Clark v. United States
| Decision Date | 15 September 2021 |
| Docket Number | 2:20-cv-00692-LSC |
| Parties | GEORGE KEITH CLARK, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — Northern District of Alabama |
Plaintiff George Keith Clark (“Clark” or “Plaintiff”) brings this action against Defendant the United States of America (“United States” or “Defendant”). Plaintiff brings claims against Defendant pursuant to the Federal Tort Claims Act, 28 U.S.C §§ 1346(b), 2671-2680 (“FTCA”), and 38 U.S.C. § 7316 for negligence, assault, battery, and intentional infliction of emotion distress. Before the Court is Defendant's Motion to Dismiss (doc. 17) Plaintiff's Motion to Strike (doc. 21) and Plaintiff's Amended Motion to Strike (doc. 24). The motions are fully briefed and are ripe for review.[1] For the reasons stated below Defendant's motion is due to be GRANTED. Plaintiff's motion to strike (doc. 21) is due to be TERMINATED AS MOOT. Plaintiff's amended motion to strike (doc. 24) is due to be DENIED IN PART.[2]
I. Background[3]
On January 23, 2017, Clark underwent a triple bypass, open heart surgery at the VA hospital in Birmingham, Alabama. (doc. 15 at 3.) After surgery, Clark recovered in the cardiovascular intensive care unit. Id. As part of his post-surgery care, medical staff inserted a breathing tube in Clark's mouth and restrained Clark's feet and hands using a bed restraint system. Id. at 4. Thus, Clark communicated his needs to the nursing staff largely through physical movements such as wiggling his fingers and toes.
Clark alleges that in the course of his post-surgery care, a nurse (“Nurse”) on the night staff engaged in inappropriate conduct. Specifically, Nurse contorted Clark's fingers after he wiggled them for assistance squeezed Clark's toes, and sexually assaulted Clark under the guise of a bath. Id. at 8, 10, 12-13. Clark spoke with supervisory staff regarding Nurse's conduct; however, he did not inform supervisors of the specific conduct alleged in his complaint. Id. at 13-14.
Clark filed an administrative claim with the VA office on July 13, 2018. Id. at 2. The VA denied his claim on November 21, 2019. Id. Thereafter, Clark filed his Complaint and First Amended Complaint alleging claims of negligence, assault, battery, and intentional infliction of emotional distress under 28 U.S.C. § 1346(b) and 38 U.S.C. § 7316. (doc. 15.) Defendant moved to dismiss Clark's First Amended Complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted, alleging that Clark's claims were barred by the intentional torts exception to the FTCA and the discretionary function exception to the FTCA. (doc. 17.)
Subsequently, Clark moved to strike in part Defendant's reply brief to Clark's response to Defendant's motion to dismiss. (doc. 21.) This Court granted Clark the opportunity to file a surreply to address the applicability of the discretionary function exception to Clark's claims. (doc. 27.)
II. Standards of Review
A motion to dismiss for lack of subject-matter jurisdiction filed pursuant to Rule 12 (b) (1) of the Federal Rules of Civil Procedure challenges a court's statutory or constitutional power to adjudicate a case. Motions to dismiss under Rule 12 (b) (1) may take the form of either a facial or a factual attack. Scarfo v. Ginsberg, 175 F.3d 957, 960 (11th Cir. 1999). Under a facial attack, the allegations in the complaint are taken as true for the purposes of the motion. Sea Vessel, Inc. v. Reyes, 23 F.3d 345, 347 (11th Cir.1994). A factual challenge, on the other hand, questions the existence of subject matter jurisdiction based on matters outside the pleadings. Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990). Under a factual challenge, this Court may hear conflicting evidence and decide factual issues that determine jurisdiction. Colonial Pipeline Co. v. Collins, 921 F.2d 1237, 1243 (11th Cir. 1991).
III. Discussion
“[T]he United States, as sovereign, is ‘immune from suit save as it consents to be sued … and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.'” Hercules, Inc. v. United States, 516 U.S. 417, 422 (1996) (quoting United States v. Testan, 424 U.S. 392, 399 (1976)). Through the FTCA, Congress waived the United States' sovereign immunity for claims arising from ‘‘injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission'' of federal employees operating within the scope of their employment. 28 U.S.C. § 1346(b)(1) (2018).
