BOHNENKAMP et al v. WHISTERBARTH et al
Filing
69
MEMORANDUM OPINION and ORDER re 39 MOTION to Dismiss for Lack of Jurisdiction Count I of Plaintiff's Amended Complaint filed by UNITED STATES OF AMERICA. The United States' Motion to Dismiss the Amended Complaint pursuan t to Fed. R. Civ. P. 12(b)(1) [ECF No. 39] is GRANTED in part and DENIED in part. The United States' motion is GRANTED as to Plaintiff Rachel Bohnenkamp's claims rooted in misrepresentation and deceit and her negligent hiring and supervi sion claims. The United States' motion is DENIED as to Plaintiff's intentional infliction of emotional distress claim and intrusion upon seclusion/invasion of privacy claim. Signed by Magistrate Judge Richard A. Lanzillo on 4/23/2021. (dm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
RACHEL BOHNENKAMP
Plaintiff
vs.
JAMES WHISTERBARTH,
et al.,
Defendants
I.
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Case No. 1:19-cv-00115-RAL
RICHARD A. LANZILLO
UNITED STATES MAGISTRATE JUDGE
MEMORANDUM OPINION AND
ORDER ON DEFENDANTS’ MOTION
TO DISMISS FOR LACK OF
JURISDICTION
ECF No. 39
Introduction
Plaintiff Rachel Bohnenkamp is the spouse of an inmate housed at the Federal Correctional
Institution at McKean, Pennsylvania (FCI-McKean). She brings this action against the United States
of America (the Government) under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b); 28
U.S.C. §2671, et seq. (Count I), and against Defendant James Wusterbarth, a former Bureau of
Prisons Correctional Officer, under the state common-law theories of intentional infliction of
emotional distress and invasion of privacy (Counts II and III). The Government has moved
pursuant to Fed. R. Civ. P. 12(b)(1) to dismiss Mrs. Bohnenkamp’s FTCA claim, arguing that the
Court lacks subject matter jurisdiction over that claim because (1) Wusterbarth’s alleged misconduct
upon which the claim arises occurred outside the scope of his employment with the Federal Bureau
of Prisons (BOP); (2) both the FTCA’s intentional tort exception and the FTCA’s discretionary
function exception bar her FTCA claim; and (3) Mrs. Bohnenkamp failed to exhaust her
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administrative remedies concerning her negligent hiring/supervision theory of liability against the
Government before she filed this action. 1
For the following reasons, the Government’s motion will be GRANTED in part and
DENIED in part.
II.
Factual Background
Defendant James Wusterbarth was hired as a Correctional Officer at FCI McKean on
November 29, 2015. ECF No. 40-2, ¶ 4. On August 18, 2018, Wusterbarth was on duty in the
visitors’ room at FCI-McKean when Mrs. Bohnenkamp and her two minor sons arrived to visit Mr.
Bohnenkamp. ECF No. 30, ¶¶ 15-16. Mrs. Bohnenkamp had arranged for her, Mr. Bohnenkamp,
and their sons to visit the “family playroom” of the visiting area. Id., ¶ 18. When Mrs. Bohnenkamp
arrived, Wusterbarth motioned for her to come over to the desk where he was stationed to oversee
visiting room activity. Id., ¶¶ 19-20. When she complied, Wusterbarth remarked to Mrs.
Bohnenkamp that “he had not spoken to her much in the facility.” Id., ¶ 21. This comment struck
Mrs. Bohnenkamp as odd because she had never met Wusterbarth before that day. Id., ¶ 20.
Wusterbarth then instructed Mrs. Bohnenkamp to provide the last two digits of her
telephone number, explaining that he needed to speak with her. Id., ¶ 22. When Mrs. Bohnenkamp
asked why, Wusterbarth replied that he could not speak freely in the facility but “hinted that there
was an issue with Mrs. Bohnenkamp’s husband Chris, which Defendant Wusterbarth needed to
discuss with her in private.” Id., ¶¶ 22-23. This exchange left Mrs. Bohnenkamp “extremely
troubled.” Id., ¶ 24. Wusterbarth then “warned her that she could not speak to anyone, including
The parties have consented to the jurisdiction of a United States Magistrate Judge to conduct all proceedings in this
case, including the entry of final judgment, as authorized by 28 U.S.C. § 636. ECF Nos. 7, 53. Although the Complaint
identified the individual defendant’s last name as “Whisterbarth,” he and the Government provided the correct spelling,
“Wusterbarth,” which the Court uses throughout this Opinion. ECF No. 20, p. 1, n. 2. The Amended Complaint refers
to Plaintiff as “Mrs. Bohnenkamp.” ECF No. 30. The Court will do the same.
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her husband, about the subject of their conversation,” which “only heightened” her concern. Id.,
¶ 24. Wusterbarth again directed Mrs. Bohnenkamp to provide him with the last two digits of her
telephone number so that he could contact her. Id., ¶ 25. The stress and anxiety caused by
Wusterbarth’s orders and comments made her feel nauseous. Id., ¶ 26. Mrs. Bohnenkamp
ultimately provided the numbers to Wusterbarth, “believing that she had no other option and
fearing that her husband was in some type of serious trouble.” Id.
Later that day, at approximately 4:03 p.m., after Mrs. Bohnenkamp and her sons had left
FCI-McKean, she received a call on her cell phone from Wusterbarth. Id., ¶ 27. Wusterbarth told
her that he needed to meet her to discuss her husband. Id., ¶ 28. Mrs. Bohnenkamp refused to meet
Wusterbarth and demanded to know what was going on. Id., ¶ 29. Wusterbarth then acknowledged
that his call was not about her husband; he explained that he was attracted to her and wanted to see
her. Id., ¶ 30. Mrs. Bohnenkamp immediately responded that his advances were inappropriate and
that she was committed to her husband and children. Id., ¶ 31.
Despite this rebuke, Wusterbarth insisted multiple times during the call that they meet,
including at the hotel where she was staying with her two sons. Id., ¶ 32. He instructed her “to
leave her two children, ages seven and nine, alone in the hotel room and to meet him in the lobby.”
Id., ¶ 33. When Mrs. Bohnenkamp refused, he instructed her to drive to Buffalo to meet him
because he knew she lived near Niagara Falls. Id., ¶ 34. Now, frightened that Wusterbarth knew her
address, Mrs. Bohnenkamp again refused. At this, Wusterbarth then “threatened her that she could
never tell anyone about his advances, and that if she did her husband would be in serious danger.”
Id., ¶ 35.
The next day, when Mrs. Bohnenkamp returned to FCI-McKean with her sons to visit her
husband, Wusterbarth was again on duty in the visitors’ area. Id., ¶ 36. When he saw Mrs.
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Bohnenkamp, Wusterbarth motioned to her to keep silent—a threat which terrified Mrs.
Bohnenkamp and left her in fear for her own safety and that of her husband and children. Id., ¶ 37.
As instructed, Mrs. Bohnenkamp did not disclose Wusterbarth’s advances and threats for months.
Id., ¶ 38. Because Mrs. Bohnenkamp had given her personal information—including her address,
email, and phone number—to the prison when she had registered to visit her husband, she feared
what Wusterbarth could do with access to this information. Id., ¶ 38.
On November 28, 2018, Wusterbarth called one of the Bohnenkamps’ sons on his phone,
identified himself as an officer at the Bureau of Prisons, and told him that his father “had recently
been in an altercation at the prison, and had died.” Id., ¶ 40. When Mrs. Bohnenkamp’s son related
this information to her, she was terrified and contacted the prison. Id., ¶ 41. A prison official
advised that her husband was alive and had not been involved in any incident. Id.
On March 2, 2019, while Mrs. Bohnenkamp visited her husband at FCI-McKean, another
corrections officer informed them that a new officer would be supervising the visitors’ room for the
next quarter. Id., ¶ 42. When Mrs. Bohnenkamp asked whether Wusterbarth would be supervising
visitation, the same corrections officer advised her that Wusterbarth was on voluntary leave pending
an investigation of sexual harassment and misconduct against visitors. Id., ¶¶ 43-44. That same day,
Mrs. Bohnenkamp filed a report regarding Wusterbarth’s misconduct with the Bradford,
Pennsylvania Police Department. As part of her report, she told the police that Wusterbarth had
contacted her using a cell phone with a Las Vegas area code. Id., ¶ 47. Later that evening, at 9:17
p.m., Mrs. Bohnenkamp received a series of text messages from a number she did not know, which
read as follows: “You opened your mouth, you aren’t smart at all”; “2022 you seem comfortable at
best”; “My Vegas number? Seriously”; “See ya soon.” Id., ¶¶ 48-49. Mrs. Bohnenkamp understood
the reference to ‘2022” to be to Mr. Bohnenkamp’s prison release date, while “My Vegas number?”
