Flechsig v. US

• Decision Date: 23 February 1993
• Docket Number: No. 92-5189.,92-5189.
• Citation: 991 F.2d 300
• Parties: Lisa Huntley FLECHSIG, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

991 F.2d 300

Lisa Huntley FLECHSIG, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 92-5189.

United States Court of Appeals, Sixth Circuit.

Argued November 17, 1992.

Decided February 23, 1993^*.

Jeffery C. Duffey, Susan G. James (Briefed), Denise A. Simmons (Argued), Montgomery, AL and William M. Scalf, Lexington, KY, for plaintiff-appellant.

Karen K. Caldwell, U.S. Atty., Martin L. Hatfield, David Bunning, (Briefed), Asst. U.S. Attys., Office of the U.S. Atty., Lexington, KY and Carolyn A. Sabol (Argued), Deputy Gen. Counsel, Bureau of Prisons, Washington, DC, for defendant-appellee.

Before: KENNEDY, MARTIN and JONES, Circuit Judges.

KENNEDY, Circuit Judge.

Plaintiff Lisa Huntley Flechsig appeals the District Court's denial of her Fed. R.Civ.P. 59(e) motion to alter or amend judgment. The District Court granted the United States' motion for summary judgment on her Federal Tort Claims Act claim on three alternative bases. Because we find two of these grounds to have been correct and controlling we affirm, but for the reasons stated below.

I.

On February 22, 1991, plaintiff filed a claim under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., alleging that the United States was liable for assault and battery committed by a federal correctional officer employed by the Bureau of Prisons ("Bureau"). While plaintiff was confined at the Federal Correctional Facility at Lexington, Kentucky, she underwent brain surgery. A CAT scan was required as part of follow-up treatment. According to plaintiff, on February 18, 1988 Officer Bruce Trent transported her to the doctor's office for this CAT scan. While on the way to the doctor's office, Officer Trent stopped the government car at the end of the correctional facility driveway and removed plaintiff's handcuffs. As they drove away from the facility, Officer Trent told plaintiff that his apartment was nearby and that they could stop there for a drink. After plaintiff indicated that she did not wish to do so, Officer Trent stated that if she did not go with him, he would claim she had tried to escape. While at his apartment, Officer Trent sexually assaulted plaintiff. We accept plaintiff's allegations regarding the assault as true for the limited purpose of this review.

The FTCA constitutes a limited waiver of sovereign immunity by the United States. In thus giving consent to suit in particular circumstances, the FTCA defines the scope of district court jurisdiction to entertain FTCA suits. See 28 U.S.C. § 1346(b). In the present case, the District Court found three reasons that plaintiff's claim did not satisfy the requirements of the FTCA. First, the District Court interpreted 28 U.S.C. § 2680(h) to require that for the United States to be liable for an intentional tort by a law enforcement officer, the tort must occur during the course of a search, seizure, or arrest. It was not alleged that the assault against the plaintiff occurred during one of these actions. Second, the District Court held that Officer Trent had not been acting within the scope of his employment, as required under 28 U.S.C. § 1346(b). Finally, the District Court held that plaintiff was unable to show that the United States had violated the duty of care it owed to the plaintiff as a prisoner under 18 U.S.C. § 4042. Because we find the District Court to have been correct on the latter two grounds and find these grounds to be an adequate basis for dismissal of the case, we do not address the issue raised by the District Court's first ground for dismissal.¹

II.

In dismissing plaintiff's intentional tort claim, the District Court held the claim barred by the scope of employment requirement of 28 U.S.C. § 1346(b). Section 1346(b) states that district court jurisdiction over civil actions against the government for the acts or omissions of its employees is dependent on whether the particular employee is "acting within the scope of his office or employment." The District Court properly held that the determination of whether an employee of the United States acted within her scope of employment is a matter of state law. Arbour v. Jenkins, 903 F.2d 416, 422 (6th Cir.1990); cf. Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955). As the District Court stated, Kentucky law on scope of employment for employee assaults is clear. According to the classic formulations of the doctrine, "as a general rule it is not within the scope of a servant's employment to commit an assault upon a third person and the master is not liable for such an assault though committed while the servant was about the master's business." Southeastern Greyhound Lines v. Harden's Adm'x, 281 Ky. 345, 136 S.W.2d 42, 45 (1940). An employer is liable for an assault by an employee "if the servant was doing what he was employed to do at the time of the injury; that is, the act of the servant was ... reasonably incident to the service the servant was employed to render." John v. Lococo, 256 Ky. 607, 76 S.W.2d 897, 898 (1934).

It might be argued that both Harden's Adm'x and Lococo involve third parties as victims and thus the rule they state applies only to situations with third-party victims and not to situations with a special relationship between employer and victim, such as the United States and prisoner in this case. Indeed, plaintiff argues that the relationship between employer and victim, such as the United States and prisoner in this case. Indeed, plaintiff argues that the relationship between employer and victim here is analogous to that between common carrier and passenger. Kentucky law on the scope of employment does appear to shift when the employer is a common carrier, because of its "broad duty to protect ... passengers from assault." Gladdish v. Southeastern Greyhound Lines, 169 S.W.2d 297, 299 (Ky.1943). "The carrier's obligation is that the contact between passenger and employee brought about by the passenger being placed in the custody of the employee will not result in an unjustified assault...." Id. While it might be tempting to analogize the prisoner in the present case to such a passenger, Kentucky law dictates otherwise. The breadth of common carrier liability comes from the role of the carrier and its employees in protecting passengers from external threats. The role of a prison and its guards is more similar to the situation in Fournier v. Churchill Downs-Latonia, Inc., 292 Ky. 215, 166 S.W.2d 38 (1942). In Fournier, a race track hired extra guards to control the crowds attending a race. In determining that the race track was liable for an assault by a guard upon a patron, committed with the club provided for the guard's duties, the Kentucky Court employed a three-part test. The employer is liable for the act of an employee, it stated, if "(1) the act is of the kind the offender is employed to perform; (2) it occurs substantially within the authorized time and space limits of the employment; and, (3) the offender is actuated, at least in part, by a purpose to serve the employer." Id., 166 S.W.2d at 40. In the present case, taking the facts as plaintiff alleges them, the sexual assault by Officer Trent obviously is far from what he was employed to do, his apartment clearly is outside the space limit of his employment, and it would be impossible to assert that he was actuated in any way by the purpose of serving the Bureau of Prisons. For these reasons, we affirm the holding of the District Court that Officer Trent acted outside the scope of his employment and thus plaintiff has no claim under the FTCA based on Trent's conduct.

III.

In dismissing plaintiff's negligence claim, the District Court held that plaintiff was unable to present any facts which would support a breach of duty by the Bureau of Prisons under 18 U.S.C. § 4042. Plaintiff's negligence theory must be based on possible negligence of Bureau personnel other than Trent, who was not acting within the scope of his employment, as we held supra. Although neither the complaint nor plaintiff's brief in response to the United States' motion for summary judgment, nor even plaintiff's brief for this appeal, clearly states plaintiff's negligence theory, it appears to be that the United States was negligent in selecting Trent to transport plaintiff to the doctor's office. The FTCA allows suit by a federal prisoner for personal injury suffered as the result of employee negligence. United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963). This duty of care is set by section 4042. Id. at 164-65, 83 S.Ct. at 1858-59. In order to determine liability, the elements of state tort law must be applied. Schindler v. United States, 661 F.2d 552, 560 (6th Cir.1981). Kentucky law provides that "ordinary care" must be taken "to prevent any foreseeable injury." Watters v. TSR, Inc., 904 F.2d 378,...