Gates v. Black Hills Health Care Systems (BHHCS) et al
Filing
55
Opinion and ORDER denying 47 Motion to Dismiss for Lack of Jurisdiction; granting 47 Motion for Summary Judgment. Signed by U. S. District Judge Roberto A. Lange on 1/28/14. (SLW)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
DAVID A. GATES,
Plaintiff,
vs.
BLACK HILLS HEALTH CARE
SYSTEMS (BHHCS), THE
DEPARTMENT OF VETERANS
AFFAIRS, and THE UNITED STATES,
Defendants.
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CIV 11-3013-RAL
FILED
JAN 28 20';
~~
ClER~
OPINION AND ORDER
GRANTING DEFENDANTS'
MOTION FOR SUMMARY
JUDGMENT
Plaintiff David A. Gates (Gates), a retired veteran, brought this suit against Defendant
United States Government (Government) I under the Federal Tort Claims Act (FTCA), 28 U.S.c.
§ 1346,2 alleging that the Government invaded his privacy while he participated in a drug and
alcohol treatment program at the Department of Veterans Affairs (VA) domiciliary in Hot
Springs, South Dakota. Doc. 1.3 Thereafter, Gates filed a second suit under the FTCA alleging
that the Government retaliated against him for his filing a complaint with the V A Office of
Inspector General. CIV 12-3011-RAL, Doc. 1. This Court consolidated the two cases on Gates's
IGates also named agencies of the Government-the Department of Veterans Affairs and
Black Hills Health Care Systems-as defendants. Because a federal agency cannot be sued under
the FTCA, the United States is the proper defendant. Duncan v. Dep't of Labor, 313 F.3d 445,447
(8th Cir. 2002) (per curiam).
"Gates's complaint in CIV 11-3013-RAL also states that his case "arises" under the United
States Constitution, HIPPA, 18 U.S.C. § 2701, and SDCL sections "22-1 et seq and 27A-12, et seq."
However, none of these laws provide jurisdiction for the sort of tort suit against the United States
that Gates is asserting. The impact of these laws on Gates's claims are discussed herein.
3This Court uses Doc. followed by a number to refer to the document number of pleadings
filed in the Case Management/Electric Case Filing System in this case-CIV 11-3013-RAL. When
referring to a document number in Gates's other case, the case number CIV 12-3011-RAL will be
specified.
1
motion. Doc. 39. The Government moves to dismiss Gates's retaliation claims under Federal
Rules of Civil Procedure 12(b)(6) and 12(h)(3), or in the alternative, for summary judgment on
all of Gates's claims. Docs. 47,50. Because there are no genuine issues of material fact and the
Government is entitled to judgment as a matter of law, this Court grants the Government's
motion for summary judgment.
I.
Facts
The Government complied with Local Rule 56.1 (A) ofthe Civil Local Rules of Practice
of the United States District Court for the District of South Dakota by filing a statement of
material facts along with its motion for summary judgment. Doc. 49. Local Rule 56.1(B)
required Gates, the party opposing the Government's motion for summary judgment, to "respond
to each numbered paragraph in the moving party's statement of material facts with a separately
numbered response and appropriate citations to the record." D.S.D. Civ. L.R. 56.1(B). Gates
did not file such a response under Local Rule 56.1 (B), but did file a memorandum in opposition
to the Government's motion for summary judgment in which he states that he agrees with "most
of' the Government's material facts. Doc. 51 at 1. Although Gates provided some commentary
in response to certain of the Government's statement of material facts, he did not include any
citation to the record to support such commentary. Further, the vast majority of Gates's
commentary on the facts did not contradict the Government's material facts but, instead, either
offered argument or provided assertions that do not create genuine issues of material fact. Many
of the issues Gates discussed in his memorandum are irrelevant to whether summary judgment
should enter in favor of the Government. Nevertheless, this Court is mindful of its duty to
construe pro se pleadings liberally, Bracken v. Dormire, 247 F.3d 699, 703 (8th CiT. 2001), and
will therefore attempt, where possible, to draw the facts from portions of the Government's
2
statement of material facts either accepted or not addressed by Gates's memorandum in
opposition to the Government's motion for summary judgment.
On September 15,2008, Gates was admitted to a drug and alcohol treatment program at
the Black Hills Healthcare Systems (BHHCS) domiciliary in Hot Springs, South Dakota. Doc.
49 at ~ 4. Upon his admission to the program, Gates was given a copy of the Veterans Health
Administration domiciliary handbook, which discussed, among other things, the rules governing
patients' use of VA computers, the program's policy of randomly testing patients for drugs and
alcohol use, and the VA's closed circuit surveillance system (CCTV) in access points and public
areas within the facility. Doc. 49 at ~ 5; Doc. 48-1. Gates signed several documents relating to
these rules and policies, including an acknowledgment that he had read and understood the
information in the handbook, Doc. 49 at ~ 6; a treatment contract that conditioned his acceptance
into the program upon his consent to random drug and alcohol testing, Doc. 49 at ~~ 28-30; Doc.
