Stout v. The United States of America et al

Filing 30

OPINION AND ORDER granting 23 Motion to Dismiss for Lack of Jurisdiction. This action is DISMISSED without prejudice. Signed by Judge George C. Smith on 1/6/2017. (kk)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
CHRISTOPHER STOUT,
Plaintiff,
Case No.: 2:15–CV–2812
JUDGE SMITH
Magistrate Judge Jolson

v.

UNITED STATES OF AMERICA,
Defendant.

OPINION AND ORDER
This matter is before the Court upon Defendant the United States of America’s Motion to
Dismiss (Doc. 23). Plaintiff Christopher Stout responded in opposition (Doc. 25) and the United
States replied in support of its Motion (Doc. 26). The Motion is now ripe for review. For the
following reasons, Defendant’s Motion is GRANTED.
I.

BACKGROUND

This action arises out of the care and treatment of Plaintiff Christopher Stout during his
stay as a patient at the Dayton Veterans Affairs Medical Center (“VAMC Dayton”). In October
2012, Plaintiff arrived at VAMC Dayton from the Veterans Affairs Medical Center in Columbus.
(Doc. 14, Am. Compl. at ¶ 7).
Beginning in the first week of November 2012, Plaintiff alleges that Patricia Poling, a
VAMC Dayton nurse, had “sexual contact with and commit[ted] repeated, unwanted acts of
offensive touching of a sexual nature upon Plaintiff without his consent. (Id. at ¶ 11). During
this period, Plaintiff was depressed and suicidal causing him to be on medications which left him
vulnerable to the acts of Poling. (Id. at ¶ 10). Plaintiff alleges that during the first week of

November—when Poling’s unwanted contact began—Poling told Plaintiff that she loved him.
(Id. at ¶ 12). Plaintiff alleges that he complained about Poling’s “unwanted assaults” to other
VAMC Dayton employees that same week. (Id. at ¶ 13). Plaintiff also alleges that some
unnamed VAMC Dayton employees witnessed some of Poling’s actions. (Id. at ¶ 14). Poling’s
behavior made another VAMC Dayton employee uncomfortable and Poling told at least one
other employee that she was dating Plaintiff. (Id. at ¶¶ 21, 23–25).
This was not the first time Poling had a relationship with a VAMC Dayton patient. (Id. at
¶ 26). Plaintiff alleges that Poling had “previously fostered a relationship with a former patient
and that LPN Poling saw the former patient socially and that the former patient would
frequently . . . call the unit whenever LPN Poling was working.” (Id. at 26). Plaintiff does not
allege that this earlier relationship consisted of any unwanted sexual assault by Poling. Although
VAMC Dayton eventually released Plaintiff, Poling did not cease her attempts to make contact.
Plaintiff alleges that Poling “attempted to engage Plaintiff in illegal activities” and sought out
Plaintiff in Hilliard, Ohio, making sexual advances. (Id. at ¶¶ 16–18). Plaintiff does not allege
that any further sexual assault occurred following his release.
Plaintiff filed a claim with the Department of Veterans Affairs in October 2014. (Doc.
14-1, Ex. 1 to Am. Compl.). The Department of Veterans Affairs denied Plaintiff’s claims on
May 1, 2015. (Doc. 14-2, Ex. 2 to Am. Compl.). Plaintiff then brought this suit against the
United States as the operator of VAMC Dayton under the Federal Tort Claims Act (“FTCA”)
arguing four separate theories of liability: (1) negligent hiring, retention, and/or supervision; (2)
negligence; (3) intentional infliction of emotional distress; and (4) negligent infliction of
emotional distress.

II.

STANDARD OF REVIEW

Defendant challenges the original jurisdiction of this Court pursuant to Rule 12(b)(1) of
the Federal Rules of Civil Procedure. Rule 12(b)(1) motions on subject matter jurisdiction come
in two varieties: facial and factual. Ohio Nat. Life Ins. Co. v. United States, 922 F.2d 320, 325
(6th Cir. 1990). A facial attack on the subject matter jurisdiction alleged in the complaint
questions the sufficiency of the pleading. Id. Accordingly, when reviewing a facial attack, a
trial court takes the allegations in the complaint as true. Id. However, “conclusory allegations or
legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to
dismiss.” O’Bryan v. Holy See, 556 F.3d 361, 376 (6th Cir. 2009) (quoting Mezibov v. Allen,
411 F.3d 712, 716 (6th Cir. 2005)).

