Neal v. United States
| Decision Date | 27 November 2019 |
| Docket Number | Civil Action No. ELH-19-1033 |
| Parties | TIFFANY NEAL, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — District of Maryland |
Plaintiff Tiffany Neal, a disabled U.S. Army veteran, filed a tort suit against the United States of America (the "Government"), pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq. ECF 1 (the "Complaint"). She alleges "Professional Negligence - Vicarious Liability" (Count 1) and "Intrusion Upon Seclusion - Privacy Violation" (Count 2), arising out of events that occurred in 2017, while Neal was a patient at the Veterans Affairs Medical Center (the "VA") in Baltimore. In particular, plaintiff claims that a male employee of the VA ignored a knock-before-entering sign, entered the examination room while she was partially disrobed and undergoing an electrocardiogram, and "press[ed] his private parts inappropriately over [her] head on the examination bed." ECF 1, ¶¶ 12, 14, 15.
The Government has moved to dismiss the entire Complaint pursuant to Fed. R. Civ. P. 12(b)(1), asserting sovereign immunity. And, under Rule 12(b)(6), it has moved to dismiss Count 2, the privacy claim, for failure to state a claim. ECF 9 (the "Motion"). It has also submitted several exhibits. ECF 9-1 to ECF 9-3. Plaintiff opposes the Motion. ECF 10 (the "Opposition"). The Government has replied (ECF 13, the "Reply") and has submitted two additional exhibits. ECF 13-1; ECF 13-2.
No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I shall grant the Motion in part and deny it in part.
Plaintiff, a disabled Army veteran, "received medical and therapeutic treatment and services at the US Department of Veterans Affairs Maryland Healthcare System, Baltimore VA Medical Center." ECF 1, ¶¶ 6, 8. On August 7, 2017, plaintiff "visited the Cardiology clinic for a routine ultrasound and electrocardiogram proceeding." Id. ¶ 10. The procedure was conducted by a female technician. For the procedure, Neal removed "her shirt and bra" and was given a robe. Id. Due to the nature of the procedure, "Neal's breasts and upper torso were exposed while the female technician performed the procedure." Id. ¶ 11. The technician "placed a sign on the door that required any one attempting to enter to knock first before proceeding to enter." Id. ¶ 12.
During the medical procedure, Grant Lewis, a male employee of the VA, "walked into the room without knocking[,] pulled the curtains back and then proceeded to have a conversation with the female technician." Id. ¶¶ 13, 14. According to plaintiff, "Lewis was hired by the VA to perform technician duties in the Cardiology clinic at the VA Medical Center." ECF 10 at 6. The Government also notes that Lewis performed electrocardiograms. ECF 13 at 1-2.
After Lewis entered the examination room, he "proceeded to press his private parts inappropriately over Neal's head on the examination bed." ECF 1, ¶ 15. Neal said to Lewis, "Excuse me, don't you see that my titties are all out and why are you in here?" Id. ¶ 16 (emphasisin original). Lewis told plaintiff that he thought she was a man and continued to converse with the female technician. Id. ¶¶ 16. Neal asked Lewis, "Do I look like a man to you?" Id. ¶ 17. Lewis replied, "Yes, you do." Id. Neal told Lewis to leave, but he refused. Id. But, after "additional requests to leave," Lewis "finally left the room." Id. ¶ 18. Thereafter, the female technician told Neal that Lewis "does this all the time, I think he has adult ADHD." Id. ¶ 19.
On the date of the incident, August 7, 2017, Neal, along with her husband, reported the matter to the VA Patient Advocate. Id. ¶ 24. In turn, the VA Patient Advocate referred the matter to the VA Police. Id. ¶ 25. The same day, Walter Jenkins, a Veterans Affairs Police Detective, was "assigned to investigate the sexual harassment/Patient Privacy violation by Grant Lewis." Id. Detective Jenkins produced an investigative report, which the Government submitted with the Motion. ECF 9-1 at 5-12 (the "Investigative Report").
Lewis was "placed on desk duty" during the investigation. ECF 1, ¶ 25. While on desk duty, Lewis was instructed "to contact veterans for their medical appointments." ECF 9-1 at 9. To enable Lewis to do so, he was given "access to their personal information to contact them and discuss the veteran's medical options for treatment." Id. Lewis told Jenkins that Neal was on the list of patients he was given to contact. Id. According to plaintiff, while the investigation was ongoing, Lewis "accessed Plaintiff's health records, retrieved her personal phone number and repeatedly called Plaintiff's home telephone." ECF 1, ¶ 26. This conduct violated the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), according to plaintiff. Id.
