Garner v. United States Department of Health & Human Services et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
LORETTA GARNER,
Plaintiff,
vs.
UNITED STATES DEPARTMENT OF
HEALTH & HUMAN SERVICES;
PUBLIC HEALTH SERVICE; INDIAN
HEALTH SERVICE, an agency of The
United States Government and THE
UNITED STATES OF AMERICA,
Defendants.
CIV. 21-5037-JLV
ORDER
INTRODUCTION
Plaintiff Loretta Garner filed a complaint against the defendants pursuant
to the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. 	(Docket 1).
Defendants filed a motion together with a legal memorandum seeking dismissal
of plaintiff’s complaint pursuant to Fed. R. Civ. P. 12(b)(1). 	(Dockets 7 & 8).
Plaintiff filed a brief in opposition to defendants’ motion. 	(Docket 9).
Defendants filed a reply brief together with two declarations and one exhibit.
(Dockets 10, 11, 12 & 12-1). 	For the reasons stated below, defendants’ motion
is denied.
ANALYSIS
This action is filed pursuant to the Federal Tort Claims Act, 28 U.S.C.
§ 2671 et. seq. (“FTCA”). 	(Docket 1 ¶ 3). 	Section 1346(b)(1) of Title 28 confers
exclusive jurisdiction to the district courts over “civil actions on claims against
Case 5:21-cv-05037-RAL Document 13 Filed 01/11/22 Page 1 of 14 PageID #: <pageID>

2
the United States, for money damages . . . for injury or loss of property, or
personal injury . . . 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, under 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.” 	28 U.S.C. § 1346(b)(1).
“The United States is, nevertheless, immune if an exception applies.”
Hart v. United States, 630 F.3d 1085, 1088 (8th Cir. 2011). 	“Where the United
States has not waived sovereign immunity under the FTCA, the district court
lacks subject matter jurisdiction to hear the case.” 	Id.
RULE 12(b)(1) MOTION
Rule 12 provides in part that “a party may assert the following defenses by
motion: . . . lack of subject-matter jurisdiction . . . .” 	Fed. R. Civ. P. 12(b)(1).
While considering a Rule 12(b)(1) motion to dismiss for lack of subject matter
jurisdiction, the court must “accept all factual allegations in the pleadings as
true and view them in the light most favorable to the nonmoving party.” 	Great
Rivers Habitat Alliance v. Fed. Emergency Mgmt. Agency, 615 F.3d 985, 988 (8th
Cir. 2010). 	The court “has authority to consider matters outside the pleadings
when subject matter jurisdiction is challenged under Rule 12(b)(1). . . . This does
not . . . convert the 12(b)(1) motion to one for summary judgment.” 	Harris v.
P.A.M. Transportation, Inc., 339 F.3d 635, 638 (8th Cir. 2003).
Case 5:21-cv-05037-RAL Document 13 Filed 01/11/22 Page 2 of 14 PageID #: <pageID>

3
“In order to properly dismiss for lack of subject matter jurisdiction under
Rule 12(b)(1), the complaint must be successfully challenged on its face or on the
factual truthfulness of its averments.” 	Titus v. Sullivan, 4 F.3d 590, 593 (8th
Cir. 1993) (internal citation omitted). 	“In a facial challenge to jurisdiction, all of
the factual allegations concerning jurisdiction are presumed to be true and the
motion [to dismiss] is successful if the plaintiff fails to allege an element
necessary for subject matter jurisdiction.” 	Id. (internal citation omitted). 	“In a
factual attack, the court considers 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 n.6 (8th Cir. 1990) (internal citations omitted).
FACTUAL ALLEGATIONS
Plaintiff bears the burden of proof on the issue of subject matter
jurisdiction. 	Id. at 730. 	The facts alleged in the complaint which the court
initially accepts as true for purposes of defendants’ Rule 12(b)(1) motion are as
follows.
On December 17, 2017, Ms. Garner was involved in an automobile
accident and was transported by ambulance to the Rosebud Indian Health
Service (“IHS”) hospital. 	(Docket 1 ¶ 4). 	Ms. Garner, wearing only a hospital
gown and underwear, was taken by gurney by Scott Wilson, an IHS employee
and radiology technician, for an x-ray. 	Id. ¶¶ 5 & 6; see also Docket 8 at p. 2.
No female chaperone or supervisor accompanied Ms. Garner and Mr. Wilson to
the x-ray room. 	(Docket 1 ¶ 7). 	Following the x-ray, Mr. Wilson moved Ms.
Case 5:21-cv-05037-RAL Document 13 Filed 01/11/22 Page 3 of 14 PageID #: <pageID>

