United States District Court, E.D. Michigan, Southern Division
Stephanie Dawkins Davis U.S. Magistrate Judge.
ORDER GRANTING IN PART AND DENYING IN PART RALPH
RIGGS' MOTION FOR SUMMARY JUDGMENT ; GRANTING THE
UNITED STATES' MOTION TO DISMISS ; DENYING
PLAINTIFF'S MOTION FOR LEAVE TO FILE AMENDED COMPLAINT
J. Tarnow Senior United States District Judge.
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
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 , GRANT the United
States' Motion to Dismiss , and DENY
Plaintiff's Motion for Leave to File Amended Complaint
and Procedural Background
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
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.
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.
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.
filed this action on January 27, 2017. Defendant Riggs filed
a Motion for Summary Judgment  on March 31, 2017. The U.S.
filed a Motion to Dismiss  on April 7, 2017.
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 . The United States responded
on October 18, 2017 . Tolbert filed a Supplemental Brief 
on November 2, 2017.
The United States' Motion
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.
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.
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:
 against the United States,  for money damages . . .
 for injury or loss of property, or personal injury or
death  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,  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. §
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.
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