Brignac v. United States, CIVIL ACTION NO. 16-CV-02217-AT

CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
Writing for the CourtAmy Totenberg, United States District Judge
Citation239 F.Supp.3d 1367
Decision Date09 March 2017
Docket NumberCIVIL ACTION NO. 16-CV-02217-AT
Parties Jerrell BRIGNAC, Plaintiff, v. UNITED STATES of America, Defendant.

239 F.Supp.3d 1367

Jerrell BRIGNAC, Plaintiff,
v.
UNITED STATES of America, Defendant.

CIVIL ACTION NO. 16-CV-02217-AT

United States District Court, N.D. Georgia, Atlanta Division.

Signed March 9, 2017


239 F.Supp.3d 1370

Jason L. Nohr, Cauthorn Nohr & Owen, Marietta, GA, for Plaintiff.

Darcy F. Coty, U.S. Attorneys Office, Atlanta, GA, for Defendant.

ORDER

Amy Totenberg, United States District Judge

This matter is before the Court on Defendant United States of America's Motion to Dismiss [Doc. 6]. Plaintiff is seeking damages under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b), for personal injuries allegedly caused by the negligence of The Family Health Centers of Georgia, Inc. ("Family Health Centers")1 and the United States Penitentiary ("USP"). In particular, Plaintiff alleges that Dr. Lewis Jackson ("Jackson") sexually assaulted him during a medical examination at Family Health Centers and that Family Health Centers negligently hired and retained Jackson in light of Jackson's prior sexual misconduct at the USP. Plaintiff also alleges that the USP in Atlanta, Georgia negligently failed to report Jackson's misconduct to state licensing authorities, particularly the Georgia Composite Medical Board2 and the National Practitioner Data Bank ("NPDB"). Defendant has moved to dismiss Plaintiff's Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) on the grounds that the Court lacks subject matter jurisdiction over Plaintiff's claims and Plaintiff has failed to state a claim as a matter of law.

For the reasons stated below, the Court GRANTS IN PART and DENIES IN PART Defendant's Motion to Dismiss [Doc. 6].

I. FACTUAL BACKGROUND3

On August 29, 2012, Plaintiff visited Family Health Centers for medical treatment and was seen by Jackson, a physician employed there. (Compl. ¶ 7.) Plaintiff alleges that during the course of the medical examination, Jackson "instructed Plaintiff to remove his clothing" and "grabbed Plaintiff's penis and placed it in his mouth without Plaintiff's consent." (Id. ¶ 11.) Plaintiff reported this incident to the Marietta Police Department on the day it occurred. (Id. ¶ 13.)

Jackson had been working at Family Health Centers since July 23, 2012, a little over a month before seeing Plaintiff. (Pl.'s Sur-reply, Ex. A at 15.)4 Prior to

239 F.Supp.3d 1371

working at Family Health Centers, he had worked as a physician at a District of Columbia Jail ("D.C. Jail") for some time, and then at the USP in Atlanta, Georgia from approximately January 2011 through July 11, 2012. (Compl. ¶ 16.)

Jackson has an admitted record of sexually assaulting patients when employed as a physician. While working at the USP, Jackson sexually assaulted three inmate patients in September and October of 2011. (Id. ) The USP terminated his employment because of these incidents.5 (Id. ) Subsequently on July 24, 2012, he was indicted in the D.C. Superior Court in the District of Columbia for sexually abusing an inmate on November 10, 2008 at the D.C. Jail. (Def.'s Mot. Dismiss at 3.) Jackson was also indicted in this Court on August 28, 2012, for sexually abusing the three inmates at the USP in September and October of 2011. (Id. ) On January 22, 2013, Jackson ultimately pled guilty to a charge of sexual abuse in the District of Columbia, and also pled guilty to sexual abuse charges pertaining to the assaults at the USP in this Court on November 26, 2012. (Id. ); United States v. Jackson , No. 1:12-cr-287-AT, (N.D. Ga. Aug. 28, 2012).