29-3; and a document entitled "Guidelines for Computer Use by Patients" that stated
"COMPUTER USE WILL BE MONITORED. IF GUIDELINES ARE VIOLATED, YOUR
ACCESS WILL BE REMOVED IMMEDIATELY," Doc. 49 at
~
8, 10; Doc. 29-6. During
orientation to the program, another patient gave Gates a tour ofthe facility and advised him that
the facility was monitored by a CCTV system. Doc. 49 at ~ 34. Gates was already aware of the
CCTV system because he had previously participated in a treatment program at the facility. Doc.
49at~35.
While in treatment, Gates participated in the VA Compensated Work Therapy (CWT)
program, through which he worked as a certified nurses' aid at the Castle Manor Nursing Home
3
in Hot Springs, South Dakota. 4 Doc. 49 at ~~ 38-39. Gates also spent time using the VA
computers. A February 22, 2009, computer audit revealed that Gates had accessed a naked
picture of himself from his Yahoo email account while he was using a VA computer. s Doc. 49
at ~~ 17-18. The computer guidelines specifically prohibited users from accessing pornographic
web sites. Doc. 49 at ~ 11; Doc. 29-6. On February 23, 2009, Gates was irregularly discharged
from the program for accessing inappropriate material on the VA computer. Doc. 49 at ~~ 21,
22; Doc. 29-1. Although Gates admitted in his deposition that he does not know or have any
proofthat someone at the VA disclosed his personal information, Doc. 49 at ~ 45; Doc. 48-2 at
20, he alleges in his complaint that a BHHCS nurse inadvertently disclosed the reason he was
discharged to one of his former coworkers at Castle Manor, Doc. 1 at 3.
Following his discharge from the Hot Springs program, Gates filed an invasion ofprivacy
complaint with the VA Office of Inspector General. Doc. 49 at ~ 58. Thereafter, he sought
admission to the Living Skills for Success (LSS) program at the Ft. Meade, South Dakota, VA
4Gates was investigated for allegedly inappropriately touching a Castle Manor resident. Doc.
49 at ~~ 40-42. He was eventually cleared of all charges. Doc. 49 at ~ 43. Although Gates states
in his complaint in CIV 11-3013-RAL and in his brief that his discharge from the Hot Springs
program may have been due to bad "PR" from the Castle Manor incident, the four counts in CIV 11
30 13-RAL allege invasions of privacy rather than a wrongful irregular discharge. Further, Gates
testified in his deposition that he did not have any evidence that the VA kicked him out of the Hot
Springs program for the Castle Manor incident and that he did not think that the VA fabricated the
reason-viewing inappropriate content on a VA computer-that he was irregularly discharged. Doc.
48-2 at 15. None ofthe counts in Gates's complaint in CIV 12-30 II-RAL mention the Castle Manor
investigation. Rather, these counts allege that VA employees were retaliating against him for filing
an invasion of privacy complaint with the VA Office of Inspector General. Thus, the investigation
ofGates's alleged misconduct at Castle Manor ultimately is not relevant to Gates's claims against the
Government or the question of whether the Government is entitled to summary judgment.
5The notice that the computer coordinator gave to Gates explaining his violation of the
computer guidelines stated: "On February 22nd, 2009, from 7:00 am to 7:55 am you access [sic]
computer #1, you did not sign in on the computer log. At 7:27 am computer # 1 showed you logged
into a Yahoo mail folder and accessed pornographic material (photos). You also went back into the
same folder accessing the same photos at several different times." Doc. 25-10 at 2.
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campus. Doc. 49 at ~ 48. Gates had to wait approximately eighty days before he was admitted
into the LSS program on July 30, 2009. Doc. 49 at ~~ 49,59. Upon being admitted to the LSS
program, each veteran received an LSS handbook setting forth the program's policies. Doc. 49
at ~ 52. The LSS handbook notified veterans that their rooms would be subject to searches, Doc.
49 at ~ 53, and stated that "weapons are prohibited on Government Property .... [p]ossession
ofsuch items could be prosecuted as a Federal Offense as well as result in immediate discharge
from the program[,]" Doc. 49 at
~
51; Doc. 48-3 at 5. On September 8, 2009, Gates was
irregularly discharged from the LSS program for violating the program's prohibition on weapons
after a random search of his room revealed inhalants and a camping hatchet. Doc. 49 at ~~ 54
55,64.
II.