4
Garner back to the gurney. 	Id. 	In that process, Ms. Garner’s gown bunched
up, revealing her underwear. 	Id. ¶ 9. 	Mr. Wilson offered to assist her in
readjusting her gown. 	Id.
When Mr. Wilson saw Ms. Garner was wearing thong underwear he
commented “I see you like to dress up fancy.” 	Id. ¶ 10. 	He then put his hand
between her legs, under her underwear and digitally penetrated her with his
gloved hand. 	Id. 	As he pushed his fingers in and out of Ms. Garner’s vagina
she objected and told Mr. Wilson to stop. 	Id. ¶¶ 12 & 13. 	As she tried to get up
and push him away, Mr. Wilson stated “I bet you didn’t think this would be
happening to you today.” 	Id. ¶¶ 14 & 15. 	After removing his hand, Mr. Wilson
said “Thank you.” 	Id. ¶ 15. 	He then wheeled Ms. Garner back to the
emergency room. 	Id. ¶ 17. 	Ms. Garner was too shocked and scared to say
anything to anyone. 	Id. ¶ 18.
Later, Mr. Wilson had to take Ms. Garner back to the x-ray room. 	Id.
¶ 19. 	On this trip, he mockingly asked her “should we have a replay?” but did
not repeat his earlier conduct. 	Id. ¶ 20. 	Ms. Garner was too shocked,
traumatized, frightened and scared by Mr. Wilson’s words and conduct that she
did not report his conduct at the time. 	Id. ¶¶ 18 & 21.
In March 2018, Ms. Garner reported Mr. Wilson’s conduct to her
counselor. 	Id. ¶ 22. 	Later, a hospital administrator told Ms. Garner that
hospital policy required a chaperone to accompany Wilson and Ms. Garner to the
x-ray room. 	Id. ¶ 23. 	Ms. Garner later learned Mr. Wilson had been disciplined
Case 5:21-cv-05037-RAL Document 13 Filed 01/11/22 Page 4 of 14 PageID #: <pageID>

5
for sexual harassment or misconduct with another individual while working at
the IHS hospital in Rosebud. 	Id. ¶ 24.
Plaintiff’s complaint seeks damages under the FTCA for defendants’
conduct, specifically, failing to adequately train and supervise Mr. Wilson. 	Id.
¶ 30. 	The complaint alleges the defendants were negligent:
[I]n their duty to provide appropriate medical care for and ensure the
safety of [Ms. Garner]. 	Id. ¶ 31;
[I]n their duty to properly train their . . . employees to provide
appropriate medical care for and ensure the safety of [Ms. Garner].
Id. ¶ 32; and
[I]n taking proper precautions, including not permitting [Mr.] Wilson
to be alone with [Ms. Garner], for the appropriate medical care and
safety of [Ms. Garner]. 	Id. ¶ 33.
The complaint alleges defendants’ negligence proximately cause damages to Ms.
Garner. 	Id. ¶ 34.
DEFENDANTS’ MOTION
Defendants acknowledge the issues before the court must be resolved
according to South Dakota law, where the alleged tort occurred. 	(Docket 8 at
p. 5) (referencing St. John v. United States, 240 F.3d 671, 676 (8th Cir. 2001);
internal citation omitted). 	FTCA claims, however, “are strictly limited to a scope
of employment analysis, regardless of state law doctrines of respondeat superior
and apparent authority.” 	Id. (citing Primeaux v. United States, 181 F.3d 876,
878 (8th Cir. 1999) (en banc)). 	The government asserts, “even if state law
extends a private employer’s vicarious liability to employee conduct not within
the scope of employment, . . . FTCA liability remains limited to employee conduct
Case 5:21-cv-05037-RAL Document 13 Filed 01/11/22 Page 5 of 14 PageID #: <pageID>

