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Gates v. Black Hills Health Care Sys. (BHHCS)

United States District Court, D. South Dakota, Central Division

January 28, 2014

DAVID A. GATES, Plaintiff,
v.
BLACK HILLS HEALTH CARE SYSTEMS (BHHCS), THE DEPARTMENT OF VETERANS AFFAIRS, and THE UNITED STATES, Defendants

Page 1025

David A Gates, Plaintiff, Pro se, Pierre, SD.

For Black Hills Health Care Systems (BHHCS), The Department of Veterans Affairs, The United States, Defendants: Camela C. Theeler, LEAD ATTORNEY, U.S. Attorney's Office (Sioux Falls, SD), Sioux Falls, SD.

OPINION

ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE.

Page 1026

OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Plaintiff David A. Gates (Gates), a retired veteran, brought this suit against Defendant United States Government (Government)[1] under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346,[2] alleging that the Government invaded his privacy while he participated in a drug and alcohol treatment program at the Department of Veterans Affairs (VA) domiciliary in Hot Springs, South Dakota. Doc. 1.[3] Thereafter, Gates filed a second suit under the FTCA alleging that the Government retaliated against him for his filing a complaint with the VA Office of Inspector General. CIV 12-3011-RAL, Doc. 1. This Court consolidated the two cases on

Page 1027

Gates's motion. Doc. 39. The Government moves to dismiss Gates's retaliation claims under Federal Rules of Civil Procedure 12(b)(6) and 12(h)(3), or in the alternative, for summary judgment on all of Gates's claims. Docs. 47, 50. Because there are no genuine issues of material fact and the Government is entitled to judgment as a matter of law, this Court grants the Government's motion for summary judgment.

I. Facts

The Government complied with Local Rule 56.1(A) of the Civil Local Rules of Practice of the United States District Court for the District of South Dakota by filing a statement of material facts along with its motion for summary judgment. Doc. 49. Local Rule 56.1(B) required Gates, the party opposing the Government's motion for summary judgment, to " respond to each numbered paragraph in the moving party's statement of material facts with a separately numbered response and appropriate citations to the record." D.S.D. Civ. L.R. 56.1(B). Gates did not file such a response under Local Rule 56.1(B), but did file a memorandum in opposition to the Government's motion for summary judgment in which he states that he agrees with " most of the Government's material facts. Doc. 51 at 1. Although Gates provided some commentary in response to certain of the Government's statement of material facts, he did not include any citation to the record to support such commentary. Further, the vast majority of Gates's commentary on the facts did not contradict the Government's material facts but, instead, either offered argument or provided assertions that do not create genuine issues of material fact. Many of the issues Gates discussed in his memorandum are irrelevant to whether summary judgment should enter in favor of the Government. Nevertheless, this Court is mindful of its duty to construe pro se pleadings liberally, Bracken v. Dormire, 247 F.3d 699, 703 (8th Cir. 2001), and will therefore attempt, where possible, to draw the facts from portions of the Government's statement of material facts either accepted or not addressed by Gates's memorandum in opposition to the Government's motion for summary judgment.

On September 15, 2008, Gates was admitted to a drug and alcohol treatment program at the Black Hills Healthcare Systems (BHHCS) domiciliary in Hot Springs, South Dakota. Doc. 49 at ¶ 4. Upon his admission to the program, Gates was given a copy of the Veterans Health Administration domiciliary handbook, which discussed, among other things, the rules governing patients' use of VA computers, the program's policy of randomly testing patients for drugs and alcohol use, and the VA's closed circuit surveillance system (CCTV) in access points and public areas within the facility. Doc. 49 at ¶ 5; Doc. 48-1. Gates signed several documents relating to these rules and policies, including an acknowledgment that he had read and understood the information in the handbook, Doc. 49 at ¶ 6; a treatment contract that conditioned his acceptance into the program upon his consent to random drug and alcohol testing, Doc. 49 at ¶ ¶ 28-30; Doc. 29-3; and a document entitled " Guidelines for Computer Use by Patients" that stated " COMPUTER USE WILL BE MONITORED. IF GUIDELINES ARE VIOLATED, YOUR ACCESS WILL BE REMOVED IMMEDIATELY," Doc. 49 at ¶ 8, 10; Doc. 29-6. During orientation to the program, another patient gave Gates a tour of the facility and advised him that the facility was monitored by a CCTV system. Doc. 49 at ¶ 34. Gates was already aware of the CCTV system because he had previously participated in a treatment program at the facility. Doc. 49 at ¶ 35.

