MG v. United States

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 M.G., Case No.: 19-cv-1252-TWR-AHG 11 Plaintiff, AMENDED ORDER GRANTING DEFENDANT’S MOTION TO 12 v. DISMISS WITHOUT PREJUDICE 13 UNITED STATES OF AMERICA, 14 Defendant. (Doc. No. 13) 15

16 United States of America (“Defendant” or “United States”) moves to dismiss with 17 prejudice Plaintiff M.G.’s (“Plaintiff”) complaint pursuant to Federal Rule of Civil 18 Procedure 12(b)(1) for lack of subject matter jurisdiction. (See Doc. No. 13.) Plaintiff filed 19 an opposition to Defendant’s motion to dismiss. (See Doc. No. 18.) Defendant filed a reply 20 in support of the motion. (See Doc. No. 19.) Pursuant to Civil Local Rule 7.d.1, the Court 21 finds the matter suitable for determination on the papers and without oral argument. For 22 the reasons discussed herein, the Court GRANTS Defendant’s motion to dismiss and 23 DISMISSES WITHOUT PREJUDICE Plaintiff’s cause of action for negligence to the 24 extent it is predicated on Defendant’s failure to warn and Defendant’s negligent 25 supervision and retention. 26 I. BACKGROUND 27 Plaintiff brings this complaint under the Federal Torts Claim Act (“FTCA”). (First 28 Amended Complaint (“FAC”), Doc. No. 10 ¶ 1.) Plaintiff alleges her psychiatrist, Leon 1 Fajerman, “committed acts of sexual harassment and negligent physical contact against” 2 Plaintiff for six months—from “January 2017 through June 2017.” (Id. ¶¶ 3, 26.) The 3 events took place at San Ysidro Health Center, a federally qualified health center, where 4 Plaintiff claims Dr. Fajerman has a “history and practice of sexually assaulting and 5 attacking his patients.” (Id. ¶¶ 4–5.) Plaintiff states, unbeknownst to her, Dr. Fajerman was 6 being investigated for similar conduct by the Medical Board, resulting in his license being 7 suspended in July 2017. (Id. ¶¶ 35, 39–40.) On “January 18, 2019, Dr. Fajerman was 8 sentenced to three years of probation and 365 days of house arrest” after pleading “guilty 9 to felony sexual contact with seven patients and misdemeanor sexual battery.” (Id. ¶¶ 45– 10 46.) 11 II. PROCEDURAL HISTORY 12 On July 8, 2019, Plaintiff filed her complaint against Defendant, alleging claims for 13 negligent failure to advise or warn, and negligent hiring, supervision, and retention under 14 the FTCA. (Complaint (“Compl.”) Doc. No. 1 ¶ 46.) Then on December 19, 2019, Plaintiff 15 filed an amended complaint alleging claims for negligent supervision and retention under 16 the FTCA. (FAC ¶ 54.) On January 21, 2020, Defendant filed a motion to dismiss for lack 17 of subject matter jurisdiction pursuant to the Federally Supported Health Centers 18 Assistance Act (“FSHCAA”), the FTCA’s waiver of sovereign immunity, and the 19 discretionary function exception. (Doc. No. 13.) Plaintiff partially opposed the motion, and 20 Defendant replied. (Doc. Nos. 18–19.) This order follows. 21 III. LEGAL STANDARD 22 A. Motion to Dismiss for Lack of Subject Matter Jurisdiction 23 “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. 24 Co., 511 U.S. 375, 377 (1994). Accordingly, “[a] federal court is presumed to lack 25 jurisdiction in a particular case unless the contrary affirmatively appears.” Stock W., Inc. v. 26 Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989). The party asserting subject 27 matter jurisdiction has the burden of persuasion for establishing it. Hertz Corp. v. Friend, 28 559 U.S. 77, 96 (2010). Pursuant to Rule 12(b)(1), a party may seek dismissal of an action 1 for lack of subject matter jurisdiction “either on the face of the pleadings or by presenting 2 extrinsic evidence.” Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 3 2003). Where the party asserts a facial challenge, the court limits its inquiry to the 4 allegations set forth in the complaint. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 5 (9th Cir. 2004). The Court assumes Plaintiff’s “[factual] allegations to be true and draw[s] 6 all reasonable inferences in [her] favor.” Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 7 2004). Where the party asserts a factual challenge, the Court may consider extrinsic 8 evidence demonstrating or refuting the existence of jurisdiction without converting the 9 motion to dismiss into a motion for summary judgment. Id. Defendant argues Plaintiff’s 10 complaint fails to state a claim that is facially outside of the FSHCAA or the discretionary 11 function exception to the FTCA. (Doc. No. 13 at 2.) Thus, the Court considers the 12 allegations in the complaint and draws all reasonable inferences in favor of Plaintiff. 