French v. United States

• Decision Date: 19 July 2016
• Docket Number: Case No. 1:15-CV-2284
• Citation: 195 F.Supp.3d 947
• Parties: Jack D. FRENCH, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Northern District of Ohio

195 F.Supp.3d 947

Jack D. FRENCH, Plaintiff,

v.UNITED STATES of America, Defendant.

Case No. 1:15-CV-2284

United States District Court, N.D. Ohio.

Signed July 19, 2016

Christopher R. Debski, Canton, OH, for Plaintiff.

David Augustin Ruiz, Office of the U.S. Attorney, Cleveland, OH, for Defendant.

OPINION & ORDER

[Resolving Doc. Nos. 6, 11]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE

Plaintiff Jack French sues Defendant United States under the Federal Tort Claims Act for torts allegedly caused by staff at the Department of Veterans Affairs at the Louis Stokes Cleveland Veterans Administration Medical Center.¹ Defendant United States moves to dismiss this action under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. Plaintiff French opposes the motion.² For the following reasons, the Court GRANTS Defendant's motion.

I. Background

Plaintiff French is a Vietnam War Veteran. In July 2013, Plaintiff French resided at the Cleveland Veterans Administration ("VA") domiciliary "due to his homelessness and the need for a safe, temporary residence."³ In his complaint, Plaintiff alleges that on July 22, 2013, at approximately 7 a.m., he was sexually propositioned by the VA chaplain who was part of Plaintiff's treatment team.⁴

On the same day, Plaintiff reported the incident to his psychologist, Dr. Heather Flores; his social worker, Mark Pountney and Patricia James-Steward, the head of the Cleveland VA Medical Center's domiciliary.⁵ At the instruction of James-Seward, Plaintiff submitted a written statement the next day, July 23, 2013. Plaintiff submitted an amended written statement on July 31, 2013.

Plaintiff alleges three sources of injury: First, Plaintiff alleges that the VA injured Plaintiff by hiring, retaining, failing to train, and failing to supervise both the chaplain and other VA employees.⁶ Second, Plaintiff alleges that there was a ten-day delay in investigation and that his treatment time "failed to timely act on Plaintiff's reporting."⁷ Third, Plaintiff alleges that he was required to meet directly with VA staff and the chaplain as part of the investigation.⁸ Plaintiff says that the VA failed to protect plaintiff by prohibiting the chaplain from having contact with him.⁹

Plaintiff says that "the encounters with [the chaplain] and the significant delay of the investigation caused Plaintiff to suffer severe emotional distress, including PTSD. Due to his mental anguish, Plaintiff attempted suicide on three separate occasions from August 2013 to October 2013 and required hospitalization."¹⁰

Plaintiff went through an administrative process to redress the chaplain's actions.¹¹ The Department of Veterans Affairs denied his administrative claim.¹² Plaintiff French now brings this lawsuit. Plaintiff alleges five distinct claims: four negligence-based claims (negligence; "negligent hiring / retention / entrustment / training / supervision"; premises liability; respondeat superior ), and one claim for intentional infliction of emotional distress.¹³

Defendant moves to dismiss Plaintiff's four negligence-based counts under Rule 12(b)(1) for lack of subject matter jurisdiction. In particular, Defendant argues that all three claims fall under the discretionary function exception to the Federal Tort Claims Act. If the VA employees had discretion in taking the actions that allegedly caused the tort, Defendants say this Court does not have subject matter jurisdiction and the claims must be dismissed.

Defendant moves to dismiss Plaintiff's fifth claim—intentional infliction of emotional distress—under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. In particular, Defendant argues that Plaintiff has failed to allege that an objective, reasonable person would find the Defendant's conduct sufficiently outrageous.

In the alternative, Defendant moves to dismiss Plaintiff's four negligence-based claims under Rule 12(b)(6) as well.