Further, plaintiff alleges that, prior to the incident, "Lewis had been reported to the VA Medical Center Administration on various complaints for sexually harassing female patients during electrocardiograms." Id. ¶ 22. Neal claims that she has suffered "physical damagesincluding anxiety, sleeplessness, trauma and exacerbation of existing medical condition and will continue to suffer irreparable injury." Id. ¶ 28.
Neal submitted a claim to the U.S. Department of Veterans Affairs, via letter, on April 23, 2018. Id. ¶ 4. Receipt of the letter was acknowledged on May 22, 2018. Id. The "Office of General Counsel for the U.S. Department of Veterans Affairs denied Plaintiff Neal's claim by letter dated December 18, 2018." Id. ¶ 5.
Additional facts are included, infra.
A challenge to a federal court's subject matter jurisdiction is reviewed pursuant to Fed. R. Civ. P. 12(b)(1). A motion under Rule 12(b)(1) raises the issue of "whether the court has the competence or authority to hear and decide the case." Davis v. Thompson, 367 F. Supp. 2d 792, 799 (D. Md. 2005); see generally Ford Bend Co. v. Davis, ___ U.S. ___, 139 S. Ct. 1843, 1848 (2019) ( the term "jurisdiction"). Under Rule 12(b)(1), the plaintiff bears the burden of proving, by a preponderance of evidence, the existence of subject matter jurisdiction. See Demetres v. East West Const., Inc., 776 F.3d 271, 272 (4th Cir. 2015); see also Durden v. United States, 736 F.3d 296, 300 (4th Cir. 2013); Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999).
A test of subject matter jurisdiction under Rule 12(b)(1) may proceed "in one of two ways": either a facial challenge, asserting that the allegations pleaded in the complaint are insufficient to establish subject matter jurisdiction, or a factual challenge, asserting "'that the jurisdictional allegations of the complaint [are] not true.'" Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (citation omitted); accord Durden v. United States, 736 F.3d 296, 300 (4th Cir. 2013).
In a facial challenge, "the facts alleged in the complaint are taken as true, and the motion must be denied if the complaint alleges sufficient facts to invoke subject matter jurisdiction." Kerns, 585 F.3d at 192. On the other hand, in a factual challenge, "the district court is entitled to decide disputed issues of fact with respect to subject matter jurisdiction." Id. In that circumstance, the court "may regard the pleadings as mere evidence on the issue and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Velasco v. Gov't of Indonesia, 370 F.3d 392, 398 (4th Cir. 2004); see also United States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347-48 (4th Cir. 2009); Evans, 166 F.3d at 647.
Here, the United States makes a facial challenge to subject matter jurisdiction.
The defense of sovereign immunity is a jurisdictional bar. Notably, "'sovereign immunity deprives federal courts of jurisdiction to hear claims, and a court finding that a party is entitled to sovereign immunity must dismiss the action for lack of subject-matter jurisdiction.'" Cunningham v. Gen. Dynamics Info. Tech., Inc., 888 F.3d 640, 649 (4th Cir. 2018) (quoting Ackerson v. Bean Dredging LLC, 589 F.3d 196, 207 (5th Cir. 2009)).
A defendant may test the legal sufficiency of a complaint by way of a motion to dismiss under Rule 12(b)(6). In re Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016); McBurney v. Cuccinelli, 616 F.3d 393, 408 (4th Cir. 2010), aff'd sub nom., McBurney v. Young, 569 U.S. 221 (2013); Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). A Rule 12(b)(6) motion constitutes an assertion by a defendant that, even if the facts alleged by a plaintiff are true, the complaint fails as a matter of law "to state a claim upon which relief can be granted."
Whether a complaint states a claim for relief is assessed by reference to the pleadingrequirements of Fed. R. Civ. P. 8(a)(2). That rule provides that a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." The purpose of the rule is to provide the defendants with "fair notice" of the claims and the "grounds" for entitlement to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
To survive a motion under Fed. R. Civ. P. 12(b)(6), a complaint must contain facts sufficient to "state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570; see Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (citation omitted) ("Our decision in Twombly expounded the pleading standard for 'all civil actions' . . . ."); see also Paradise Wire & Cable Defined Benefit Pension Plan v. Weil, 918 F.3d 312, 317 (4th Cir. 2019); Willner v. Dimon, 849 F.3d 93, 112 (4th Cir. 2017). To be sure, a plaintiff need not include "detailed factual allegations" in order to satisfy Rule 8(a)(2). Twombly, 550 U.S. at 555. Moreover, federal pleading rules "do not countenance dismissal of a complaint...
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