Lonnie Two Eagle v. United States

• Decision Date: 05 January 2022
• Docket Number: 5:20-CV-05054-JLV
• Court: U.S. District Court — District of South Dakota
• Parties: LONNIE TWO EAGLE, SR., Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

LONNIE TWO EAGLE, SR., Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

No. 5:20-CV-05054-JLV

United States District Court, D. South Dakota, Western Division

January 5, 2022

REPORT AND RECOMMENDATION

VERONICA L. DUFFY UNITED STATES MAGISTRATE JUDGE

INTRODUCTION

Plaintiff, Lonnie Two Eagle, Sr., filed a three-count complaint against the United States of America under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(B), 2401(B), 2671-80, 2672. See Docket No. 1. The government moves to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(h)(3) for lack of subject matter jurisdiction. See Docket No. 17. Mr. Two Eagle opposes the motion (Docket No. 28), and the government has replied (Docket No. 39). This matter was referred to this magistrate judge for a recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and the October 16, 2014, standing order of the Honorable Jeffrey L. Viken, United States District Judge. Docket No. 38.

FACTS

In August 2019, Chad Sully was employed as a cook in the Dietary Department of the Rosebud Comprehensive Healthcare Facility (“RCHCF”) in

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the Rosebud Indian Reservation. Mr. Sully's responsibilities included planning, preparing, and coordinating meals. Operating a motor vehicle was not part of his normal job responsibilities.

On August 5, 2019, Mr. Sully was scheduled to work a double shift. He started his workday at 6:00 a.m. and took his lunch break at around 1:00 p.m. He drove home to rest, then stopped at the post office to check his personal mail on his way back to the hospital. At around 1:40 p.m., while driving on Hospital Drive near the RCHCF, Mr. Sully suffered a seizure and lost control of his vehicle. Mr. Two Eagle was operating a riding lawn mower on property owned by the Rosebud Sioux Tribe along Hospital Drive, which leads to and encircles the RCHCF. Mr. Sully's vehicle struck the riding mower and Mr. Two Eagle kept driving, ultimately coming to a stop when the mower became lodged under its chassis.

After the collision, Mr. Two Eagle was transported to the nearby RCHCF, then flown to Rapid City, South Dakota, for further treatment. He suffered head, spinal, and leg injuries, and his right lower leg was amputated. Due to his injuries, Mr. Two Eagle requires kidney dialysis three times per week. His head injury has caused permanent loss of cognitive abilities.

Mr. Sully had a history of seizures beginning in 2019; he suffered seizures in January 2019, March 2019, and April 2019. He was treated at the RCHCF and flown to Sioux Falls, South Dakota, for treatment after the January 2019 seizure. Mr. Sully had been instructed by his physicians not to drive until he was seizure-free for six months, but, on July 23, 2019, he was

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authorized by his telemedicine neurologist, Dr. Matthew Smith, to start driving in August 2019.

Mr. Two Eagle filed an administrative claim under the FTCA in December 2019. In January 2020, the government responded with a written letter requesting further information. In July 2020, the Department of Health and Human Services (“DHHS”) mailed a written denial of the claim. Mr. Two Eagle initiated this lawsuit on August 31, 2020. Therefore, Mr. Two Eagle's FTCA claims are timely. See 28 U.S.C. § 2401(b) (plaintiff must file suit in federal court within six months of administrative denial).

DISCUSSION

A. Standards Applicable to the Government's Motion to Dismiss

The government has moved to dismiss Mr. Two Eagle's complaint for lack of subject-matter jurisdiction under Rules 12(b)(1) and 12(h)(3) of the Federal Rules of Civil Procedure.

Rule 12(b)(1) authorizes dismissal for lack of subject-matter jurisdiction. On a motion to dismiss under Rule 12(b)(1), the standard of review depends on whether the defendant is making a facial attack or factual attack on subject-matter jurisdiction. Stalley v. Catholic Health Initiatives, 509 F.3d 517, 520-21 (8th Cir. 2007). Where, as here, the defendant attacks the factual basis for subject-matter jurisdiction, the court can consider matters outside the pleadings, “and the non-moving party does not have the benefit of 12(b)(6) safeguards.” Osborn v. United States, 918 F.2d 724, 729-30 n.6. (8th Cir. 1990) (citations omitted). “A factual attack occurs when the defendant

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challenges the veracity of the facts underpinning subject matter jurisdiction.” Davis v. Anthony, Inc., 886 F.3d 674, 679 (8th Cir. 2018) (cleaned up and citation omitted). In that case, “no presumptive truthfulness attaches to the plaintiff's allegations, ” and a “court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Osborn, 918 F.2d at 730 (quotation omitted). The plaintiff bears the burden of proving jurisdiction exists. Id.