Standards of Review and Applicable Law
The Government has filed both a motion to dismiss under Federal Rules of Civil
Procedure 12(b)(6) and 12(h)(3) and for summary judgment under Rule 56. Docs. 47,50. A
motion to dismiss for a lack of subject matter jurisdiction may be brought at anytime under Rule
12(h)(3). A Rule 12(h)(3) motion to dismiss is evaluated under the same standards as a motion
to dismiss pursuant to Rule l2(b)(1). Berkshire Fashions, Inc. v. M.V. Hakusan II, 954 F.2d 874,
879 n.3 (3d Cir. 1992). Unlike a motion to dismiss for a lack of subject matter jurisdiction, a
motion to dismiss under Rule 12(b)(6) "must be made before pleading if a responsive pleading
is allowed." Fed. R. Civ. P. 12(b); see also Westcottv. City ofOmaha, 901 F.2d 1486, 1488 (8th
Cir. 1990) (Technically . . . a Rule 12(b)(6) motion cannot be filed after an answer has been
submitted."). Here, the Government filed answers in both cases before it filed its Rule 12(b)(6)
motion. However, courts may treat an untimely motion to dismiss under Rule l2(b)( 6) as a Rule
l2(c) motion for judgment on the pleadings. See Westcott, 901 F.2d at 1488 ("But since Rule
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12(h)(2) provides that a defense of failure to state a claim upon which relief can be granted may
be advanced in a motion for judgment on the pleadings under Rule 12(c), we will treat the ...
motion as if it had been styled a 12(c) motion." (internal marks and quotation omitted)). This
Court will therefore construe the Government's motion to dismiss under Rule 12(b)(6) as a Rule
12(c) motion. A motion to dismiss brought under Rule 12(c) is reviewed under the same
standard as a Rule 12(b)(6) motion. Westcott, 901 F.2d at 1488. When considering such a
motion to dismiss, courts must accept the plaintiffs factual allegations as true and construe all
inferences in favor of the plaintiff. Retro Television Network. Inc. v. Luken Commc'n. LLC,
696 F.3d 766, 768 (8th Cir. 2012). To withstand such a motion to dismiss, "a complaint must
contain enough facts to 'state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007». Gates has alleged plausible claims in his
complaints under the FTCA against the Government, so this Court at this stage denies the motion
to dismiss and turns its focus to whether summary judgment should enter for the Government
because of a lack of genuine issues of material fact on Gates's allegations.
Under Rule 56(a) ofthe Federal Rules of Civil Procedure, summary judgment is proper
when "the movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law." Summary judgment is not"a disfavored procedural
shortcut, but rather ... an integral part of the Federal Rules as a whole, which are designed 'to
secure the just, speedy, and inexpensive determination of every action.'"
Celotex Corp. v.
Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1). On summary judgment, courts
view "the evidence and the inferences that may be reasonably drawn from the evidence in the
light most favorable to the nonmoving party." EEOC v. CRST Van Expedited. Inc., 679 F.3d
657,686 (8th Cir. 2012) (quoting Mayer v. Countrywide Home Loans, 647 F.3d 789, 791 (8th
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Cir.2011). A party opposing a properly made and supported motion for summary judgment
must cite to particular materials in the record supporting the assertion that a fact is genuinely
disputed. Fed. R. Civ. P. 56(c)(I); Gacek v. Owens & Minor Distrib .. Inc., 666 F.3d 1142, 1145
(8th Cir. 2012).
Absent a waiver, sovereign immunity protects the United States and its agencies from
suit. FDIC v. Meyer, 510 U.S. 471, 475 (1994). "Sovereign immunity is a jurisdictional
doctrine, and the terms of the United States' 'consent to be sued in any court define that court's
jurisdiction to entertain the suit.'" Brown v. United States, 151 F.3d 800, 803-04 (8th CiT. 1998)
(quoting Meyer, 510 U.S. at 475). Thus, for a court to have jurisdiction over a claim against the
United States, the United States must have waived its sovereign immunity and the claim must
fall within the terms of that waiver. United States v. White Mountain Apache Tribe, 537 U.S.
465, 472 (2003). The FTCA, under which Gates brings his claims, waives the sovereign
immunity of the United States for certain torts committed by government employees acting
within the scope of their employment. The FTCA's waiver of sovereign immunity is limited,
however, to "circumstances where the United States, if a private person, would be liable to the
claimant in accordance with the law ofthe place where the act or omission occurred." 28 U.S.C.
§ 1346(b)(l); see also 28 U.S.c. § 2674 ("The United States shall be liable, respecting the
provisions of this title relating to tort claims, in the same manner and to the same extent as a
private individual under like circumstances ...."). The term "law of the place" in § 1346(b)(I)
"refers to the substantive law of the state where the wrongful conduct took place." Washington
v. Drug Enforcement Admin., 183 F.3d 868,873 (8th CiT. 1999). Because Gates's claims arise
out of conduct that occurred in South Dakota, the substantive law of South Dakota governs this
action. Thus, for this Court to have jurisdiction over Gates's claims, they must be cognizable
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under South Dakota law. See Eubank v. Kansas City Power & Light Co., 626 F 3d 424, 427 (8th
Cir. 2010) ("If a private person, under like circumstances, would be liable under the substantive
law of the State where the act or omission occurred, then the FTCA waives sovereign
immunity."). That is, Gates's claims must be such that the United States, if a private person
under similar circumstances, "would be liable for the same conduct in [South Dakota].!! Green
Acres Enters., Inc. v. United States, 418 F.3d 852, 856 (8th Cir. 2005).
III.