13 B. Federal Tort Claims Act 14 As a general principle, the United States “may not be sued without its consent. . . .” 15 United States v. Mitchell, 463 U.S. 206, 212 (1983). The FTCA, however, is an example 16 of the federal government consent to be sued for certain types of actions. The FTCA 17 provides that the United States may be sued “for injury or loss of property, or personal 18 injury or death caused by the negligent or wrongful act or omission of any employee of the 19 Government while acting within the scope of his office or employment.” 42 U.S.C. 20 § 1346(b). The FTCA provides the exclusive remedy for tort lawsuits against the United 21 States and allows the United States to be held liable to the same extent as a private employer 22 under state law. 28 U.S.C. § 2679. Thus, California law governs this FTCA case. 28 U.S.C. 23 §§ 1346(b)(1), 2674. 24 The FSHCAA, 42 U.S.C. § 233, extends the application of the FTCA to certain 25 public health entities, their employees, and qualified contractors receiving federal grants 26 under 42 U.S.C. § 254(b). The entities typically covered by the FSHCAA are community 27 health centers that receive federal grants to serve underprivileged populations regardless 28 of their ability to pay for service. H.R. Rep. No. 104-398 at 5 (1995). 1 IV. DISCUSSION 2 Defendant argues the Court must dismiss the following claims: (1) failure to warn 3 and advise Plaintiff of Dr. Fajerman’s inappropriate conduct leading to his license being 4 reviewed; and (2) negligent supervision and retention of Dr. Fajerman. 5 The Court notes that Plaintiff’s partial opposition to Defendant’s motion to dismiss 6 states that Plaintiff does not allege Defendant’s “failure to warn her of Dr. Fajerman’s 7 suspended license and history of sexual misconduct is independently actionable under the 8 FTCA.” (Doc. No. 18 at 2). Thus, the Court GRANTS Defendant’s motion to dismiss to 9 the extent Plaintiff does not oppose the dismissal of the failure to warn and advise claim. 10 Next, the Court turns to Defendant’s motion to dismiss Plaintiff’s negligent supervision 11 and retention claim for lack of subject matter jurisdiction. 12 A. Negligent Supervision and Retention Are Related Functions under the 13 FHSCAA 14 Defendant argues that the San Ysidro Health Administration’s (“SYH”) supervision 15 and retention of Dr. Fajerman does not fall within the scope of FSHCAA’s and FTCA’s 16 waiver of sovereign immunity because these are “administrative/human 17 resources/employment [in] nature” that are “not the performance of medical, surgical, or 18 dental functions.” (Doc. No. 13 at 7). Additionally, Defendant continues to argue that 19 “related functions” as stated in FSHCAA does not encompass “supervisory and retention 20 decisions.” (Id. at 9.) Plaintiff retorts that the supervision and retention of a physician is a 21 “related function” under the FSHCAA. (Doc. No. 18 at 7). 22 In the Court’s recent decision in a companion case, the Court held that the plaintiff 23 established a basis for jurisdiction in her negligent hiring, supervision, and retention claim 24 based on the FSHCAA because the psychiatrist’s “actions were related to his treatment of 25 [plaintiff] and appears . . . to have arisen from his employment.” Sanchez v. United States, 26 No. 18-CV-1550-AJB-AGS, 2019 WL 3766615, at *4 (S.D. Cal. Aug. 9, 2019). The Court 27 in Sanchez based its analysis from two cases. First, it reasoned that a “[h]ealth [c]enter’s 28 obligation . . . for vetting its physicians are ‘inextricably woven into [its] performance of 1 medical functions.” Brignac v. United States, 239 F. Supp. 3d 1367, 1377 (N.D. Ga. 2017) 2 (quoting Teresa T. v. Ragaglia, 154 F. Supp. 2d 290, 300 (D. Conn. 2001)). Second, the 3 Court distinguished the plaintiff’s case from another case where the court there recognized 4 the sexual assault and murder of the victim was not related to the performance of dental 5 functions. See La Casa de Buena Salud v. United States, No. CIV 07-238 JB/RHS, 2008 6 WL 2323495, at *20 (D.N.M. Mar. 21, 2008). However, the Court eventually granted the 7 United States’ motion to dismiss the plaintiff’s negligent hiring, supervision, and retention 8 claim for lack of subject matter jurisdiction on the basis that the discretionary function 9 exception applies. Sanchez, 2019 WL 3766615, at *4. 