Gamage v. Peal

• Decision Date: 04 September 1962
• Docket Number: Civ. No. 8373.
• Citation: 217 F. Supp. 384
• Court: U.S. District Court — Northern District of California
• Parties: Leonard A. GAMAGE, Plaintiff, v. James A. PEAL, M.D. et al., Defendants.

217 F. Supp. 384

Leonard A. GAMAGE, Plaintiff, v. James A. PEAL, M.D. et al., Defendants.

Civ. No. 8373.

United States District Court N. D. California, N. D.

September 4, 1962.

Belli, Ashe & Gerry, San Francisco, Cal., for plaintiff.

Cecil F. Poole, U. S. Atty., William B. Spohn, Asst. U. S. Atty., San Francisco, Cal., for defendants.

MacBRIDE, District Judge.

Plaintiff brought this action against the various defendants, named and fictitious, in the Superior Court of the State of California, in and for the County of Solano, (captioned as above and numbered 36268 therein) for money damages on account of torts allegedly committed by defendants against plaintiff.¹

The United States Attorney, upon direction of the Attorney General of the United States, filed a verified petition on behalf of defendants Arthur A. Reiss, M.D., Marlan L. Rhame, Jr., M.D., and Robert C. Pfeiler, M.D., to have the action removed to this Court on the grounds that these defendants were, at all times relevant to this action, members of the United States Air Force stationed at Travis Air Force Base, and that they claim right, title and authority under the laws of the United States respecting the armed forces thereof relative to the allegations of the complaint. 28 U.S.C.A. § 1442(a). The right to removal is not dependent upon the allegations of the complaint, but rather depends upon the facts stated in the verified petition to remove. See, Virginia v. Paul, 148 U.S. 107, at 122, 13 S.Ct. 536, at 541, 37 L.Ed. 386; Brann v. McBurnett, D.C., 29 F.Supp. 188. The state court in Solano County is in the Northern Division of this District. The removal procedures employed were proper, and the entire case may now proceed as if it had been originally commenced in this Court. 28 U.S.C.A. § 1442(a).

The defendant, James A. Peal, M.D., was served after the petition for removal was filed. Although plaintiff does not raise the issue, defendant Peal is stated in defendants' briefs to be a civilian psychiatrist under contract with the United States Air Force, and he is properly before this Court for the motions with which we are concerned. No defendants other than the four hereinabove mentioned have been served in this action.

The defendants served have moved to dismiss the complaint for failure to state a claim upon which relief may be granted. The plaintiff has moved to remand the case to the state court.

In considering a motion to dismiss, the allegations contained in the complaint must be regarded as true. Bershad v. Wood, 9 Cir., 290 F.2d 714. In his verified complaint plaintiff, a commissioned officer in the United States Air Force, alleges that he was "ordered" by his commanding officer to report to Black and White Hospital² for the purpose of being examined for an automobile operator's license clearance; that upon reporting to the hospital, the defendant-doctors undertook to examine, diagnose, treat, care for, and apparently hospitalize plaintiff in an allegedly tortious manner (Counts I and II); and that subsequently a "Medical Board Report" containing allegedly defamatory statements was prepared and communicated to the Air Force Physical Evaluation Board during a hearing (Count IV).

It is also alleged that Dr. Peal made a false statement to the Board concerning the date of his examination of plaintiff. (Count V). In Count III plaintiff alleges the examination, treatment and detention were part of a conspiracy between his commanding officer and the various defendants; that "they knew or should have known that plaintiff was not mentally ill at that time, and never was mentally ill," and that the examination, treatment and detention were "for the sole and wrongful purpose of causing plaintiff to be relieved from active duty and retired on a medical disability based upon alleged mental illness." Plaintiff further alleges that the conspiracy was "for the purpose of furthering their defendants' own ends * * * and wilful and malicious in nature." The defamation is alleged to have been malicious and the false statement is alleged to have been made "with knowledge of the falsity thereof and with the intention of fraudulently influencing the determination of said Travis Air Force Base Physical Evaluation Board. * * *" Although the complaint alleges negligence generally, the plaintiff, on page 4 of his motion to remand, classes the action as one in intentional tort.