However, several exceptions abrogate the FTCA's waiver of immunity. See Id. § 2680 (2018). When such an exception applies, this Court is deprived of subject matter jurisdiction and may not “entertain the suit.” Hercules, Inc., 516 U.S. at 422. Defendant seeks to dismiss Clark's First Amended Complaint, arguing that (1) the discretionary function exception to the FTCA bars Clark's claim of negligence and (2) the intentional tort exception bars all intentional torts alleged by Clark. See 28 U.S.C. §§ 2680(a), (h).
The discretionary function exception bars government liability for “[a]ny claim based upon…. the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(h). The discretionary function exception “marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals.” Swafford v. United States, 839 F.3d 1365, 1369-70 (11th Cir. 2016) (citing United States v. Varig Airlines, 467 U.S. 797, 808 (1984)). This exception must be strictly construed in favor of the Government. Id. (citing U.S. Aviation Underwriters, Inc. v. United States, 562 F.3d 1297, 1299 (11th Cir. 2009)). To determine if conduct falls within the discretionary function exception, this Court utilizes a two-part test. See United States v. Gaubert, 499 U.S. 315, 322-23 (1991). If both prongs are satisfied, the discretionary function exception applies, and this Court does not have subject matter jurisdiction to hear the case. Id.
First, this Court looks to the nature of the alleged conduct and whether it involves an element of judgment or choice. This requirement is not satisfied if a “federal statute, regulation or policy specifically prescribes a course of action for an employee to follow,' because ‘the employee had no rightful option but to adhere to the directive.'” Id. at 322 (quoting Berkovitz v. United States, 486 U.S. 531, 536 (1988)). Second, this Court considers whether the challenged conduct was grounded in decisions of “social, economic, and political policy.” Id. at 323. The second prong is rooted in our Constitution's separation of powers as a means to avoid “judicial ‘second guessing' of legislative and administrative actions.” Id. (quoting United States v. Gaubert, 499 U.S. 315, 323 (1991)).
Clark cites 38 C.F.R. § 1.218 (a) (16) as the regulatory basis for a prescribed course of conduct. This regulation states, in pertinent part, as follows:
Any act of sexual gratification on VA property involving two or more persons, who do not reside in quarters on the property, is prohibited. Acts of prostitution or solicitation for acts of prostitution on VA property is prohibited.
38 C.F.R. § 1.218(a)(16) (2018).
In subsequent sections, the regulation vests the VA facility's administration directors with the power to issue policies and govern the exercise of law enforcement action. Id. § 1.218(c)(1). Moreover, the regulation prescribes various methods of enforcement and penalties for its violation which range from arrest and removal to a fine of $250.00 for “unlawful sexual activity.” See id. §§ 1.218 (b)(1)-(44).
Clark's negligence claim is predicated upon what he believes to be an inadequate response from the VA facility's directors to Nurse's alleged tortious conduct. (doc. 15 at 17.) However, the regulation at issue provides the facility directors with broad discretion to respond to alleged violations as they best see fit. See Coltharp v. United States, 413 F.Supp.3d 1182, 1189 (M.D. Ala. 2019) (“[A] review of VA regulations and internal agency guidelines demonstrate that VA staff retain wide discretion in implementing security policies and handling [inappropriate conduct].”); see also United States v. Renfro, 702 Fed.Appx. 799, 807 (11th Cir. 2017) (). Thus, the facility director's decision to respond to alleged statutory violations reflects judgment or choice; the first prong of the discretionary function analysis is satisfied.
For the second prong of the discretionary function analysis, this Court does not consider whether the VA employees actually weighed policy considerations before deciding a course of conduct. Cranford v. United States, 466 F.3d 955, 958 (11th Cir. 2006). Instead, the analysis turns on whether the decision is the type that is susceptible to policy analysis. Id. In the present matter, the “relevant exercises of discretion” include the supervision of nursing staff and the imposition of safety and security mechanisms at the VA hospital. (doc. 24 at 5 n.4.)
These considerations necessarily entail policy analysis. See Coltharp, 413 F.Supp.3d at 1190. In Coltharp, a patient sued the VA alleging a breach of the duty of care to protect for failing to have proper security measures after another patient assaulted her. Id. at 1185. As decisions regarding “assessment, admission, assignment placement, and removal...
To continue reading
Request your trial