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referred to the fact that Mrs. Bohnenkamp had provided Wusterbarth’s Las Vegas area cell phone
number to the Bradford Police. Id., ¶ 51. Mrs. Bohnenkamp feared that these text messages meant
that Wusterbarth would harm her or her family in retaliation for her police report. Id., ¶¶ 52-53. To
avoid Wusterbarth, Mrs. Bohnenkamp changed her phone number and moved her family multiple
times. Id., ¶ 53. When Mrs. Bohnenkamp reported Wusterbarth’s conduct to officials at FCI
McKean, she was informed that they “already knew about Defendant Wusterbarth’s predatory
conduct, and had known for some time.” Id., ¶¶ 57-58. Mrs. Bohnenkamp also alleges that prison
officials, including Warden Trate, had known that Wusterbarth kept an office calendar on which he
recorded when various women were scheduled to come to the visitors’ area at FCI-McKean, that
Wusterbarth used this calendar to ensure that he was present when the women he wanted to pursue
came to the prison, and that Warden Trate was aware of Wusterbarth’s calendar before his contact
with Mrs. Bohnenkamp on August 18, 2018. Id., ¶¶ 58-61.
Mrs. Bohnenkamp filed an administrative claim alleging Wusterbarth subjected her to the
preceding mistreatment and that Warden Trate was aware of Wusterbarth’s predatory conduct. Id.,
¶ 68. See also ECF No. 40-3. Her administrative claim was denied on June 15, 2020. ECF No. 30,
¶ 69.
III.
Standard of Review
A motion to dismiss pursuant to Rule 12(b)(1) challenges a court’s subject-matter
jurisdiction over the plaintiff’s claims. Fed. R. Civ. P. 12(b)(1). “At issue in a Rule 12(b)(1) motion
is the court’s ‘very power to hear the case.’” Judkins v. HT Window Fashions Corp., 514 F. Supp.2d
753, 759 (W.D. Pa. 2007) (quoting Mortensen v. First Federal Savings & Loan Association, 549 F.2d 884,
891 (3d Cir. 1977)). As the party invoking the jurisdiction of the court, the plaintiff bears the burden
of showing that her claims are properly before the court. Brown v. Tucci, 960 F. Supp. 2d 544, 561–62
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(W.D. Pa. 2013) (citing Development Finance Corp. v. Alpha Housing & Health Care, 54 F.3d 156, 158 (3d
Cir. 1995)). A Rule 12(b)(1) challenge can be either to the face of the complaint or to the facts upon
which the invocation of subject matter jurisdiction is based. Petruska v. Gannon University, 462 F.3d
294, 302, n. 3 (3d Cir.2006). In reviewing a Rule 12(b)(1) motion, a court must determine whether it
is asserting a facial attack or a factual attack. Id. A facial attack challenges jurisdiction based on the
sufficiency of the plaintiff’s pleading. When considering a facial attack, a court must accept the
allegations contained in the plaintiff’s complaint as true. Id. In contrast, where the motion presents a
factual attack on the court’s jurisdiction, the court does not attach a presumption of truthfulness to
the plaintiff’s allegations and may decide whether it has jurisdiction over the plaintiff’s claims despite
the existence of disputed material facts. Mortensen, 549 F.2d at 891. On a factual attack, the plaintiff
bears “the burden of proof that jurisdiction does in fact exist.” Id.
The Government’s brief in support of its Rule 12(b)(1) motion appended several exhibits,
including a “Certificate Denying Scope of Employment” executed by then United States Attorney
for the Western District of Pennsylvania, Scott W. Brady; a Declaration from Jennifer Sidon, a
Human Resources Manager at FCI-McKean; the administrative claim Mrs. Bohnenkamp submitted
to the BOP; and a BOP human resources management manual with associated forms and addenda.
ECF No. 40-1, 40-2, 40-3. Accordingly, the Court will treat the Government’s motion as a factual
attack on its jurisdiction and consider these submissions in its determination of the motion.
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IV.
Discussion
A. Positions of the Parties
The Amended Complaint (ECF No. 30) is the operative pleading before the Court. 2 It
asserts that the Government is liable to Mrs. Bohnenkamp under the FTCA based on two theories:
(1) direct liability for the intentional torts of Wusterbarth because he was acting within the scope of
his employment; and (2) direct liability for its own negligent hiring and supervision of Wusterbarth.
The Government raises four arguments in support of its jurisdictional challenge: (1)Wusterbarth’s
alleged conduct fell outside the scope of his employment with the BOP; (2) the FTCA’s “intentional
tort exception” negates jurisdiction; (3) the FTCA’s “discretionary function exception” negates
jurisdiction, and (4) Mrs. Bohnenkamp failed to exhaust her administrative remedies regarding her
negligent hiring and supervision theory of liability. ECF No. 40, p. 2.
B. The FTCA’s Limited Waiver of Sovereign Immunity and Its Jurisdictional Requirements
The United States is immune from suit except where Congress specifically consents to waive
that immunity. United States v. Sherwood, 312 U.S. 584, 586, 61 S. Ct. 767, 85 L. Ed. 1058 (1941).
When sovereign immunity is waived, Congress is permitted to specify the terms and conditions
under which suits may be brought. Honda v. Clark, 386 U.S. 484, 501, 87 S. Ct. 1188, 18 L. Ed. 2d
244 (1967). Absent congressional consent, a court lacks jurisdiction to entertain a lawsuit against the
Government. United States v. Mitchell, 445 U.S. 535, 537, 100 S. Ct. 1349, 63 L. Ed. 2d 607 (1980).
The original Complaint in this action was filed pro se; it included Christopher Bohnenkamp, Mrs. Bohnenkamp’s
husband, as a Plaintiff and Warden Trate of FCI-McKean as a Defendant. ECF No. 2. Warden Trate filed a motion to
dismiss the claim against him or, alternatively, a motion for summary judgment. ECF No. 19. After counsel entered
their appearances on behalf of the Plaintiffs (ECF No. 9), Plaintiffs consented to the dismissal of the claim against
Warden Trate (see ECF Nos. 22, 24) and filed the Amended Complaint, which named only Mrs. Bohnenkamp as
Plaintiff. See ECF No. 30.
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The FTCA is a limited waiver of sovereign immunity that imposes liability upon the
Government for certain torts committed by its employees. Sheridan v. United States, 487 U.S. 392,
398, 108 S. Ct. 2449, 101 L.Ed.2d 352 (1988); 28 U.S.C. § 1346(b). The FTCA itself, not the general
grant of federal question jurisdiction of 28 U.S.C. § 1331, is the source of a federal court’s
jurisdiction to hear tort claims against the Government. CNA v. United States, 535 F.3d 132, 140 (3d
Cir. 2008), as amended (Sept. 29, 2008). A plaintiff’s claim must satisfy the six threshold requirements
listed in § 1346(b)(1) to confer jurisdiction. A claim must be made
“[1] against the United States, [2] for money damages, ... [3] for injury
or loss of property, or personal injury or death [4] caused by the
negligent or wrongful act or omission of any employee of the
Government [5] while acting within the scope of his office or
employment, [6] 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.”
FDIC v. Meyer, 510 U.S. 471, 477, 114 S. Ct. 996, 127 L. Ed. 2d 308 (1994) (quoting 28 U.S.C.
§ 1346(b)(1)) (alterations in original). The sixth of the § 1346(b)(1) requirements specifies state tort
law as “the source of substantive liability under the FTCA.” Id. at 478, 114 S. Ct. 996. Because the
acts and omissions upon which Mrs. Bohnenkamp bases her claims occurred in Pennsylvania, its
substantive law defines the parameters of her claims. See Duhring Res. Co. v. United States, 775 Fed.
Appx. 742, 745 (3d Cir. 2019). Likewise, while a showing that Wusterbarth acted within the scope
of his employment is a threshold requirement for federal court jurisdiction under § 1346(b)(1),
CNA, 535 F.3d at 140, Pennsylvania law controls the analysis of whether Wusterbarth acted within
the scope of his employment. Matsko v. United States, 372 F.3d 556, 559 (3d Cir. 2004) (citing 28
U.S.C. § 1346(b)(1); Aliota v. Graham, 984 F.2d 1350, 1358 (3d Cir.1993)). Mrs. Bohnenkamp bears
the burden of demonstrating that her claims fall within the scope of the FTCA’s waiver of sovereign
immunity. Baer v. United States, 722 F.3d 168, 172 (3d Cir. 2013).
