Sanchez v. United States, Case No.: 18-cv-1550-AJB-AGS
| Decision Date | 09 August 2019 |
| Docket Number | Case No.: 18-cv-1550-AJB-AGS |
| Court | U.S. District Court — Southern District of California |
| Parties | Linda Sanchez, Plaintiff, v. United States of America; DOES 1 through 50, inclusive, Defendants. |
Defendant United States of America moves to dismiss Plaintiff Linda Sanchez's complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. (Doc. No. 4 at 1.) For the reasons stated herein, the Court GRANTS IN PART and DENIES IN PART Defendant's motion to dismiss. (Doc. No. 4.) The Court DISMISSES any alleged acts prior to Dr. Fajerman becoming an eligible employee, any acts conducted off of federally funded property, and Sanchez's failure to warn claim.
Sanchez brings this complaint under the Federal Torts Claim Act ("FTCA"). (Doc. No. 1 ¶ 1.) Sanchez alleges her psychiatrist, Leon Fajerman, "committed acts of sexual harassment and contact against" Sanchez for three months—from "May 2017 to mid-July 2017." (Id. ¶ 3.) The events alleged took place at San Ysidro Health Center ("SYHC"), where Sanchez claims Dr. Fajerman has a "history and practice of committing sexual acts against his patients." (Id. ¶ 4.) Sanchez details several incidents in which Dr. Fajerman acted inappropriately, including groping her, showing up at her home, and pushing her onto his couch while groping her, kissing her, and pressing his genitalia against her. (Id. ¶¶ 19-31.) Sanchez states, unbeknownst to her, Dr. Fajerman was being investigated for similar conduct by the Medical Board, resulting in his license being suspended. (Id. ¶¶ 34-36.) As a result, Sanchez's future appointments with Dr. Fajerman were cancelled and a nurse practitioner "cut" her medication "by two-thirds without any taper" causing her to go into "withdraws." (Id. ¶ 36.) Finally, Sanchez claims SYHC dropped her from care several times without explanation which caused delays in her medical treatment. (Id. ¶ 37.)
Under Federal Rule of Civil Procedure Rule 12(b)(1), a defendant may seek to dismiss a complaint for lack of jurisdiction over the subject matter. The federal court is one of limited jurisdiction. See Gould v. Mutual Life Ins. Co. v. New York, 790 F.2d 769, 774 (9th Cir. 1986). As such, it cannot reach the merits of any dispute until it confirms its own subject matter jurisdiction. See Steel Co. v. Citizens for a Better Environ., 523 U.S. 83, 95 (1998). When considering a Rule 12(b)(1) motion to dismiss, the district court is free to hear evidence regarding jurisdiction and to rule on that issue prior to trial, resolving factual disputes where necessary. See Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983). In such circumstances, "[n]o presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Id. (quoting Thornhill Publishing Co. v. General Telephone & Electronic Corp., 594 F.2d 730, 733 (9th Cir. 1979)). Plaintiff, as the party seeking to invoke jurisdiction, has the burden of establishing that jurisdiction exists. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
As a general principle, the United States "may not be sued without its consent. . . ."United States v. Mitchell, 463 U.S. 206, 212 (1983). The FTCA, however, is an example of the federal government consent to be sued for certain types of actions. The FTCA provides that the United States may be sued "for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." 42 U.S.C. § 1346(b). The FTCA provides the exclusive remedy for tort lawsuits against the United States and allows the United States to be held liable to the same extent as a private employer under state law. 28 U.S.C. § 2679. California law governs this FTCA case. 28 U.S.C. §§ 1346(b)(1), 2674.
The Federally Supported Health Centers Assistance Act ("FSHCAA"), 42 U.S.C. § 233, extends the application of the FTCA to certain public health entities, their employees, and qualified contractors receiving federal grants under 42 U.S.C. § 254(b). The entities typically covered by the FSHCAA are community health centers that receive federal grants to serve underprivileged populations regardless of their ability to pay for service. H.R. Rep. No. 104-398 at 5 (1995).
Defendant argues the Court must dismiss the following claims: (1) sexual misconduct by Dr. Fajerman, except for claims between April 1, 2017, and June 9, 2017; (2) failure to advise Sanchez that Dr. Fajerman's license was being suspended; (3) negligent hiring, retention, and supervision of Dr. Fajerman; and (4) Failure to warn.
