Rudd v. United States
| Docket Number | CIVIL 5:22-cv-00201-GFVT |
| Decision Date | 02 August 2023 |
| Parties | ANDREA RUDD, Plaintiff, v. UNITED STATES OF AMERICA et al., Defendants. |
| Court | U.S. District Court — Eastern District of Kentucky |
This matter is before the Court on Defendant United States of America's Motion for Partial Dismissal. [R. 10.] While she was a prisoner in Federal Medical Center Lexington Plaintiff Andrea Rudd alleges that a corrections officer Defendant Jacob Salcido, raped her. [R. 1 at 12-13.] Ms. Rudd sued Mr. Salcido for violations of the United States Constitution and the Government for four torts under the Federal Torts Claims Act. Id. at 16-18. Invoking its sovereign immunity, the United States now moves to dismiss three of the tort claims. [R. 10 at 2.] To defeat this motion, Ms. Rudd must show that Mr. Salcido acted within the scope of his employment when he attacked her. Because she has not shown that Mr. Salcido committed the sexual assault to further the interests of the Bureau of Prisons, the United States is entitled to sovereign immunity against the intentional tort claims, and the Government's Motion [R. 10] will be granted.
During part of an eight-year term of incarceration, Ms. Rudd resided in Federal Medical Center Lexington. [R. 1 at 1-2.] The Bureau of Prisons employed Mr. Salicido as a correctional officer at FMC Lexington. Id. at 2. Ms. Rudd alleges that BOP management investigated Mr. Salcido “on numerous occasions for sex crimes against female inmates.” Id. at 9.
Despite this background, Ms. Rudd maintains that the BOP permitted Mr. Salcido to interact with her in unsupervised settings. Id. After the BOP transferred Ms. Rudd to a COVID treatment unit, Mr. Salcido, who served as the unit's supervisor, struck up a friendly relationship with Ms. Rudd. Id. at 11-12. Ms. Rudd later took a job as an orderly in the unit. Id. at 12.
Around this time, Ms. Rudd alleges that Mr. Salcido began making unwanted sexual comments. Id. She claims that his behavior escalated as he began to “grab, touch[,] and press his body against Ms. Rudd when he cornered her alone.” Id. Mr. Salcido purportedly threatened to prevent Ms. Rudd from receiving necessary medication if she resisted or reported him. Id.
In September of 2020, Ms. Rudd recalls Mr. Salcido summoning her to a prison hair salon. Id. There, Mr. Salcido allegedly forced Ms. Rudd to fellate him and then engaged in sexual intercourse without her consent. Id. Ms. Rudd claims that the sexual contact “dislodged a mesh lining that had been placed in her uterus from an earlier medical procedure,” which required surgery. Id. at 12-13. On a subsequent occasion, Mr. Salcido allegedly trapped Ms. Rudd in an officer's station and kissed her as she attempted to escape. Id. As a result, Ms. Rudd claims to suffer from post-traumatic stress disorder, depression, and physical pain. Id.
In 2022, Ms. Rudd sued the United States of America and Mr. Salcido. She brings claims for negligence, assault and battery,[1] false imprisonment, and intentional infliction of emotional distress against the United States pursuant to the Federal Torts Claims Act. Id. at 14-18.
The United States moves to dismiss all the claims against it except for the negligence allegation. [R. 10.] It invokes its sovereign immunity as to the battery and false imprisonment claims and seeks dismissal for lack of subject matter jurisdiction under Rule 12(b)(1). Id. at 3. Then, it argues that Ms. Rudd cannot maintain her intentional infliction of emotional distress argument, implicating dismissal under Rule 12(b)(6). Id. at 13. The matter is now ripe for review.
As a preliminary matter, the Court must determine the applicable standard by which to review the Government's motion. Under Rule 12(b)(1), a party can bring either a facial attack or a factual attack against a district court's subject matter jurisdiction. Gentek Bldg. Prods., Inc. v Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007). A facial attack merely questions the sufficiency of the pleadings set forth in the complaint to support jurisdiction. Id. On the other hand, a factual attack raises a factual controversy that challenges the predicate basis for jurisdiction. United States v. Ritchie, 15 F.3d 592 598 (6th Cir. 1994).
