Bradley v. United States of America

Filing 18

MEMORANDUM OPINION AND ORDER granting 7 Motion to Dismiss. This Court DISMISSES this case WITH PREJUDICE. The Court directs the Clerk to prepare a separate judgment order. Signed by District Judge Irene M. Keeley on 4/22/2011. (kd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CRYSTAL BRADLEY,
Plaintiff,
v.

//

CIVIL ACTION NO. 1:10CV167
(Judge Keeley)

UNITED STATES OF AMERICA,
Defendant.

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS (DKT. 7)
After a doctor allegedly sexually assaulted the plaintiff,
Crystal Bradley (“Bradley”), at a federally supported health care
facility, Bradley brought this action against the United States
under the Federal Tort Claims Act (“FTCA”). Because the FTCA’s
sovereign immunity waiver provision does not extend to the claims
in this case, the Court GRANTS the Government’s motion to dismiss
for lack of subject matter jurisdiction.
I. FACTUAL AND PROCEDURAL BACKGROUND
Bradley alleges that she was sexually victimized by Dr. John
Pellegrini while a patient at the Clay Battelle Health Services
Association Clinic in Blacksville, Monongalia County, West Virginia
(the “Clinic”), a facility eligible for coverage under the FTCA,
and that the Department of Health and Human Services denied her
claim for damages.
Bradley’s complaint asserts negligence claims against the
United States. Count One asserts that the Clinic owed its business

BRADLEY v. USA

1:10CV167

MEMORANDUM OPINION AND ORDER
_________________________________________________________________
invitees a duty to provide care free from sexual abuse, especially
because the facility published a "Patient Bill of Rights" that
promised treatment without discrimination based on sex. Count Two
claims that the abuse by Dr. Pellegrini was reasonably foreseeable,
and thus the Clinic had a duty to prevent it. Count Three asserts
a claim of negligent supervision and retention, and alleges that
other patients, including twenty female inmates at a correctional
facility where Dr. Pellegrini also worked, have made allegations of
sexual misconduct against him.
The Government does not dispute that the Clinic is eligible
for

FTCA

coverage,

administrative

or

remedies

that

Bradley

before

filing

properly

exhausted

suit.

does

It

her

contend,

however, that the sovereign immunity of the United States bars this
action. For the reasons discussed in this opinion, the Court
agrees.
II. ANALYSIS
The Government argues that Bradley’s claims fall outside the
FTCA’s limited waiver of sovereign immunity. Although the FTCA
waives the sovereign immunity of the United States for certain
negligence actions, it specifically bars suits "arising out of
assault [or] battery by a federal employee acting within the scope
of

his

employment."

28

U.S.C.

§
2

2680(h).

In

some

instances,

BRADLEY v. USA

1:10CV167

MEMORANDUM OPINION AND ORDER
_________________________________________________________________
however, a claim of negligence by the United States that also
involves an intentional tort by a government employee is outside
the scope of the "assault and battery" exception, and thus is not
barred by sovereign immunity. Sheridan v. United States, 487 U.S.
392 (1988)(“Sheridan I”)(reversing 823 F.2d 820 (4th Cir. 1987)).
In

Sheridan

I,

the

plaintiffs

claimed

that

an

off-duty

servicemember had shot at passing motorists, and that the naval
facility where the incident took place failed to protect the
plaintiffs despite a base regulation barring the possession of
firearms. Id. at 393-94. Reversing the Fourth Circuit Court of
Appeals, the Supreme Court of the United States held that the
assault and battery exception of the FTCA did not bar claims that
would arise regardless of the tortfeasor’s employment status. Id.
at 403. The Supreme Court, however, did not decide whether the
assault and battery provision barred all claims of negligent
supervision involving intentional torts. Id. at 403, n. 8.
On remand, the Fourth Circuit explicitly held that claims of
negligent

supervision

arising

out

of

an

assault

or

battery

committed by a government employee are not actionable under the
FTCA.

Sheridan

v.

United

States,

969

F.2d

72,

75

(4th

Cir.