The Court notes that Plaintiff conceded during oral argument to limiting the scope of the acts to those located at SYHC and not at her home or Dr. Fajerman's office. Thus, the Court DISMISSES any claims pertaining to those locations. (See Doc. No. 1 ¶¶ 25, 29, 30-33.)
Although Sanchez does not specifically mention the FSHCAA, it allows a limited waiver of sovereign immunity by providing the exclusive remedy under the FTCA fordamages resulting from medical negligence associated with eligible health centers. 422 U.S.C. § 233(a), (g). Employees of these health centers are "deemed to be [] employee[s] of the Public Health Service." Id. § (g)(1)(A). Here, Defendant alleges Dr. Fajerman is not an employee, but a contractor. (Doc. No. 4-1 at 10.) Contractors can still qualify under the FSHCAA as a covered individual "only if—"
Defendant argues Dr. Fajerman does not meet either option.1 First, Defendant states "Dr. Fajerman worked on average less than 32 ½ hours per week." (Doc. No. 4-1 at 11.) As evidence, Defendant provided a declaration from the Director of Contracts at SYHC which states Dr. Fajerman's contract provided he would work 30 to 40 hours per week. (Douglas Israel Decl., Doc. No. 4-3 ¶ 5.) An amendment to Dr. Fajerman's agreement states he "shall provide up to forty (40) hours of Service per week." (Doc. No. 4-3 at 10.) Another declaration provided by the Chief Financial Officer details Dr. Fajerman's billing forms, which provide the total hours worked each month. (Gilbert Fimbres Decl., Doc. No. 4-4 ¶¶ 1-20.) An excel spreadsheet provided summarizing all of Dr. Fajerman's billing forms shows that in his first 12-month term, Dr. Fajerman averaged over 32 ½ hours a week for only five months, from November 2016 to March 2017. (Doc. No. 4-6 at 11.) The spreadsheet also shows Dr. Fajerman averaged over 32 ½ hours a month during his renewed term for three out of four months, from April 2017 to July 2017. (Id.)
In her response, Sanchez agrees the time period should be limited to Dr. Fajerman's renewed term and concedes he did not become a covered contractor until March 31, 2017. (Doc. No. 6 at 9.) Defendant argues because of the United States' sovereign immunity during Dr. Fajerman's initial term, "the Court must dismiss" any alleged acts which occurred "between April 1, 2016, and March 31, 2017." (Doc. No. 4-1 at 11-12.) However, the incidents alleged in Sanchez's complaint do not include incidents in that time frame, save her first appointment with the doctor on March 31, 2017. (See Doc. No. 1 ¶¶ 20-33.) Thus, the Court finds Sanchez has shown that Dr. Fajerman was an eligible employee during his renewed term from April 2017 to July 2017. Because the parties agree any acts before then are not covered, the Court GRANTS Defendant's motion to dismiss any such claims.
Defendant moves to dismiss Sanchez's failure to warn claim stating that the United States retains its sovereign immunity for misrepresentation claims and cites to the "misrepresentation exception." (Doc. No. 4-1 at 13-14.) Several classes of tort claims are excepted from the FTCA's broad waiver. United States v. Varig Airlines, 467 U.S. 797, 808 (1984). Among these is the "misrepresentation exception," which bars damage claims "arising out of . . . misrepresentation, deceit, or interference with contract rights[.]" 28 U.S.C. § 2680(h). Courts have interpreted this exception to bar claims arising from commercial decisions based on false or inadequate information provided by the government. Guild v. United States, 685 F.2d 324, 325 (9th Cir. 1982).
Sanchez again concedes to limit his claims so long as they "concern[] vicarious liability, rather than direct liability." (Doc. No. 6 at 10.) Sanchez further acknowledges that "[t]he law in the Ninth Circuit at this time appears to classify failure to warn claims falling under the misrepresentation exception to the FTCA." (Doc. No. 6 at 10.) Thus, the Court GRANTS Defendant's motion to dismiss Sanchez's failure to warn claim.
Next, Defendant alleges Sanchez's negligent hiring, supervision, and retentionclaims "[do] not fall with[in] the scope of the FSHCAA's waiver of sovereign immunity." (Doc. No. 4-1 at 15.) This is because ...
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