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Kirk v. United States

United States District Court, D. Oregon, Portland Division

May 29, 2019

LUKE KIRK, Plaintiff,

          Judy Danielle Snyder Holly Lloyd Law Offices of Judy Snyder Attorneys for Plaintiff

          Billy J. Williams United States Attorney Dianne Schweiner Assistant United States Attorney Attorneys for Defendant

          OPINION & ORDER


         Plaintiff 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.[1]

         Before 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.


         Plaintiff 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.

         Eventually, 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 82-84.

         At one 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.

         The 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.

         In June 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.[2]


         Summary 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)).

         The 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 ...

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