United States District Court, D. Oregon, Portland Division
Danielle Snyder Holly Lloyd Law Offices of Judy Snyder
Attorneys for Plaintiff
J. Williams United States Attorney Dianne Schweiner Assistant
United States Attorney Attorneys for Defendant
OPINION & ORDER
A. HERNANDEZ, UNITED STATES DISTRICT JUDGE
Luke Kirk brings this action under the Federal Tort Claims
Act, 28 U.S.C. § 1346(b), alleging that Defendant United
States of America is vicariously liable for the professional
negligence of Ami Phillips, a former employee of the Portland
Veterans Affairs Medical Center.
the Court is Defendant's motion for summary judgment.
Defendant argues that it is not vicariously liable for
Phillips' actions because Phillips' tortious conduct
did not occur within the scope of her employment. For the
reasons that follow, the Court finds that Phillips was not
acting within the scope of her employment and therefore
GRANTS Defendant's motion.
is a 100% service-connected disabled veteran. Kirk Decl.
¶¶ 2, 3, ECF 20. In November 2015, Plaintiff began
receiving mental health treatment at the Portland Veterans
Affairs Medical Center (VAMC). Id. at ¶¶
4, 5. As part of that treatment, the VAMC assigned
Ami Phillips, a licensed social worker, to hold weekly
therapy sessions with Plaintiff. Morgan Decl. Ex. C at 1, ECF
15. In December 2015, those weekly sessions became
twice-weekly sessions. Kirk Decl. ¶ 5.
Phillips and Plaintiff began a personal, romantic
relationship. Phillips provided Plaintiff with her personal
cell phone number, and the two began exchanging text
messages. Morgan Decl. Ex. A at 1. In these text
messages-sent throughout the work-day and at night-the pair
discussed personal matters like falling in love, getting
married, and adopting a child. See Morgan Decl. Ex.
E, ECF 15-5. They also discussed matters related to
Plaintiff's ongoing therapy sessions. Some of these
matters were routine, like scheduling appointments and
meeting with a new psychiatrist. See Id. at 33, 35.
Others involved more substantive, therapy-related
conversations. For example, in one message, Phillips
commented on a previous session, stating “[i]t was nice
seeing you today and hear you repeat some of the things we
worked on. So our last therapy sessions were not a complete
failure.” Id. at 90. In another, Phillips
appeared to provide Plaintiff with therapeutic advice:
“You allow your [self] to be small because that's
how your parents treated you[.]” Id. at 76.
Plaintiff once wrote that “The only reason you would
choose me to be a part of your life is to better understand
my illness and behaviors.” Id. at 68. And
Phillips once threatened to cancel their therapy appointments
and terminate Plaintiff from the clinic if Plaintiff did not
apologize following a personal fight. See Id. at
point, Plaintiff expressed to Phillips, via text, that he was
feeling suicidal. Id. at 113-24. Phillips directed
him to report to the VAMC emergency room. Id. at
113. She arranged, in her official capacity, for Plaintiff to
be admitted for treatment. Id. at 114-16. She told
him if he didn't come to the hospital, she would have to
contact the police. Id. at 116. While Plaintiff
initially headed to the VAMC, where he was told that Phillips
would wait for him and facilitate his entry and treatment, he
eventually decided to return home rather than seek
admittance. Id. That evening, Phillips appears to
have spent several hours at Plaintiff's apartment.
Id. at 120-24.
relationship was not limited to texting. Phillips spent time
at Plaintiff's apartment, and the pair went to bars and
restaurants. See, e.g., Kirk Decl. ¶ 9. They
also maintained their weekly (or twice-weekly) therapy
sessions at the VAMC. At one session, Phillips and Plaintiff
kissed. Id. at ¶ 11. At another, Phillips
“sat on a counter, and put her legs on”
Plaintiff. Id. at ¶ 8. Plaintiff describes one
session where Phillips “told [him] to put [his] hands
on her hips, and said it would help [him] with [his] personal
interactions with others . . . . [He] believe she just wanted
to touch [him] and have [him] touch her.” Id.
Even when there was no physical contact, the sessions
sometimes involved discussions about their romantic lives and
their personal relationship. Id. ¶ 7, 8.
2016, the personal relationship between Plaintiff and
Phillips deteriorated. Plaintiff told Philips he was going to
report the relationship to the VAMC. Id. at ¶
11. He followed through on June 8, 2016. Morgan Decl. ¶
2. That same day, Phillips falsely reported to the VAMC that
Plaintiff had threatened to kill her. Id.; Morgan
Decl. Ex. A at 3. In response to this report, the mental
health clinic closed for the day. Morgan Decl. Ex. A at 3.
However, once an investigation revealed that Phillips'
allegations were false, Phillips was fired and criminal
charges were filed. Morgan Decl. Exs. H, I. Phillips
eventually pled guilty to attempted coercion and initiating a
false police report. Morgan Decl. Ex. J. Plaintiff filed this
complaint on February 1, 2018. ECF 1.
judgment is appropriate if there is no genuine issue of
material fact, and the moving party is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56(a). “An issue of
material fact is genuine if there is sufficient evidence for
a reasonable jury to return a verdict for the non-moving
party.” Reed v. Lieurance, 863 F.3d 1196, 1204
(9th Cir. 2017) (quoting Cortez v. Skol, 776 F.3d
1046, 1050 (9th Cir. 2015)).
moving party bears the initial burden of demonstrating the
absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet this
initial burden, a moving party without the burden of proof at
trial need only point to ...