Sanchez v. United States of America

• Court: District Court, S.D. California
• Decided: March 10, 2020
• Docket: 3:18-cv-01550
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 LINDA SANCHEZ, Case No.: 18-cv-1550-AJB-AGS 11 Plaintiff, ORDER:

12 v. (1) GRANTING DEFENDANT’S 13 UNITED STATES OF AMERICA, and MOTION TO DISMISS, (Doc. No. 13) DOES 1 through 50, 14 Defendants. (2) GRANTING PLAINTIFF’S 15 MOTION FOR LEAVE TO AMEND COMPLAINT, (Doc. No. 19) 16 17 Defendant United States of America (“United States”) moves to dismiss with 18 prejudice Plaintiff Linda Sanchez’s (“Sanchez”) complaint pursuant to Federal Rules of 19 Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. (See Doc. No. 13.) Sanchez 20 filed an opposition to the United States’ motion to dismiss. (See Doc. No. 15.) In addition, 21 Sanchez requested leave to amend the complaint, or in the alternative, Sanchez asked for 22 continuance of the motion and leave to conduct discovery into SYHC’s rules, policies, and 23 procedures. (Doc. Nos. 15, 19.) The United States filed an opposition in part to Sanchez’s 24 motion for leave to amend the complaint. (See Doc. Nos. 16, 20.) Pursuant to Civil Local 25 Rule 7.d.1, the Court finds the matter suitable for determination on the papers and without 26 oral argument. For the reasons discussed herein, the Court GRANTS the United States’ 27 motion to dismiss, and GRANTS Sanchez’s motion for leave to amend her complaint. 28 // 1 I. BACKGROUND 2 Sanchez brings this complaint under the Federal Torts Claim Act (“FTCA”). 3 (Complaint (“Compl.”), Doc. No. 1 ¶ 1.) Sanchez alleges her psychiatrist, Leon Fajerman, 4 “committed acts of sexual harassment and contact against” Sanchez for three months— 5 from “May 2017 to mid-July 2017.” (Id. ¶ 3.) The alleged events took place at San Ysidro 6 Health Center (“SYHC”), a federally qualified health center, where Sanchez claims Dr. 7 Fajerman has a “history and practice of committing sexual acts against his patients.” (Id. 8 ¶ 4.) Sanchez details several incidents in which Dr. Fajerman acted inappropriately, 9 including groping her, showing up at her home, and pushing her onto his couch while 10 groping her, kissing her, and pressing his genitalia against her. (Id. ¶¶ 19–31.) Sanchez 11 states, unbeknownst to her, Dr. Fajerman was being investigated for similar conduct by the 12 Medical Board, resulting in his license being suspended. (Id. ¶¶ 34–36.) As a result, 13 Sanchez’s future appointments with Dr. Fajerman were cancelled and a nurse practitioner 14 “cut” her medication “by two-thirds without any taper” causing her to go into “withdraws.” 15 (Id. ¶ 36.) Finally, Sanchez claims SYHC dropped her from care several times without 16 explanation which caused delays in her medical treatment. (Id. ¶ 37.) 17 II. PROCEDURAL HISTORY 18 On July 6, 2018, Sanchez filed her complaint against the United States, alleging 19 claims for negligent hiring and supervision under the Federal Torts Claims Act. (Compl. 20 ¶¶ 40–53.) On August 21, 2019, the United States filed a motion to dismiss for lack of 21 subject matter jurisdiction pursuant to the discretionary function exception. (Doc. No. 13.) 22 Sanchez opposed the motion, and the United States replied. (Doc. Nos. 15–16.) Then on 23 January 30, 2020, Sanchez filed a motion for leave to amend the complaint. (Doc. No. 19.) 24 The United States opposed in part, and Sanchez replied. (Doc. Nos. 20, 23–24.) This order 25 follows. 26 // 27 // 28 // 1 III. LEGAL STANDARD 2 A. Motion to Dismiss for Lack of Subject Matter Jurisdiction 3 “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. 4 Co., 511 U.S. 375, 377 (1994). Accordingly, “[a] federal court is presumed to lack 5 jurisdiction in a particular case unless the contrary affirmatively appears.” Stock W., Inc. v. 6 Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989). The party asserting subject 7 matter jurisdiction has the burden of persuasion for establishing it. Hertz Corp. v. Friend, 8 559 U.S. 77, 96 (2010). Pursuant to Rule 12(b)(1), a party may seek dismissal of an action 9 for lack of subject matter jurisdiction “either on the face of the pleadings or by presenting 10 extrinsic evidence.” Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 11 2003). Where the party asserts a facial challenge, the court limits its inquiry to the 12 allegations set forth in the complaint. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 13 (9th Cir. 2004). The Court assumes plaintiff’s “[factual] allegations to be true and draw[s] 14 all reasonable inferences in [her] favor.” Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 15 2004). Where the party asserts a factual challenge, the Court may consider extrinsic 16 evidence demonstrating or refuting the existence of jurisdiction without converting the 17 motion to dismiss into a motion for summary judgment. Id. The United States argues 18 Sanchez’s complaint fails to state a claim that is facially outside of the discretionary 19 function exception to the FTCA. (Doc. No. 13 at 2.) Thus, the Court considers the 20 allegations in the complaint and draws all reasonable inferences in favor of Sanchez. 21 B. Motion for Leave to Amend the Complaint 22 Rule 15(a) governs leave to amend prior to trial. A party may amend its pleading 23 once as a matter of course within 21 days after serving it; or, if the pleading is one requiring 24 a response, within 21 days after service of the responsive pleading or motion. Fed. R. Civ. 25 P. 15(a)(1). “In all other cases, a party may amend its pleading only with the opposing 26 party’s written consent or the court’s leave. The court should freely give leave when justice 27 so requires.” Fed. R. Civ. P. 15(a)(2). 28 1 The grant or denial of leave to amend is in the Court’s discretion. Swanson v. U.S. 2 Forest Serv., 87 F.3d 339, 343 (9th Cir. 1996). “In exercising this discretion, a court must 3 be guided by the underlying purpose of Rule 15 to facilitate decision on the merits, rather 4 than on the pleadings or technicalities.” United States v. Webb, 655 F.2d 977, 979 (9th Cir. 5 1981). Consequently, the policy in favor of granting leave to amend is applied with extreme 6 liberality. See Foman v. Davis, 371 U.S. 178, 181–82 (1962). 7 IV. DISCUSSION 8 While the United States’ motion to dismiss was fully briefed and pending, Sanchez 9 filed a motion for leave to amend the complaint. (Doc. No. 19.) The United States opposed, 10 in part, Sanchez’s motion for leave to amend, arguing that although it did not necessarily 11 oppose Sanchez’s amendments, it opposed allowing the amendments to render moot its 12 previously filed motion to dismiss. (Doc. No. 20.) After review of the parties’ arguments, 13 and with consideration for judicial economy, the Court agrees with the United States and 14 finds it appropriate to address the United States’ pending motion to dismiss. Thus, the 15 Court will first begin with the United States’ motion to dismiss, and will then turn to 16 Sanchez’s motion for leave to amend. 17 A. The United States’ Motion to Dismiss for Lack of Subject Matter Jurisdiction 18 1. Discretionary Function Exception 19 Where suit is brought against the United States, federal courts have no jurisdiction 20 absent the United States’ consent to be sued. See United States v. Mitchell, 445 U.S. 535, 21 538 (1980). Certain federal statutes provide limited exceptions to this general rule. For 22 example, the FTCA grants the federal district courts exclusive jurisdiction over civil 23 actions against the United States for damages “caused by the negligent or wrongful act or 24 omission of any employee of the Government while acting within the scope of his office 25 or employment. . . .” 28 U.S.C. § 1346(b)(1). 26 However, FTCA’s broad waiver of sovereign immunity is limited by discretionary 27 function exception. This exception precludes claims against the United States which are 28 “based upon the exercise or performance or the failure to exercise or perform a 1 discretionary function or duty on the part of a federal agency or an employee of the 2 Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). In 3 order to determine whether the discretionary function exception applies, a court must 4 engage in a two-step inquiry: (1) the court must determine whether the challenged conduct 5 involves an element of judgment or choice, see Berkovitz v. United States, 486 U.S. 531, 6 536 (1988); and (2) if the conduct involves some element of choice, the court must 7 determine whether the conduct implements social, economic, or political policy 8 considerations, see Gasho v. United States, 39 F.3d 1420, 1435 (9th Cir. 1994). Plaintiffs 9 are required to advance a claim that is facially outside the discretionary function exception 10 in order to defeat a motion to dismiss. Prescott v. United States, 973 F.2d 696, 702 (9th 11 Cir. 1992). 12 In the instant motion, the United States argues the first step of the test is satisfied 13 because Sanchez fails to identify a federal statute, regulation, or policy that required 14 specific course of action by SYHC to respond to allegations against Dr. Fajerman. (Doc. 15 No. 13 at 7.) Furthermore, the United States contends, the second step is satisfied because 16 the SYHC’s hiring, supervision, and retention of Dr. Fajerman involved an element of 17 choice based on social, economic, or political policy considerations. (Id. at 8.) Therefore, 18 the United States asserts the “discretionary function” exception bars Sanchez’s lawsuit. 