Estate of Ezra Geral Smith et al v. United States of America
MEMORANDUM OPINION by Judge Charles R. Simpson, III on 9/1/11; An order consistent with this opinion will be entered this date.cc:counsel (JBM)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
ESTATE OF EZRA GERALD SMITH, by and
through the administratrix of his estate, Renee
Richardson, and RENEE RICHARDSON, individually
CIVIL ACTION NO. 3:10-CV-00651-CRS
UNITED STATES OF AMERICA
This matter is before the court on motion of the defendant, United States of America, to
dismiss the Complaint (DN 12) and motion of the defendant to dismiss the Complaint pursuant to
the discretionary function exception (DN 18).
This matter arose from a tragic accident that occurred as 18 year old Ezra Gerald Smith was
walking to school within a U.S. Army housing community when he was shot and killed by Spc.
Gerald Polanco. Complaint, ¶ 5. Plaintiff, Renee Richardson, has filed suit as administratrix of
Smith’s estate and in her individual capacity under the Federal Torts Claim Act, 28 U.S.C. §§
1346(b), 2671-2680 (“FTCA”), alleging wrongful death and loss of consortium on theories that U.S.
government personnel negligently diagnosed and treated Spc. Polanco and negligently failed to
supervise and control him.
When a motion to dismiss is made, the court must accept the well-pleaded facts of the
complaint as true and construe the complaint in the light most favorable to the plaintiff, drawing all
reasonable inferences in favor of the plaintiff. Directv, Inc. V. Treesh, 487 F.3d 471, 476 (6th Cir.
2007); Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987).1 The complaint may be
dismissed “if it is clear that no relief could be granted under any set of facts that could be proved
consistent with the allegations.” Morgan, 829 F.2d at 12.
Plaintiffs, residents of Louisville, Kentucky were temporarily housed as a family of an active
member of the U.S. Armed Forces at Fort Bliss, El Paso, Texas at the time of the incident.
Complaint ¶ 2. Spc. Planco was a member of the U.S. Army as a Military Police Officer at Fort
Bliss at the time he shot and killed Smith. Complaint ¶ 10. Spc. Polanco previously served in
combat and was suffering from numerous psychiatric disorders that were being treated by medical
providers at William Beaumont Army Medical Center in El Paso, Texas. Complaint ¶ 11. In the
weeks leading up to the shooting, Spc. Polanco’s family requested assistance from Army health care
professionals and officers in Spc. Polanco’s chain of command. Complaint ¶ 14. Spc. Polanco
received medical care and a psychiatric evaluation days before the shooting. Complaint ¶ 14. On
the day of the shooting, Spc. Polanco was permitted to leave military training. Complaint ¶ 28. He
retrieved a weapon from his home, shot Smith and proceeded to open fire on other members of the
base community. Complaint ¶¶ 29, 30.
Plaintiffs allege that Spc. Polanco’s actions were reasonably foreseeable and proximately
caused by the “gross and severe negligence” of numerous members of the Armed Forces and
physicians working at William Beaumont Army Medical Center. Complaint ¶ 31. Plaintiffs claim
that Army physicians were medically negligent in failing to diagnose, improperly diagnosing, or
failing to treat or improperly treating Spc. Polanco’s psychiatric disorders. Complaint ¶ 11. Further,
Plaintiffs assert that defendant introduced additional facts outside the pleadings, converting
the motion to dismiss to a motion for summary judgment, pursuant to Fed.R.Civ.P. 56. However,
defendant has not asserted any facts outside the pleadings. Accordingly, the motion to dismiss
plaintiffs claim that Spc. Polanco’s chain of command was negligent in failing to exercise ordinary
care and be aware “of [Spc. Polanco’s] extreme and dangerous risk of harm to the community at
large...and subjected the military families on the base and attached communities at Fort Bliss to
severe personal injury or death.” Complaint ¶ 22.
Defendant seeks dismissal of the complaint on the grounds that plaintiffs cannot assert a
cognizable medical malpractice claim under applicable law and sovereign immunity. Plaintiffs
assert their claim under the FTCA, which provides a limited waiver of the federal government’s
sovereign immunity, granting federal courts exclusive jurisdiction over tort claims 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)(1). Therefore, plaintiffs must be
able to state a claim under the law of the state in which the alleged negligent or wrongful conduct
took place, which in this case is Texas. See Myers v. United States, 17 F.3d 890, 898-99 (6th Cir.
1994); Richards v. United States, 369 U.S. 1, 10, 82 S.Ct. 585, 591, 7 L.Ed.2d 492 (1962).
Plaintiffs contend in Count I of the complaint that the United States is liable to plaintiffs
because Army health care providers were negligent in their treatment of Spc. Polanco. Complaint
¶ 15. However, Texas law is clear that “no duty runs from a psychologist to a third party to not
negligently misdiagnose a patient’s condition.” Thapar v. Zezulka, 994 S.W.2d 635, 637 (Tex.