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1. The “scope of employment” issue cannot be decided on the current record.
The Government has properly raised the issue of Wusterbarth’s scope of employment
pursuant to Rule 12(b)(1). CNA, 535 F.3d at 144. And the Government properly identifies
Wusterbarth’s conduct, rather than Warden Trate’s conduct, as the focus of the inquiry. ECF No.
40, p. 7. Although Mrs. Bohnenkamp alleges that Trate failed to properly supervise Wusterbarth,
“plaintiffs under the FTCA cannot use a negligent supervision claim to circumvent the scope-ofemployment condition of § 1346(b)(1).” Id. at 149. If the obligation to supervise the employee
arises solely from the employment relationship, as Trate’s obligation to supervise Wusterbarth does
in this case, the focus of the scope-of-employment inquiry is on the employee who directly caused
the harm to the plaintiff, not on the supervisor who failed to prevent it. Id. See infra, II, F.
In Pennsylvania, courts apply the Restatement (Second) of Agency’s Section 228 to
determine whether conduct is within the scope of employment. Matsko, 372 F.3d at 559 (citing
§ 228; Fitzgerald v. McCutcheon, 270 Pa. Super. 102, 410 A.2d 1270, 1272 (1979)). According to
Section 228, “conduct is within the scope of employment if, but only if: (a) it is the kind [the
employee] is employed to perform; (b) it occurs substantially within the authorized time and space
limits [and] (c) it is actuated, at least in part, by a purpose to serve the master....” Brumfield v. Sanders,
232 F.3d 376, 380 (3d Cir. 2000) (quoting Restatement (Second) Agency § 228 (1958)). A plaintiff
must establish each element to show that the act in question was within the scope of employment.
Matsko, 372 F.3d at 559. The foregoing test is factual in nature, and, as noted, the Court is
authorized to resolve factual disputes where the defendant’s Rule 12(b)(1) presents a factual attack.
However, because the scope-of-employment jurisdictional issue “is intertwined with the merits of
[the plaintiff’s] FTCA claim,” the Court “must take care not to reach the merits of [the] case when
deciding a Rule 12(b)(1) motion.” CNA, 535 F.3d at 144. See also Brown v. United States, 2018 WL
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741731, at *7 (E.D. Pa. Feb. 7, 2018) (noting that the “court must…take care not to resolve the
merits of the action and therefore should require less of a factual showing from plaintiff [regarding
scope of employment] than would be required at trial”), aff’d, 823 Fed. Appx. 97 (3d Cir. 2020) (per
curiam).
The Government has produced a Certification from the United States Attorney for this
Judicial District reciting that Wusterbarth’s conduct was outside the scope of his employment as a
corrections officer. ECF No. 40-1. Such certifications are authorized by the Federal Employees
Liability Reform and Tort Compensation Act of 1988 (FELRTCA), which amended the FTCA.
Melo v. Hafer, 912 F.2d 628, 639 (3d Cir. 1990) (citing 28 U.S.C. §§ 1346(b), 2671– 2680 (1988)), aff’d
on other grounds, 502 U.S. 21, 112 S. Ct. 358, 116 L.Ed.2d 301 (1991). They are more commonly used
by the Government to certify that an employee acted within the scope of his or her employment
relative to actions challenged in a lawsuit and, thus, to facilitate the substitution of the United States
in place of the employee under the FTCA or the removal of the action from state court to federal
court. See id. (citing 28 U.S.C. § 2679(d)(1) (1988)). The United States Attorney General has
delegated this certification authority to United States Attorneys in consultation with the Department
of Justice. See 28 U.S.C. § 510 (1988); 28 C.F.R. § 15.3(a) (1989). FELRTCA confirms that “for
suits based on certain negligent or wrongful acts of federal employees acting within the scope of
their employment,” an injured party’s exclusive remedy is against the Government, not the federal
employee. Melo, 912 F.2d at 639 (citing 28 U.S.C. § 2679(b)(1) (1988)).
Such certifications are conclusive only in limited circumstances. For a lawsuit filed initially in
state court, the Attorney General’s certification that the employee’s actions were taken within the
scope of his employment is mandatory for removal of the lawsuit from state to federal court. Melo,
912 F.2d at 641 (citing 28 U.S.C. §2679(d)(2) (“This certification of the Attorney General shall
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conclusively establish scope of office or employment for purposes of removal.”) (emphasis in original)).
See also S.J. & W. Ranch Inc. v. Lehtinen, 913 F.2d 1538, 1542 (11th Cir. 1990), amended by S.J. & W.
Ranch v. Lehtinen, 924 F.2d 1555 (11th Cir.1991), cert. denied, 502 U.S. 813, 112 S. Ct. 62, 116 L. Ed.2d
37 (1991). Once the lawsuit is removed—or if the lawsuit began in federal court—certification is
not conclusive on the separate question of whether the United States must be substituted as a
defendant in place of the federal employee. Schrob v. Catterson, 967 F.2d 929, 936 (3d Cir. 1992). The
Third Circuit has held that “[a] district court may review the government’s certification that the
actions” of a federal employee were undertaken “within the scope of his employment.” Melo, 912
F.2d at 642. See also Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 420, 115 S. Ct. 2227, 132 L.Ed.2d
375 (1995) (“the scope-of-employment certification is reviewable in court”); Lehtinen, 913 F.2d at
1542 (“[O]nce in federal court a plaintiff is entitled to litigate the question of whether the employee
was acting within the scope of his employment when the challenged conduct occurred.”).
Here, the United States Attorney certified that Wusterbarth’s acts were not within the scope of
his employment. ECF No. 40-1. The Government has not identified any authority for the
proposition that this negative certification is binding upon the Court, and any argument to that
effect would be contrary to the Third Circuit’s directive that the scope of employment issue be
decided according to state law. See Matsko 372 F.3d at 559 (citing 28 U.S.C. § 1346(b)(1)). While
carrying some weight, neither the Certification nor anything else in the record provides any
meaningful information concerning Wusterbarth’s scope of employment or his job responsibilities.
The Amended Complaint does allege, however, that Wusterbarth’s position authorized him to
interact with visitors such as Mrs. Bohnenkamp and to have access to visitors’ private information.
The fact that Wusterbarth is alleged to have abused this authority does not necessarily mean that he
acted outside the scope of his employment. See Potter Title & Tr. Co. v. Knox, 381 Pa. 202, 207, 113
A.2d 549, 551 (1955) (noting that “when an act is done in the course of one’s employment the
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employer will not ordinarily be excused from liability although the employee abused his authority
and thereby inflicted injury upon another”). Indeed, “an act, although forbidden or done in a
forbidden manner, may be within the scope of employment.” Brumfield v. Sanders, 232 F.3d 376, 381
(3d Cir. 2000) (quoting Restatement (Second) of Agency § 230); Aliota v. Graham, 984 F.2d 1350,
1358-59 (3d Cir. 1993). See also Fitgerald, 410 A.2d at 1271 (noting that respondeat superior liability “may
extend even to intentional or criminal acts committed by the servant”).
Several of Wusterbarth’s contacts and communications with Mrs. Bohnenkamp upon which
she bases her claims occurred while Wusterbarth was present and on-duty at FCI-McKean and
performing his job in the prison’s visiting area. Indeed, Wusterbarth’s initial unwelcome overtures
to Mrs. Bohnenkamp occurred during her first visit to the family area at FCI-McKean when
Wusterbarth, the officer on duty, summoned her to his station and asked her to disclose personal
identifying information, including her telephone number. ECF No. 30, ¶¶ 19-25. Wusterbarth
successfully obtained this information from Mrs. Bohnenkamp using both his authority as a
corrections officer and the pretense of having information concerning her incarcerated husband that
he would have acquired in his capacity as a corrections officer. Id., ¶¶ 23-25. At 4:03 pm that same
day, Wusterbarth used the telephone number he obtained from Mrs. Bohnenkamp to contact her
and make further overtures to meet with her, again representing that the purpose of the meeting was
to discuss information concerning her husband. Id., ¶ 28. The next day, Mrs. Bohnenkamp
returned to FCI McKean with her two sons to visit her husband and was again approached by
Wusterbarth who was on duty. On this occasion, Wusterbarth instructed Mrs. Bohnenkamp that
she needed to “keep silent” about his inquiries. Id., ¶ 37. Mrs. Bohnenkamp understood this
communication to be a threat and associated it with Wusterbarth’s authority over her husband. Id.