II. Legal Standard

Under Federal Rule of Civil Procedure 12(b)(6), a court may grant a motion to dismiss when "it appears beyond doubt" that the plaintiff fails to state a claim upon which relief may be granted.¹⁴ "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’ "¹⁵ In deciding a motion to dismiss under Rule 12(b)(6), "a court should assume the [ ] veracity" of "well-pleaded factual allegations," but need not accept a plaintiff's conclusory allegations as true.¹⁶

"Subject-matter jurisdiction, by contrast, refers to a tribunal's power to hear a case. It presents an issue quite separate from the question whether the allegations the plaintiff makes entitle him to relief."¹⁷ It is axiomatic that parties cannot consent to subject-matter jurisdiction. When a defendant challenges subject matter jurisdiction under Rule 12(b)(1), the plaintiff bears the burden of establishing that the Court has subject matter jurisdiction over his claim.¹⁸

A federal court does not have subject matter jurisdiction over every claim brought against the United States government. If the government has not waived its sovereign immunity with respect to a particular claim, federal courts lack subject matter jurisdiction over that claim.¹⁹

In this case, the Defendants say the United States has not waived sovereign immunity under the Federal Tort Claims Act (FTCA) for Plaintiff's claims. Under the FTCA, the United States has consented to be sued for personal injuries caused by the negligence of government employees acting within the scope of their employment.²⁰ But the United States has not consented to suit for a claim "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty... whether or not the discretion involved be abused."²¹ If a claim falls under this so-called "discretionary function" exemption, then a federal court does not have subject matter jurisdiction to hear the case.

This Court must consider two factors when determining whether an action or omission falls within the discretionary function exception. First, the act or omission must be one that "involves an element of judgment."²² In other words, the rules governing the action in question must allow for discretion; there cannot be a "federal statute, regulation, or policy" that specifically prescribes a course of action, leaving "the employee [ ] no rightful option but to adhere to the directive.' "²³

Case law from the Sixth Circuit sheds light on this first inquiry. "This Circuit has consistently held that agency supervisory and hiring decisions fall within the discretionary function exception."²⁴

Moreover, the Sixth Circuit has held that polices of a "general nature"—such as those calling for government employees to "provide protection" and "provide safekeeping" to inmates in federal prison—were not specific enough to give rise to non-discretionary obligations.²⁵ In another case, the Sixth Circuit reviewed protocols for mine inspectors working with the department of labor.²⁶ The directives stated that if certain conditions were found (for example, if an inspector found an "imminent danger") then the inspectors had particular obligations (for example, to issue a withdrawal order from the mine).²⁷ The Sixth Circuit held that the discretion to determine the antecedent condition afforded sufficient discretion to satisfy the first step of the test, even if there were clear mandatory obligations that subsequently arose.²⁸

Under the second step of the discretionary function exemption, the nature and quality of that judgment must be of the type the exception seeks to shield from liability (i.e. concerning matters of policy).²⁹ There is a "strong presumption" that the second step is satisfied if a court concludes that the employee was exercising discretion.³⁰

The two-step inquiry into the discretionary function exemption is relevant at the motion to dismiss stage. "Because the United States has not waived its sovereign immunity with respect to discretionary functions, courts lack subject matter jurisdiction over acts falling within the discretionary function exemption."³¹

If a claim does not fall within the discretionary function exception, the United States is liable only 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."³²

III. Analysis

A. Negligence-Based Claims

A district court "determine[s] exactly what conduct is at issue," prior to considering the discretionary function factors.³³ As a result, this Court looks to each element of the alleged negligent conduct.

i. Negligence in hiring, retaining, entrusting, training and supervising

First, Plaintiff points to the VA's conduct in hiring, retaining, entrusting, training and supervising the chaplain and other members of the VA team.³⁴ However, these claims fall squarely within the discretionary function exception. The Sixth Circuit has consistently held that such hiring decisions are discretionary.³⁵ Because these claims fall within the discretionary function exception, this Court does not have subject matter jurisdiction to hear them.

ii. Negligence in investigating the alleged abuse

Second, Plaintiff points to the VA's delay in investigating the chaplain's alleged conduct. However, deciding how long to wait to open an investigation is a question that "involves an element of judgment."³⁶

Indeed, Plaintiff has not identified any "federal statute, regulation, or policy" that leaves the VA employees "no rightful option but to adhere to the directive."³⁷ Plaintiff says that Ohio law and internal VA policy created such mandatory obligations. But none of the policies Plaintiff points to are persuasive.

First, Plaintiff says that Ohio's patient rights law produces a mandatory obligation.³⁸ For...