6
within the scope of employment, as defined by state law.” 	Id. (citing Primeaux,
181 F.3d at 878).
With this framework, defendants assert two grounds upon which their
motion to dismiss pursuant to Rule 12(b)(1) should be granted. 	First, Mr.
Wilson “was not acting within the scope of his employment” at the time “he
committed the alleged battery” against Ms. Garner. 	(Docket 8 at p. 2). 	Second,
Ms. Garner’s “claims are not cognizable under the FTCA as the United States has
not waived sovereign immunity for claims arising out of assault or battery.” 	Id.
Defendants submit that in “applying South Dakota law to a scope of
employment inquiry,” the South Dakota Supreme Court “found that sexual
abuse is outside the scope of employment[.]” 	Id. at p. 6 (referencing Bernie v.
Catholic Diocese of Sioux Falls, 821 N.W.2d 232, 239-40 (S.D. 2012) (sexual
abuse by a Catholic priest is not in furtherance of Diocesan business.).
Similarly, in this case, defendants argue “Mr. Wilson’s alleged conduct amounts
to an act done to effect some independent purpose of is own . . . . wholly
motivated by his personal interests and therefore outside the scope of his
employment.” 	Id. 	“Even assuming arguendo Plaintiff can establish that Mr.
Wilson’s alleged actions had a dual purpose,” defendants contend “ there is no
‘nexus of foreseeability’ between Mr. Wilson’s employment and the alleged
battery.” 	Id. at p. 7.
Alternatively, the government argues “FTCA’s waiver of sovereign
immunity is subject to exceptions,” particularly for an “intentional torts,” of
Case 5:21-cv-05037-RAL Document 13 Filed 01/11/22 Page 6 of 14 PageID #: <pageID>

7
“assault [or] battery[.]” 	Id. (citing 28 U.S.C. 2680(h)). 	That section “does not
merely bar claims for assault or battery; in sweeping language it excludes any
claim arising out of assault and battery.” 	Id. (citing United States v. Shearer,
473 U.S. 52, 55 (1985) (emphasis in Shearer). 	For that reason, defendants
argue “§ 2680(h) covers claims that ‘sound in negligence but stem from a battery
committed by a Government employee.’ ” 	Id. (citing Shearer, 473 U.S. at 55).
Defendants submit Ms. Garner’s “negligent training and supervision
claims undoubtedly arise solely from the Government’s employment relationship
with Mr. Wilson and are therefore barred by 28 U.S.C. § 2680(h).” 	Id. at p. 8
(referencing Billingsley v. United States, 251 F.3d 696, 698 (8th Cir. 2001)). 	Ms.
Garner “has not alleged that Mr. Wilson sexually assaulted anyone prior to
December 17, 2017; that the Government was aware of any such assault . . .
before December 17, 2017; or that the Government otherwise had a duty to
prevent the alleged battery outside of its employment relationship with Mr.
Wilson.” 	Id. 	“While Plaintiff alleges that IHS had a chaperone policy that it
failed to follow,” defendants argue Ms. Garner “failed to identify any such policy
that was in existence on December 17, 2017.” 	Id. at p. 9.
PLAINTIFF’S RESPONSE
Contrary to the government’s Primeaux argument, Ms. Garner argues the
assault occurred at the IHS hospital where Mr. Wilson worked, while he “was
actually performing his duties at the time” of the assault, she “was dressed in a
patient’s gown provided by the hospital,” he wheeled her “to the X-ray room in a
Case 5:21-cv-05037-RAL Document 13 Filed 01/11/22 Page 7 of 14 PageID #: <pageID>

8
hospital wheelchair,” and he “digitally penetrated [her] while helping her on and
off of the table.” 	(Docket 9 at pp. 2-3). 	Ms. Garner contends the hospital “was
aware of other allegations against” Mr. Wilson and “had a workplace policy to
prevent exactly the type of conduct that occurred.” 	Id. at p. 3. 	While plaintiff
acknowledges the Billingsley court found “that negligent supervision and hiring
. . . could not be a basis of liability as it would be contrary to . . . . [§] 2680(h),” Ms.
Garner argues “Billingsley did not include a violation of a workplace policy
requiring a chaperone,” a policy “created to protect a person in Ms. Garner’s
situation.” 	Id. at p. 5. 	This policy coupled with the hospital’s “independent
antecedent duty” to protect its patients is sufficient in plaintiff’s view “to
distinguish [her] case from Billingsley and from the prohibitions of § 2680(h).”
Id.
DEFENDANTS’ REPLY
In reply, defendants submit two declarations together with a 2019
amendment to a portion of the Indian Health Services Manual (“IHM”).1
(Dockets 11, 12 & 12-1). 	In the first declaration, the Rosebud IHS Chief Quality
Management Officer stated that Rosebud IHS “had no internal policies related
specifically to Mr. Scott Wilson that required his patient interactions to be
chaperoned.” 	(Docket 11 ¶ 3). 	In the second declaration, the Directory of the
1 The 2019 amendment to the IHM is irrelevant as it was generated 14
months after the alleged assault of Ms. Garner.
Case 5:21-cv-05037-RAL Document 13 Filed 01/11/22 Page 8 of 14 PageID #: <pageID>

