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Riley v. United States

United States District Court, E.D. Louisiana

October 24, 2018


         SECTION: "A" (3)



         Before the Court is a Motion to Dismiss (Rec. Doc. 14) filed by Defendant, The United States of America (“the Government”). Plaintiff, Monique Riley, opposes the motion (Rec. Doc. 15) and Defendant has replied. (Rec. Doc. 18). The motion, set for submission on September 19, 2018, is before the Court on the briefs without oral argument. Having considered the motion and memoranda of counsel, the record, and the applicable law, the Court finds that Defendant's Motion to Dismiss (Rec. Doc. 14) is GRANTED for the reasons set forth below.

         I. Background

         On September 18, 2015, Plaintiff visited the St. John Veterans Affairs Outpatient Clinic (“VA”) for a check-up. (Rec. Doc. 1, Complaint ¶ 13). Plaintiff had recently undergone a left ankle reconstruction requiring a left ankle and foot cast and crutches. (Id., ¶ 14). During her visit, Plaintiff had to provide a urine sample for a routine analysis. (Id., ¶ 16). A VA lab tech indicated that the custodian had just mopped the nearby restroom and suggested that Plaintiff use an alternative restroom. (Id.). The custodian interjected that the floor in the nearby restroom was in fact dry and ready to use. (Id. ¶ 17). Plaintiff used the nearby restroom, and after washing her hands, her crutch slipped and she fell. (Id. ¶ 21). Once on the floor, Plaintiff noticed there were water streaks on the floor allegedly from the mop. (Id. ¶ 22).

         As required by 28 U.S.C. § 2671, as a prerequisite to filing suit in federal court under the FTCA, Plaintiff filed an administrative claim on March 17, 2017, which was denied by the VA on August 31, 2017. Thereafter, Plaintiff filed the instant lawsuit pursuant to the Federal Tort Claims Act (“FTCA”) 28 U.S.C.A. §§ 1346(b); 2671, et seq. (Id., ¶ 5). Plaintiff alleges that the employees of the Government were acting within the scope of their employment with the VA; thus, the Government is liable under the doctrine of respondeat superior under federal and Louisiana law. (Id., ¶ 2).

         The Government files the instant motion to dismiss the case pursuant to the Federal Rules of Civil Procedure 12(b)(1). Plaintiff previously identified a VA employee Harold Breaux (“Breaux”) as the custodian, but the Government asserts that discovery reveals that Breaux was on leave the day of the incident. (Rec. Doc. 14-1, p. 2). The Government states that Lionel Campbell (“Campbell”), a veteran participating in the VA's Compensated Work Therapy program (“CWT”), was the individual that assured Plaintiff the floor in the restroom was dry and ready for use. (Id.). The Government argues that veterans participating in the CWT are not considered employees of the United States. (Id.). Since Campbell is not an employee of the United States, the FTCA waiver of sovereign immunity does not apply. (Id.). The Government secondly asserts that Campbell is not a borrowed servant or presumed employee of the United States because the CWT program is a discretionary function, and discretionary functions are specifically barred by the FTCA. (Id.).

         II. Legal Standard

         Federal courts are courts of limited jurisdiction and may only hear those cases authorized by the United States Constitution and federal statutes. Coury v. Prot, 85 F.3d 244, 248 (5th Cir.1996). Federal Rule of Civil Procedure 12(b)(1) provides that a party may assert that a court lacks subject matter jurisdiction. Upon the determination that the court lacks subject-matter jurisdiction, the court must dismiss the action. Fed.R.Civ.P. 12(h)(3).

         “A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.” Home Builders Ass'n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir.1998). “Courts may dismiss for lack of subject matter jurisdiction on any one of three different bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Clark v. Tarrant Cnty., 798 F.2d 736, 741 (5th Cir.1986). The burden of proof on a 12(b)(1) motion is on the party asserting jurisdiction over the claim. Ramming v. United States, 281 F.3d 158 (5th Cir.2001).

         III. Law and Analysis

         In the instant matter, the Government asserts that the FTCA waives sovereign immunity for claims that arise out of the negligent acts of federal employees. (Rec. Doc. 14, p. 2). The Government states that this Court lacks subject matter jurisdiction because the tortfeasor is not considered an employee of the United States. (Id.) The Government asserts that discovery identified Campbell as the tortfeasor (it was originally alleged by Plaintiff that Harold Breaux was the tortfeasor). (Rec. Doc. 14, p. 2). Campbell works at the VA through participation in the Compensated Work Therapy program (“CWT”). The Government cites 38 U.S.C. § 1718 to support its position that as a participant of the CWT, Campbell is expressly not an employee of the United States. (Id.). 38 U.S.C. § 1718 states,

In providing rehabilitative services under this chapter, the Secretary, upon the recommendation of the Under Secretary for Health, may use the services of patients and members in Department health care facilities for therapeutic and rehabilitative purposes. Such patients and members shall not under these circumstances be held or considered as employees of the United States for any purpose.

         Plaintiff counters that she does not concede to the fact that the custodian at issue is Campbell and not Breaux. (Rec. Doc. 15, p. 2). In the event the custodian is in fact Campbell, Plaintiff argues that the Government is vicariously liable for Campbell's negligence. (Id.). Plaintiff cites 28 U.S.C. § 1718 to assert that the FTCA's definition of “employee of the government” extends to include individuals such as Campbell. (Id., p. 3). Plaintiff argues that questions of ...

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