Although an abuse of his authority, this and other conduct by Wusterbarth appear to have been “of
the kind the employee [Wusterbarth] [wa]s employed to perform”—interaction with visitors to FCI12
McKean; it “occur[red] within the time and space of employment”—while Wusterbarth was on duty
at FCI-McKean; and it was “actuated, at least in part, by a purpose to serve the master.” Brumfield,
232 F.3d at 380 (quoting Restatement (Second) Agency § 228); Matsko, 372 F.3d at 559.
The Government argues that certain of Wusterbarth’s alleged misconduct towards Mrs.
Bohnenkamp occurred after he was no longer employed by the Bureau of Prisons. ECF No. 40,
p. 8. While the Government may ultimately establish this factually, the timing of Wusterbarth’s
actions relative to the end of his employment is not clear from the existing record. And this is not
the only gap in the record concerning the scope of employment inquiry. During oral argument on
its motion, the Government acknowledged that a “job description” for Wusterbarth’s position exists
but is not currently part of the record. The job description is likely to provide relevant information
concerning the breadth of Wusterbarth’s authority, particularly given Mrs. Bohnenkamp’s allegations
that certain of Wusterbarth’s misconduct occurred squarely within the time and place parameters of
his employment. Here, the “difficulties of separating out the jurisdictional nexus from factual issues
that go to the merits of the claim” caution against ruling that Wusterbarth acted outside the scope of
employment issue at this stage of the proceeding. See Mortensen, 549 F.2d at 892–94. Given the
undeveloped nature of the record regarding the scope of Wusterbarth’s employment and the
intertwined nature of this issue with the merits of Mrs. Bohnenkamp’s claims, it is premature to
resolve this issue on the Government’s pending motion.
2. Mrs. Bohnenkamp’s intentional infliction of emotional distress and invasion of
privacy claims are barred in part but not entirely by the “intentional tort”
exception to the FTCA’s limited waiver of sovereign immunity.
Even where the threshold six requirements of § 1346(b)(1) are satisfied, Congress explicitly
excepted a variety of conduct from its limited waiver of sovereign immunity. One such exception,
28 U.S.C. § 2680(h), provides that the United States will not be liable for “[a]ny claim arising out of
assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel,
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slander, misrepresentation, deceit, or interference with contract rights.” 28 U.S.C. § 2680(h). The
Supreme Court has referred to § 2680(h) as the “intentional tort exception” to the FTCA’s waiver of
sovereign immunity. Millbrook v. United States, 569 U.S. 50, 52, 133 S. Ct. 1441, 1442, 185 L. Ed. 2d
531 (2013) (citation omitted). And Mrs. Bohnenkamp expressly conceded in her principal brief that
“the FTCA does not permit any claims against it for intentional torts” and that “Wusterbarth’s
conduct…sounds in intentional tort…” ECF No. 49, p. 5. Despite this concession, the Court is
compelled to note that the “shorthand description” of § 2680(h) as the “intentional tort” exception
“is not entirely accurate” as it “does not remove from the FTCA’s waiver all intentional torts, e.g.,
conversion and trespass…” Levin v. United States, 568 U.S. 503, 507 n.1, 133 S. Ct. 1224, 1228 n. 1,
185 L. Ed. 2d 343 (2013).
Because § 2680(h) includes the language “[a]ny claim arising out of” the several enumerated
intentional torts, “a court must look, not to the theory upon which the plaintiff elects to proceed,
but rather to the substance of the claim which he asserts.” Lambertson v. United States, 528 F.2d 441,
443 (2d Cir. 1976). In doing so, the court must examine whether “the underlying governmental
conduct which constitutes an excepted cause of action is ‘essential’ to plaintiff’s claim.” Metz v.
United States, 788 F.2d 1528, 1534 (11th Cir. 1986) (citing Block v. Neal, 460 U.S. 289, 103 S. Ct. 1089,
1094, 75 L.Ed.2d 67 (1983) (“In this case…the Government’s misstatements are not essential to
plaintiff’s negligence claim”; “the partial overlap between these two tort actions does not support
the conclusion that if one is excepted under the Tort Claims Act, the other must be as well.”). For
example, courts have ruled that “defamation suits against the United States are prohibited” because
they arise out of “libel, slander, misrepresentation [or] deceit.” Brumfield v. Sanders, 232 F.3d 376, 382
(3d Cir. 2000). Courts have also held that the intentional tort of false light invasion of privacy arises
out of libel and slander and cannot support liability against the Government. See, e.g., Metz v. United
14
States, 788 F.2d 1528, 1535 (11th Cir. 1986); Johnson v. Sawyer, 47 F.3d 716, 732 n. 34 (5th Cir. 1995)
(“‘false light’ invasion of privacy essentially amounts to libel, slander, or misrepresentation.”).
The Amended Complaint asserts an intentional infliction of emotional distress claim (Count
II) and an invasion of privacy claim (Count III) against Wusterbarth. ECF No. 30. Although Mrs.
Bohnenkamp labeled her FTCA claim against the Government (Count I) as sounding in
“negligence,” she specifically alleged that the Government is directly liable for Wusterbarth’s
intentional misconduct. Id., ¶¶ 81-87. Section 2680(h) of the FTCA does not specifically list
intentional infliction of emotional distress as one of the torts within the exception to the
Government’s general waiver of sovereign immunity. Nevertheless, “the FTCA precludes claims of
intentional infliction of emotional distress if they ‘arise out’ of an enumerated ‘exception’ under the
FTCA.” McCluskey v. United States, 2010 WL 4024717, at *8 (W.D. Pa. Oct. 12, 2010) (citing Borawski
v. Henderson, 265 F.Supp.2d 475, 484 (D.N.J. 2003); Gonzalez–Jiminez De Ruiz v. United States, 378 F.3d
1229, 1231 n. 3 (11th Cir. 2004) (stating “if the plaintiffs’ allegations of deceit are essential to their
intentional infliction of emotional distress claim, we lack jurisdiction under the FTCA to entertain
that claim”).
Here, Mrs. Bohnenkamp’s allegations of Wusterbarth’s misrepresentations and deceit form a
part of her intentional infliction of emotional distress claim. Misrepresentation under Pennsylvania
tort law requires (1) a representation, (2) which is material to the transaction at hand, (3) made
falsely, with knowledge of its falsity or recklessness as to whether it is true or false, (4) with the
intent of misleading another into relying on it, (5) justifiable reliance on the misrepresentation, and
(6) that the resulting injury was proximately caused by the reliance. Gibbs v. Ernst, 538 Pa. 193, 207,
647 A.2d 882, 889 (1994) (citing W. Page Keaton, Prosser and Keaton on the Law of Torts § 105 (5th ed.
1984); Restatement (Second) of Torts § 525 (1977)). “What has become known as the
15
‘misrepresentation exception,’ therefore, bars recovery for claims for intentional or negligent
concealment, misrepresentation, or omission of material fact.” Nicklas v. United States, 2014 WL
309323, at *2 (W.D. Pa. Jan. 27, 2014) (citing United States v. Neustadt, 366 U.S. 696, 705–06, 708–09,
81 S. Ct. 1294, 6 L.Ed.2d 614 (1961); Block v. Neal, 460 U.S. 289, 298, 103 S. Ct. 1089, 75 L.Ed.2d 67
(1983); and Reynolds v. United States, 643 F.2d 707, 712 (10th Cir.1981) (The “misrepresentation”
exception of 28 U.S.C. § 2680(h) “has been broadly construed to include false representations of any
type.”)).
The Amended Complaint alleges that Wusterbarth repeatedly misrepresented information
concerning her husband and Wusterbarth’s need to communicate with her. The Amended
Complaint further alleges that Wusterbarth’s intentional misrepresentations and her reliance upon
them resulted in her severe emotional distress. See Ohama v. Markowitz, 434 F. Supp. 3d 303, 317
(E.D. Pa. 2020), reconsideration denied, 2020 WL 1124402 (E.D. Pa. Mar. 6, 2020) (misrepresentation
requires material misrepresentation that induces justifiable reliance resulting in a detriment). Her
reliance on a misrepresentation is thus essential to her claim for intentional infliction of emotional
distress, and to the extent Mrs. Bohnenkamp bases her intentional infliction of emotional distress
claim upon Wusterbarth’s misrepresentations and deceit, her claim is barred by § 2680(h). Nicklas,
2014 WL 309323, at *2-3 (intentional infliction of emotional distress claim barred because emotional
distress arose from plaintiff’s reliance on a misrepresentation about her husband’s cause of death
from a Veterans’ Administration doctor).
