th Cir. 1982) (IIED is not a tort
specifically exempted in section 2680(h) and, therefore, action is allowed); Black v. Sheraton
Corp. of Am., 564 F.2d 531, 539-40 (D.C. Cir. 1977).
Conversely, some courts have
determined that an exception exists when the conduct giving rise to a claim of IIED “arose out
of” one of the enumerated torts. See, e.g., Metz v. United States, 788 F.2d 1528 (11th Cir.
1986) (IIED claim barred because it arose out of the plaintiff’s false arrest claim); Steele v.
Meyer, 964 F. Supp. 2d 9 (D.D.C. 2013) (IIED claim barred because it arose from plaintiff’s
assault and battery claim). Cf. Stout v. United States, 721 F. App’x. 462, 467 (6th Cir. 2018)
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(“[N]egligent hiring, retention, and supervision claims in connection with an intentional tort
are deemed to arise out of that tort, and are thus precluded.” (citing Wilburn v. United States,
616 F. App’x. 848, 859 (6th Cir. 2015))). However, even if an IIED claim is not generally
barred by sovereign immunity, Goodwin was not acting within the scope of his employment
as discussed above. See 28 U.S.C. § 1346(b)(1) (allowing claims against the United States for
injury “caused by the negligent or wrongful act or omission of any employee of the
Government while acting within the scope of his office or employment.”).
And even assuming DeLarosa’s IIED claim is not barred by sovereign immunity, it is
still subject to dismissal. DeLarosa states in her Complaint that Goodwin “engaged in the
intentional infliction of emotional distress of Plaintiff through unwanted, non-consensual
sexual abuse and harassment . . . .” [Record No. 1] In Kentucky, IIED is known as the tort of
outrage and is considered a “gap-filler.” Banks v. Fritsch, 39 S.W.3d 474, 481 (Ky. Ct. App.
2001). Where the alleged “conduct amounts to the commission of one of the traditional torts
such as assault, battery, or negligence for which recovery for emotional distress is allowed,
and the conduct was not intended only to cause extreme emotional distress in the victim, the
tort of outrage will not lie.” Id.; see also Hall v. City of Williamsburg, 768 F. App’x. 366, 377
(6th Cir. 2019). Because DeLarosa’s allegations are more properly categorized under other
traditional torts for which recovery of emotional distress is allowed, her IIED claim is subject
Based on the foregoing analysis and discussion, it is hereby
ORDERED as follows:
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Defendant United States’ motion for a partial dismissal [Record No. 14] is
Plaintiff DeLarosa’s claims for assault and battery, false imprisonment, and
intentional infliction of emotional distress are DISMISSED with prejudice.
The United States is directed to file its Answer to the remaining claim(s) within
Dated: September 15, 2022.
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