Discussion
A.
elv 11-3013-RAL
Gates's complaint in CIV 11-30 13-RAL asserts that the Government invaded his privacy
while he was a patient at the Hot Springs treatment program by subjecting him to random drug
and alcohol testing (Count I); conducting video surveillance of patients' sleeping areas (Count
II); monitoring his email activity while he was on a V A computer (Count III); and accidentally
disclosing information pertaining to his discharge from the program to unauthorized individuals
(Count IV). Gates's complaint is captioned !!COMPLAINT Invasion of Privacy,!! Doc. 1, and
South Dakota law recognizes the tort of invasion of privacy, see Truxes v. Kenco Enters., Inc.,
119 N.W.2d 914, 917 (S.D. 1963). However, the counts in Gates's complaint do not expressly
identifY invasion of privacy as the basis for his claims, but refer to the United States
Constitution, federal and state criminal statutes, and certain federal regulations. Doc. 1. Of
course, claims that the Government violated the Constitution or federal regulations typically do
not fall within the FTCA's waiver of sovereign immunity,
~
Washington, 183 F.3d at 874
(!![C]onstitutional tort claims are not cognizable under the FTCA."); Klett v. Pim, 965 F.2d 587,
589 (8th Cir. 1992) ("The violation of a federal statute or administrative regulation by an agency
of the United States does not, standing alone, create a cause of action under the FTCA. "), and
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Gates has not explained how the Government is liable to him under the criminal statutes he cites.
Despite these shortcomings, the gravamen of Gates's complaint clearly is that the Government
wrongfully intruded on his privacy. Indeed, the Government so recognizes in treating Counts
I through IV of CIV 11-30 13-RAL as alleging a claim for invasion of privacy. Gates does not
object to this characterization of his claim. See Doc. 51. Having reviewed Gates's complaint,
this Court believes that it is appropriate to treat Counts I through VI ofCIV 11-3013-RAL as
asserting causes of action against the Government through the FTCA for invasion of privacy
under South Dakota law.
The Supreme Court of South Dakota in 1963 first recognized a common law tort action
for invasion ofprivacy in Truxes, 119 N. W .2d at 917. The Court defined an actionable violation
of the right to privacy as:
The unwarranted appropriation or exploitation of one's
personality, the publicizing ofone's private affairs with which the
public has no legitimate concern, or the wrongful intrusion into
one's private activities, in such manner as to outrage or cause
mental suffering, shame, or humiliation to a person of ordinary
sensibilities.
rd. at 916 (citation omitted). The Court refined this definition in Montgomery Ward v. Shope,
286 N. W.2d 806 (S.D. 1979), explaining that the right of privacy is invaded by: n(a)
Unreasonable intrusion upon the seclusion of another; or (b) Appropriation of the other's name
or likeness; or (c) Unreasonable publicity given to the other's private life; or (d) Publicity that
unreasonably places the other in a false light before the public."
Id. at 808 n.l (citing
Restatement (Second) of Torts §§ 652A-E (1977)).
The definitions in Truxes and Shope suggest that in South Dakota there are several
different theories or forms of the tort of invasion of privacy. This approach is consistent with
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section 652A of the Restatement (Second) of Torts. See Fletcher v. Price Chopper Foods of
Trumann. Inc., 220 F.3d 871,875 (8th Cir. 2000) (explaining that the Restatement (Second) of
Torts "delineates four separate torts grouped under the rubric 'invasion of privacy"'). The
Supreme Court of South Dakota has not expounded on these theories in any great detail but has
instead either relied on the definition in Truxes, see Maynard v. Heeren, 563 N.W.2d 830,834
n.3 (S.D. 1997) (quoting Truxes definition of invasion of privacy); Krueger v. Austad, 545
N.W.2d 205, 215-16 (S.D. 1996) (same), or focused its discussion on the "intrusion upon
seclusion" theory of the tort of invasion of privacy, see Baldwin v. First Nat'l Bank ofthe Black
Hills, 362 N.W.2d 85, 88 (S.D. 1985) ("Only an unreasonable, unwarranted, serious and
offensive intrusion upon the seclusion of another is regarded as tortious." (citing Shope, 286
N.W.2d 806»; Kjerstad v. Ravellette Publ'n, Inc., 517 N.W.2d 419, 424 (S.D. 1994) ("Before
claimants may recover on an invasion of the right to privacy claim, they must demonstrate an
unreasonable, unwarranted, serious and offensive intrusion upon the seclusion of another."
(citing Baldwin, 362 N.W.2d at 88».
The intrusion upon seclusion theory ofinvasion ofprivacy appears to be the thrust of the
claims in Gates's complaint in CIV 11-3013-RAL. In its most recent discussion ofthe intrusion
upon seclusion theory, the Supreme Court of South Dakota explained:
To recover on an invasion ofthe right to privacy claim, a claimant
must show an "unreasonable, unwarranted, serious and offensive
intrusion upon the seclusion of another." Kjerstad v. Ravellette
Publications. Inc., 517 N.W.2d 419,424 (S.D. 1994) (citing
Baldwin v. First Nat'l Bank of Black Hills, 362 N.W.2d 85, 88
(S.D. 1985». Furthermore, "[t]he invasion must be one which
would be offensive and objectionable to a reasonable man of
ordinary sensibilities." Montgomery Ward v. Shope, 286 N. W.2d
806, 808 (S.D. 1979) (citations omitted).
