United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
KAREN K. CALDWELL, Chief District Judge.
This matter is before the Court a motion to dismiss brought by defendant James M. Fetter III, M.D. (DE 16). For the reasons stated below, defendant's motion will be granted.
This action arises out of a blood test ordered by defendant James M. Fetter, III, M.D. ("Dr. Fetter") in the course of his psychiatric treatment of plaintiff Harry Small. In January of 2013, Small visited Dr. Fetter, a psychiatrist at the Lexington Veterans Affairs Medical Center ("VAMC"). (DE 11 Am. Compl. at ¶ 10.) According to plaintiff, during the appointment Dr. Fetter "ordered a blood test from Small. Without telling Small and without giving Small the chance to decline to be tested for HIV and drugs, Fetter tested Small's blood for drugs and HIV antibodies." (DE 11 Am. Compl. at ¶ 12.) Small alleges that he did not consent "to any form of HIV or drug testing" and that he only learned of the testing when he received a phone call from the VAMC billing department. (DE 11 Am. Compl. at ¶ 11; DE 17-1 Pl.'s Resp. to Def.'s Mot. to Dismiss at 2.) Plaintiff further alleges that his medical file contains no documentation that Dr. Fetter tested him for drugs or HIV or that Dr. Fetter obtained the consent required under KRS § 214.625 to test him for HIV. (DE 11 Compl. at ¶¶ 13, 16.) Small asserts that he later learned he was tested for HIV "because he was a veteran and there had been a recent uptick in HIV cases among veterans in Kentucky." (DE 11 Am. Compl. at ¶ 15.) Small contends that he has suffered "severe emotional distress" as a result of Dr. Fetter's actions. (DE 11 Am. Compl. at ¶ 14.)
On December 18, 2013, Small filed a complaint against Dr. Fetter in Fayette Circuit Court alleging that Dr. Fetter's actions constituted negligence per se, invasion of privacy, battery, defamation, and intentional infliction of emotional distress. (DE 1-1). On January 6, 2014, the United States Attorney for the Eastern District of Kentucky certified that Dr. Fetter was acting within the scope of his federal employment at the time of the alleged incidents giving rise to this case. (DE 3). The United States then removed the action to this Court and successfully moved to be substituted as the sole defendant in this action. (DE 1, 2, and 4).
On January 31, 2014, plaintiff sought leave to file an amended complaint, and the Court subsequently granted his motion. (DE 10). Small's amended complaint replaces his tort claims with Fourth and Fifth Amendment claims against Dr. Fetter in his individual capacity, pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). (DE 11 Am. Compl. at 2-3.) Specifically, the amended complaint alleges that Dr. Fetter violated Small's Fourth Amendment right to be free from illegal searches and seizures "because the search, the HIV and drug testing, was unreasonable in light of Small's right to privacy and because nothing in Small's medical history, other than his status as a veteran, indicated that he was at risk for HIV or drug use." (DE 11 Am. Compl. at ¶ 19.) Plaintiff alleges that Dr. Fetter violated his Fifth Amendment rights "because [plaintiff] was deprived of the right to be free from unlawful HIV testing, the right to privacy, and the right to be secure in his person without due process of law, " and that that his right to privacy was violated "because he was tested for HIV and drugs without his consent." (DE 11 Am. Compl. at ¶¶ 20-21.) Plaintiff acknowledges that "[a]t the time of the incident, Fetter acted within the scope of federal employment." (DE 11 Am. Compl. ¶ 2.)
Dr. Fetter has filed a motion to dismiss under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, arguing that the VA Immunity Statute, 38 U.S.C. § 7316(a)(1), gives him absolute immunity from Bivens actions by making a suit against the United States under the Federal Tort Claims Act ("FTCA") the exclusive remedy for harms caused by VA medical personnel in the course of their medical duties. In the alternative, Dr. Fetter asserts that qualified immunity bars the suit against him. (DE 16). Plaintiff objects to defendant's request for dismissal and argues that his constitutional claims do not fall within the scope of the VA Immunity Statute so Bivens is an appropriate remedy and that Dr. Fetter is not entitled to qualified immunity. (DE 17).
II. Standards of Review
"Where subject matter jurisdiction is challenged pursuant to Rule 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion." Moir v. Greater Cleveland Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990) (citation omitted). "Challenges to subject-matter jurisdiction fall into two general categories: facial attacks' - which argue that the pleading allegations are insufficient - and factual attacks' - which challenge the factual veracity of the allegations." Caspar v. Snyder, No. 14-CV-11499, 2015 WL 224741, at *4 (E.D. Mich. Jan. 15, 2015) (quoting United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994)). Upon a facial attack, "the court must take the material allegations of the petition as true and construed in the light most favorable to the nonmoving party." Ritchie, 15 F.3d at 598. On a motion raising a factual attack, "no presumptive truthfulness applies to the factual allegations, and the court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Id. (citing Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990)).
In considering whether to grant a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the court must view the allegations in the complaint in the light most favorable to the plaintiff, treating all well-pleaded facts as true. See Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009)). "Although the complaint need not contain detailed factual allegations, ' Rule 8(a)(2) of the Federal Rules of Civil Procedure demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.'" Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 369 (6th Cir. 2011) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). "As the Supreme Court explained in Iqbal: A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.'" Id. (citation omitted). Moreover, "it is well settled that a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). "A claim is plausible on its face if the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Id. (quoting Twombly, 550 U.S. at 556). Plausibility "asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678.
When a defendant seeks dismissal under Rules 12(b)(1) and 12(b)(6) in the alternative, the Court must "consider the 12(b)(1) motion first, since the Rule 12(b)(6) challenge becomes moot if this court lacks subject matter jurisdiction." Moir, 895 F.2d at 269 (citing Bell v. Hood, 327 U.S. 678, 682 (1946)). While this Court has subject matter jurisdiction over a properly stated Bivens claim, see 28 U.S.C. § 1331, plaintiff's allegations fail to state a claim of constitutional dimension, as required under Bivens. See Hill v. Lappin, 630 F.3d 468, 471 (6th Cir. 2010) ("To succeed on a Bivens action, a plaintiff must first establish a constitutional violation."). Accordingly, Dr. Fetter's motion to dismiss will be granted.
In Bivens, the United States Supreme "Court recognized for the first time an implied private action for damages against federal [agents and] officers alleged to have violated a citizen's constitutional rights.'" Iqbal, 556 U.S. at 675 (quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001)). The Bivens Court "held that a victim of a Fourth Amendment violation by federal officers may bring suit for money damages against the officers in federal court." Malesko, 534 U.S. at 66. In the decade following Bivens, the Supreme Court "recognized two more nonstatutory damages remedies, the first for employment discrimination in violation of the Due Process Clause, Davis v. Passman, 442 U.S. 228 (1979), and the second for an Eighth Amendment violation by prison officials, Carlson v. Green, 446 U.S. 14 (1980)." Wilkie v. Robbins, 551 U.S. 537, 549-50 (2007).
"But since the Supreme Court's last decision to authorize a Bivens remedy in 1980, the Court has refused to extend Bivens liability to any new context or new category of defendants.'" Ingram v. Faruque, 728 F.3d 1239, 1243 (10th Cir. 2013) (quoting Malesko, 534 U.S. at 68). Indeed, even though the "Court has had to decide in several different instances whether to imply a Bivens action[, ]... in each ...