Gault v. United States

RUSSELL KEITH GAULT, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

No. 1:20-cv-123-AW-GRJ

United States District Court, N.D. Florida, Gainesville Division

July 22, 2021

REPORT AND RECOMMENDATION

GARY R. JONES United States Magistrate Judge

Plaintiff initiated this case by filing a complaint pursuant to the Federal Tort Claims Act, 28 U.S.C. §1346(b) and §§ 2671-2680 (“FTCA”). Plaintiff is proceeding pursuant to an Amended Complaint, ECF No. 5 (hereafter “Complaint”). This case is now before the Court on ECF No. 12, the United States' motion to dismiss the Complaint for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6) and for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). For the following reasons, it is respectfully recommended that the Complaint be dismissed with prejudice for failure to state a claim upon which relief may be granted.

I. Background

Plaintiff alleges that on the night of May 6, 2016, he was being treated for an “elevated mood episode” at the Malcolm Randall VA Medical Center. Plaintiff asked Nurse Jordan to raise the temperature in Plaintiff's room. Jordan instead lowered the temperature. Plaintiff later requested again that Jordan raise the temperature. Plaintiff alleges that Jordan laughed and raised the temperature “significantly, ” making Plaintiff's room “uninhabitable”. Plaintiff asked Nurse Branca for an alternative place to sleep but Branca stated that nothing was available. Plaintiff tried to sleep on the hallway floor but was unable to sleep and his mood became more elevated. ECF No. 5 at 6-7, 11.

The following morning, Plaintiff asked Nurse Delany to lower the temperature in his room. He alleges that Delany “mocked” him “by making an exaggerated sad face.” Id. at 11. Plaintiff alleges that throughout the morning and afternoon of May 7 he repeatedly complained that his room was uninhabitable. Plaintiff did not sleep and his mood became more elevated. Id.

In the early afternoon, Nurse Greif offered Plaintiff a “seclusion room” in which to sleep. When Greif could not explain why a seclusion room was not offered to him earlier, Plaintiff's mood became “more elevated than it had ever been during my thirty-two years of being bipolar.” Plaintiff began “shouting uncontrollably”. He alleges that Greif guaranteed that he would not be injected with drugs against his will if he accepted her offer to enter the seclusion room. Plaintiff entered the seclusion room, and after 15 minutes of shouting and banging on the walls he became exhausted and laid down on a mattress. He alleges VA employees then entered the seclusion room and injected him with drugs against his will. He alleges that Delany performed the injection, laughing as she did so. Id. at 12.

Plaintiff claims that “[n]othing inflicts greater emotional distress upon me than an elevated mood episode, including severe outrage, indignation, disconcertion, anguish apprehension, anxiety, and betrayal. My episode was aggravated from 06 May 2016 through 25 June 2016.” For relief, Plaintiff seeks $250, 000 in damages. Id. at 7.

Plaintiff alleges that he submitted an administrative claim under the FTCA on April 2, 2018.^[1] ECF No. 5 at 9. The claim was denied by letter dated February 19, 2020. Id. This case was filed on May 22, 2020. See ECF No. 1.

The United States' motion to dismiss, ECF No. 12, first observes that the Amended Complaint “appears to assert a medical malpractice claim under the FTCA.” ECF No. 12 at 3. Defendant argues that the acts alleged by Plaintiff, even if true, do not fall within the statutory definition of medical malpractice under Florida law. Defendant contends that the only allegation that pertains to rendering of medical treatment is the claim that Plaintiff was given an injection to sedate him because he was shouting and banging on the walls. However, Plaintiff does not allege that he was given the wrong kind of injection or that the nurses breached any duty of care by giving him the injection. Id. at 4-5. Defendant argues that if the acts alleged in the Amended Complaint sound in medical malpractice, then the Florida malpractice statute will be expanded far beyond its intended scope. Id. at 5.