Under Rule 12(h)(3), “[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed.R.Civ.P. 12(h)(3). A Rule 12(h)(3) motion to dismiss is evaluated under the same standards as a motion to dismiss under Rule 12(b)(1). Gates v. Black Hills Health Care Sys., 997 F.Supp.2d 1024, 1029 (D.S.D. 2014) (citing Berkshire Fashions, Inc. v. M.V. Hakusan II, 954 F.2d 874, 879 n.3 (3d Cir. 1992)). The plaintiff has the burden of proving jurisdiction exists. VS Ltd. P'ship v. Dep't of Hous. & Urban Dev., 235 F.3d 1109, 1112 (8th Cir. 2000) (citation omitted). A district court has the authority to dismiss an action for lack of subject-matter jurisdiction on any one of three separate bases: “(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Johnson v. United States, 534 F.3d 958, 962 (8th Cir. 2008) (quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)).

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B. The Federal Tort Claims Act

“The United States is immune from suit unless it consents. Congress waived the sovereign immunity of the United States by enacting the FTCA, under which the federal government is liable for certain torts its agents commit in the course of their employment. The United States is, nevertheless, immune if an exception applies.” Hart v. United States, 630 F.3d 1085, 1088 (8th Cir. 2011). If an exception applies, “the bar of sovereign immunity remains.” Dolan v. U.S. Postal Serv., 546 U.S. 481, 485 (2006). “Where the United States has not waived sovereign immunity under the FTCA, the district court lacks subject matter jurisdiction to hear the case.” Hart, 630 F.3d at 1088.

“The FTCA confers subject matter jurisdiction for suits against the United States in ‘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.' ” Moss v. United States, 895 F.3d 1091, 1097 (8th Cir. 2018) (quoting FDIC v. Meyer, 510 U.S. 471, 477 (1994)); see 28 U.S.C. § 1346(b)(1). The “law of the place” generally means the law of the state where the alleged act or omission occurred. Meyer, 510 U.S. at 478. “[W]here an act or omission occurs within the territorial boundaries of both a tribal reservation and a State, ‘the law of the place' for purposes of the FTCA is the law of the State.” LaFromboise v. Leavitt, 439 F.3d 792, 796 (8th Cir. 2006). Thus, although the alleged acts or omissions occurred within the boundaries of the Rosebud Indian Reservation, South Dakota is the source of substantive law in this case.

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C. Mr. Two Eagle's Claims

Mr. Two Eagle's complaint alleges three claims for relief. First, Mr. Two Eagle has raised a negligence claim against the federal government under a theory of vicarious liability, alleging Mr. Sully was acting within the scope of his employment when his vehicle collided with Mr. Two Eagle. Count II alleges negligent hiring, training, supervision, screening, and retention against the federal government for its alleged negligence in failing to take steps to prevent Mr. Sully from driving for work purposes within six months of his last seizure. In count III, Mr. Two Eagle alleges medical negligence against the United States for Dr. Smith's authorizing Mr. Sully to drive.

1. Whether Mr. Sully Was Acting Within the Scope of His Employment

In his first count, Mr. Two Eagle alleges Mr. Sully negligently operated a motor vehicle while acting within the scope of his employment. If Mr. Sully was acting within the scope of his employment at the time of the collision, the FTCA would operate to waive sovereign immunity, and the federal government might be liable for personal injuries to Mr. Two Eagle. If, on the other hand, Mr. Sully was not acting within the scope of his employment when his vehicle struck the riding mower, there is no waiver of sovereign immunity, and the court lacks subject-matter jurisdiction. “A threshold requirement to establish jurisdiction under the FTCA is that the federal employee must have been acting within the scope of his employment when the tort was committed.” Johnson v. United States, 534 F.3d 958, 963 (8th Cir. 2008) (citing Primeaux v. United States,

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181 F.3d 876, 878 (8th Cir. 1999) (“In determining the extent of the government's FTCA liability, ‘scope of employment' sets the line.”)).

But Mr. Two Eagle argues the court should not entertain the government's motion to dismiss for lack of subject-matter jurisdiction because doing so would require a determination intertwined with or identical to a determination of the merits of the case. In support of this argument, Mr. Two Eagle primarily relies upon Godwin ex rel. Godwin v. United States, No. 3:14CV391-DPJ-FKB, 2015 WL 4644711, at *2 (S.D.Miss. Aug. 4, 2015), and Montez v. Dep't of Navy, 392 F.3d 147, 150 (5th Cir. 2004). In Godwin, the Southern District of Mississippi denied a Rule 12(b)(1) motion to dismiss a tort claim raised under the FTCA because “[i]n the Federal Tort Claims Act...