Plaintiff alleges in Paragraph IV of his first count that Sixth Doe, Seventh Doe and Eighth Doe were acting within the course and scope of their employment. In Paragraph VIII of Count I it is alleged that defendants Jones, Peal and Does One through Five, inclusive, were acting "outside the scope of official duties" and that their actions constituted "a breach of discretion." The same allegation is made in Count III, Paragraph 4, adding defendants Williamson and Does Nine and Ten. There is no additional reference to "scope of duty" of any of these defendants contained in Counts II, IV or V. Nowhere in his complaint does plaintiff charge defendants Reiss, Rhame or Pfeiler with action exceeding the scope of their duties or constituting a breach of discretion, nor does the complaint contain any allegations concerning the nature of the acts performed by any of the other defendants. The fact that plaintiff has failed to charge defendants, Reiss, Rhame and Pfeiler, with conduct exceeding the scope of their duties does not eliminate the necessity, on a motion to dismiss, for examining their conduct to determine whether or not they were in fact so acting when they committed the allegedly tortious acts with which they are charged by plaintiff. See, Hughes v. Johnson, 9th Cir., 305 F. 2d 67. If they were in fact acting within the scope of their official duties at the time of these alleged acts, then plaintiff's complaint is fatally defective as hereinafter discussed.

The scope of official duties of Federal employees and whether certain acts are within the course and scope of such duties is entirely a question of Federal law. Howard v. Lyons, 360 U.S. 593, 79 S.Ct. 1331, 3 L.Ed.2d 1454; Preble v. Johnson, 10 Cir., 275 F.2d 275.

Although plaintiff alleges some of the defendants were acting outside the scope of their official duties, as noted above, this Court can and does find that, as a matter of law, from the pleadings and affidavits before this Court, that all of the defendants who have been served were acting within the course and scope of their authority and duties. Howard v. Lyons, supra; Bershad v. Wood, supra; O'Campo v. Hardisty, 9 Cir., 262 F.2d 621; De Busk v. Harvin, 5 Cir., 212 F. 2d 143; Hartline v. Clary, D.C., 141 F. Supp. 151. In Cooper v. O'Connor, (69 App.D.C. 100, 99 F.2d 135) the Court stated, at page 139:

"It is not necessary — in order that acts may be done within the scope of official authority — that they should be prescribed by statute; or even that they should be specifically directed or requested by a superior officer. It is sufficient if they are done by an officer `in relation to matters committed by law to his control or supervision'; or that they have `more or less connection with the general matters committed by law to his control or supervision'; or that they are governed by a lawful requirement of the department under whose authority the officer is acting." Citations omitted.

The above language was adopted by the Ninth Circuit in Bershad v. Wood, supra, at p. 717.

Certainly, in examining, diagnosing, counseling and treating a member of the military who is assigned to a command, the health and safety of which is the responsibility of the defendants as medical officers or as a medical contractee, the said defendants are performing acts which are directly related to the matters committed by law to their supervision and control. This is no less so in connection with the "Medical Board Report" prepared and communicated to the Air Force Physical Evaluation Board by the defendants.

Mistaken, erroneous or even tortious conduct does not, in itself, take such conduct outside the scope of duty of the actors. Bershad v. Wood, supra; Taylor v. Glotfelty, 6 Cir., 201 F.2d 51; Laughlin v. Rosenman, 82 U.S.App.D.C. 164, 163 F.2d 838; Cooper v. O'Connor, supra.

The acts complained of being within the course and scope of defendants' duties and authority, the defendants served are immune from actions for money damages arising from such acts. The rule supporting this finding is well established. Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434; Howard v. Lyons, supra; Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780; Hughes v. Johnson, supra; Bershad v. Wood, supra; Preble v. Johnson, supra; De Busk v. Harvin, supra; O'Campo v. Hardisty, supra; Gregoire v. Biddle, 2 Cir., 177 F.2d 579; Waterman v. Nelson, 2 Cir., 177 F.2d 965; Fletcher v. Wheat, 69 App. D.C. 259, 100 F.2d 432; Cooper v. O'Connor, supra; Hartline v. Clary, supra; Carson v. Behlen, D.C., 136 F.Supp. 222.

The fact that plaintiff reported to the Travis Hospital only for the purpose of being examined for automobile operator's clearance and that the examination and resultant treatment may have extended far beyond what was originally contemplated by either the plaintiff, the examining doctor, or for that matter plaintiff's Commanding Officer, does not destroy the immunity to which the defendants are entitled. The scope and extent of the examination and thereafter the resultant treatment and the report covering plaintiff's condition were all within the discretion of the examining doctors and were matters properly within their supervision and control. Air Force Regulations 35-4, Chapter 2.³ The Commanding Officer of an Air Base and the Medical Officer serving under him are charged with the responsibility of maintaining the health and safety of all persons in the command. Air Force Reg. 35-4. The deficient mental or physical condition of one man, particularly if he is a flying officer, could...