Plaintiff brings two counts against Defendant based on the actions of Defendant's agents and employees at Family Health Centers and the USP. In Count 1, Plaintiff claims that Defendant negligently hired and retained Jackson because Defendant "knew or should have known of Jackson's propensity for mistreating and engaging in inappropriate dealings with his patients prior to hiring him as a physician" and before Plaintiff's injuries on August 29, 2012. (Compl. ¶ 15.) Plaintiff argues that "any reasonable investigation into Jackson's background and employment would have revealed his prior mistreatment of his patients" because Jackson was "terminated for cause" from his duties at the USP for sexually assaulting three inmates. (Id. ¶¶ 16, 17.) In Count 2, Plaintiff alleges that Defendant negligently failed to report Jackson's misconduct to state licensing authorities as required by O.C.G.A. § 31-7-9. (Id. ¶ 39.) Plaintiff brings both of these counts under the FTCA, 28 U.S.C. § 1346(b), which authorizes legal actions against the United States for money damages caused by the negligent or wrongful acts or omissions of U.S. government employees acting within the course of their employment.

Defendant moves to dismiss Count 1 for lack of subject matter jurisdiction on three grounds. First, Defendant argues that Plaintiff's claim for negligent hiring and retention must be dismissed because the FTCA's provisions for jurisdiction, sovereign immunity waiver, and remedy are limited in connection with certain federally funded health centers to "acts or omissions

239 F.Supp.3d 1372

related to the performance of medical, surgical, dental, or related functions." (Def.'s Reply at 3 (citing 42 C.F.R. § 6.1 ).) According to Defendant, these "related functions" do not extend to a claim that a federally funded health center engaged in negligent hiring and retention.6 (Def.'s Reply at 3.) Second, Defendant argues that Plaintiff's negligent hiring and retention claim must be dismissed because it is barred by the intentional tort exception, 28 U.S.C. § 2680(h), which bars claims arising out of an assault or battery under the FTCA. (Id. at 11.) Third, Defendant argues that Count 1 must be dismissed because it is barred by the FTCA's discretionary function exception, 28 U.S.C. § 2680(a), which bars claims arising out of discretionary conduct. (Def.'s Mot. Dismiss at 7-12.) For Count 2, Defendant argues that Plaintiff's reliance on O.C.G.A. § 31-7-9 regarding failure to report is legally inapposite, and therefore Plaintiff has failed to identify a duty owed by the United States to Plaintiff. (Id. at 14.)

In response, Plaintiff argues that Count 1 is a "related function" to the provision of medical services and, as a result, Plaintiff's claim is covered under the FTCA. (Pl.'s Sur-reply at 5.) While Plaintiff does not address the applicability of the intentional tort exception, Plaintiff does argue that the discretionary function exception is inapplicable to Count 1 because the discretionary function exception does not apply to circumstances where the Government "fail[s] to act after notice of illegal action." (Pl.'s Resp. at 6.) For Count 2, Plaintiff does not address Defendant's argument about its lack of duty to report under Georgia law. Instead, Plaintiff simply argues that the USP failed to report Jackson's misconduct "immediately ... to the appropriate law enforcement authorities." (Pl.'s Resp. at 7.)

II. LEGAL STANDARD

The Court first considers Defendant's Motion to Dismiss Count 1 for lack of subject matter jurisdiction under Federal Rule of Civil Procedure Rule 12(b)(1). It will then consider Defendant's Motion to Dismiss Count 2 for failure to state a claim under Rule 12(b)(6) to the extent jurisdiction allows such review. See 5B Charles A. Wright et al., Fed. Prac. & Proc. Civ. § 1350 (3d ed. 1998) ("[T]he cases are legion stating that the district court should consider the Rule 12(b)(1) challenge first because if it must dismiss the complaint for lack of subject matter jurisdiction, [other 12(b) ] defenses and objections become moot and do not need to be determined by the judge."); see also McCants v. Alabama-W. Florida Conference of United Methodist Church, Inc. , 372 Fed.Appx. 39 (11th Cir. 2010) (per curiam); Jones v. State of Ga. , 725 F.2d 622, 623 (11th Cir. 1984).