Next, Defendant argues that even if the Amended Complaint states a cognizable medical malpractice claim under the FTCA this Court lacks subject matter jurisdiction based on Florida's statute of repose. See Fla. Stat. § 95.11(4)(b) (“in no event shall [a medical malpractice action] be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued.”). Defendant concedes that there is a split of authority on whether the FTCA preempts the Florida statute, but argues that the better view is that because Plaintiff's claim would be barred if brought against a private party, it should not stand against the United States pursuant to the FTCA's incorporation of the substantive law of the state where the claim arose. ECF No. 12 (citing Spann v. United States, No. 11-CV-23178-KMM, 2012 WL 3776684, at *5 (S.D. Fla. Aug. 30, 2012) (holding that “any Plaintiff who did not bring their claim within four years of their colonoscopy is barred under Florida's statute of repose”); but see Blau v. United States, No. 8:12-CV-2669-T-26AEP, 2013 WL 704762 (M.D. Fla. Feb. 26, 2013) (Florida's statute of repose is preempted by FTCA); Huntoon v. United States, No. 1:14CV178-MW/GRJ, 2017 WL 11500195, at *2 (N.D. Fla. Sept. 23, 2017) (same).

In opposition to dismissal, Plaintiff clarifies that it was the “negligent or wrongful operation of the building's HVAC system” that rendered his room uninhabitable and caused him to suffer sleep deprivation, which severely aggravated his elevated mood. ECF No. 17 at 4-6. He contends that the VA's psychiatric ward employees' acts of laughing at him and mocking him are “not part of the basis” for his claim, but rather reflect indifference to rendering proper medical care, and that acts which deprived him of sleep amount to a breach of the prevailing professional standard of care. Id. at 6. Plaintiff represents that injecting him with drugs against his will “was not a wrongful act, and is not part of the basis for the claim, ” but rather reflects that his condition had become severely aggravated. Id. at 6-7. Plaintiff asserts that the employees' acts were contrary to the VHA Handbook governing inpatient mental health services. He concludes that Defendant had a duty of care to him, breached that duty, that the breach was the proximate cause of injury to him, and that he suffered actual damages, thereby giving rise to tort liability. ECF No. 21 at 3-10. He further argues that Florida's statute of repose is preempted by the FTCA, and therefore his complaint is timely. ECF No. 17 at 8-17.

II. STANDARD OF REVIEW

Determining whether a complaint should be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failing to state a claim upon which relief may be granted turns on whether the plaintiff has alleged sufficient plausible facts to support his claims. Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). As the Supreme Court held in Twombly, “[f]actual allegations must be enough to raise a right to relief above the speculative level, ” and the complaint “must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.” Id. at 555.

Twombly “expounded the pleading standard for all civil actions, ” and conclusory allegations that “amount to nothing more than a formulaic recitation of the elements of a constitutional . . . claim” are “not entitled to be assumed true . . . .” Ashcroft v. Iqbal, 556 U.S. 662, 1951-53 (2009). To escape dismissal, the complaint must allege facts sufficient to move claims “across the line from conceivable to plausible.” Id. “The plausibility standard is met only where the facts alleged enable ‘the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.' . . . . The complaint's allegations must establish ‘more than a sheer possibility that a defendant has acted unlawfully.'” Franklin v. Curry, 738 F.3d 1246, 1251 (11th Cir. 2013) (quoting Iqbal, 556 U.S. at 678).

III. DISCUSSION

Sovereign immunity protects the federal government and its agencies from civil liability. Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996 (1994). The FTCA, however, provides a limited waiver of sovereign immunity for tort claims. Motta ex rel. A.M. v. United States, 717 F.3d 840, 843 (11th Cir. 2013). The FTCA confers on federal district courts exclusive jurisdiction to hear claims against the United States for money damages “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.” 28 U.S.C. § 1346(b)(1). The limited waiver of sovereign immunity is strictly construed in favor of the United States. Dolan v. U.S. Postal Serv., 546 U.S. 481, 491, 126 S.Ct. 1252 (2006). The FTCA makes the United States liable to the same extent as a private individual under similar circumstances under the law of the place where the tort occurred, subject to enumerated exceptions to the immunity waiver. Levin v. United States, 568 U.S. 503, 506-07, 133 S.Ct. 1224, 185 L.Ed.2d 343 (2013).

The Court turns first to Defendant's argument that the Amended Complaint is due to be dismissed for failure to state a claim, because that issue is dispositive of this case. Florida law defines “medical malpractice” as “a claim, arising out of the rendering of, or the failure to render, medical care or services.” Fla Stat. § 766.106(1)(a). The fact that a claim arises in a medical setting does not...