19 In her Opposition, Sanchez does not dispute the first prong and concedes the 20 discretionary function exception generally applies to employment decisions.1 (Doc. No. 15 21 at 8.) But Sanchez disputes the second prong, arguing the “discretionary function” 22 exception should not apply “where Government fails to act after receiving notice of illegal 23 behavior.” (Id. at 5.) The crux of Sanchez’s argument is that “no policy could possibly 24 support [United States’] failure to respond to notice of illegal conduct.” Id. In her 25 complaint, Sanchez alleges “SYHC continu[ed] to schedule appointments for Dr. Fajerman 26 to see [Sanchez] despite knowing or having reason to know that he posed a danger to his 27 1 However, in her motion for leave to amend, Sanchez states she now has sufficient facts to mount an 28 1 clients.” (Compl. ¶ 48.) Thus, Sanchez contends the discretionary function exception is 2 inapplicable because there is no plausible policy consideration that could support the 3 United States’ failure to act. 4 With regard to the second prong of the discretionary function exception analysis, 5 generally, the decisions relating to the hiring, supervision, and retention of employees 6 involve policy judgments of the type Congress intended the discretionary function 7 exception to shield. See Nurse v. United States, 226 F.3d 996, 1001 (9th Cir.2000) (holding 8 negligent employment, supervision and training claims “fall squarely within the 9 discretionary function exception”); see also Gourgue v. United States, No. 12CV-1490- 10 LAB, 2013 WL 1797099, at *2 (S.D. Cal. Apr. 29, 2013) (“[T]he Government’s decision 11 of how to train and supervise its employees is the kind of decision that 12 the discretionary function was designed to protect because it is susceptible to a policy 13 analysis.”). The challenged action “need not be actually grounded in policy 14 considerations,” it simply needs to be, “by its nature, susceptible to a policy analysis.” 15 Miller v. United States, 163 F.3d 591, 593 (9th Cir. 1998). 16 Sanchez argues this Court should follow the reasoning in Tonelli v. United States, 17 60 F.3d 492 (8th Cir. 1995). There, the court recognized that issues of employee 18 supervision and retention generally involve the permissible exercise of policy judgment 19 and fall within the discretionary function exception. Id. 496. However, the court held that 20 where the United States is put on notice of illegal conduct, the choice no longer involves 21 plausible policy considerations. Id. However, this Court is not bound by the Eight Circuit 22 decision when the Ninth Circuit has applied the discretionary function exception in similar 23 circumstances, and reached a contrary conclusion. In addition, the facts in Tonelli are 24 distinguishable from the facts present in this case. Here, Sanchez merely alleges “SYHC 25 knew or should have known about Dr. Fajerman’s history and practice of sexual contact 26 (or attempted sexual contact) with patients.” (Compl. ¶ 36.) In contrast, the plaintiffs in 27 Tonelli alleged the United States had actual and detailed notice of an employee’s ongoing 28 illegal conduct and failed to act to the plaintiffs’ own complaint. Tonelli, 60 F.3d at 494– 1 95. As currently pled, there is neither an indication that the United States failed to act in 2 response to Sanchez’s complaints nor are there facts pled as to the specifics of the notice 3 the United States allegedly had. 4 This case is more analogous to Doe v. Holy See, 557 F.3d 1066 (9th Cir. 2009). 5 There, the plaintiff claimed the Church negligently supervised and retained a priest whom 6 it knew or should have known that “had a history of sexually abusing children.” Id. at 1083. 