Benavidez v. U.S.

• Decision Date: 28 July 1997
• Docket Number: No. Civ. 95-0823 LH/WWD.,Civ. 95-0823 LH/WWD.
• Citation: 998 F.Supp. 1225
• Parties: Mario BENAVIDEZ, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of New Mexico

998 F.Supp. 1225

Mario BENAVIDEZ, Plaintiff, v. UNITED STATES of America, Defendant.

No. Civ. 95-0823 LH/WWD.

United States District Court, D. New Mexico.

July 28, 1997.

Bruce E. Pasternack, Pasternack & Blake, Albuquerque, NM, for Plaintiff.

Raymond Hamilton, Jan E. Mitchell, Ronald F. Ross, Joan M. Hart, U.S. Attorney's Office, Albuquerque, NM, for Defendant.

MEMORANDUM OPINION

HANSEN, District Judge.

THIS MATTER comes before the Court on the Defendant's Motion to Dismiss Pursuant to FED.R.CIV.P. 12(b) or, in the Alternative, Motion for Summary Judgment Pursuant to FED.R.CIV.P. 56(b) (Docket No. 147), filed November 18, 1996, and the Defendant's Motion for Dismissal of a Claim of Medical Malpractice, or, in the Alternative, for Partial Summary Judgment as to Limitation of Damages (Docket No. 151), filed November 18, 1996. The Court, having considered the pleadings submitted by the parties, the arguments of counsel, and otherwise being fully advised, finds that the Defendant's Motion to Dismiss Pursuant to FED.R.CIV.P. 12(b) (Docket No. 147-1) is well taken and will be granted. The Court, having concluded that it does not have jurisdiction over this matter, will deny Defendant's Alternative Motion for Summary Judgment Pursuant to FED. R.CIV.P. 56(b) (Docket No. 147-2) and Defendant's Motion for Dismissal of a Claim of Medical Malpractice, or, in the Alternative, for Partial Summary Judgment as to Limitation of Damages (Docket No. 151) as moot.

BACKGROUND

Plaintiff Mario Benavidez filed this action against the United States claiming that the federal Indian Health Service (IHS) is liable for professional negligence (Count I), negligent hiring, placement, and supervision (Count II), negligent failure to warn (Count III), negligent breach of duty to control (Count IV), and negligent breach of fiduciary duty (Count V) for its failure to adequately control and/or supervise David J. Bullis, Ph.D. (Bullis), a psychologist employed by IHS. Plaintiff claims that as a result he was sexually abused by Bullis while under his care from July, 1992, to October, 1994. (First Am. Compl. ¶ 15.)

Specifically, Plaintiff avers that when IHS hired Bullis as a psychologist it failed to adequately investigate Bullis' background and qualifications and failed to discover that he was "a pedophile and/or ephebophile." (Id. ¶ 6.) Plaintiff began being counseled by Bullis in 1987, at age fourteen, after his brother committed suicide. (Id. ¶ 12.) Plaintiff alleges that "[a]t all times during which he provided psychological counseling to [Plaintiff] Mario [Benavidez,] Bullis was an employee of IHS, acting within the course and scope of his employment." (Id.) Plaintiff further alleges that "[i]n July of 1992, [after] Mario had been Bullis' patient for three (3) years, Bullis began to negligently mismanage the transference phenomenon which is present in all psychotherapeutic relationships, and to thereby take advantage of the respect and admiration Mario had developed for Bullis by engaging Mario in sexual contact which Bullis represented to be beneficial and therapeutic." (Id. ¶ 14.) Moreover, Plaintiff avers, "Bullis negligently provided Mario with liquor and used marijuana with Mario, explaining to Mario that the use of such substances was appropriate and therapeutic as long as the use was undertaken in Bullis' presence." (Id.) Plaintiff alleges that this behavior continued until October of 1994, and that beginning "in the Summer of 1993, Bullis also began negligently using therapy sessions to convince Mario that Mario was homosexual, and that Mario should lead a homosexual lifestyle." (Id. ¶ 15.) Finally, Plaintiff alleges that after Plaintiff was hospitalized on January 18, 1994, for drug dependency, dysphoria, and sleep disturbance and was subsequently referred to a drug and alcohol rehabilitation center in Colorado, Bullis attempted "to have sex with Mario" while transporting him to the Colorado center. (Id. ¶ 16.) Plaintiff further contends that "Bullis continued to pursue [the Plaintiff] sexually, and to invite him to bars and to offer him liquor and illegal drugs, but finally in October of 1994, Mario terminated all contact with Bullis." (Id. ¶ 18.) As a result of Bullis' actions, Plaintiff alleges he was seriously injured. (Id. ¶ 19.)