Roth v. Famer-Bocken Co., 667 N.W.2d 651,660-61 (S.D. 2003). In South Dakota, "whether
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there is an offensive invasion of privacy involves a question oflaw. If the court first decides
there is substantial evidence tending to show a serious, unreasonable, unwarranted and offensive
interference with another's private affairs, then the case is one to be submitted to the jury."
Shope, 286 N.W.2d at 810.
1.
Count I: Random Drug and Alcohol Testing
Count I ofGates's complaint in CIV 11-30 13-RAL alleges that the Government invaded
his privacy by subjecting him to random drug and alcohol tests to which Gates had consented in
his treatment contract as a part ofhis acceptance into the Hot Springs drug and alcohol treatment
program. Doc. 49 at ~~ 28-30; Doc. 29-3. When a plaintiff consents to certain conduct, that
conduct rarely constitutes an "unreasonable, unwarranted, serious and offensive intrusion" upon
the plaintiffs seclusion. Baldwin, 362 N.W.2d at 88. In Baldwin, the defendant bank disclosed
financial infonnation about the plaintiff to a Wyoming bank to whom the plaintiff had given
pennission to check his credit. Id. at 87. The plaintiff sued the defendant bank, alleging that the
disclosure of infonnation was a tortious invasion of his privacy. ld. at 88. The trial court
granted the defendant bank a directed verdict and the Supreme Court of South Dakota affinned,
finding that the plaintiffs consent to have the Wyoming bank check his credit necessarily
included consent to the defendant bank-which had previously extended the plaintiff credit-to
disclose the infonnation it did. Id. Because the plaintiff had consented to the defendant bank's
conduct, the conduct was not an unreasonable intrusion upon the plaintiffs seclusion. Id.
Like the plaintiff in Baldwin, Gates consented to the conduct that he now claims invaded
his privacy. Gates signed a treatment contract wherein he expressly agreed to submit to random
drug and alcohol tests. Doc. 49 at~~ 28-30; Doc. 29-3. Although Gates now disagrees with the
VA's drug and alcohol testing policy, he was free to weigh the benefit of receiving treatment
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against the cost of being subject to the drug and alcohol tests. Because Gates chose to consent
to the drug and alcohol tests, the Government's conduct in subjecting him to random drug and
alcohol testing as a matter of law was not an unreasonable intrusion upon Gates's seclusion.
Moreover, Gates testified during his deposition that the random drug and alcohol testing did not
do any actual damage to him. Doc. 48-2 at 19. Accordingly, this Court grants the Government's
motion for summary judgment on Count I of Gates's complaint in CIV II-30l3-RAL.
2.
Count II: CCTV System
Count II ofGates's complaint in CIV 11-30 13-RAL alleges that the Government invaded
his privacy by monitoring patients' sleeping areas via the CCTV system. Doc. 1 at 1, 5. The
record belies this allegation. The Government submitted an affidavit from Domiciliary Chief
Dean Cromwell explaining that the CCTV system was not used to monitor patients' sleeping
areas and that any cameras installed near patients' sleeping areas were focused on public spaces
such as exits and hallways. Doc. 37. Gates has not directed this Court to any evidence that
refutes Cromwell's affidavit, and no such evidence exists in the record. Gates himself stated
under oath that he did not know whether anyone had ever watched him over the CCTV system.
Doc. 48-2 at 2. To the extent that Count II alleges invasion of privacy from the VA's use of the
CCTV system in the public areas of the facility, such use was not a tortious invasion of Gates's
privacy. Gates could not expect his actions in public areas to remain private and a reasonable
person who, like Gates, had been informed of the CCTV system would not find its use in
monitoring exits and public areas to be offensive. See Roth, 667 N.W.2d at 660-61. Thus,
summary judgment in favor of the Government on Count II of Gates's complaint in CIV 11
3013-RAL is appropriate.
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3.
Count III: Email
Count III ofGates's complaint in CIV 11-3013-RAL asserts thatthe Government intruded
upon his private affairs by monitoring his use of his Yahoo email account. The Government
argues that it is entitled to summary judgment on Count III because Gates did not have an
objectively reasonable expectation of privacy on the VA's computers and because Gates
consented to the monitoring. Gates disagrees, arguing that he had a right to "free and private"
communications and that he was never told he had absolutely no right to privacy on VA
computers. Doc. 51 at 7.
The Supreme Court ofSouth Dakota in Roth required for an intrusion on seclusion claim
an "unreasonable, unwarranted, serious and offensive" intrusion that "would be offensive and
objectionable to a reasonable man of ordinary sensibilities.