10 Here, Defendant mainly raises similar arguments as those in Sanchez and admits 11 they “failed to persuade the Court[.]” (Doc. No. 13 at 13–14.) Because this case raises 12 substantially similar issues, the decision in Sanchez is dispositive. However, the Court 13 acknowledges Defendant advances an additional argument and contends that the phrase 14 “personal injury . . . resulting from the performance of medical, surgical, dental, or related 15 functions” is ambiguous and the Court should give Auer deference to the U.S. Department 16 of Health Services’ (“HHS”) limited application of the phrase to claims that “sound in 17 medical malpractice.” (Doc. No. 13 at 14.) 18 The Auer deference doctrine has recently been reassessed in a case before the United 19 States Supreme Court about a “Vietnam War veteran seeking disability benefits from the 20 Department of Veterans Affairs (VA).” Kisor v. Wilkie, 139 S. Ct. 2400, 2409 (2019). The 21 Court laid out the following markers to be met before Auer deference is applied: (1) the 22 regulation is genuinely ambiguous and a court must exhaust all the traditional tools of 23 construction; (2) the agency’s interpretation must be reasonable, under the text, structure, 24 and history of the regulation; (3) the agency’s interpretation must implicate its substantive 25 expertise; (4) the interpretation must be the agency’s authoritative or official position 26 reflecting the agency’s view, not merely an ad hoc statement; and (5) the agency’s reading 27 of the regulation must reflect fair and considered judgment. Id. at 2415–17; (See Doc. No. 28 19 at 3.) Although this Court recognizes that Auer deference gives agencies “significant 1 leeway to say what its own rules mean[,]” the Court emphasizes that Auer deference does 2 not “bestows on agencies expansive, ‘unreviewable’ authority.” Id. at 2415, 2418. “In 3 short, courts retain the final authority to approve—or not—the agency’s reading of a 4 notice-and-comment rule.” Id. at 2420. 5 Defendant urges this Court to conclude that the phrase “personal injury . . . resulting 6 from the performance of medical, surgical, dental, or related functions” is ambiguous after 7 applying all traditional tools of interpretation. (Doc. No. 19 at 3–4.) Although similar 8 arguments have been raised in Sanchez, the Court does not find that the phrase falls within 9 the realm of genuine ambiguity. Specifically, courts recognize the phrase as a form of 10 medical malpractice as Defendant suggests. See Brignac, 239 F. Supp. 3d at 1378 (holding 11 plaintiff’s negligent hiring and retention claim “arguably sounds in medical 12 malpractice[.]”); see also La Casa, 2008 WL 2323495, at *20 (remarking the “[c]ourt need 13 not decide whether negligent hiring, supervision, and retention of a doctor is never a form 14 of medical malpractice under the FSHCAA. Such activities, under certain circumstances, 15 could be medical malpractice[.]”). 16 Moreover, even if this Court defers to HHS’ interpretation, the FTCA Health Center 17 Policy Manual (“Policy Manual”) where Defendant points provides specific examples of 18 additional activities supporting the notion that supervision is an “act[] or omission[] of a 19 covered entity.” U.S. Dep’t of Health & Human Servs., Health Res. & Servs. 20 Administration, Federal Tort Claims Act Health Center Policy Manual, at 10 (July 21, 21 2014), available at 22 https://bphc.hrsa.gov/sites/default/files/bphc/ftca/pdf/ftcahcpolicymanualpdf.pdf. 23 The Policy Manual specifies: 24 [T]he supervision by a covered entity obstetrician of hospital staff during the delivery of a covered entity’s patient is covered by the FTCA when the care 25 to the . . . patient is a covered activity within the covered entity’s approved 26 scope of project and is within the scope of employment of the covered individual. 27