DISCUSSION

Generally, motions to dismiss for failure to state a claim are viewed with disfavor and are therefore rarely granted. 5 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1357 (1990). In ruling on a motion to dismiss, the Court must construe the complaint in the light most favorable to the plaintiff and take the allegations asserted in the complaint as true. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). A court should not grant a motion to dismiss for failure to state a claim unless it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). Therefore, "the issue is not whether a plaintiff will ultimately prevail but whether claimant is entitled to offer evidence to support the claims." Scheuer, 416 U.S. at 236.

Plaintiff brings his claims under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671, et seq, and maintains that this Court has jurisdiction pursuant to the federal question statute, 28 U.S.C. § 1346(b). (First Am. Compl. ¶ 1.) Defendant moves this Court to dismiss pursuant to Federal Rule of Civil Procedure 12(b), arguing that the Court lacks jurisdiction over Counts I and V because the alleged actions did not take place within the scope of Bullis' employment (Def.'s Mem. Supp. Mot. Dismiss Pursuant FED.R.CIV.P. 12(b) or, Alt. Mot. Sum. J. Pursuant FED.R.CIV.P. 56(b) (hereinafter Def.'s Mem. II) at 5-12.) Defendant argues further that pursuant to the assault and battery¹ and the discretionary function² exceptions to the FTCA the Court lacks jurisdiction over Counts II-IV. (Id. at 12-19, 20-25.) Thus, Defendant argues that this Court lacks jurisdiction over this entire action, and therefore, it must be dismissed.

I. FEDERAL TORT CLAIMS ACT

As the Government observes, the United States is sovereign and, as such, is immune from suit unless it explicitly waives its immunity. United States v. Testan, 424 U.S. 392, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). "Unless Congress has consented to a cause of action against the United States, there is no jurisdiction in any court to entertain such a suit." Jarrett v. United States, 874 F.2d 201, 203 (4th Cir.1989) (citing United States v. Sherwood, 312 U.S. 584, 587-88, 61 S.Ct. 767, 770-71, 85 L.Ed. 1058 (1941)). The FTCA waives the United States' sovereign immunity under very limited circumstances. 28 U.S.C. § 1346; United States v. Orleans, 425 U.S. 807, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976). The grant of jurisdiction pertinent to this action provides:

[t]he district courts ... have exclusive jurisdiction of civil actions on 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, 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.

28 U.S.C. § 1346(b)(1). Thus, "[a] substantive cause of action is not created by 28 U.S.C. § 1346(b)," rather, it is only a grant of jurisdiction. Jarrett, 874 F.2d at 202. This grant of jurisdiction is, however, limited to "actions taken within the scope" of a federal employee's office or employment, 28 U.S.C. § 1346(b)(1), and does not grant jurisdiction over claims arising out of assaults or batteries, 28 U.S.C. § 2680(h), or acts or omissions taken in the exercise of a discretionary function, 28 U.S.C. § 2680(a).

A. Course and Scope of Employment

The jurisdiction of this Court over Plaintiff's claims against the United States for the acts or omissions of employees at IHS is first dependent upon whether Bullis was "acting within the scope of his office or employment" when he committed the acts alleged by the Plaintiff. See 28 U.S.C. § 1346(b). The "determination of whether an employee of the United States acted within [his or] her scope of employment is a matter of state law." Flechsig v. United States, 991 F.2d 300, 302 (6th Cir.1993) (citations omitted).³

Defendant argues that the actions Plaintiff claims Bullis took do not fall within the course and scope of his employment. Essentially, Defendant maintains that Bullis was not hired by IHS to have sex with patients, that the alleged incidents did not take place within the employment context, and that the actions cannot be construed to "have been actuated by a purpose to serve" IHS or its interests. (Def.'s Mem. II at 7-8.)

Plaintiff responds that he has alleged that "Bullis' negligence includes, among other things, his failure to maintain appropriate boundaries, to refer Plaintiff to a different therapist, to properly counsel Plaintiff with regard to his alcohol and marijuana use, and the fact that Bullis exacerbated Plaintiff's drug and alcohol dependence by failing to render proper treatment and by buying alcohol and using alcohol and marijuana with Plaintiff." (Pl.'s Resp. Mot. Dismissal Claim of Medical Malpractice (hereinafter Pl's Resp. I) at 3.) Furthermore, Plaintiff argues that Bullis personal motivations for his sexual activities with the Plaintiff do not per se, extract those actions from the course and scope of his employment. (Id. at 3.)

The Plaintiff is correct in his assertion that his complaint does not simply allege sexual misconduct on the part of Bullis, but also alleges that "Bullis negligently provided Mario with liquor and used marijuana with Mario ... and copiously used the liquor and...