A. Count 1: Legal Standard Governing Rule 12(b)(1)

This Court should dismiss a complaint under Rule 12(b)(1) only where it lacks jurisdiction over the subject matter of the dispute. Fed. R. Civ. P. 12(b)(1). A motion to dismiss for lack of subject matter jurisdiction may be based on either a facial or factual challenge to the complaint. See McElmurray v. Consol. Gov't of Augusta–Richmond County , 501 F.3d 1244, 1251 (11th Cir. 2007). "A ‘facial attack’ on the complaint ‘require[s] the court merely to look and see if [the] plaintiff has sufficiently alleged a basis of subject matter jurisdiction,

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and the allegations in his complaint are taken as true for the purposes of the motion.’ " Id. (quoting Lawrence v. Dunbar , 919 F.2d 1525, 1529 (11th Cir. 1990) ). In this sense, a facial challenge equips a plaintiff with safeguards similar to those afforded by a Rule 12(b)(6) motion for failure to state a claim and limits the court to a comparable scope of review. See id. Thus, when reviewing a facial attack on jurisdiction, the Court must accept the facts alleged in the complaint as true and construe them in the light most favorable to the plaintiff. See id. ; see also Hill v. White , 321 F.3d 1334, 1335 (11th Cir. 2003).

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16 practice notes
  • Goss v. United States, No. CV18-8077-PCT DGC
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • November 13, 2018
    ...practices are covered by § 233(a) if they are related to medical care given to patients. See, e.g. , Brignac v. United States , 239 F.Supp.3d 1367, 1377-78 (N.D. Ga. 2017) (applying § 233(a) where patient brought a negligent supervision claim against the health center alleging he was sexual......
  • Lins v. United States, Civil Action No. ELH-17-2163
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • May 10, 2018
    ...claims to proceed, despite the Government's assertion of the discretionary function exception. See, e.g., Brignac v. United States, 239 F. Supp. 3d 1367, 1381 (N.D. Ga. 2017); Riascos-Hurtado v. United States, No. 09 CV 0003 RJD VMS, 2015 WL 3603965, at *6-7 (E.D.N.Y. June 5, 2015); Brons v......
  • Bennett v. United States, CASE NO. 3:17-cv-5774 RJB
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Western District of Washington)
    • March 22, 2019
    ..."related function" to the provision of medical care for female patients for purposes of § 233. This case is similar to Brignac v. U.S., 239 F.Supp.3d 1367 (N.D. Ga 2017). There, a rape victim sued a federally funded health clinic for negligent hiring and retention of a doctor the clinic kne......
  • Clark v. United States, 2:20-cv-00692-LSC
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • September 15, 2021
    ...government fails to act after notice of illegal behavior. (do. 27 at 1.) In support of this argument, Mr. Clark cites Brignac v. U.S., 239 F.Supp.3d 1367 (N.D.Ga. 2017) and Tonelli v. U.S., 60 F.3d 492 (8th Cir. 1995). Mr. Clark is again correct about the general principle but is incorrect ......
  • Request a trial to view additional results
16 cases
  • Goss v. United States, No. CV18-8077-PCT DGC
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • November 13, 2018
    ...practices are covered by § 233(a) if they are related to medical care given to patients. See, e.g. , Brignac v. United States , 239 F.Supp.3d 1367, 1377-78 (N.D. Ga. 2017) (applying § 233(a) where patient brought a negligent supervision claim against the health center alleging he was sexual......
  • Lins v. United States, Civil Action No. ELH-17-2163
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • May 10, 2018
    ...claims to proceed, despite the Government's assertion of the discretionary function exception. See, e.g., Brignac v. United States, 239 F. Supp. 3d 1367, 1381 (N.D. Ga. 2017); Riascos-Hurtado v. United States, No. 09 CV 0003 RJD VMS, 2015 WL 3603965, at *6-7 (E.D.N.Y. June 5, 2015); Brons v......
  • Bennett v. United States, CASE NO. 3:17-cv-5774 RJB
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Western District of Washington)
    • March 22, 2019
    ..."related function" to the provision of medical care for female patients for purposes of § 233. This case is similar to Brignac v. U.S., 239 F.Supp.3d 1367 (N.D. Ga 2017). There, a rape victim sued a federally funded health clinic for negligent hiring and retention of a doctor the clinic kne......
  • Clark v. United States, 2:20-cv-00692-LSC
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • September 15, 2021
    ...government fails to act after notice of illegal behavior. (do. 27 at 1.) In support of this argument, Mr. Clark cites Brignac v. U.S., 239 F.Supp.3d 1367 (N.D.Ga. 2017) and Tonelli v. U.S., 60 F.3d 492 (8th Cir. 1995). Mr. Clark is again correct about the general principle but is incorrect ......
  • Request a trial to view additional results

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