II
667 N. W.2d at 660-61 (citations
omitted). Similarly, other courts have made clear that in order to have an interest in seclusion
or privacy that the law will protect, a plaintiff must have an objectively reasonable expectation
of seclusion or privacy in the matter intruded upon. See Wiles v. Ascom Transp. Sys., Inc., 478
F. App'x 283, 293-94 (6th Cir. 2012) (holding that to prove intrusion upon seclusion in
Kentucky, a plaintiff must show an intrusion into a private matter in which the plaintiff had a
reasonable expectation ofprivacy); Kline v. Sec. Guards, Inc., 386 F.3d 246, 260 (3d Cir. 2004)
(stating that Pennsylvania tort of intrusion upon seclusion requires that plaintiff have a
reasonable expectation of privacy into matter intruded upon); Med. Lab. Mgmt. Consultants v.
Am. Broad. Cos., 306 F.3d 806, 812-813 (9th Cir. 2002) (interpreting section 652B of the
Restatement (Second) ofTorts, which sets forth the tort ofintrusion upon seclusion, as requiring
proof that the plaintiff had an objectively reasonable expectation of seclusion in the matter
intruded upon); Fletcher, 220 F.3d at 877 (!fA legitimate expectation ofprivacy is the touchstone
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of the tort of intrusion upon seclusion."); Russ v. Causey, 732 F. Supp. 2d 589, 608 (E.D.N.C.
2010) (holding that in North Carolina, an intrusion upon seclusion occurs "where the solitude,
seclusion, private affairs, or personal concerns of a person are invaded in circumstances where
that person would otherwise have a reasonable expectation of privacy"); Lorenzo v. United
States, 719 F. Supp. 2d 1208,1215 (S.D. Cal. 201 O)(applying California law and explaining that
"[i]n order to show intrusion, a plaintiff must have an objectively reasonable expectation of
seclusion or solitude in the place, conversation or data source" (citation omitted)); Hough v.
Shakopee Pub. Sch., 608 F. Supp. 2d 1087, 1117 (D. Minn. 2009) (applying Minnesota law and
explaining that tort of intrusion upon seclusion requires a showing of an intrusion "into some
matter in which a person has a legitimate expectation of privacy" (citation omitted)).
Gates is unable to demonstrate that he had an objectively reasonable expectation of
privacy or seclusion in his use of a VA computer. First, the VA owned the computers and made
them available for patients to use. Doc. 49 at,-r 12; Doc. 29-6. Second, it is undisputed that
Gates knew that the VA monitored use of its computers. Doc. 49 at,-r 13; Doc. 48-2 at 7. The
"Guidelines for Computer use by Patients"-which Gates signed when he entered the program
and which stated "COMPUTER USE WILL BE MONITORED.
IF GUIDELINES ARE
VIOLATED, YOUR ACCESS WILL BE REMOVED IMMEDIATELY"-made clear that the
VA's monitoring policy was designed to ensure compliance with the guidelines stated therein.
Doc. 29-6. This document also put Gates on notice that the VA's monitoring policy extended
to patients' email use in that one of the guidelines stated: ..E-mail will be used only as a critical
communication tool for Veterans and their families with the outside world. It will not be used
to conduct business, send annoying or harassing messages, or circulate chain letters." Doc. 29-6.
Gates's accessing a naked picture of himself through his Yahoo account was not use "only as a
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critical communication tool[.]" Third, Gates testified during his deposition that no one at the V A
ever informed him that his activities on V A computers would remain private. Doc. 49 at ~ 14;
Doc. 48-2 at 8. Even construing the facts in the light most favorable to Gates, Gates lacked an
objectively reasonable expectation ofprivacy in accessing a naked picture ofhimself through his
Yahoo account when he was using the VA's computer and was on notice that his use thereon
could be monitored. Consequently, under the unique and undisputed facts ofthis case, summary
judgment in favor of the Government on Count III of Gates's complaint in CIV 11-30 13-RAL
is proper.
4.
Count IV: Disclosure of Confidential Information
Count IV of Gates's complaint in CIV 11-3013-RAL alleges that the VA placed
"unreasonable publicity" on his private life and placed him in a "false light before the public,,6
by disclosing information pertaining to his discharge from the Hot Springs program to
unauthorized persons. Doc. 1 at 5. Who Gates believes disclosed his private information and
to whom is not clear. Gates alleges in his complaint that a BHHCS nurse accidentally disclosed
to staff at Castle Manor that he was discharged from the Hot Springs program for accessing
pornographic material on a V A computer. Doc. 1 at 3. In a Motion for Court Order, however,
Gates asserts that the computer coordinator at the Hot Springs facility may have disclosed this
information. Doc. 40 at 2- 3. In his most recent filing, Gates returns to his beliefthat a BHHCS
6This Court might not have jurisdiction over such a claim. See Mills v. Iowa Bd. ofRegents,
770 F. Supp. 2d 986, 998 (S.D. Iowa 2011) ("Federal law consistently holds that claims for false
light invasion of privacy are barred by the libel and slander exception to the FTCA in 28 U.S.C.
