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Tolbert v. United States

United States District Court, E.D. Michigan, Southern Division

December 21, 2017

Edwina Tolbert, Plaintiff,
United States of America, et al., Defendants.

          Stephanie Dawkins Davis U.S. Magistrate Judge.


          Arthur J. Tarnow Senior United States District Judge.

         Plaintiff Edwina Tolbert, a military veteran who was medically discharged from service, treated at the Detroit Veterans' Administration Medical Center (“VA”) for posttraumatic stress disorder (“PTSD”) and alcohol dependence from February 2013 through December 2014. It was there that she met her substance abuse counselor, Defendant Ralph Riggs, with whom she eventually became romantically involved. Tolbert alleges that throughout their relationship, Riggs encouraged her alcohol consumption. This and other behaviors, none of which are explained in detail, rendered Riggs' counseling harmful and ineffective, and caused Tolbert to endure significant mental and emotional distress. She brings this action against Riggs and the United States for negligence, vicarious liability, and professional malpractice under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b)(1), 2401 et seq.

         Tolbert provides little detail about the factual background of the case, and much of her complaint fails to allege “more than a sheer possibility that [Defendants] acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). For these reasons, and those explained in depth below, the Court will GRANT IN PART and DENY IN PART Ralph Riggs' Motion for Summary Judgment [8], GRANT the United States' Motion to Dismiss [9], and DENY Plaintiff's Motion for Leave to File Amended Complaint [17].

         Factual and Procedural Background

         Plaintiff Edwina Tolbert is a military veteran. She was medically discharged from service in 2003 due to suffering PTSD as a result of a sexual assault. Tolbert's psychological health deteriorated over the years and she developed an alcohol dependency.

         Tolbert sought treatment at the Detroit VA in February 2013. She was assigned to work with Defendant Ralph Riggs, a substance abuse counselor at the VA. Riggs learned of Tolbert's health issues by reviewing her intake history and meeting with Tolbert in individual and group therapy sessions.

         At some point during the course of the therapy, Tolbert and Riggs began a romantic sexual relationship. According to Tolbert, Riggs knew that she was in a vulnerable place, and he manipulated and abused her. In addition, notwithstanding the fact that Plaintiff was in recovery for her alcohol dependency, Riggs encouraged her to drink alcohol.

         As a result of Riggs' actions, Plaintiff's conditions demonstrably worsened, and she continued to endure significant mental and emotional distress that exacerbated her PTSD and alcohol dependence.

         Plaintiff filed this action on January 27, 2017. Defendant Riggs filed a Motion for Summary Judgment[1] [8] on March 31, 2017. The U.S. filed a Motion to Dismiss [9] on April 7, 2017.

         On October 11, 2017, with just over a week before the hearing on Defendants' motions, Tolbert filed a Motion for Leave to File an Amended Complaint [17]. The United States responded on October 18, 2017 [18].[2] Tolbert filed a Supplemental Brief [20] on November 2, 2017.

         I. The United States' Motion

         Legal Standard

         The United States moves to dismiss Tolbert's claims for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). The United States launches a factual attack on jurisdiction, which means that it challenges “the factual existence of subject matter jurisdiction.” Cartwright v. Garner, 751 F.3d 752, 759-60 (6th Cir. 2014). Accordingly, Tolbert's factual allegations do not get the benefit of the presumption of truthfulness, and the Court may “weigh the evidence and satisfy itself as to the existence of its power to hear the case.” United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994).


         A. Vicarious Liability

         The United States argues that Tolbert's claims are barred by sovereign immunity because she does not allege facts indicating that Riggs acted within the scope of his employment when he engaged in the allegedly tortious conduct.

         “Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.” FDIC v. Meyer, 510 U.S. 471, 475 (1994). Sovereign immunity precludes district courts' jurisdiction over most causes of action. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998). However, the United States has waived its sovereign immunity, “and ‘rendered' itself liable, ” for certain categories of torts, including those that are:

[1] against the United States, [2] for money damages . . . [3] for injury or loss of property, or personal injury or death [4] caused by the negligent or wrongful act or omission of any employee of the Government [5] while acting within the scope of his office or employment, [6] under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

Meyer, 510 U.S. at 477 (quoting 28 U.S.C. § 1346(b)).

         Federal district courts have jurisdiction over claims that are “actionable under § 1346(b). And a claim is actionable under § 1346(b) if it alleges the six elements outlined above.” Id.

         “[T]he determination of whether an employee of the United States acted within her scope of employment is a matter of state law.” Flechsig v. United States, 991 F.2d 300, 302 (6th Cir. 1993). In Michigan, an employee acts within the scope of employment when he is “engaged in the service of his master, or while about his master's business.” Hamed v. Wayne County, 803 N.W.2d 237, 244-45 (Mich. 2011). If the employee “steps aside from his employment to . . . accomplish some purpose of his own, ” his conduct falls outside the purview of the statute. Green v. Shell Oil Co., 181 Mich.App. 439, 444 (1989). The Court must determine “whether the employee ‘could in some way have been held to have been ...

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