Ultimately, “dismissal under 12(b)(1) allows for the

possibility of repleading the action to bring it within the subject matter jurisdiction of some
court” and thus a dismissal under 12(b)(1) is without prejudice. Ohio Nat. Life Ins., 922 F.2d at
325.
III.

DISCUSSION

Defendant moves for dismissal, arguing that the Court has no subject matter jurisdiction
over the claims in this case because Defendant is immune from suit. Defendant argues that the
FTCA does not apply to the claims in the case because Poling’s intentional tort occurred outside
Poling’s scope of employment and that all of the claims arise out of the assault and battery by
Poling. Plaintiff argues that Poling may have been acting within the scope of her employment
when assaulting Plaintiff and that he needs discovery to determine if that is the case. Plaintiff
also argues that his claims do not arise out of the assault and battery committed by Poling.
It is a well-settled principle that the United States is immune from suit unless it expressly
waives its sovereign immunity and consents to be sued. Mackey v. United States, 247 F. App’x

641, 643 (6th Cir. 2007) (citing United States v. Mitchell, 445 U.S. 535, 538 (1980)). “The
FTCA grants a limited waiver of sovereign immunity and allows tort claims to be brought
against the United States ‘in the same manner and to the same extent as a private individual
under like circumstances.’” Chomic v. United States, 377 F.3d 607, 609 (6th Cir. 2004), cert.
denied, 544 U.S. 948 (2005) (quoting 28 U.S.C. § 2674). The FTCA allows claims:
against the United States, for money damages . . . for injury or loss of property, or
personal injury or death 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 . . . in accordance with the law of the place where the act or omission
occurred.
28 U.S.C. § 1346. Defendant argues that the “within the scope of his office or employment”
language bars some of the claims in this case and an exception to the waiver of immunity for
“[a]ny claim arising out of assault [or] battery . . . ” applies to all of Plaintiff’s claims. 28 U.S.C.
§ 2680(h). The Court will address each of Defendant’s arguments below.
A.

Scope of Employment
First, Defendant argues that Poling’s sexual assaults were outside of the scope of her

employment and thus any claims which seek liability based on her actions do not result in
jurisdiction for this Court under the FTCA. Plaintiff argues that it is unknown if Poling was
acting within the scope of her employment and asks for additional discovery to determine if that
is the case. Defendant replies that “if Nurse Poling’s intentional tort could be considered outside
the job description of a LPN, her supervisors’ instruction or authorization to engage in an
intentional tort is no less outside their job description as a health care provider/administrator.”
(Doc. 26, Reply at 5).
The determination of the scope of employment “is governed by the law of the state in
which the conduct at issue occurred.” Coleman v. United States, 91 F.3d 820, 823 (6th Cir.
1996). Under Ohio law, for an employee to be acting within her scope of employment, the

behavior giving rise to the tort must be calculated to facilitate or promote the business for which
the agent was employed. Evans v. Thrasher, 1st Dist. No. C-120783, 2013-Ohio-4776, ¶ 20
(citing Byrd v. Faber, 57 Ohio St. 3d 56, 58, 565 N.E.2d 584 (1991)). As Defendant suggests,
Plaintiff does not allege that that there is some set of circumstances which “would re-characterize
Nurse Poling’s alleged sexual assault as an act within the scope of her employment,” in either the
Amended Complaint or the Memorandum in Opposition. (Doc. 26, Reply at 4). The Evans
court agrees with Defendant, finding that “[a] sexual assault by an employee upon a patient
would in no way facilitate [a] hospital’s business.” Evans, 2013-Ohio-4776, ¶ 21 (granting
motion to dismiss for failure to state a respondeat superior liability claim where worker at
defendant hospital sexually assaulted a patient). The Court agrees with Evans. There is no set of
facts alleged in the Amended Complaint which, even if true, would show that a sexual assault of
a patient was calculated to promote or facilitate the business of a hospital. Accordingly, the
FTCA does not apply to Plaintiff’s claims which allege damage specifically caused by Poling’s
conduct because there are no factual allegations that the sexual assault occurred within the scope
of Poling’s employment.
B.

