United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, Jr., District Judge.
This matter is before the Court on the United States of America's ("Defendant") Motion to Dismiss  Howard Brons's ("Plaintiff') Complaint  for lack of subject-matter jurisdiction, and failure to state a claim upon which relief can be granted.
On March 25, 2014, Plaintiff filed against Defendant a four-count Complaint, in which he asserted claims for (1) negligent hiring, (2) negligent retention, (3) respondeat superior, and (4) "[r]espondeat superior two." In 2011, Plaintiff was an inmate at the United States Penitentiary in Atlanta, Georgia ("Penitentiary"). Plaintiff alleges that, on September 26, 2011, he was examined by Dr. Lewis Jackson ("Jackson"), a physician at the Penitentiary, in connection with psoriasis on Plaintiff's genitalia. Plaintiff claims that, on October 12, 2011, Jackson asked Plaintiff "if there was any redness' when Plaintiff masturbated and [Jackson] began to engage in a sexual act by touching Plaintiff's penis with his hands." Compl. at ¶ 9. During this incident, Plaintiff states that Jackson continued to "engage in a sexual act by touching Plaintiff's penis with his mouth and began performing oral sex." Id. at ¶ 10. Plaintiff asserts that Jackson sexually assaulted at least two other inmates at the Penitentiary. Id. at ¶ 13.
On July 25, 2012, Jackson was indicted, in the District of Columbia ("D.C."), for sexually abusing an inmate in November 2008 at the Department of Corrections in D.C. Id. at ¶ 25. On January 15, 2013, Jackson pled guilty to those charges.
On August 28, 2012, Jackson was indicted, in the Northern District of Georgia, for making false statements to federal agents, and sexually abusing three inmates at the Penitentiary in October 2011. On November 26, 2012, Jackson pled guilty to the sexual abuse charges in this Court. See United States v. Jackson, No. 1:12-cr-00287-AT-AJB (N.D.Ga. 2012).
Based on these alleged facts, Plaintiff claims that, when Defendant hired Jackson sometime before October 12, 2011, Defendant failed to conduct "a cursory background pre-employment and/or post-employment background review of Dr. Jackson, " which, Plaintiff alleges, would have revealed that Jackson "was under prosecution at the time of the acts against [Plaintiff]." Id. at ¶ 17. Plaintiff asserts that Defendant breached its duty when it hired Jackson with knowledge that he assaulted an inmate in Washington, D.C., in or about 2008, "prior to his hire date with the United States of America." Id. at 24. Plaintiff alleges that "Dr. Lewis Jackson was a physician at a federal prison in the District of Columbia wherein he violated an inmate by performing a series of sexual acts upon him." Id. at ¶ 27. Plaintiff also alleges that "[i]n 2010 Dr. Lewis Jackson was a physician at a federal prison in Atlanta, Ga wherein he violated inmate Julius Leroy Harrison by performing a series of sexual acts upon him." Id. at ¶ 28.
On June 30, 2014, Defendant moved to dismiss the Complaint on the grounds that the Court does not have subject-matter jurisdiction to address Plaintiff's negligent hiring and negligent retention claims. Defendant argues that the decisions to hire, supervise and retain employees are "discretionary function[s]" of the United States that are not permitted to be brought under the Federal Tort Claims Act ("FTCA"). Defendant also argues that Plaintiff's respondeat superior claims are required to be dismissed because, under Georgia law, an employer is not vicariously liable for an employee's sexual misconduct when the employee's alleged acts are not within the employee's scope of employment. Defendant also asserts that, under Georgia law, an employer cannot be vicariously liable for the negligent acts of its human resources personnel.
A. Legal Standard
1. Motion to Dismiss for Lack of Subject-Matter Jurisdiction
A motion to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure may be either a "facial" or "factual" attack. Morrison v. Amway Corp., 323 F.3d 920, 924-25 n.5 (11th Cir. 2003). In a facial attack on subject-matter jurisdiction, the Amended Complaint's allegations are deemed presumptively truthful, and the "court is required merely to look and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction." Stalley ex rel. United States v. Orlando Reg'l Healthcare Sys., Inc., 524 F.3d 1229, 1233 (11th Cir. 2008) (citations omitted).
Factual attacks challenge subject-matter jurisdiction in fact, irrespective of the pleadings. Odyssey Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel, 657 F.3d 1159, 1169 (11th Cir. 2011) (citations omitted). When resolving a factual attack, the Court may consider extrinsic evidence such as testimony and affidavits. Id. In a factual attack, the Court may independently weigh the facts and it is not "constrained to view them in the light most favorable to the non-movant." Id. The plaintiff has the burden to prove that jurisdiction exists, including that the discretionary function exception does not apply. Slappery v. U.S. Army Corps of Engs., 571 F.Appx. 855, 856 (11th Cir. 2014). The plaintiff is required to produce facts that support the existence of subject-matter jurisdiction by a preponderance of the evidence. Hobbs v. Blue Cross Blue Shield of Ala., 276 F.3d 1236, 1242 (11th Cir. 2001).
In evaluating a factual attack, the Court is not required to apply a Rule 56 summary judgment standard unless the jurisdictional basis of a claim is intertwined with the merits of the claim. Id. "[J]urisdiction becomes intertwined with the merits of a cause of action when a statute provides the basis for both the subject-matter jurisdiction of the federal court and the plaintiff's substantive claim for relief." Morrison, 323 F.3d 926. Here, jurisdiction is not intertwined with the merits of Plaintiff's claims because the FTCA governs the subject-matter jurisdiction of the Court, and Plaintiff's substantive claims are based on Georgia negligence law. See Odyssey, 657 F.3d at 1170. The Court thus applies the Rule 12(b)(1) standard for factual challenges to subject-matter jurisdiction. Under a Rule 12(b)(1) standard, the Court is not required to view the facts in a light favorable to the plaintiff, or draw all inferences in plaintiff's favor, as it would under Rule ...