United States District Court, M.D. Alabama, Northern Division
For Charlie Mae Willett, Plaintiff: Julian Lenwood McPhillips, Jr., McPhillips Shinbaum L.L.P., Montgomery, AL; Lowell Landis Sexton, LANDIS SEXTON, LLC, MONTGOMERY, AL.
For United States of America, Defendant: James Joseph DuBois, LEAD ATTORNEY, Robert Randolph Neeley, U.S. Attorney's Office, Montgomery, AL; Stephen Michael Doyle, LEAD ATTORNEY, United States Attorney's Office - ALM, Middle District of Alabama, Montgomery, AL.
MEMORANDUM OPINION AND ORDER
W. Keith Watkins, CHIEF UNITED STATES DISTRICT JUDGE.
Plaintiff Charlie Mae Willett brings this action under the Federal Tort Claims Act (" FTCA" ), 28 U.S.C. § § 1346(b)(1), 2671-80, alleging a premises liability theory of negligence that the United States breached its duty of care to protect her from a sexual assault while she was hospitalized and sedated at the Central Alabama Veterans Health Care System (" CAVHCS" ) facility in Montgomery, Alabama. Pending is the United States's renewed motion to dismiss Ms. Willett's Second Amended Complaint on the basis that Ms. Willett's FTCA claim falls within the discretionary-function exception to the FTCA's waiver of the United States's sovereign immunity. (Docs. # 41, 42.) The United States's motion is based upon a lack of subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Ms. Willett filed a response in opposition to the motion, invoking Federal Rule of Civil Procedure 12(b)(6) as the standard of review. (Doc. # 48.) In its reply, the United States raises the issue whether the jurisdictional inquiry reaches the merits and contends that, if so, Federal Rule of Civil Procedure 56 should govern. (Doc. # 51.) After careful consideration of the arguments of counsel and the relevant law, the court finds that the United States's motion invokes both Rule 12(b)(1) and (b)(6) review and that the motion is due to be granted.
I. JURISDICTION AND VENUE
The parties do not contest personal jurisdiction or venue. Subject-matter jurisdiction is in dispute.
A. The Operative Complaint
The operative complaint is the Second Amended Complaint, which alleges the following facts pertinent to the motion to dismiss. On April 21 and 22, 2009, while Ms. Willett was hospitalized at CAVHCS's facility in Montgomery, Alabama, CAVHCS employee Marvin Chappell sexually assaulted her while she was " heavily medicated" and in an " anaesthetized state." (2d Am. Compl. ¶ ¶ 12, 17 (Doc. # 23).) Mr. Chappell also " sexually molested" other patients prior to Ms. Willett's assault, and CAVHCS's chief executive, Clifford Robinson, " clearly knew, or should have known, about Mr. Chappell's tendency to sexually modest [sic] innocent people." (2d Am. Compl. ¶ ¶ 5, 9.) Additionally, the charge nurse, Patricia Henley, " refused to investigate" Ms. Willett's report of the sexual assault. (2d Am. Compl. ¶ ¶ 5-6.)
Ms. Willett's FTCA action alleges that the United States is liable for negligence because the combination of her hospitalization and sedation created a special relationship between her and CAVHCS, from which a duty of care flowed. In Ms. Willett's words, this special relationship " [gave] rise to a duty to protect [her] from the criminal acts of third parties" while she was in CAVHCS's inpatient care. (2d Am. Compl. ¶ 17.) She also alleges that CAVHCS " negligently failed to protect her" from a foreseeable sexual assault by Mr. Chappell. (2d Am. Compl. ¶ 18.) Ms. Willett seeks to hold the United States liable under the FTCA for the alleged negligent conduct of CAVHCS's employees.
B. The Procedural History
This action has been pending more than two years, and this is the third time it has been before the court on a motion to dismiss. Initially, the United States filed a Rule 12(b)(1) motion to dismiss the Amended Complaint, which alleged a claim for negligent hiring and supervision. A prior Order granted that motion and dismissed the claim as barred by the assault-and-battery exception to the FTCA's waiver of the United States's sovereign immunity, see 28 U.S.C. § 2680(h), but permitted Ms. Willett to replead a premises liability theory of negligence predicated upon breach of a duty of protective care. (Doc. # 22.) Ms. Willett pleaded a premises liability claim in the Second Amended Complaint, which then survived the United States's second Rule 12(b)(1) motion to dismiss based upon sovereign immunity. The Order denying the motion rejected the United States's contention that the assault-and-battery exception to the waiver of sovereign immunity barred the premises liability claim. The Order found that the assault-and-battery exception did not apply because Ms. Willett had pleaded a special relationship under Alabama law
that gave rise to a duty on the part of the United States to protect her from a foreseeable criminal assault and that this duty was independent of Mr. Chappell's government employment. The Order delayed ruling, however, on the application of the discretionary-function exception to the FTCA's waiver of the United States's sovereign immunity in order to permit Ms. Willett to conduct limited jurisdictional discovery. The right to discovery was granted sua sponte. ( See Doc. # 36.)
C. Jurisdictional Discovery
The existence (or not) of regulations and internal CAVHCS policies that impose mandatory obligations on employees with respect to protection of patients from third-party sexual assaults is critical to the subject of this motion. As discussed infra in Part III. A., mandatory directives, whether in a federal statute, regulation, or internal policy, are part of the discretionary-function exception analysis. The prior Order also permitted the United States to renew its motion to dismiss after the close of jurisdictional discovery (Doc. # 36), which it did (Doc. # 41).
In her response to the renewed motion to dismiss, Ms. Willett contends that, during the discovery period, she uncovered " mandatory procedures" that " protect and prevent sexual assaults of patients."  (Doc. # 48, at 4.) She relies upon 38 C.F.R. § 1.218(b), titled " Security and law enforcement at VA facilities," as establishing a non-discretionary duty that requires CAVHCS officials to arrest and remove from the premises any individual who engages in prohibited sexual misconduct. Alternatively, Ms. Willett asserts that, even if § 1.218(b) gives CAVHCS discretion in whether to arrest an offender and remove him or her from the premises, there are two CAVHCS memoranda that require employees to report and investigate known sexual assaults: (1) Memorandum No. 132-07-04, Reporting Crimes, Traffic Accidents, Assaultive Behavior or Suspicious Activities (Jan. 26, 2007) (" Reporting Policy" ); and (2) Memorandum No. 11-06-30, Patient Abuse (June 15, 2006) (" Patient Abuse Policy" ). The thrust of Ms. Willett's argument is that CAVHCS employees failed to report prior incidents of alleged sexual assaults on patients by Mr. Chappell, failed to investigate prior incidents of alleged sexual assaults on patients by Mr. Chappell, and failed to arrest or remove Mr. Chappell from the premises after he allegedly sexually assaulted patients on prior occasions.
The parties' briefing on the pending renewed motion to dismiss focuses on whether the discretionary-function exception to the FTCA applies. Additionally, as indicated at the beginning of this opinion, the standard of review has garnered some attention by the parties.
To sort out this two-year-old action for the final time requires careful analysis of the Second Amended Complaint in light of the FTCA's jurisdictional requirements with respect to the discretionary-function exception, the appropriate standard of ...