7 The court held the plaintiff’s causes of action for negligent hiring and supervision, and 8 failure to warn are barred by the discretionary function exception. Id. at 1085. The court 9 reasoned that some of the policy considerations affecting the Church’s decision could have 10 been the harm to its reputation, the effect of pastoral stability on parishioners’ well-being, 11 and staffing shortages. Id. Thus, the court concluded the Church’s decision was susceptible 12 to policy considerations. Id. 13 Similarly, here, Sanchez alleges “SYHC knew or should have known about Dr. 14 Fajerman’s history and practice of sexual contact (or attempted sexual contact) with 15 patients,” and “he should not have been hired or retained.” (Compl. ¶¶ 47, 50.) In 16 Opposition, Sanchez asserts Holy See is not applicable here because it involved decision 17 regarding notice of prior illegal conduct while in Tonelli, the United States had a notice of 18 ongoing illegal conduct. (Doc. No. 15 at 9.) However, for the purposes of the second prong 19 of the two-step test, the decision need not actually be based on policy considerations. 20 Rather, this prong is met when the decision is simply susceptible to policy considerations. 21 Assuming, arguendo, SYHC had notice of ongoing illegal conduct, the decision regarding 22 the retention and supervision of Dr. Fajerman is still susceptible to policy considerations. 23 In the case of Dr. Fajerman, SYHC might have decided to retain him to avoid 24 unnecessarily alarming other patients while investigation was ongoing, or SYHC might 25 have tried to balance insuring public safety and providing fairness to the accused. 26 Furthermore, the complaint alleged that “after Dr. Fajerman’s medical license was 27 suspended by the Medical Board, SYHC cancelled Sanchez’s outstanding appointments.” 28 (Compl. ¶ 36.) At this point, the retention of Dr. Fajerman no longer involved any policy 1 considerations. In contrast, SYHC’s decision to retain and supervise an employee while 2 the employee’s license was being reviewed for suspension included policy considerations 3 such as fairness to the accused and public safety. These types of social, economic, or 4 political policy considerations could have influenced SYHC’s decision to hire, supervise 5 or retain Dr. Fajerman. This is the kind of judgment the discretionary function exception 6 was designed to shield. Therefore, the second prong of the two-step inquiry is met, and 7 Sanchez’s complaint as pled is barred by the discretionary function exception. As such, the 8 United States’ motion to dismiss is GRANTED. 9 B. Sanchez’s Motion for Leave to Amend 10 Having addressed the United States’ motion, the Court now turns to Sanchez’s 11 motion for leave to amend. Sanchez requests leave to add new facts reflecting: 12 • Recently discovered information indicating SYHC employees had actual notice of 13 acts of sexual misconduct by Dr. Fajerman prior to the allegations of misconduct 14 that form the basis of Sanchez’s negligent hiring, supervision, and retention claim; 15 • Recently obtained SYHC policy and procedure regarding provider sexual 16 misconduct, which Sanchez argues is relevant to the first prong of the discretionary 17 exception doctrine analysis; and 18 • Recently discovered information and intervening California case law supporting a 19 direct negligence claim, which is a separate claim from Sanchez’s claim for 20 negligent supervision and retention. 21 (Doc. No. 19 at 5.) 22 In sum, based on these proposed facts, Sanchez requests leave to add: (1) new facts 23 in support of Sanchez’s negligent supervision and retention claim, (2) a direct negligence 24 claim against the United States for failure to protect against foreseeable sexual abuse, and 25 (3) a direct negligence claim against the United States for failure to protect against 26 foreseeable criminal conduct. (Id. at 5–6.) After review of the proposed amendments, and 27 finding no undue delay, bad faith, or dilatory motive, the Court finds it appropriate to 28 GRANT Sanchez leave to amend her complaint. See Knappenberger v. City of Phoenix, 1 || 566 F.3d 936, 942 (9th Cir. 2009) (“Where dismissal is appropriate, a court should grant 2 || leave to amend unless the plaintiff could not possibly cure the defects in the pleading.”). 3 Vv. CONCLUSION 4 For the reasons stated above, the Court GRANTS the United States’ motion to 5 ||dismiss Sanchez’s complaint. (Doc. No. 13.) Moreover, the Court also GRANTS 6 || Sanchez’s motion for leave to amend. See Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 7 || 1048, 1052 (9th Cir. 2003) (“Dismissal with prejudice and without leave to amend is not 8 || appropriate unless it is clear . . . that the complaint could not be saved by amendment.”). 9 || Sanchez will have twenty-one (21) days from the date of this Order to file her amended 10 ||complaint addressing the deficiencies noted herein. Failure to file an amended complaint 11 |} will result in dismissal of this case. 12 13 || IT ISSO ORDERED. 14 || Dated: March 10, 2020 | □□ 2 : Le 15 Hon. Anthony Battaglia 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28