Resolution of this issue will greatly impact the analysis moving forward. When reviewing a facial attack, a district court assumes the allegations in the complaint are true and construes them in the light most favorable to the nonmoving party. Id. Conversely, to assess a factual challenge, the court does not presume the plaintiff's factual allegations are true. Gentek Bldg. Prods., 491 F.3d at 330. Instead, “the court can actually weigh evidence to confirm the existence of the factual predicates for subject-matter jurisdiction.” Global Tech., Inc. v. Yubei (Xinxiang) Power Steering Sys. Co., 805 F.3d 806, 810 (6th Cir. 2015). To do so, the district court has broad “discretion to consider affidavits and the documents outside the complaint, and may even conduct a limited evidentiary hearing if necessary.” In re Steinle, 835 F.Supp.2d 437, 441 (N.D. Ohio 2011) (quoting Ohio Hosp. Ass'n v. Shalala, 978 F.Supp. 735, 739 (N.D. Ohio 1997)).
Here, the parties agree that the United States brings a facial attack. [R. 10 at 4; R. 11 at 2.] But the parties' characterization does not control. See Gentek Bldg. Prods., 491 F.3d at 330 (). The United States's confusion on the nature of its motion is understandable. This district's opinions on the subject diverge. Compare Greene v. United States, No. 6:22-cv-00120, 2023 U.S. Dist. LEXIS 8478, at *7 (E.D. Ky. Jan. 18, 2023) (), with B.A. v. United States, No. 5:21-cv-00106, 2021 WL 4768248, at *1 (E.D. Ky. Oct. 12, 2021) ().
Despite the parties' conclusion otherwise, the United States's motion is a factual attack on the existence of subject matter jurisdiction. To articulate why, a preview of the substantive law at issue is necessary. As will be more fully articulated below, the motion to dismiss turns on whether, during the sexual assault, Mr. Salcido acted within the scope of his employment as defined by Kentucky law. See, infra, Section II.B. The Commonwealth determines the scope of one's employment solely based on the employee's subjective motivation for acting. Patterson v. Blair, 172 S.W.3d 361, 369 (Ky. 2005); accord Does 1-10 v. Haaland, 973 F.3d 591, 599 (6th Cir. 2020). Even if the employee mistakenly believed that his activity would be in the interest of his employer, his subjective belief still requires a finding that he acted within the scope of his employment. See Papa John's Int'l, Inc. v. McCoy, 244 S.W.3d 44, 55 (Ky. 2008) (quoting W. Page Keeton, et al., Prosser and Keeton on the Law of Torts 505 (5th ed. 1984)) (“the master is held liable for any intentional tort committed by the servant where its purpose, however misguided, is wholly or in part to further the master's business.”).
Therefore, to determine whether its subject matter jurisdiction is properly invoked, the Court will have to make a factual finding regarding Mr. Salcido's intent. See Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (concluding that a motion to dismiss that turned on the scope of employment inquiry under the FTCA was a factual attack); see also Gentek Bldg. Prods., 491 F.3d at 332 (citing the Eleventh Circuit's reasoning in Lawrence with approval while establishing the law that governs factual attacks in this Circuit). To do so, the Court must weigh Ms. Rudd's allegations regarding Mr. Salcido's intent. Global Tech., 805 F.3d at 810. To understand why, consider the opposite approach.
If the United States were correct and it brought a facial attack, its motion would be selfdefeating. If the Court conducted a facial inquiry, it would be obligated to assume that the allegations in Ms. Rudd's complaint are true. Gentek Bldg. Prods., 491 F.3d at 330. Ms. Rudd alleges that a conspiracy exists among the management of the United States Prisons to permit guards to assault and sexually abuse inmates as a means of controlling prisoner behavior. [See R. 1 at 5-9.] Were that to be true, Mr. Salcido might have believed he was furthering his employer's interests and could have acted within the scope of his employment. For obvious reasons, the Court doubts that the Government intended to fall on its own sword in this manner.
Instead, the better course is to follow the logic articulated by the Eleventh Circuit in Lawrence. The scope of employment is relevant in two ways. To recover against an employer for the intentional tort of an employee, under Kentucky law or the FTCA, a plaintiff must prove that the employee acted within the scope of his employment. Patterson, 172 S.W.3d at 369; Lawrence, 919 F.2d at 1528. Likewise, the scope of employment inquiry is a predicate for jurisdiction. Millbrook v. United States, 569 U.S. 50, 54 (2013). “Because the extent of the United States' waiver of immunity from suit is defined, in cases such as this, by reference to state tort law, proof of scope of employment serves two purposes: it is a necessary predicate to the court's subject matter jurisdiction and it is an element the plaintiff must establish to win the case, just as if the defendant were a private party.” Lawrence, 919 F.2d at 1528.
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