§ 2680(h)."). Because Gates's claim in Count IV is less than clear and because the Supreme Court
ofSouth Dakota has never elaborated on the false light theory of invasion ofprivacy, this Court will
consider whether summary judgment should enter viewing Gates's claim in Count IV as an intrusion
on seclusion type of invasion of privacy claim.
15
nurse disclosed the information. Doc. 51 at 13. Other than Gates's allegations, there is no
evidence that any such communication took place by anyone at BHHCS with anyone at Castle
Manor. It is undisputed that Gates has neither proof nor knowledge that any VA employee made
any such disclosure. Doc. 49 at ~ 45; Doc. 48-2 at 20; Doc. 51 at 13.
A party opposing a properly supported motion for summary judgment "has an affirmative
burden to designate specific facts creating a triable controversy." Garden v. Cent. Neb. Hous.
Corp., 719 F.3d 899, 906 (8th Cir. 2013) (quoting Midwest Oilseeds, Inc. v. Limagrain Genetics
Corp., 387 F.3d 705,714 (8th Cir. 2004)). Here, Gates would bear the burdenattrial ofshowing
that a VA employee invaded his privacy by disclosing his confidential information. Because
Gates has failed to come forward with any evidence on this issue/ summary judgment in favor
ofthe Government on Count IV of his complaint in CIV 11-3013-RAL is appropriate. See id.
(granting summary judgment against nonmoving party was proper where nonmoving party failed
to offer any evidence on issues it would be required to prove at trial); Crotty v. Dakotacare
Admin. Servs .. Inc., 455 F.3d 828, 831 (8th CiT. 2006) ("When a party ... has the burden of
proof on an issue, it must present evidence sufficient to create a genuine issue of material fact
to survive a properly supported summary judgment motion. It).
B.
elv 12-3011-RAL
Gates's complaint in CIV 12-3011-RAL alleges that the Government retaliated against
him for filing an invasion of privacy complaint with the VA Office of Inspector General by
1Gates asserts in his brief that he does not have any evidence concerning Count IV because
he could not afford to depose certain witnesses. Doc. 51 at 4-5. Gates is proceeding pro se and
conducted discovery. Rule 56 applies equally to pro se litigants as to litigants represented by
counsel. Indigency or lack of financial resources, while an obvious disadvantage to a litigant, does
not give rise to a genuine dispute of material fact. It appears that the VA conducted an investigation
into this issue and was unable to find any evidence that a disclosure of confidential information
occurred. Doc. 31-4 at 4-5; Doc. 44-9 at 1.
16
delaying his admission to the LSS program at the Fort Meade, South Dakota V A campus (Count
I); fabricating LSS medication protocols and erroneously determining that Gates was in violation
ofthese protocols (Count II); changing LSS program rules to aggravate Gates and goad him into
doing something that would justifY an irregular discharge from the LSS program (Count III);
denying Gates admission to a CWT program (Count IV); refusing Gates's request for help (Count
V); and not showing him "even the smallest degree of Dignity or respect" while he was a patient
in the LSS program (Count VI). 8 The complaint asserts that the Government's actions in Counts
I through VI violated 42 U.S.C. § 9501, SDCL Chapter 27A-12, and "VA policies which forbid
retaliation in any form." CIV 12-3011-RAL, Doc.I. The Government argues that Gates's
complaint in CIV 12-3011-RAL should be dismissed under Rule 12(b)(6) because the framework
for retaliation claims falls under Title VII of the Civil Rights Act of 1964 rather than the FTCA.
The Government argues further that even if Gates had relied on Title VII, dismissal under Rule
12(h)(3) would be appropriate because Gates was not an employee ofthe V A. In the alternative,
the Government moves for summary judgment, arguing that Gates's retaliation claims are
unsupported by evidence and that there are no genuine issues of material fact.
Gates's complaint in CIV 12-3011-RAL does not identifY which particular VA policies
he believes the V A violated. As for the federal statute Gates cites, 42 U.S.C. § 9501 is titled
"Bill of Rights" and was enacted as part of the Mental Health Systems Act. It provides in
relevant part: "It is the sense of the Congress that each State should review and revise, if
8Gates's Complaint in CIV 12-30l1-RAL also contains a second Count VI, which Gates
probably meant to label Count VII. In this second Count VI, Gates asserts a claim based on the
random drug and alcohol tests while a patient at LSS. This Court interprets this Count VI as alleging
that the V A committed the tort of invasion of privacy. For the reasons discussed earlier in this
Opinion and Order, summary judgment is proper for the Government on such a claim.
17
necessary, its laws to ensure that mental health patients receive the protection and services they
require; and in making such review and revision should take into account the ... following ..