But Mrs. Bohnenkamp also complains of emotional distress arising from Wusterbarth’s
unwanted sexual advances. See ECF No. 30, ¶¶ 37, 82-85. Intentional infliction of emotional
distress claims arising out of such conduct have been found to fall outside the scope of the
intentional tort exception. See Jense v. Runyon, 990 F. Supp. 1320, 1330 (D. Utah 1998) (allowing
16
intentional infliction of emotional distress claim to proceed where plaintiff alleged a mail carrier
“asked her invasive sexual questions, made unwanted sexual advances, and paid her unwelcome
attention by visiting her on her mail route,” which the court held was “the core or substance of her
claim,” even though later acts rose to the level of assault by a threat of violence and battery by
offensive touching). See also Ruddy v. United States, 2011 WL 5834953, at *4 (M.D. Pa. Nov. 21, 2011)
(“intentional infliction of emotional distress…based on the months of systemic harassment” not
excluded by § 2680(h); Xue Lu v. Powell, 621 F.3d 944, 950 (9th Cir. 2010) (holding that “emotional
distress suffered as a result of the demand for sexual favors is an injury distinct from the battery and
may be proved by the plaintiffs”). Compare Doe v. United States, 618 F. Supp. 503, 506-07 (D.S.C.
1984) (dismissing FTCA suit because the intentional infliction of emotional distress claim arose
from the assailant’s conduct in exposing himself and suggesting sexual acts and thus arose from an
assault). To the extent Mrs. Bohnenkamp’s intentional infliction of emotional distress claim is based
on allegations of harassment and unwanted sexual advances, it is not subject to the intentional tort
exception and falls within this Court’s FTCA subject matter jurisdiction.
The Government argues that certain of Wusterbarth’s alleged conduct upon which Mrs.
Bohnenkamp bases her intentional infliction of emotional distress claim went beyond harassment
and constituted an “assault” under Pennsylvania law, which would place it squarely within the
intentional tort exception. See ECF No. 66, p. 8. The Government specifically points to Mrs.
Bohnenkamp’s allegations that “Wusterbarth once made a threatening gesture and sent multiple
threatening text messages to her, and that his actions caused her fear.” Id. (citing ECF No. 30 ¶¶ 26,
37, 52, 82, 93, 103). The Government contends that “[t]he substance of these claims plainly arises
out of an alleged ‘assault,’ as defined by Pennsylvania law.” Id. (citing ASSAULT, Pa. SSJI (CIV),
17.10 (“An assault is an act done with the intent to put another in reasonable and immediate fear of
a harmful or offensive contact with his or her body and that does, in fact, cause such fear.”)).
17
Contrary to the Government’s assertions, the existing record is far from clear that
Wusterbarth’s alleged actions rose to the level of an assault. One “element of civil assault is the
intention to put another person in apprehension of an immediate battery or harmful or offensive
bodily contact.” Napier v. City of New Castle, 2007 WL 1965296, at *8 (W.D. Pa. July 3, 2007)
(emphasis supplied, citations omitted), aff'd 407 Fed. Appx. 578 (3d Cir. 2010). “Indeed, it is well
settled in Pennsylvania, that ‘words or threats alone are insufficient to put a person in reasonable
apprehension of physical injury or offensive touching.’” Id. (quoting Kahle v. Glosser Bros., Inc., 462
F.2d 815, 817 n. 4 (3d Cir.1972). See also Cucinotti v. Ortmann, 399 Pa. 26, 26, 159 A.2d 216, 217
(1960) (“Words in themselves, no matter how threatening, do not constitute an assault; the
[defendant] must be in a position to carry out the threat immediately, and he must take some
affirmative action to do so”). Conditional words negate the threat of an imminent assault. 3 See
United States v. Shropshire, 20 U.S.C.M.A. 374, 376, 43 C.M.R. 214, 216 (1971).
At best, the record is ambiguous whether any of Wusterbarth’s statements or actions could
be construed as threatening imminent harm to Mrs. Bohnenkamp that he would imminently harm
Mrs. Bohnenkamp when he gestured to her to keep silent on her second time seeing him in FCIMcKean’s visitors’ room. See ECF No. 30, ¶¶ 37, 48-49. Based on the current record, the Court
cannot say as a matter of law that any one or a combination of Wusterbarth’s statements or gestures
conveyed an immediate or imminent threat of a battery or offensive touching against Mrs.
Bohnenkamp. See Jense, 990 F. Supp. at 1330 (holding that intentional infliction of emotional
distress claim was not barred by § 2680(h) because threats “directed at preventing [the plaintiff]
This principle has deep roots dating back to English common law. In the seminal case of Tuberville v. Savage, the
Kings Bench found no assault where the defendant placed his hand on his sword’s hilt and said, ““If it were not
assize-time, I would not take such language from you,” because his words negated any intent to inflict immediate
harm. See Tuberville v. Savage, 1 Mod. Rep. 3, 86 Eng Rep. 684 (1699).
3
18
from reporting the sexual harassment” were distinct from the underlying assaultive conduct).
Resolution of this factual issue will have to await a more developed record.
Furthermore, to the extent the Government is correct that aspects of Wusterbarth’s conduct
constituted an assault, it may be subject to the “law enforcement proviso” of 28 U.S.C. § 2680(h).
This proviso authorizes the Government to be sued for six of the intentional torts listed in
§ 2680(h)—assault, battery, false imprisonment, false arrest, abuse of process, and malicious
prosecution—when any of those torts is committed by an “investigative or law enforcement officer”
in the scope of his or her employment. See Pellegrino v. United States of Am. Transportation Sec. Admin.,
937 F.3d 164, 169–70 (3d Cir. 2019) (en banc). “For the purpose of this [proviso], ‘investigative or
law enforcement officer’ means any officer of the United States who is empowered by law to
execute searches, to seize evidence, or to make arrests for violations of Federal law.” 28 U.S.C.
§ 2680(h). The Government acknowledged that Wusterbarth, in his capacity as a federal corrections
officer, possessed the authority specified in the proviso’s definition of “investigative or law
enforcement officer.” ECF No. 66, p. 9. Accordingly, the Government also acknowledged in its
supplemental brief and at oral argument that, assuming Wusterbarth was acting within the scope of
his employment, “it would appear that the conduct that constitutes assault could fall within the law
enforcement proviso.” Id. This further supports the Court’s exercise of FTCA subject matter
jurisdiction in this case, at least at this stage of the proceeding.
Mrs. Bohnenkamp’s invasion of privacy claim also does not appear to arise from any of the
intentional torts enumerated in § 2680(h). The tort of invasion of privacy in its intrusion on
seclusion form requires “an intentional intrusion upon the seclusion of [plaintiff’s] private concerns
which was substantial and highly offensive to a reasonable person, and …sufficient facts to establish
that the information disclosed would have caused mental suffering, shame or humiliation to a
19
person of ordinary sensibilities.” Boring v. Google Inc., 362 Fed. Appx. 273, 279 (3d Cir.2010) (quoting
Pro Golf Mfg., Inc. v. Tribune Review Newspaper Co., 570 Pa. 242, 809 A.2d 243, 247 (Pa.2002)). The
privacy invasion may occur (1) by physical intrusion into a place where the plaintiff has secluded
himself, (2) by use of the defendant’s senses to oversee or overhear the plaintiff’s private affairs, or
(3) some other form of investigation or examination into plaintiff’s private concerns.” Harris by
Harris v. Easton Publishing Co., 483 A.2d 1377, 1383-84 (Pa. Super. 1984). Further, unlike libel and
slander claims, intrusion on seclusion invasion of privacy does not require the element of publicity.
Harris by Harris v. Easton Publishing Co., 483 A.2d 1377, 1383-84 (Pa. Super. 1984). A “false light”
invasion of privacy claim requires publication and is thus within the genus of defamation, libel, and
slander claims that § 2680(h) of the FTCA specifically excludes from jurisdiction. See Johnson, 47
F.3d at 732 n. 34; Nothstein v. USA Cycling, 2020 WL 6504585, at *17 (E.D. Pa. Nov. 5, 2020)
(discussing nature of invasion of privacy and defamation claims). In contrast, an invasion of privacy
claim based upon a theory of “intrusion upon seclusion” may fall outside scope of § 2680(h). Ruddy,
2011 WL 5834953, at *4. (holding § 2680(h) did not bar claim based on defendants “eavesdropping
on his private phone call”).