28 1 Id. at 10 (emphasis added). Similarly, SYH’s lack of supervision with regards to Dr. 2 Fajerman’s inappropriate conduct towards Plaintiff is a kind of activity covered because 3 the supervision is within SYH’s project scope and Dr. Fajerman’s psychiatric services are 4 within his employment scope as defined in the Policy Manual. Id. at 8. Thus, the Court 5 finds SYH’s supervision and retention of Dr. Fajerman are related functions under the 6 FSHCAA. 7 B. Discretionary Function Exception 8 Having determined that SYH’s supervision and retention of Dr. Fajerman are related 9 functions under the FSHCAA, the Court next turns to whether the discretionary function 10 exception under the FTCA applies. Where suit is brought against the United States, federal 11 courts have no jurisdiction absent the United States’ consent to be sued. See United States 12 v. Mitchell, 445 U.S. 535, 538 (1980). Certain federal statutes provide limited exceptions 13 to this general rule. For example, the FTCA grants the federal district courts exclusive 14 jurisdiction over civil actions against the United States for damages “caused by the 15 negligent or wrongful act or omission of any employee of the Government while acting 16 within the scope of his office or employment. . . .” 28 U.S.C. § 1346(b)(1). 17 The discretionary function exception (“DFE”) limits FTCA’s broad waiver of 18 sovereign immunity. This exception precludes claims against the United States which are 19 “based upon the exercise or performance or the failure to exercise or perform a 20 discretionary function or duty on the part of a federal agency or an employee of the 21 Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). In 22 order to determine whether the discretionary function exception applies, a court must 23 engage in a two-step inquiry: (1) the court must determine whether the challenged conduct 24 involves an element of judgment or choice, see Berkovitz v. United States, 486 U.S. 531, 25 536 (1988); and (2) if the conduct involves some element of choice, the court must 26 determine whether the conduct implements social, economic, or political policy 27 considerations, see Gasho v. United States, 39 F.3d 1420, 1435 (9th Cir. 1994). Plaintiffs 28 are required to advance a claim that is facially outside the discretionary function exception 1 in order to defeat a motion to dismiss. Prescott v. United States, 973 F.2d 696, 702 (9th 2 Cir. 1992). 3 Here, Defendant argues that even if SYH’s supervision and retention of Dr. 4 Fajerman are “related functions” under the FSHCAA, which waives the sovereign 5 immunity, it is still susceptible to a DFE analysis. First, Defendant contends step one of 6 the DFE analysis is satisfied because “Plaintiff does not allege that a federal statute, 7 regulation, or policy required a specific course of action by SYH officials regarding the 8 supervision or retention of Dr. Fajerman.” (Doc. No. 13 at 19.) Second, Defendant argues 9 step two of the DFE analysis is also “satisfied because SYH’s employment decisions based 10 on considerations of public policy . . . are discretionary acts the [DFE] removes from the 11 FTCA’s waiver of sovereign immunity.” (Doc. No. 13 at 22.) Applying the two-step test 12 here demonstrates that the discretionary function exception bars Plaintiff’s FTCA claim. 13 1. The challenged conduct involves an element of judgment or choice. 14 In determining whether an action or omission falls within the DFE, the court starts 15 with whether the challenged conduct involves an element of judgment or choice. “[T]he 16 requirement of judgment or choice is not satisfied if a ‘federal statute, regulation, or policy 17 specifically prescribes a course of action for an employee to follow,’ because ‘the 18 employee has no rightful option but to adhere to the directive.’” U.S. v. Gaubert, 499 U.S. 19 315, 322 (1991) (quoting Berkovitz, 486 U.S. at 536). “The exception covers only acts that 20 are discretionary in nature . . . and ‘it is the nature of the conduct, rather than the status of 21 the actor” that governs whether the exception applies.’” Id. at 335 (quoting United States 22 v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 812 23 (1984)). 24 In Sanchez, plaintiff “concede[d] the discretionary function generally applies to 25 employment decisions” thus, the Court did not proceed to further discuss the DFE’s first 26 step because it was not disputed. 2019 WL 3766615, at *5. Unlike Sanchez, Plaintiff here 27 argues SYH failed to follow its mandatory rules, regulations, and protocols “requir[ing] 28 SYH to take action in response to knowledge of or complaints about sexual harassment or 1 misconduct, including actions to prevent recurrence.” (FAC ¶ 37.) According to Plaintiff, 2 this failure to follow SYH’s own mandatory policies are not discretionary acts involving 3 an element of judgment or choice. (See Doc. No. 18 at 9.) On the other hand, Defendant 4 contends SYH’s policies “do not prescribe a specific course for SYH employees to follow 5 regarding their response to allegations of sexual misconduct by Dr. Fajerman,” and 6 therefore, SYH has discretion. (Doc. No. 19 at 7.) 