9
Division of Regulatory and Policy Coordination of IHS stated there were no “IHM
policies in effect in 2017 related to the use of chaperones.” 	(Docket 12 ¶ 5).
Defendants argue plaintiff’s “bald[]” assertion the government “failed to
abide by some unidentified policy” is not entitled to “presumptive truthfulness.”
(Docket 10 at p. 2) (citing Osborn, 918 F.2d at 730). 	Because Ms. Garner “failed
to set forth affirmative evidence demonstrating . . . that the United States had a
duty unrelated to the employment relationship,” defendants assert she “failed to
meet her burden of proving that this Court has jurisdiction over her claims.” 	Id.
Defendants argue Ms. Garner “conflates the foreseeability inquiry in the
scope-of-employment context with a general foreseeability analysis.” 	Id. at p. 4.
According to the defendants, Ms. Garner “does not allege that a chaperone policy
specific to Mr. Wilson existed on December 17, 2017, nor does [she] allege that
Mr. Wilson was disciplined for similar conduct prior to the December 2017
incident.” 	Id. at p. 4 n.1.
Because plaintiff “provided no affirmative evidence to support the
assertion that [the government] had some independent, antecedent duty
unrelated to the employment relationship to prevent Mr. Wilson from engaging in
the alleged conduct,” defendants argue Ms. Garner “cannot overcome the
intentional tort exception to the FTCA’s waiver of sovereign immunity.” 	Id. at
pp. 5-6.
Case 5:21-cv-05037-RAL Document 13 Filed 01/11/22 Page 9 of 14 PageID #: <pageID>

10
For these reasons, defendants argue the court must dismiss plaintiff’s
complaint for a lack of subject matter jurisdiction pursuant to Rule 12(b)(1). 	Id.
at p. 6.
This case involves a factual attack under a Rule 12(b)(1) motion, that is, a
factual challenge to “the trial court’s jurisdiction-its very power to hear the
case[.]” 	Osborn, 918 F.2d at 730. 	In resolving a factual attack “the trial court
is free to weigh the evidence and satisfy itself as to the existence of its power to
hear the case.” 	Id. 	See also Faibisch v. University of Minnesota, 304 F.3d 797,
801 (8th Cir. 2002) (“When a district court engages in a factual review, it inquires
into and resolves factual disputes.”). 	“In short, no presumptive truthfulness
attaches to the plaintiff’s allegations, and the existence of disputed material facts
will not preclude the trial court from evaluating for itself the merits of
jurisdictional claims. 	Moreover, the plaintiff will have the burden of proof that
jurisdiction does in fact exist.” 	Osborn, 918 F.2d at 730. 	Any finding of fact
made by the district court is reviewed “under the ‘clearly erroneous’ standard.”
Id. (internal citation omitted).
The government’s reliance on Primeaux is misplaced. 	In Primeaux, the
offender was an out of his jurisdiction, off-duty, out of uniform tribal officer who
stopped to assist a stranded driver. 	Primeaux, 181 F.3d at 882. 	As his victim
“was stranded far from town late on a cold night,” the court concluded the
officer’s assistance was “the kind of assistance any citizen might offer.” 	Id. 	The
fact that he then raped her “was committed while . . . on a frolic of his own and
Case 5:21-cv-05037-RAL Document 13 Filed 01/11/22 Page 10 of 14 PageID #: <pageID>

11
not acting in the course or scope of his employment.” 	Id. 	The court concluded
“[t]he connection between [his] government employment and his sexual assault
of Primeaux was simply too remote and tenuous to be foreseeable to his
employer.” 	Id. 	“[I]t was conduct ‘so unusual or startling that it would be unfair
to include the loss caused by the injury among the costs of the employer’s
business.’ ” 	Id. (citing Leafgreen v. American Family Mutual Insurance Co., 393
N.W.2d 275, 280-81 (S.D. 1986)).
Ms. Garner’s case is more closely aligned with Red Elk v. United States,
62 F.3d 1102 (8th Cir. 1995), a case distinguished in Primeaux. 	In Red Elk, the
offender was on-duty and raped a 13-year-old in the back seat of his police car.
Primeaux, 181 F.3d at 881. 	While “this criminal conduct was done to benefit
the officer personally, not his government employer,” the Red Elk court
“concluded it was foreseeable that on-duty police occasionally misuse their
authority in this manner.” 	Id. 	“Red Elk and recent cases from other
jurisdictions have concluded it is sufficiently foreseeable to a government
employer that on-duty police officers will occasionally misuse their authority to
sexually assault detainees.” 	Primeaux, 181 F.3d at 882. 	This makes the
employee’s conduct “foreseeable.” 	Id. at 881.
Similarly, defendants’ reliance on Billingsley misses the point.
Billingsley did determine that finding “the government liable for negligent hiring
and supervision of an employee who commits a tort would frustrate the purpose
of § 2680(h), which . . . bar[s] suits resulting from ‘deliberate attacks by
Case 5:21-cv-05037-RAL Document 13 Filed 01/11/22 Page 11 of 14 PageID #: <pageID>