In this case, Mrs. Bohnenkamp’s intrusion upon seclusion claim is premised upon allegations
that Wusterbarth used his position and authority to secure personal information concerning her
address and other identifying information as well as information concerning her husband and
children, all of which he used to pursue an unwanted sexual relationship and to harass her. These
allegations distinguish her claim from a libel or slander claim subject to the intentional tort
exception. Accordingly, the Court finds that Mrs. Bohnenkamp’s invasion of privacy claim also falls
within this Court’s FTCA subject matter jurisdiction to the extent it is based on a theory of intrusion
upon seclusion.
20
3. Mrs. Bohnenkamp exhausted her administrative remedies concerning her
negligent hiring and supervision claim.
The Government argues that Mrs. Bohnenkamp did not satisfy the FTCA’s exhaustion
requirements regarding her “negligent hiring or supervision” claim because the facts asserted in her
administrative claim “did not put the BOP on notice of [this] potential claim ….” ECF No. 40, p.
18. In response, Mrs. Bohnenkamp argues that the FTCA does not require a plaintiff “to state every
cause of action which it might pursue against the United States if the claim is not administratively
satisfied.” ECF No. 49.
The exhaustion requirement applicable to Mrs. Bohnenkamp’s claim states in pertinent part
as follows:
An action shall not be instituted upon a claim 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, unless the claimant shall have first presented the
claim to the appropriate Federal agency and his claim shall
have been finally denied by the agency in writing and sent by
certified or registered mail.
28 U.S.C. § 2675(a).
This exhaustion requirement “is jurisdictional and cannot be waived.” Deutsch v. United States,
67 F.3d 1080, 1091 (3d Cir. 1995) (quoting Roma v. United States, 344 F.3d 352, 362 (3d Cir. 2003)).
Accordingly, “[f]ederal courts cannot assume jurisdiction over FTCA claims until the plaintiff has
first presented his claim to the appropriate federal agency and the claim has been denied.” Priovolos
v. Fed. Bureau of Investigation, 686 Fed. Appx. 150, 152 (3d Cir. 2017) (citing 28 U.S.C. § 2675(a); WhiteSquire v. U.S. Postal Serv., 592 F.3d 453, 457 (3d Cir. 2010)). “To be properly presented to the federal
agency, the damages claim must be for a sum certain.” Deutsch, 67 F.3d at 1091 (citing 28 C.F.R.
§ 14.2(a) (1987)). “A ‘claim’ as that term is used in § 2675 includes a written statement describing
21
the injury in sufficient detail to allow the agency to begin an investigation into the possibility of
potentially tortious conduct and a request for a sum certain in damages.” Parker v. United States, 2019
WL 2636620, at *6 (D.N.J. June 27, 2019) (citing Tucker v. U.S. Postal Serv., 676 F.2d 954, 959 (3d
Cir. 1982); Estate of Trentadue ex el Aguilar v. United States, 397 F.3d 840, 852 (10th Cir. 2005)).
“Although an administrative claim need not propound every possible theory of liability in order to
satisfy section 2675(a), ... a plaintiff cannot present one claim to the agency and then maintain suit
on the basis of a different set of facts.” Roma, 344 F.3dat 362 (quoting Deloria v. Veterans Admin.,
927 F.2d 1009, 1011-12 (7th Cir. 1991)). Further, while a claimant “need not provide exhaustive
detail” in his administrative claim, he “may not present a claim to an agency only to pivot to other,
disparate claims upon reaching the courts.” Weiner v. United States, 2014 WL 7404135, at *3 (E.D. Pa.
Dec. 30, 2014) (citing Roma, 344 F.3d at 362). The plaintiff bears the burden to show compliance
with the FTCA’s exhaustion requirement. See McNeil v. United States, 508 U.S 106, 109, 113 S. Ct.
1980, 124 L.Ed.2d 21 (1993).
The “Basis of Claim” portion of Mrs. Bohnenkamp’s claim to the BOP stated in its entirety:
While visiting her husband Christopher Bohnenkamp at FCI
McKean. 6975 PA-59, Lewis Run, PA 16738, Mrs.
Bohnenkamp was approached by a CO Wusterbarth, who
told her that he needed to speak with her about her husband
in private. Later that day, after Mrs. Bohnenkamp left FCI
McKean, CO Wusterbarth called Mrs. Bohnenkamp on her
cell phone and said he needed to meet with her, because he
was attracted to her. Mrs. Bohnenkamp rejected CO
Wusterbarth's advances repeatedly, and refused to make plans
to meet with him. At that point, CO Wusterbarth advised that
Mrs. Bohnenkamp’s husband Christopher would be in
serious danger if she ever revealed what CO Wusterbarth had
said and done. Over the next several months, CO
Wusterbarth harassed and threatened Mrs. Bohnenkamp and
her children, including making a phone call that Mr.
Bohnenkamp had died in prison, and sending fake letters
from Mr. Wusterbarth to his family. Warden Trate was aware
22
that CO Wusterbarth had a history of harassing women at
FCI McKean.
ECF No. 40-3, p. 3.
“[T]he Third Circuit has held that an administrative tort claim alleging negligence and an
administrative tort claim alleging negligent training or supervision are distinct and must be alleged
separately for the District Court to have jurisdiction under the FTCA.” Coleman v. United States, 2016
WL 1241800, at *4 (D.N.J. Mar. 30, 2016) (citing Davila-Bajana v. Sherman, 278 Fed. Appx. 91, 94 (3d
Cir. 2008)). The court in Coleman dismissed an FTCA claim for negligent hiring, training, and
supervision even though the administrative claim properly alleged negligent medical care. Coleman,
2016 WL 1241800, at *4. Another district court dismissed an FTCA claim for negligent hiring,
training, or supervision when two administrative claims made no mention of these claims “and did
not identify any supervisors.” Baldwin v. Brown, 2021 WL 1138148, at *6-7 (D.N.J. Mar. 25, 2021)
(slip copy).
Here, Mrs. Bohnenkamp’s claim suffers no such deficiency. Although the claim focused on
Wusterbarth’s conduct, the final sentence stated, “Warden Trate was aware that CO Wusterbarth
had a history of harassing women at FCI McKean.” Id. Unlike in Baldwin where the plaintiff failed
to identify any supervisors as a part of the claim, Mrs. Bohnenkamp identified Trate as the Warden
of FCI-McKean and affirmatively alleged a factual basis for a negligent supervision claim arising out
of his knowledge of similar misconduct on the part of Wusterbarth. This was sufficient to satisfy §
2675(a)’s exhaustion requirement as to her negligent supervision claim. “[T]he purpose of the notice
requirement is to encourage investigation and settlement of claims before legal proceedings are
initiated, thereby reducing the burden on the courts and the government.” Hause v. United States, 378
Fed. Appx. 158, 159 (3d Cir. 2010). It does not require the claimant to “propound every possible
theory of liability.” See Roma, 344 F.3d at 362. See also Weiner v. United States, 2014 WL 7404135, at
23
*2, *5-6 (E.D. Pa. Dec. 30, 2014) (allowing negligent supervision and failure to train claim even
though administrative claim did not explicitly mention those legal theories). The facts of Mrs.
Bohnenkamp’s administrative claim provided enough notice to the Government to allow it to
investigate her claim based on Warden Trate’s alleged negligent supervision of Wusterbarth.
Nevertheless, as discussed below, this claim falls outside of the Government’s limited waiver of
sovereign immunity and this Court’s FTCA subject matter jurisdiction.
4. Mrs. Bohnenkamp cannot maintain a negligent hiring or negligent supervision
claim against the Government under the Sheridan “independent duty” exception.
Mrs. Bohnenkamp also argues that the FTCA confers jurisdiction over her negligent hiring
and supervision claim against the Government under the Supreme Court’s decision in Sheridan v.
U.S., 487 U.S. 392, 108 S. Ct. 2449, 101 L. Ed. 2d 352 (1988). She asserts that “Warden Trate’s
duty to competently supervise Defendant Wusterbarth is entirely separate from Defendant
Wusterbarth’s own intentional conduct.” ECF No. 49, p. 5. Because the Government had an
independent duty to supervise Wusterbarth, her argument continues, it can be held liable for
Wusterbarth’s misconduct even if some of this misconduct falls within the intentional tort exception
or outside the scope of his employment.
