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Cavezza v. Metcalf

United States District Court, E.D. Kentucky, Central Division, Lexington

May 19, 2017

EMMA METCALF, et al., Defendants.



         Plaintiff Jessica Cavezza claims that she was sexually assaulted by another patient during a stay at the Veterans Affairs Hospital in Lexington, Kentucky, and seeks to hold several named and unnamed employees of the VA liable for their part in the incident. These named VA employees are Emma Metcalf, the Director of the VA Hospital in Lexington, Yvonne Chabot, Director of Patient Safety, Chauna Glinter, the nursing supervisor on the ward in which Cavezza was housed, and Marshell Danielson, Ruth Sadler, Bryan Trich, Mera Claybrook, Dora Hudson, Cynthia Carlson, and Elaine Lloyd, all registered nurses working the ward. (Collectively “defendant-employees”). The United States has moved to substitute itself as the party defendant in place of these named defendant-employees (DE 17) and has moved to dismiss the complaint (DE 18) for a lack of subject matter jurisdiction. For the reasons that follow, both motions will be GRANTED.


         On June 22, 2015, Jessica Cavezza voluntarily admitted herself to the VA Hospital in Lexington after a drug overdose. (Compl. ¶ 15). The next day, after falling asleep in her room while under sedation, Cavezza awoke to what she thought was the presence of someone in her room and the feeling of being touched. (Compl. ¶ 17). In her state of sedation, Cavezza was unsure of “exactly who or what went on that evening or how many times she felt there was someone beside her.” (Compl. ¶ 17).

         The next day, Jeff Crockett, a man with whom Cavezza had had a previous encounter weeks earlier, came into Cavezza's room and tried to assault her. (Compl. ¶ 18). Cavezza screamed, and Crockett left. Cavezza reported the incident to nurse Mera Claybrook, who told Cavezza that she could lock the door to her room. (Compl. ¶ 20).

         Crockett returned to Cavezza's room later the same day, wishing to speak with her. Cavezza obliged and Crockett entered her room and confessed to Cavezza that he was the man in the room the night before and that he had touched Cavezza while she was asleep. (Compl. ¶ 21).

         Cavezza reported the incident to members of the VA nursing staff and was transported to the University of Kentucky medical center for treatment. (Compl. ¶ 22).

         Cavezza brings the present action under 42 U.S.C. § 1983 against the defendant-employees alleging claims of failure to supervise (Count II) against the defendant nurses and nursing manager, a claim of negligent or intentional infliction of emotional distress (Count III) against the defendant nurses, nurse manager, and hospital director, and a claim of negligence (Count IV) against the defendant nurses, nurse manager, director of patient-safety, and hospital director.


         The United States has moved to substitute itself for the named defendant-employees and argues that substitution is statutorily required under either the VA Immunity Statute, 38 U.S.C. § 7316(a), or under the Westfall Act's immunity statute, 28 U.S.C. § 2679. As a threshold matter, it has attached to the motion a Certification from James G. Touhey, Jr., the Attorney General's designee, stating that each of the named defendant-employees was acting within the scope of his or her office or employment for the federal government as health care employees employed by the Veterans Health Administration of the United States Department of Veterans Affairs at the time the incidents out of which Cavezza's claim occurred. (DE 17, Ex. A, Certification). With this threshold requirement met without any objection from Cavezza, see 42 U.S.C. § 233(c) (“Upon a certification by the Attorney General that the defendant was acting in the scope of his employment . . . the proceeding [shall be] deemed a tort action brought against the United States.”); 28 C.F.R. § 15.4(a) (conveying authority to United States Attorneys to make statutory certifications), the Court turns to the substance of the claims made in Cavezza's complaint and concludes that substitution is appropriate in this case on two separate bases.


         “When federal employees are sued for damages for harms caused in the course of their employment, the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671-2680, generally authorizes substitution of the United States as the defendant.” Hui v. Castaneda, 559 U.S. 799, 801 (2010). First, 38 U.S.C. § 7316(a)(1) (hereinafter the “VA Immunity Statute”), applies in this case. Congress, through the VA Immunity Statute, made the FTCA the exclusive remedy for a plaintiff who sues a VA health care employee for negligence or malpractice. See 38 U.S.C. § 7316(a).

         The issue here is that Cavezza did not bring her claims under the FTCA, but under § 1983. In making this argument, [1] Cavezza makes several citations to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). In that case, the United States Supreme Court created the federal analogue to a § 1983 claim, holding that an individual has an implied private right of action against federal officers acting under color of law for violations of his or her constitutional rights. Id. at 395-96. The Court construes that Cavezza is arguing, at least in part, that she is entitled to a Bivens remedy, which is a remedy that runs parallel to a remedy found under the FTCA. Carlson v. Green, 446 U.S. 14, 19-20 (1980) (finding that “the congressional comments accompanying [the FTCA] made it crystal clear that Congress views FTCA and Bivens as parallel, complementary causes of action”). However, no matter how the Court construes the complaint in regard to the Cavezza's intended cause of action, substitution is proper.

         To decide whether a Bivens remedy is available, the Court must first ask “whether any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages.” Wilkie v. Robbins, 551 U.S. 537, 550 (2007). Even assuming that Cavezza alleges a Bivens claim, it must then be ...

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