7 Plaintiff specifically states the rules and policies impose an obligation to respond, 8 however, the alleged policies broadly requires SYH to “take action” and “prevent its 9 recurrence.” SYH employees are not provided with specific guidance or particular conduct 10 to fulfill the obligation. See French v. United States, 195 F. Supp. 3d 947, 953 (N.D. Ohio 11 2016) (quoting Montez ex rel. Estate of Hearlson v. United States, 359 F.3d 392, 396 (6th 12 Cir. 2004)) (“calling for government employees to ‘provide protection’ and ‘provide 13 safekeeping’ to inmates in federal prison—were not specific enough to give rise to non- 14 discretionary obligations”); Calderon v. United States, 123 F.3d 947, 950 (7th Cir. 1997) 15 (“While it is true that this statute sets forth a mandatory duty of care, it does not, however, 16 direct the manner by which the BOP must fulfill this duty. The statute sets forth no 17 particular conduct the BOP personnel should engage in or avoid while attempting to fulfill 18 their duty to protect inmates.”). Thus, without specific guidelines, SYH’s acts involved 19 discretion. 20 Nevertheless, even if Defendant is required to take action and prevent the recurrence 21 of the sexual assault, SYH’s mandatory rules, regulations, and protocols Plaintiff is 22 referring to does not rise to the level of federal law. Defendant argues SYH’s alleged 23 policies are irrelevant to the analysis of DFE step one because these “are not federal 24 statutes, regulations, or policies . . . prevent[ing] the [DFE] from applying at step one.” 25 (Doc. No. 13 at 22.) Defendant points out SYH is an employee for a limited purpose and 26 not a federal agency able to “promulgate rules, regulations, protocols, or policies 27 abrogating the United States’ sovereign immunity protection.” (Doc. No. 13 at 21–22.) In 28 order for SYH to have no discretion, its actions must be governed by a specific federal 1 statute, regulation, or policy. Berkovitz, 486 U.S. at 536. The rules and policies of SYH at 2 issue here are not federal regulations or policies. See Big Owl v. United States, 961 F. Supp. 3 1304, 1308 (D.S.D. 1997) (finding that Tribal School Board is an employee of the Bureau 4 of Indian Affairs and its staff handbook does not rise to the level of federal statute, 5 regulation, or policy). This Court finds Defendant’s rationale persuasive that it is unlikely 6 “each of the numerous health centers across the country deemed to be Public Health Center 7 employees for purposes of requiring certain suits to be brought against the United States 8 could promulgate their own policies that widened the potential liability against the United 9 States’ fisc.” (Doc. No. 13 at 22). In sum, the Court finds that step one of the DFE analysis 10 satisfied. 11 2. The conduct implements social, economic, or political policy considerations. 12 Next, under the two-step test, this Court must consider “whether that judgment is of 13 the kind that the discretionary function exception was designed to shield.” Gaubert, 499 14 U.S. at 322–23 (quotation marks omitted). With regard to the second step of the DFE 15 analysis, generally, the decisions relating to the hiring, supervision, and retention of 16 employees involve policy judgments of the type Congress intended the discretionary 17 function exception to protect. See Nurse v. United States, 226 F.3d 996, 1001 (9th Cir. 18 2000) (holding negligent employment, supervision and training claims “fall squarely 19 within the discretionary function exception”); see also Gourgue v. United States, No. 20 12CV-1490-LAB, 2013 WL 1797099, at *2 (S.D. Cal. Apr. 29, 2013) (“[T]he 21 Government’s decision of how to train and supervise its employees is the kind of decision 22 that the discretionary function was designed to protect because it is susceptible to a policy 23 analysis.”). The challenged action “need not be actually grounded in policy 24 considerations,” it simply needs to be, “by its nature, susceptible to a policy analysis.” 25 Miller v. United States, 163 F.3d 591, 593 (9th Cir. 1998). 