The Assault and Battery Exception
The parties agree that the assault and battery exception applies to any claims which arise

out of Poling’s sexual assault of Plaintiff. Plaintiff, however, argues that his claims do not arise
out of Poling’s sexual assault, but rather, that “the negligence of Government employees other
than Nurse Poling, who allowed the foreseeable assault and battery to occur, furnish a basis for
the Defendant’s liability that is entirely independent of Nurse Poling’s employment status.”
(Doc. 25, Mem. Opp. at 7).
Although the statute’s use of the terms “any” and “arising out of” both seem to indicate
that courts should read the exception broadly, the Sixth Circuit has noted that, based on Supreme

Court precedent, “it is clear that the intentional tort exception does not apply to liability that is
independent of the intentional tortfeasor’s status as a government employee.” Wilburn v. United
States, 616 F. App’x 848, 859 (6th Cir. 2015) (citing Sheridan v. United States, 487 U.S. 392,
401; see also Cline v. United States, 13 F. Supp. 3d 868, 875 (M.D. Tenn. 2014) (applying
exception to negligent supervision and retention claims which were premised “solely upon the
unique employment relationship” between the tortfeasor and the United States). The court in
Cline collected cases and determined that “the United States may be held liable for negligence
under the FTCA where the United States owed and breached a duty independent of its duty to
supervise the tortfeasor who perpetrated the assault and battery.” Cline, 13 F. Supp. 3d at 873
(emphasis added). In Wilburn, the Sixth Circuit cited Cline positively and held that the assault
and battery exception “blocks claims based on a duty owed to [a plaintiff] that simply amount to
a negligent supervision or training of [the tortfeasor] . . . .” Wilburn, 616 F. App’x at 859.
Plaintiff argues that the first and second claims in his Amended Complaint allege “that
the negligence of other employees of the Defendant allowed these foreseeable acts of assault and
battery to occur upon him.” (Doc. 25, Mem. Opp. at 9). Controlling precedent is clear that the
FTCA blocks negligent supervision and training claims.

Wilburn, 616 F. App’x at 859.

Accordingly, the FTCA does not waive Defendant’s immunity for Plaintiff’s claims that
Defendant committed negligence in the hiring, retention, and supervision of Poling and in the
hiring, retention, and supervision of employees other than Poling who should have supervised
Poling because those claims all arise out of Poling’s alleged sexual assault.
However, even beyond the negligent hiring, supervision, and retention claims, the
remaining claims in this case are essentially that Plaintiff was assaulted by Defendant’s
employee and that Defendant should have prevented it. Unlike other cases in which courts have

allowed assault claims to proceed, Poling’s access to Plaintiff arose because of her employment
relationship not from “the mere fact that [she] happened to be [a] . . . federal employee.”
Sheridan, 487 U.S. at 402. Unlike the incident in Sheridan where the tortfeasor was an off-duty
federal employee, Poling’s alleged sexual assaults took place at VAMC Dayton while she was
working for VAMC Dayton. Id. For the FTCA to provide jurisdiction, the liability must be
independent of the tortfeasor’s employment status. Wilburn, 616 F. App’x at 859. Such was the
claim in Mackey, where the Sixth Circuit found that the FTCA’s assault and battery exception
would not apply where a postal worker shot a fellow worker if the Postal Service had an
independent duty to warn the deceased employee of threat of harm from a third party who
happened to be a fellow employee. Mackey, 247 F. App’x at 642, 645. The Sixth Circuit did not
find such a duty and thus, dismissed the case. Id. at 648. The allegations of liability in this case
cannot be divorced from Poling’s employment with the Defendant because the Amended
Complaint premises the Defendant’s liability on the damage caused by Poling’s assault for all of
the claims. Accordingly, the FTCA does not provide jurisdiction for the Court to consider the
claims in this case, all of which arise out of the alleged sexual assault committed by Poling while
employed at VAMC Dayton.
IV.

CONCLUSION

Based on the foregoing, Defendant’s Motion to Dismiss is GRANTED. Accordingly,
this action is DISMISSED without prejudice. The Clerk shall REMOVE Document 23 from
the Court’s pending motions list and REMOVE this case from the Court’s pending cases list.
IT IS SO ORDERED.
__/s/ George C. Smith
___
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT