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Stout v. United States

United States District Court, S.D. Ohio, Eastern Division

January 6, 2017

CHRISTOPHER STOUT, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          Jolson, Magistrate Judge

          OPINION AND ORDER

          GEORGE C. SMITH, JUDGE

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

         I. BACKGROUND

         This action arises out of the care and treatment of Plaintiff Christopher Stout during his stay as a patient at the Dayton Veterans Affairs Medical Center (“VAMC Dayton”). In October 2012, Plaintiff arrived at VAMC Dayton from the Veterans Affairs Medical Center in Columbus. (Doc. 14, Am. Compl. at ¶ 7).

         Beginning in the first week of November 2012, Plaintiff alleges that Patricia Poling, a VAMC Dayton nurse, had “sexual contact with and commit[ted] repeated, unwanted acts of offensive touching of a sexual nature upon Plaintiff without his consent. (Id. at ¶ 11). During this period, Plaintiff was depressed and suicidal causing him to be on medications which left him vulnerable to the acts of Poling. (Id. at ¶ 10). Plaintiff alleges that during the first week of November-when Poling's unwanted contact began-Poling told Plaintiff that she loved him. (Id. at ¶ 12). Plaintiff alleges that he complained about Poling's “unwanted assaults” to other VAMC Dayton employees that same week. (Id. at ¶ 13). Plaintiff also alleges that some unnamed VAMC Dayton employees witnessed some of Poling's actions. (Id. at ¶ 14). Poling's behavior made another VAMC Dayton employee uncomfortable and Poling told at least one other employee that she was dating Plaintiff. (Id. at ¶¶ 21, 23-25).

         This was not the first time Poling had a relationship with a VAMC Dayton patient. (Id. at ¶ 26). Plaintiff alleges that Poling had “previously fostered a relationship with a former patient and that LPN Poling saw the former patient socially and that the former patient would frequently . . . call the unit whenever LPN Poling was working.” (Id. at 26). Plaintiff does not allege that this earlier relationship consisted of any unwanted sexual assault by Poling. Although VAMC Dayton eventually released Plaintiff, Poling did not cease her attempts to make contact. Plaintiff alleges that Poling “attempted to engage Plaintiff in illegal activities” and sought out Plaintiff in Hilliard, Ohio, making sexual advances. (Id. at ¶¶ 16-18). Plaintiff does not allege that any further sexual assault occurred following his release.

         Plaintiff filed a claim with the Department of Veterans Affairs in October 2014. (Doc. 14-1, Ex. 1 to Am. Compl.). The Department of Veterans Affairs denied Plaintiff's claims on May 1, 2015. (Doc. 14-2, Ex. 2 to Am. Compl.). Plaintiff then brought this suit against the United States as the operator of VAMC Dayton under the Federal Tort Claims Act (“FTCA”) arguing four separate theories of liability: (1) negligent hiring, retention, and/or supervision; (2) negligence; (3) intentional infliction of emotional distress; and (4) negligent infliction of emotional distress.

         II. STANDARD OF REVIEW

         Defendant challenges the original jurisdiction of this Court pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Rule 12(b)(1) motions on subject matter jurisdiction come in two varieties: facial and factual. Ohio Nat. Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990). A facial attack on the subject matter jurisdiction alleged in the complaint questions the sufficiency of the pleading. Id. Accordingly, when reviewing a facial attack, a trial court takes the allegations in the complaint as true. Id. However, “conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.” O'Bryan v. Holy See, 556 F.3d 361, 376 (6th Cir. 2009) (quoting Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005)). Ultimately, “dismissal under 12(b)(1) allows for the possibility of repleading the action to bring it within the subject matter jurisdiction of some court” and thus a dismissal under 12(b)(1) is without prejudice. Ohio Nat. Life Ins., 922 F.2d at 325.

         III. DISCUSSION

         Defendant moves for dismissal, arguing that the Court has no subject matter jurisdiction over the claims in this case because Defendant is immune from suit. Defendant argues that the FTCA does not apply to the claims in the case because Poling's intentional tort occurred outside Poling's scope of employment and that all of the claims arise out of the assault and battery by Poling. Plaintiff argues that Poling may have been acting within the scope of her employment when assaulting Plaintiff and that he needs discovery to determine if that is the case. Plaintiff also argues that his claims do not arise out of the assault and battery committed by Poling.

         It is a well-settled principle that the United States is immune from suit unless it expressly waives its sovereign immunity and consents to be sued. Mackey v. United States, 247 F. App'x 641, 643 (6th Cir. 2007) (citing United States v. Mitchell, 445 U.S. 535, 538 (1980)). “The FTCA grants a limited waiver of sovereign immunity and allows tort claims to be brought against the United States ‘in the same manner and to the same extent as a private individual under like circumstances.'” Chomic v. United States, 377 F.3d 607, 609 (6th Cir. 2004), cert. denied, 544 U.S. 948 (2005) (quoting 28 U.S.C. § 2674). The FTCA allows claims:

against the United States, for money damages . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment . . . in ...

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