.." 42 U.S.C. § 9501. The statute goes on to list the rights a mental health patient should
receive. Id. Even if the VA had violated its policies and 42 U.S.C. § 9501, this would not,
standing alone, provide Gates with a cause of action under the FTCA. See Klett, 965 F.2d at
589. As the Eighth Circuit has explained, "[fJederally imposed obligations, whether general or
specific, are irrelevant to our inquiry under the FTCA, unless state law imposes a similar
obligation upon private persons." Id. (quoting Gelley v. Astra Pharm. Prod., Inc., 610 F.2d 558,
562 (8th Cir. 1979)).9 Thus, the issue becomes whether SDCL Chapter 27 A-12, the chapter of
the South Dakota Codified Laws that Gates cites, provides him with a cause of action against the
VA.
Title 27 A ofthe South Dakota Codified Laws concerns the treatment ofthe mentally ill.
Chapter 27 A-12 of Title 27 A enumerates the rights ofmental health patients, including the right
to "a humane environment that affords appropriate individual privacy, individual dignity and
reasonable protection from harm." SDCL § 27A-12-1. Chapter 27 A-12 goes on to explain that
a person who exercises his or her rights under Title 27 A is "not subject to any reprisal, including
reprisal through the actual or threatened denial of any treatment, benefits, privileges, or other
rights." Id. § 27 A-12-33.1. Although neither the Supreme Court of South Dakota nor the parties
in this case have addressed whether Title 27 A provides a private cause ofaction, SDCL § 27A-l
9Even ifthe FTC A allowed Gates to sue the United States for violations of42 U.S.C. § 9501,
several courts have held that § 9501 does not create any enforceable federal rights. Monahan v.
Dorchester Counseling Ctr., 961 F.2d 987, 994-95 (Ist Cir. 1992) (interpreting 42 U.S.C. § 10841,
which restates the provisions of § 9501); Mele v. Hill Health Ctr., 609 F. Supp. 2d 248, 255 (D.
Conn. 2009); Smith v. Au Sable Valley Cmty. Mental Health Servs., 431 F. Supp. 2d 743, 750 (E.D.
Mich. 2006).
18
6 suggests that it does. This section reads:
Any officer required to perform an act, and any person accepting
an appointment under the provisions of this title, who shall
intentionally refuse or neglect to perform his duty as herein
prescribed, shall be guilty of a Class 1 misdemeanor, besides
being liable to an action for damages.
Id. § 27A-1-6.
Whether Title 27 A, enumerating rights ofmental health patients, applies to someone like
Gates who voluntarily enrolled in the VA's drug and alcohol treatment program is debatable. Yet
even ifthis Court assumes that Title 27 A applies to Gates and provides him with a private cause
of action for retaliation, the Government is still entitled to summary judgment on Counts I
through VI ofGates's complaint in CIV 12-30l1-RAL. As noted above, H[w]hen a party ... has
the burden of proof on an issue, it must present evidence sufficient to create a genuine issue of
material fact to survive a properly supported summary judgment motion." Crotty, 455 F.3d at
831. Rule 56(c)(l) of the Federal Rules of Civil Procedure requires that a "party asserting that
a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular
parts of materials in the record ....H Although Gates would bear the burden at trial of proving
that V A employees retaliated against him for filing a complaint with the Office of Inspector
General, his memorandum in opposition to the Government's motion for summary judgment
does not contain any citation to the record to support his assertions that this took place. Gates's
pro se status does not excuse him from responding to the Government's motion with "specific
factual support for his claims to avoid summary judgment." Beck v. Skon, 253 F.3d 330,333
(8th Cir. 2001). Nor is it this Court's obligation to dig through the file in search of factual
support for Gates's assertions. See Holland v. Sam's Club, 487 F.3d 641, 644 (8th Cir. 2007) ("In
19
ruling on a motion for summary judgment, the district court 'is not obligated to wade through and
search the entire record for some specific facts which might support the nonmoving party's claim
. . . ."' (quoting Pedroza v. Cintas Corp. No.2, 397 F.3d 1063, 1069 (8th Cir. 2005))).
Nevertheless, this Court has reviewed the entire record and has found nothing therein to create
a genuine issue of material fact on Gates's retaliation claims. Gates was in fact admitted to the
LSS program, albeit later than he wanted, and his discharge from the LSS program was
undisputedly for violating the policy against possession of a weapon. Doc. 48-3 at 5; Doc. 49
at
~~
51, 54-55, 62, 64.
Because Gates has failed to come forward with specific facts
demonstrating that there is a genuine issue ofmaterial fact and because this Court's review ofthe
record revealed no such fact, the Government is entitled to summary judgment on Counts I
through VI of Gates's complaint in CIV 12-3011-RAL.1O
IV.
Conclusion
For the reasons stated above, it is hereby
ORDERED that the Government's motion to dismiss is denied, but that the Government's
motion for summary judgment, Doc. 47, is granted.
Dated January ~K', 2014.
BY THE COURT:
UNITED STATES DISTRICT JUDGE
IOThe Government argues that some of the remedies Gates seeks in CIV 11-3013-RAL and
CIV 12-3011-RAL are inappropriate because he asks for non-monetary relief and relief on behalf
of other veterans. Because Gates is not entitled to any relief, it is unnecessary to reach these
arguments.
20
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