1999).2 The Texas Supreme Court stated definitively in Thapar that a medical professional “owes
Plaintiff cites to Wilson v. Brister, 982 S.W.2d 42 (Tex. App. 1998), for the proposition that
a cause of action against the treating mental health care professional exists where his patient’s
criminal conduct is foreseeable prior to his actions. However, in Wilson, the action was based on
a failure by the doctor to adequately treat the doctor’s own patient who later committed suicide. Id.
at 43. Wilson is thus inapplicable to the case at hand, where plaintiffs are third party nonpatients
asserting a failure to adequately treat a patient and prevent that patient’s criminal conduct directed
at a third party.
no duty to [plaintiff], a third party nonpatient, for negligent misdiagnosis or negligent treatment.”
Id. at 638. Further, the Thapar court refused to adopt the seminal case of Tarasoff v. Regents of
University of California, which recognized a mental-health professional’s duty to warn nonpatient
third parties of a patient’s threats. Id. The court stated, “[W]e decline to adopt a duty to warn now
because the confidentiality statute governing mental-health professionals in Texas makes it unwise
to recognize such [sic] common-law duty.” Id. Plaintiffs assert Thapar recognized that the Texas
confidentiality statute provides mental health professionals with discretion as to whether confidential
information should be disclosed, and thus the question in this case should be whether or not the
decision of the mental health care professional was in fact a negligent decision. However, the
Thapar court held that it was this very discretion in the Texas statute that evidenced legislative
intent to make confidential disclosures permissive. Id. at 639. Thus, “[i]mposing a legal duty to
warn third parties of patient’s threats would conflict with the scheme adopted by the Legislature by
making disclosure of such threats mandatory.” Id.
Plaintiffs’ medical negligence claim must be dismissed pursuant to Fed.R.Civ.P. 12(b)(1)
and 12(b)(6) as no duty can be established to support a negligence claim under the applicable Texas
state law and “[u]nless the plaintiffs have pled facts sufficient to justify liability under ordinary
state-law principles, and thus invoked the court’s subject matter jurisdiction under the general
waiver of sovereign immunity in 28 U.S.C. § 2674, there is no need to resort to the exceptions in 28
U.S.C. § 2680 to dismiss the suit.” Myers, 17 F.3d at 898-99.
Plaintiffs’ claim of negligence by the Department of the Army in Count II of the complaint
must also be dismissed because it is barred by sovereign immunity under the assault and battery
exception and the discretionary function exception of the Federal Torts Claim Act. 28 U.S.C. §§
1346(h) and 1346(a). It is well settled that the United States is immune from suit unless an express
waiver to sovereign immunity is provided, and the terms of this consent to be sued defines the
court’s jurisdiction to hear the suit. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349,
63 L.Ed.2d 607 (1980). Further, “limitations and conditions upon which the Government consents
to be sued must be strictly observed and exceptions thereto are not to be implied.” Lehman v.
Nakshian, 453 U.S. 156, 161, 101 S.Ct. 2698, 2702, 69 L.Ed.2d 548 (1981) (quoting Soriano v.
United States, 352 U.S. 270, 276, 77 S.Ct. 269, 273, 1 L.Ed.2d. 306 (1957)). Congress adopted the
FTCA as a limited waiver of the United States’ sovereign immunity and included significant
exceptions to this waiver in 28 U.S.C. § 2680.
The assault and battery exception provided in 28 U.S.C. § 2680(h) states that any claim
“arising out of” assault or battery are not included in the sovereign immunity waiver of the FTCA.
In considering this assault and battery exception in the case of United States v. Shearer, Justice
Respondent cannot avoid the reach of § 2680(h) by framing her complaint in terms
of negligent failure to prevent the assault and battery. Section 2680(h) does not
merely bar claims for assault or battery; in sweeping language it excludes any claim
arising out of assault or battery. We read this provision to cover claims like
respondent’s that sound in negligence but stem from a battery committed by a
Government employee. Thus the express words of the statute bar respondent’s
claims against the Government.
473 U.S. 52, 55, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985) (emphasis in original). While this reasoning
was not joined by a majority of the Supreme Court,3 the Sixth Circuit adopted it in Satterfield v.