1992)(“Sheridan II”)(citing Thigpen v. United States, 800 F.2d 393,
399 (4th Cir. 1986)(Murnaghan, J., concurring)); contra, Senger v.
3

BRADLEY v. USA

1:10CV167

MEMORANDUM OPINION AND ORDER
_________________________________________________________________
United States, 103 F.3d 1437 (9th Cir. 1996)(assault and battery
provision does not bar negligent supervision claims). Thus, Count
Three of Bradley’s complaint, alleging negligent retention and
supervision, must be dismissed under Fourth Circuit case law.
The Fourth Circuit’s opinion in Sheridan II also undercuts
Bradley's argument that liability should attach because of the
Clinic’s "Patient Bill of Rights." The Fourth Circuit held that the
naval base's regulations prohibiting firearms did not give rise to
"Good Samaritan" liability under Maryland law (incorporated into
the FTCA). 969 F.2d at 74-75. Bradley has provided no authority
suggesting that the Patient Bill of Rights at issue in this case
would create any affirmative duty under West Virginia law.
In our sister district, Chief Judge Goodwin, on facts similar
to those alleged by Bradley, has held that the assault and battery
exclusion of the FTCA barred both negligent hiring and supervision
claims, as well as claims based on an alleged duty of care arising
out of an Army recruiter's actions. See Lilly v. United States, 141
F.Supp.2d 626 (S.D.W. Va. 2001), aff'd, 22 Fed.App'x 293 (4th Cir.
2001)(unpublished), cert. denied, 536 U.S. 939 (2002). In Lilly, a
soldier took a seventeen-year-old female recruit to a bar, where he
bought her several drinks. After that, he took her to a hotel room
where he engaged in sexual relations with her. Id. at 627. Although
4

BRADLEY v. USA

1:10CV167

MEMORANDUM OPINION AND ORDER
_________________________________________________________________
Chief

Judge

Goodwin

recognized

that,

under

Sheridan

I,

some

negligence actions tangentially involving intentional torts are
allowable, he found that, under the facts before him, there was no
breach of any duty of care that was “independent” of both the
employment relationship and the intentional torts of the recruiter.
Id. at 630.
In this case, all of Bradley’s claims arise out of Dr.
Pellegrini’s

alleged

intentional

actions

while

a

Government

employee. No matter how styled, the FTCA bars such claims.
The cases cited by Bradley hold only that, with regard to a
negligence claim separate and distinct from the intentional tort,
the waiver would not apply – for instance, where a government
daycare worker negligently allows an unknown assailant to abuse
children, Doe v. United States, 838 F.2d 220 (7th Cir. 1988); or
where the alleged sex was consensual (and thus not an assault or
battery), Andrews v. United States, 732 F.2d 366 (4th Cir. 1984);
or where a government health care worker negligently mis-medicated
the plaintiff, exposing her to a subsequent sexual assault by
another employee, Bembenista v. United States, 866 F.2d 493 (D.C.
Cir.

1989);

or,

indeed,

as

in

Sheridan

I

itself,

where

the

shooter's employment status had nothing to do with the plaintiff's
claims.

Here,

because

all

of

Bradley's
5

claims

turn

on

the

BRADLEY v. USA

1:10CV167

MEMORANDUM OPINION AND ORDER
_________________________________________________________________
employment relationship between the Government and Dr. Pellegrini,
the assault and battery exception applies.
CONCLUSION
The

Court

concludes

that

it

is

without

jurisdiction

to

entertain any of Bradley’s claims because the allegations in her
complaint

“aris[e] out

of

assault

[or]

battery by

a

federal

employee acting within the scope of his employment." 28 U.S.C. §
2680(h). Thus, it GRANTS the Government’s Motion to Dismiss for
Lack of Subject Matter Jurisdiction (dkt. 7), and DISMISSES this
case WITH PREJUDICE.
It is so ORDERED.
The Court directs the Clerk to prepare a separate judgment
order and to transmit copies of both orders to counsel of record.
DATED: April 22, 2011.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

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