12
Government employees.” 	Billingsley, 251 F.3d at 698. 	But the issue the court
permitted to continue through discovery in Billingsley was whether the “Job
Corps employee responsible for the enrollees knew that [the assailant] acted
violently in public prior to his commission of the battery [of enrollee Billingsley].”
Id. 	This duty to protect Billingsley from attack arose “out of an independent,
antecedent duty unrelated to the employment relationship between the
tortfeasor and the United States.” 	Id. (citing Leleux v. United States, 178 F.3d
750, 747 (5th Cir. 1999). 	In other words, the government had an independent,
pre-existing duty to protect the other Job Corps enrollees from harm.
It goes without serious challenge that the IHS hospital in Rosebud owed an
independent, antecedent duty to provide medical care to Ms. Garner and to
protect her from harm at the hospital. 	Defendants’ briefing fails to acknowledge
this hospital-patient duty. 	See Dockets 8 & 10. 	This duty is separate and
apart from the hospital’s relationship with Mr. Wilson.
The court finds the complaint adequately alleges an informal Rosebud
hospital policy existed prior to December 2017 which required a chaperone to
accompany Mr. Wilson and a hospital patient to the x-ray room. 	See Docket 1
¶ 23 (“A hospital administrator later told [Ms. Garner] that hospital policy
required a chaperone to accompany Wilson and Plaintiff to the X-ray room.”)
(emphasis added). 	This is not a general allegation suggesting that sometime
after the assault of Ms. Garner the hospital imposed a policy requiring a
Case 5:21-cv-05037-RAL Document 13 Filed 01/11/22 Page 12 of 14 PageID #: <pageID>

13
chaperone to accompany Mr. Wilson and a female patient. 	This allegation is
specific to the circumstances of Ms. Garner’s assault.
The IHS’s “disapproval of [Mr. Wilson’s] misconduct does not preclude
FTCA liability.” 	St. John, 240 F.3d at 676 (referencing Deuchar v. Foland
Ranch, Inc., 410 N.W.2d 177, 180 (S.D. 1987)). 	Defendants provided proof that
no written policy existed at the Rosebud hospital prior to Mr. Wilson’s assault of
Ms. Garner. 	(Docket 11 ¶ 3). 	However, defendants did not address the issue of
whether the hospital had an informal, unwritten rule regarding Mr. Wilson’s
need for supervision in the form of a chaperone or otherwise. 	The complaint
adequately alleges Mr. Wilson was disciplined in the past for sexual harassment
or misconduct while at the Rosebud hospital. 	(Docket 1 ¶ 24).
Read in context, the court accepts the factual allegations of the complaint
as true. 	Great Rivers Habitat Alliance, 615 F.3d at 988. 	“At the very minimum,
[Ms. Garner] is entitled to discovery regarding the nature of the government’s
alleged negligence and whether [Mr. Wilson] was acting within the scope of his
employment at the time of the tort.” 	Billingsley, 251 F.3d at 698; see also St.
John, 240 F.3d at 677-78 (“Without knowing whether [the offending, ex-husband
officer] threatened St. John with arrest, it is impossible to determine whether he
was acting within the scope of his employment. . . . Because the district court
failed to complete the scope of employment analysis, we reverse in part and
remand the case to the district court for further findings and proceedings
consistent with this opinion.”).
Case 5:21-cv-05037-RAL Document 13 Filed 01/11/22 Page 13 of 14 PageID #: <pageID>

14
Whether defendants’ Rule 12(b)(1) motion to dismiss is considered a facial
or factual challenge to plaintiff’s complaint, the court finds the complaint states
a plausible FTCA claim.
ORDER
Based on the above analysis, it is
ORDERED that defendants’ motion to dismiss (Docket 7) is denied.
Dated January 11, 2022.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
UNITED STATES DISTRICT JUDGE
Case 5:21-cv-05037-RAL Document 13 Filed 01/11/22 Page 14 of 14 PageID #: <pageID>