United States District Court, S.D. Ohio, Eastern Division
Jolson, Magistrate Judge
OPINION AND ORDER
C. SMITH, JUDGE
matter is before the Court upon Defendant the United States
of America's Motion to Dismiss (Doc. 23). Plaintiff
Christopher Stout responded in opposition (Doc. 25) and the
United States replied in support of its Motion (Doc. 26). The
Motion is now ripe for review. For the following reasons,
Defendant's Motion is GRANTED.
action arises out of the care and treatment of Plaintiff
Christopher Stout during his stay as a patient at the Dayton
Veterans Affairs Medical Center (“VAMC Dayton”).
In October 2012, Plaintiff arrived at VAMC Dayton from the
Veterans Affairs Medical Center in Columbus. (Doc. 14, Am.
Compl. at ¶ 7).
in the first week of November 2012, Plaintiff alleges that
Patricia Poling, a VAMC Dayton nurse, had “sexual
contact with and commit[ted] repeated, unwanted acts of
offensive touching of a sexual nature upon Plaintiff without
his consent. (Id. at ¶ 11). During this period,
Plaintiff was depressed and suicidal causing him to be on
medications which left him vulnerable to the acts of Poling.
(Id. at ¶ 10). Plaintiff alleges that during
the first week of November-when Poling's unwanted contact
began-Poling told Plaintiff that she loved him. (Id.
at ¶ 12). Plaintiff alleges that he complained about
Poling's “unwanted assaults” to other VAMC
Dayton employees that same week. (Id. at ¶ 13).
Plaintiff also alleges that some unnamed VAMC Dayton
employees witnessed some of Poling's actions.
(Id. at ¶ 14). Poling's behavior made
another VAMC Dayton employee uncomfortable and Poling told at
least one other employee that she was dating Plaintiff.
(Id. at ¶¶ 21, 23-25).
was not the first time Poling had a relationship with a VAMC
Dayton patient. (Id. at ¶ 26). Plaintiff
alleges that Poling had “previously fostered a
relationship with a former patient and that LPN Poling saw
the former patient socially and that the former patient would
frequently . . . call the unit whenever LPN Poling was
working.” (Id. at 26). Plaintiff does not
allege that this earlier relationship consisted of any
unwanted sexual assault by Poling. Although VAMC Dayton
eventually released Plaintiff, Poling did not cease her
attempts to make contact. Plaintiff alleges that Poling
“attempted to engage Plaintiff in illegal
activities” and sought out Plaintiff in Hilliard, Ohio,
making sexual advances. (Id. at ¶¶ 16-18).
Plaintiff does not allege that any further sexual assault
occurred following his release.
filed a claim with the Department of Veterans Affairs in
October 2014. (Doc. 14-1, Ex. 1 to Am. Compl.). The
Department of Veterans Affairs denied Plaintiff's claims
on May 1, 2015. (Doc. 14-2, Ex. 2 to Am. Compl.). Plaintiff
then brought this suit against the United States as the
operator of VAMC Dayton under the Federal Tort Claims Act
(“FTCA”) arguing four separate theories of
liability: (1) negligent hiring, retention, and/or
supervision; (2) negligence; (3) intentional infliction of
emotional distress; and (4) negligent infliction of emotional
STANDARD OF REVIEW
challenges the original jurisdiction of this Court pursuant
to Rule 12(b)(1) of the Federal Rules of Civil Procedure.
Rule 12(b)(1) motions on subject matter jurisdiction come in
two varieties: facial and factual. Ohio Nat. Life Ins.
Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990).
A facial attack on the subject matter jurisdiction alleged in
the complaint questions the sufficiency of the pleading.
Id. Accordingly, when reviewing a facial attack, a
trial court takes the allegations in the complaint as true.
Id. However, “conclusory allegations or legal
conclusions masquerading as factual conclusions will not
suffice to prevent a motion to dismiss.”
O'Bryan v. Holy See, 556 F.3d 361, 376 (6th Cir.
2009) (quoting Mezibov v. Allen, 411 F.3d 712, 716
(6th Cir. 2005)). Ultimately, “dismissal under 12(b)(1)
allows for the possibility of repleading the action to bring
it within the subject matter jurisdiction of some
court” and thus a dismissal under 12(b)(1) is without
prejudice. Ohio Nat. Life Ins., 922 F.2d at 325.
moves for dismissal, arguing that the Court has no subject
matter jurisdiction over the claims in this case because
Defendant is immune from suit. Defendant argues that the FTCA
does not apply to the claims in the case because Poling's
intentional tort occurred outside Poling's scope of
employment and that all of the claims arise out of the
assault and battery by Poling. Plaintiff argues that Poling
may have been acting within the scope of her employment when
assaulting Plaintiff and that he needs discovery to determine
if that is the case. Plaintiff also argues that his claims do
not arise out of the assault and battery committed by Poling.
It is a
well-settled principle that the United States is immune from
suit unless it expressly waives its sovereign immunity and
consents to be sued. Mackey v. United States, 247 F.
App'x 641, 643 (6th Cir. 2007) (citing United States
v. Mitchell, 445 U.S. 535, 538 (1980)). “The FTCA
grants a limited waiver of sovereign immunity and allows tort
claims to be brought against the United States ‘in the
same manner and to the same extent as a private individual
under like circumstances.'” Chomic v. United
States, 377 F.3d 607, 609 (6th Cir. 2004), cert.
denied, 544 U.S. 948 (2005) (quoting 28 U.S.C. §
2674). The FTCA allows claims:
against the United States, for money damages . . . for injury
or loss of property, or personal injury or death caused by
the negligent or wrongful act or omission of any employee of
the Government while acting within the scope of his office or
employment . . . in ...