Page 1028

While in treatment, Gates participated in the VA Compensated Work Therapy (CWT) program, through which he worked as a certified nurses' aid at the Castle Manor Nursing Home in Hot Springs, South Dakota.[4] Doc. 49 at ¶ ¶ 38-39. Gates also spent time using the VA computers. A February 22, 2009, computer audit revealed that Gates had accessed a naked picture of himself from his Yahoo email account while he was using a VA computer.[5] Doc. 49 at ¶ ¶ 17-18. The computer guidelines specifically prohibited users from accessing pornographic web sites. Doc. 49 at ¶ 11; Doc. 29-6. On February 23, 2009, Gates was irregularly discharged from the program for accessing inappropriate material on the VA computer. Doc. 49 at ¶ ¶ 21, 22; Doc. 29-1. Although Gates admitted in his deposition that he does not know or have any proof that someone at the VA disclosed his personal information, Doc. 49 at ¶ 45; Doc. 48-2 at 20, he alleges in his complaint that a BHHCS nurse inadvertently disclosed the reason he was discharged to one of his former coworkers at Castle Manor, Doc. 1 at 3.

Following his discharge from the Hot Springs program, Gates filed an invasion of privacy complaint with the VA Office of Inspector General. Doc. 49 at ¶ 58. Thereafter, he sought admission to the Living Skills for Success (LSS) program at the Ft. Meade, South Dakota, VA campus. Doc. 49 at ¶ 48. Gates had to wait approximately eighty days before he was admitted into the LSS program on July 30, 2009. Doc. 49 at ¶ ¶ 49, 59. Upon being admitted to the LSS program, each veteran received an LSS handbook setting forth the program's policies. Doc. 49 at ¶ 52. The LSS handbook notified veterans that their rooms would be subject to searches, Doc. 49 at ¶ 53, and stated that " weapons are prohibited on Government Property . . . . [p]ossession of such items could be prosecuted as a Federal Offense as well as result in immediate discharge from the program[,]" Doc. 49 at ¶ 51; Doc. 48-3 at 5. On September 8, 2009, Gates was irregularly discharged from the LSS program for violating the program's prohibition on weapons after a random search of his room revealed inhalants and a camping hatchet. Doc. 49 at ¶ ¶ 54-55,64.

Page 1029

II. Standards of Review and Applicable Law

The Government has filed both a motion to dismiss under Federal Rules of Civil Procedure 12(b)(6) and 12(h)(3) and for summary judgment under Rule 56. Docs. 47,50. A motion to dismiss for a lack of subject matter jurisdiction may be brought at anytime under Rule 12(h)(3). A Rule 12(h)(3) motion to dismiss is evaluated under the same standards as a motion to dismiss pursuant to Rule 12(b)(1). Berkshire Fashions, Inc. v. M.V. Hakusan II, 954 F.2d 874, 879 n.3 (3d Cir. 1992). Unlike a motion to dismiss for a lack of subject matter jurisdiction, a motion to dismiss under Rule 12(b)(6) " must be made before pleading if a responsive pleading is allowed." Fed.R.Civ.P. 12(b); see also Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990) (Technically . . . a Rule 12(b)(6) motion cannot be filed after an answer has been submitted." ). Here, the Government filed answers in both cases before it filed its Rule 12(b)(6) motion. However, courts may treat an untimely motion to dismiss under Rule 12(b)(6) as a Rule 12(c) motion for judgment on the pleadings. See Westcott, 901 F.2d at 1488 (" But since Rule 12(h)(2) provides that a defense of failure to state a claim upon which relief can be granted may be advanced in a motion for judgment on the pleadings under Rule 12(c), we will treat the . . . motion as if it had been styled a 12(c) motion." (internal marks and quotation omitted)). This Court will therefore construe the Government's motion to dismiss under Rule 12(b)(6) as a Rule 12(c) motion. A motion to dismiss brought under Rule 12(c) is reviewed under the same standard as a Rule 12(b)(6) motion. Westcott, 901 F.2d at 1488. When considering such a motion to dismiss, courts must accept the plaintiff's factual allegations as true and construe all inferences in favor of the plaintiff. Retro Television Network, Inc. v. Luken Commc'n, LLC, 696 F.3d 766, 768 (8th Cir. 2012). To withstand such a motion to dismiss, " a complaint must contain enough facts to 'state a claim to relief that is plausible on its face.'" Id. (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Gates has alleged plausible claims in his complaints under the FTCA against the Government, so this Court at this stage denies the motion to dismiss and turns its focus to whether summary judgment should enter for the Government because of a lack of genuine issues of material fact on Gates's allegations.

Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper when " the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Summary judgment is not " a disfavored procedural shortcut, but rather . . . an integral part of the Federal Rules as a whole, which are designed 'to secure the just, speedy, and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 1). On summary judgment, courts view " the evidence and the inferences that may be reasonably drawn from the evidence in the light most favorable to the nonmoving party." EEOC v. CRST Van Expedited, Inc., 679 F.3d 657, 686 (8th Cir. 2012) (quoting Mayer v. Countrywide Home Loans, 647 F.3d 789, 791 (8th Cir. 2011)). A party opposing a properly made and supported motion for summary judgment must cite to particular materials in the record supporting the assertion that a fact is genuinely disputed. Fed.R.Civ.P. 56(c)(1); Gacek v. Owens & Minor Distrib., Inc., 666 F.3d 1142, 1145 (8th Cir. 2012).

Absent a waiver, sovereign immunity protects the ...


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