In Sheridan, the Court stated that “in at least some situations the fact that an injury was
directly caused by an assault or battery will not preclude liability against the government for
negligently allowing the assault to occur.” 487 U.S. at 398, 108 S. Ct. 2449. The Court found that it
was possible for a claim to be made against the Government if the plaintiff could show that there
was negligence arising out of an independent, antecedent duty unrelated to the employment
relationship between the tortfeasor and the Government. Id. at 401–02. Such an antecedent duty
and negligence by a government employee could give rise to liability, provided “that similar negligent
conduct would support recovery under the law of the State where the incident occurred.” Id. at 399.
24
In Sheridan, the Court found that the alleged negligence of other government employees who
allowed a foreseeable assault and battery to occur might impose liability under the applicable state
“Good Samaritan” law and specific naval base safety regulations. 487 U.S. at 401–02 & n. 5.
Government employees had a duty under the Good Samaritan law and naval base regulations that
applied regardless of whether the assailant was a private citizen or a federal employee, thus creating
an independent basis for liability unrelated to the assailant’s employment status. Id.
In CNA, the Court of Appeals characterized Sheridan as “an exception to an exception to an
exception to a general rule,” explaining:
The general rule is sovereign immunity: the Government
cannot be sued. The FTCA creates an exception to that rule
by waiving sovereign immunity. That waiver of sovereign
immunity comes with conditions (such as the scope-ofemployment requirement of § 1346(b)(1)) and exceptions
(such as the assault-and-battery exception of § 2680(h)). But
Sheridan established that claims of independent negligence
committed by Government employees are not barred by the
assault-and-battery exception.
535 F.3d at 148.
The Sheridan exception only applies, however, where “the employment status of the assailant
has nothing to do with the basis for imposing liability on the government.” Sheridan. 487 U.S. at
402. Thus, “[i]ndependent negligence in this context means negligence irrespective of an
employment relationship.” CNA, 535 F.3d at 149 (3d Cir. 2008) (citing Sheridan, 487 U.S. at 397–98,
108 S. Ct. 2449). Here, Mrs. Bohnenkamp has identified no duty of care arising from a source other
than the employment relationship that existed among the Government, Wusterbarth, and Warden
Trate. ECF No. 49, p. 5 (“Warden Trate possessed an independent duty of care to supervise its
employees, and he breached that duty when he failed to take action despite his knowledge of
Defendant Wusterbarth’s behavior.” (emphasis supplied)). In CNA, the Court also emphasized that
25
“plaintiffs under the FTCA cannot use a negligent supervision claim to circumvent the scope-ofemployment condition of § 1346(b)(1).” 535 F.3d at 149. “They must allege truly independent
negligence, analogous to the naval-base safety regulations and voluntar[y] undertaking to provide
care to a person who was visibly drunk” that were at issue in Sheridan.” Id. (citing Sheridan, 487 U.S.
at 401, 108 S. Ct. 2449).
“Negligent supervision claims,” like Mrs. Bohnenkamp’s claim against the Government in
this case, “are rooted in supervisor-supervisee relationships at work; they relate closely to the
supervisee’s … employment status” and, therefore, are outside of the Sheridan exception. CNA, 535
F.3d at 149. Under Pennsylvania law, a negligent supervision claim “is specifically predicated on two
duties of an employer: the duty to reasonably monitor and control the activities of an employee, and
the duty to abstain from hiring an employee and placing that employee in a situation where the
employee will harm a third party.” Belmont v. MB Inv. Partners, Inc., 708 F.3d 470, 488 (3d Cir. 2013)
(footnote omitted) (citing Hutchison v. Luddy, 560 Pa. 51, 742 A.2d 1052, 1059–60 (1999)).
The Court of Appeals for the Third Circuit has identified the elements a plaintiff must
establish to recover for negligent supervision under Pennsylvania law in two parallel formulations.
One describes the plaintiff’s loss as resulting from “(1) a failure to exercise ordinary care to prevent
an intentional harm by an employee acting outside the scope of his employment, (2) that is
committed on the employer’s premises, (3) when the employer knows or has reason to know of the
necessity and ability to control the employee.” Belmont, 708 F.3d at 487–88 (citing Dempsey v. Walso
Bureau, Inc., 431 Pa. 562, 246 A.2d 418, 420 (1968); Heller v. Patwil Homes, Inc., 713 A.2d 105, 107–08
(Pa.Super.Ct.1998)). Under the second formulation, liability arises “where the employer fails to
exercise ordinary care to prevent an intentional harm to a third party which (1) is committed on the
employer’s premises by an employee acting outside the scope of his employment and (2) is
26
reasonably foreseeable.” 4 Belmont, 708 F.3d at 489 n.24 (citing Petruska v. Gannon Univ., 462 F.3d 294,
309 n. 14 (3d Cir.2006) (internal quotation marks omitted)). Therefore, a government agency’s
negligent supervision of an employee who commits an intentional tort normally will not fall within
the exception recognized in Sheridan because the duty arises directly from the employer-employee
relationship. 5 Id.
Any claim relating to Warden Trate’s supervision of Wusterbarth arises directly from
Wusterbarth’s employment. Mrs. Bohnenkamp has not offered any independent, antecedent duty
unrelated to the employment relationship between Wusterbarth and the Government to trigger the
Sheridan exception. Accordingly, she cannot invoke Sheridan as a basis for asserting an FTCA claim
to the extent that claim arises from conduct outside the scope of Wusterbarth’s employment or is
otherwise barred by the intentional tort exception to the FTCA.
5. The discretionary function exception to the FTCA also bars Mrs. Bohnenkamp’s
negligent hiring and supervision claim, but this exception does not bar her
respondeat superior claim based on Wusterbarth’s misconduct within the scope of
his employment and outside of the intentional tort exception.
The “discretionary function exception” of the FTCA excludes from the United States’
waiver of sovereign immunity any claim “based upon the exercise or performance or the failure to
4
The two definitions “are the same, but the former emphasizes the foreseeability of the need to control the employee,
while the latter stresses the foreseeability of the harm the employee causes.” Belmont, 708 F.3d at 489 n. 24.
5 In Matsko v. United States, 372 F.3d 556 (3d Cir. 2004), the Court of Appeals held that the Sheridan exception applied
where the plaintiff, who had been physically assaulted by a mine safety inspector on government property, “asserted a
premises liability theory” based on the Restatement (Second) of Torts § 344. 372 F.3d at 561 & n. 10. Section 344,
which has been adopted in Pennsylvania, recognizes a duty on the part of a possessor of land, independent of any
employment relationship, to protect invitees to his property from “physical harm caused by the accidental, negligent, or
intentionally harmful acts of third persons.” Id. (quoting § 344) (emphasis added). In applying Sheridan to the facts of
that case, the Court of Appeals emphasized that the plaintiff’s claim “does not stem from negligent hiring, training, or supervision,
but arises solely out of the § 344 duty.” Id. (emphasis supplied). Here, Mrs. Bohnenkamp does not allege premises liability or
that she suffered any physical harm. Further, in contrast to Matsko, Mrs. Bohnenkamp expressly bases her claim against
the United States upon Warden Trate’s negligent hiring and supervision of Wusterbarth. In Gaffney v. United States, 2015
WL 1409674, at *1 (M.D. Pa. Mar. 26, 2015), the court also relied upon § 344 to find a duty independent of the
employment relationship based upon the plaintiff’s premises liability theory where a federal administrative law judge
physically assaulted a visitor to a Social Security office. Again, Mrs. Bohnenkamp has not alleged any physical harm; nor
has she cited to § 344, Matsko, or Gaffney as a basis for finding an independent duty on the part of the Government in
this case.
27
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). This
exception limits the FTCA’s waiver of sovereign immunity by “eliminating jurisdiction for claims
based upon the exercise of a discretionary function on the part of an employee of the government.”
Baer v. United States, 722 F.3d 168, 172 (3d Cir. 2013) (citing 28 U.S.C. § 2680(a)). Congress enacted
this exception 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.” United
States v. Varig Airlines, 467 U.S. 797, 814, 104 S. Ct. 2755, 81 L.Ed.2d 660 (1984). The United States
has the burden of establishing the applicability of the discretionary function exception. See Merando
v. United States, 517 F.3d 161, 164 (3d Cir. 2008) (citations omitted); Cestonaro v. United States, 211 F.3d
749, 756 n.5 (3d Cir. 2000).
The Supreme Court has provided a two-part test to be used in deciding whether the
discretionary function exception protects a government employee’s conduct. See United States v.