United States, 788 F.2d 395 (6th Cir. 1986). In Satterfield, three off-duty servicemen beat another
Justices Brennan, Blackmun, Stevens and Marshall declined to join in this portion of the
opinion, instead relying solely on the Feres doctrine to reverse the decision of the Third Circuit; and
Justice Powell did not participate in the decision.
soldier to death and his estate sued, alleging that Army supervisory personnel negligently failed to
control the servicemen after previous threats and physical assaults against the decedent were brought
to their attention. The Sixth Circuit relied on Justice Burger’s language from Shearer in holding that
“[b]ecause plaintiff’s complaint set forth an intentional tort claim merely sounding in negligence,
such claim falls within the exception in § 2680(h), and was therefore properly dismissed.” Id. at 400
(also citing Garcia v. United States, 776 F.2d 116, 118 (5th Cir. 1985)); See also Brooks v. Silva,
2010 WL 2595984 (E.D. Ky. June 24, 2010) (citing Shearer and Satterfield to support its holding
that a plaintiff cannot avoid the assault and battery exception by recasting the complaint in terms of
negligent failure to prevent). Therefore, under Sixth Circuit precedent, plaintiffs’ negligence claim,
which ultimately stems from the assault and battery committed by Spc. Polanco, is barred by this
exception to the FTCA.
Further, the FTCA waiver of sovereign immunity also includes an exception for discretionary
functions which precludes the imposition of liability for conduct “based upon the exercise or
performance or the failure to exercise or perform a discretionary function or duty on the part of a
federal agency or an employee of the Government, whether or not the discretion involved be
abused.” 28 U.S.C. § 2680(a). “If a case falls within this statutory exception to FTCA § 1346(b),
the court lacks subject matter jurisdiction.” Rosebush v. United States, 119 F.3d 438, 440 (6th Cir.
Application of the discretionary function exception of the FTCA requires a two-step analysis.
See United States v. Gaubert, 499 U.S. 315, 322-24, 111 S.Ct.1267, 1273-75, 113 L.Ed.2d 335
(1994); Berkovitz v. United states, 486 U.S. 531, 536, 108 S.Ct. 1954, 1958-59, 100 L.Ed.2d. 531
(1988); Myers, 17 F.3d at 895. First, the exception applies only to “acts that are discretionary in
nature, acts that involve an element of judgment or choice.” Gaubert, 499 U.S. at 322, 111 S.Ct. at
1273 (quoting Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1958). Second, the “judgment must be of the
kind that the discretionary function exception was designed to shield,” “[b]ecause the purpose of the
exception is to prevent judicial ‘second-guessing’ of legislative and administrative decisions
grounded in social, economic, and political policy through the medium of an action in tort.” Id. at
Plaintiffs assert that the Department of the Army has “numerous regulations and orders in
place” that regulate supervising or disciplining servicemen who disobey orders or who are
considered Absent Without Leave. However, plaintiffs do not point to any specific applicable
regulations which removed discretion from Spc. Polanco’s chain of command. The burden of proof
is not with the defendant to show the applicability of the discretionary function exception, because
this would “misapprehend the effect of § 2680.” Carlyle v. United States, 674 F.2d 554, 556 (6th Cir.
1982). Instead, “[i]t is a universal rule...that a party who invokes the jurisdiction of a federal court
must allege all facts necessary to give the court jurisdiction of the subject matter.” Id.; See also
Prescott v. United States, 973 F.2d 696, 702 & n. 4 (9th Cir. 1992) (adopting the framework of the
Sixth Circuit in Carlyle and holding it consistent with the Supreme Court’s subsequent discretionary
function exception analysis in Gaubert, which did not deal with the burden of proof issue).
Policy concerns are also inherent in the decisions made by Spc. Polanco’s chain of command
in their supervision of him. It is “the nature of the actions taken and whether they are susceptible
to policy analysis,” not the “subjective intent in exercising the discretion” and whether a conscious
balancing of risks and advantages took place that is determinative. Gaubert, 499 U.S. at 325, 111
S.Ct. at 1275; see also Rosebush v. United States, 119 F.3d 438, 444 (6th Cir. 1997). “[D]eciding
how to restrain a soldier is inherently policy laden.” Malone v. United States, 61 F.Supp.2d 1372,
1379-80 (S.D. G.A. 1999) (quoting Cohen v. United States, 151 F.3d 1338 (11th Cir. 1998)); see also
Satterfield, 788 F.2d at 398 (“civilian courts are counseled not to question basic choices about
discipline, supervision, and control of a serviceman”) (quoting Shearer, 105 S.Ct. at 3043). In
Malone, a U.S. Army soldier was facing rape charges and the Court held that decisions of military
personnel regarding the soldier’s supervision and control were protected by the discretionary
function exception, because the policy issues involved were “exactly the type of policy judgments
that the discretionary function is designed to shield.” Id.
Judicial second guessing of policy
considerations by military personnel in supervising Spc. Polanco fall within the ambit of what the
discretionary function exception was intended to prevent. Therefore, plaintiffs’ Count II claim of
negligent supervision by the Department of Army must also be dismissed pursuant to Fed.R.Civ.P.
12(b)(1) and 12(b)(6), because it falls within the discretionary function exception to the Federal
Torts Claim Act.
An order consistent with this opinion will be entered this date.
September 1, 2011
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