26 Plaintiff argues that DFE does not apply in situations when a defendant failed to act 27 in response of an illegal conduct. See Tonelli v. United States, 60 F.3d 492, 496 (8th Cir. 28 1995). In Tonelli, the court held the DFE does not apply because the post office failed to 1 act when it had notice of a postal employee tampering with the plaintiff’s mail, thus the 2 choice no longer involves policy considerations. Id. at 494. However, this Court is not 3 bound by the Eight Circuit decision when the Ninth Circuit has applied the discretionary 4 function exception in similar circumstances and reached a contrary conclusion. 5 This case is more analogous to Doe v. Holy See, 557 F.3d 1066 (9th Cir. 2009). 6 There, the plaintiff claimed the Church negligently supervised and retained a priest whom 7 it knew or should have known that “had a history of sexually abusing children.” Id. at 1083. 8 The court held the plaintiff’s causes of action for negligent hiring and supervision, and 9 failure to warn are barred by the discretionary function exception. Id. at 1085. The court 10 reasoned that some of the policy considerations affecting the Church’s decision could have 11 been the harm to its reputation, the effect of pastoral stability on parishioners’ well-being, 12 and staffing shortages. Id. Thus, the court concluded the Church’s decision was susceptible 13 to policy considerations. Id. 14 Here, Plaintiff alleges “SYH knew or should have known about Dr. Fajerman’s 15 history and practice of sexual contact (or attempted sexual contact) with patients,” and “he 16 should not have been allowed to continue seeing female patients unattended.” (FAC ¶ 54.) 17 In Opposition, Plaintiff asserts Holy See “offers no reason to depart from Brignac and 18 Tonelli” because the court’s analysis did not consider the argument regarding defendant’s 19 failure to act in response to illegal conduct. (Doc. No. 18 at 10.) Although the Ninth Circuit 20 in Holy See did not further discuss the argument on failure to act in response to an illegal 21 conduct, it impliedly considered the argument by reversing the holding of the district court 22 where it denied the defendant’s motion to dismiss relying on the reasoning in Tonelli. For 23 the purposes of the second prong of the two-step test, the decision regarding supervision 24 and retention of Dr. Fajerman is still susceptible to policy considerations. 25 In the instant case, there was a pending investigation by California Medical Board 26 that led to the suspension of “Dr. Fajerman’s medical license in July 2017.” (FAC ¶ 39.) 27 At this point, the retention of Dr. Fajerman no longer involved any policy considerations. 28 In contrast, SYH might have decided to retain Dr. Fajerman to avoid unnecessarily 1 || alarming other patients while investigation was ongoing; SYH might have tried to balance 2 ||insuring public safety and providing fairness to the accused; or SYH might have some 3 ||staffing and funding concerns. These types of social, economic, or political policy 4 ||considerations could have influenced SYH’s decision to hire, supervise or retain Dr. 5 || Fajerman. This is the kind of judgment the DFE was designed to shield. Therefore, the 6 || second prong of the two-step inquiry is met, and Plaintiff’s complaint as pled is barred by 7 ||the DFE. As such, the United States’ motion to dismiss is GRANTED. 8 V. CONCLUSION 9 For the reasons stated above, the Court GRANTS Defendant’s motion to dismiss 10 || Plaintiffs failure to warn and advise theory as Plaintiff concedes it is not a relevant issue 11 || before this Court. (Doc. No. 13.). Moreover, the Court also GRANTS Defendant’s motion 12 || to dismiss without prejudice for lack of subject matter jurisdiction because Plaintiffs claim 13 |/is barred by the discretionary function exception to the extent it is predicated on 14 || Defendant’s negligent supervision and retention. See Hernandez v. Conriv Realty Assocs., 15 || 182 F.3d 121, 123 (2d Cir. 1999) (“Article II] deprives federal courts of the power to 16 || dismiss a case with prejudice where federal subject matter jurisdiction does not exist.”’). 17 || Plaintiffs negligence cause of action survives to the extent that it alleges that Dr. Fajerman 18 || was negligent in administering Plaintiff's medical and mental healthcare treatment. 19 Plaintiff MAY FILE an amended complaint on or before November 6, 2020. Should 20 || Plaintiff elect not to file an amended complaint, this action will proceed on □□□□□□□□□□□ 21 || surviving negligence theory. Defendant SHALL FILE a response to Plaintiff's operative 22 ||complaint on or before November 20, 2020. 23 IT IS SO ORDERED. 24 ||Dated: October 23, 2020 Tan (\obn— Honorable Todd W. Robinson 26 United States District Court 27 28 12