Gaubert, 499 U.S. 315, 322-23, 111 S. Ct. 1267, 113 L. Ed.2d 335 (1991); Berkovitz v. United States, 486
U.S. 531, 536-37, 108 S. Ct. 1954, 100 L.Ed.2d 531 (1988); Varig Airlines, 467 U.S. at 808-14, 104
S. Ct. 2755. First, the Court must determine whether the conduct at issue was in fact “discretionary
in nature”—in other words, whether it involved “‘an element of judgment or choice.’” Gaubert, 499
U.S. at 322, 111 S. Ct. 1267 (quoting Berkovitz, 486 U.S. at 536, 108 S. Ct. 1954). This prong of the
two-part test is not satisfied where a “‘federal statute, regulation, or policy specifically prescribes a
course of action for an employee to follow,’ because ‘the employee has no rightful option but to
adhere to the directive.’” Id. (quoting Berkovitz, 486 U.S. at 536, 108 S. Ct. 1954).
Second, the Court must determine whether the conduct at issue is “‘of the kind that the
discretionary function exception was designed to shield.’” Id. (quoting Berkovitz, 486 U.S. at 536, 108
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S. Ct. 1954). The exception “marks the boundary between Congress’ willingness to impose tort
liability upon the United States and its desire to protect certain governmental activities from
exposure to suit by private individuals.” Varig Airlines, 467 U.S. at 808, 104 S. Ct. 2755. “[W]hen
properly construed, the exception ‘protects only governmental actions and decisions based on
considerations of public policy.’” Gaubert, 499 U.S. at 323, 111 S. Ct. 1267 (quoting Berkovitz, 486
U.S. at 537, 108 S. Ct. 1954). Thus, the focus of this inquiry is not on the employee’s “subjective
intent in exercising the discretion conferred by statute or regulation, but on the nature of the actions
taken and on whether they are susceptible to policy analysis.” Id. at 325.
Before beginning such analysis, however, the Court must identify the specific conduct or
actual challenged action at issue. See Cestonaro, 211 F.3d at 753. In this case, Mrs. Bohnenkamp’s
Amended Complaint and Brief in Opposition to the United States’ Motion to Dismiss describe the
Government’s challenged conduct in two related ways. First, she asserts that Warden Trate failed to
properly screen Wusterbarth before hiring him at FCI-McKean and supervise his employment
activities after he was hired. ECF No. 30, ¶¶77-79; ECF No. 49, pp. 8-9. Second, she claims that
Trate and other prison officials failed in their duty “to ensure the safety of everyone in a prison,
including visitors such as Ms. Bohnenkamp.” ECF No. 30, ¶ 74; ECF No. 49, p. 8. In support of
her position, Mrs. Bohnenkamp cites Whitley v. Albers, 475 U.S. 312, 320, , 106 S. Ct. 1078, 89
L.Ed.2d 251 (1986) for the proposition that “prison administrators are charged with the
responsibility of ensuring the safety of the prison staff, administrative personnel, and visitors, as well
as the ‘obligation to take reasonable measures to guarantee the safety of the inmates themselves.’”
See also Hudson v. Palmer, 468 U.S. 517, 526 (1984) (“prison administrators are to take all necessary
steps to ensure the safety of not only the prison staff and administrative personnel, but also
visitors.”). The language from Whitley and Hudson upon which relies, however, while stating general
principles, was dicta as these Supreme Court decisions addressed factual circumstances that had
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nothing to do with visitors’ safety. Whitley considered the appropriate Eighth Amendment standard
for prison officials quelling a prison riot, Whitley, 475 U.S. at 320, while Hudson addressed whether
prisoners have a reasonable expectation of privacy in their cells for purposes of the Fourth
Amendment. Hudson, 468 U.S. at 526.
Federal appellate courts agree that “decisions related to hiring, training, and supervision of
employees are inherently a discretionary function.” See Brown v. United States, 2018 WL 741731, at
*4, n. 4 (E.D. Pa. Feb. 7, 2018) (collecting cases from the United States Courts of Appeals for the
First, Fifth, Sixth, Eighth, Ninth, Tenth, and D.C. Circuits), aff’d, 823 Fed. Appx. 97 (3d Cir. 2020).
“[N]umerous trial courts within the Third Circuit have reached the same conclusion.” Id. These
decisions recognize that “employment and termination decisions are, as a class, the kind of matters
requiring consideration of a wide range of policy factors, including ‘budgetary constraints, public
perception, economic conditions, individual backgrounds, office diversity, experience and employer
intuition.’” Id. (quoting Sydnes v. United States, 523 F.3d 1179, 1186 (10th Cir. 2008); Burkhart v. Wash.
Metro. Area Transit Auth., 112 F.3d 1207, 1217 (D.C. Cir. 1997)).
The discretionary function analysis in this case thus turns on whether Mrs. Bohnenkamp
“can identify statutes and/or regulations that limited the discretion of the [BOP] in its hiring,
retention, or supervision decisions of employees such as” Wusterbarth. Brown, 2018 WL 741731, at
*5. She directs the Court to none. Instead, Mrs. Bohnenkamp argues in her brief that on the facts
presented here, Warden Trate’s decision to retain Wusterbarth as an employee should not be
considered discretionary when he allegedly knew or was on notice of Wusterbarth’s questionable
background and inappropriate conduct towards other women, including Wusterbarth’s keeping of
an office calendar to track when certain women were scheduled to be present at the prison’s visitors’
center. ECF 49, p. 8-9. However, the discretionary function exception expressly applies “whether
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or not the discretion involved be abused.” 28 U.S.C. § 2680(a); see Merando v. United States, 517 F.3d
160, 167 (3d Cir. 2008). Thus, even assuming a reasonable supervisor would have declined to hire
or would have removed, disciplined, or terminated Wusterbarth from his position, the discretionary
function exception shields the United States from Mrs. Bohnenkamp’s negligent hiring and
supervision claim.
See Mokhtarian v. Fasci, 481 F. Supp. 3d 503 (D. Md. 2020) (decision to retain
civilian employee’s co-worker at naval installation after he took photographs of another female coworker without her consent was within Navy’s discretion, and thus discretionary function exception
to waiver of sovereign immunity applied to employee’s negligent retention); Chapman v. United States,
480 F.Supp. 3d 601 (M.D. Pa. 2020) (holding that the discretionary functions exception shielded the
Government from a claim that the United States Parcel Service negligently hired and supervised one
of its mail delivery drivers who collided with the plaintiff’s motorcycle).
The foregoing application of the discretionary function exception is limited, however, to
Mrs. Bohnenkamp’s negligent hiring and supervision claim. While the discretionary function
exception bars that claim, it does not preclude her respondeat superior claim against the United States
to the extent the latter is based on Wusterbarth’s tortious conduct committed within the scope of his
employment and outside the scope to the intentional tort exception. “Federal employees such as
correctional officers employed by the Bureau of Prisons simply ‘do not have discretion to violate
mandatory requirements’ or constitutional rights.” Wiggins, 2017 WL 5900572, at *12 (quoting Koch
v. United States, 814 F. Supp. 1221, 1227 (M.D. Pa. 1993)). Prohibitions of sexual and other forms of
harassment perpetrated against visitors to federal prisons and other facilities fall squarely within the
mandatory requirements concerning which employees have no discretion to violate.
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V.
Conclusion
Based upon the current record, this Court has subject matter jurisdiction under the Federal
Tort Claims Act of Plaintiff Rachel Bohnenkamp’s intentional infliction of emotional distress claim
and invasion of privacy/intrusion upon seclusion claim to the extent detailed in this Opinion.
Accordingly, the Government’s Motion to Dismiss the Amended Complaint will be DENIED as to
those claims. However, the Government’s limited waiver of sovereign immunity does not extend to
Plaintiff’s claims rooted in misrepresentation or deceit. Nor does it extend to her negligent hiring
and supervision claims. The Government’s motion will be GRANTED as to the latter claims.
ORDER
The United States’ Motion to Dismiss the Amended Complaint pursuant to Fed. R. Civ. P.
12(b)(1) [ECF No. 39] is GRANTED in part and DENIED in part. The United States’ motion is
GRANTED as to Plaintiff Rachel Bohnenkamp’s claims rooted in misrepresentation and deceit and
her negligent hiring and supervision claims. The United States’ motion is DENIED as to Plaintiff’s
intentional infliction of emotional distress claim and intrusion upon seclusion/invasion of privacy
claim as detailed in the foregoing Opinion.
_____________________________
RICHARD A. LANZILLO
United States Magistrate Judge
Dated: April 23, 2021
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