UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CHARLES JOHNSON, JR., : : Plaintiff, : Civil Action No.: 14-01384 (RC) : v. : Re Document No.: 10 : VETERANS AFFAIRS MEDICAL : CENTER, et al. , : : Defendants. :
MEMORANDUM OPINION
G RANTING D EFENDANT V ETERANS A FFAIRS M EDICAL C ENTER ’ S S ECOND M OTION TO D ISMISS
I. INTRODUCTION Plaintiff Charles Johnson, Jr ., has brought this action seeking damages from Defendant Veterans Affairs Medical Cent er and four unknown individual def endants (“Does 1–4”) for claims arising from Mr. Johnson’s inpatient treatment at the Me dical Center. Mr. Johnson initially brought common law tort claims against the defendants in the Superior Court of the District of Columbia. But the M edical Center removed to this Co urt and has now moved to dismiss Mr. Johnson’s claims aga inst the Medical Center on sove reign immunity grounds. Because the Medical Center correctly argues that Mr. Johnson di d not name the United States as a defendant and that he has there fore failed to sue the only pr oper defendant in this action, the Court will grant the Medical Center’s motion and dismiss Mr. Jo hnson’s claims against the Medical Center.2 II. FACTUAL AND PROCED URAL BACKGROUND According to the Complaint, Plaintiff Charles Johnson, Jr., was receiving inpatient care from Defendant Veterans Affa irs Medical Center on November 13, 2011, when four Medical Center employees, the Defendants Does 1–4, searched his belongi ngs and his person. Compl. ¶¶ 3, 9, 11–13, ECF No. 1-1. At the time, Mr. Johnson was recei ving treatment for depression and neurovegetative symptoms, a nd he had not used illicit subst ances for eighteen years. Compl

. ¶¶ 9–10. Suspecting that Mr. Johnson’s visiting family members had brought him narcotics, the four Medical Center employees s earched Mr. Johnson’s bed, his p ersonal effects, and his person. Compl

. ¶¶ 11–13, 21; Opp’n Mot. Dismiss Exs. A–B, ECF No. 6-2. The em ployees conducting the search included one female nurse—a member of the opposite s ex as compared to Mr. Johnson, who is male. Compl. ¶¶ 3, 13, 20. During the search of Mr. Johnson’s person, the Medical Center employees made him hold up his arms, lift his sc rotum, and bend down and part his buttock cheeks so that th e employees could thoroughly searc h his body. Compl

. ¶¶ 13, 21. After the search, Mr. Johnson made several informal complaints to the Medical Center and also sent the Medical Center a letter through counsel, comp laining about his treatment. Mem. P. & A. Supp. Pl.’s Opp. Mot. Dismiss ¶¶ 1–15, ECF No. 6-1 . Unsatisfied with the Medical Center’s perfunctory r esponses, Mr. Johnson filed suit against the Medical Center and its four unnamed employees (“Does 1 –4”) in the District of Colu mbia Superior Court on June 2,
2014. See Compl. Seeking damages, he charged the Medical Center with six common law tort violations arising from the s earch of his belongings and his pe rson: assault, battery, intentional infliction of emotional distre ss, invasion of privacy, false im prisonment, and negligence. Compl. ¶¶ 16–39.3 The Medical Center removed to thi s Court and fil ed an initial m otion to dismiss Mr. Johnson’s claims for failure to e xhaust administrative remedies

. See Notice of Removal, ECF No. 2; Mot. Dismiss, ECF No. 5. How ever, the Medical Center wit hdrew its first motion to dismiss, and now it has filed a second motion to dismiss—this t ime arguing that th e Court lacks jurisdiction over Mr. Johnson’s claims because sovereign immuni ty bars them. See Def.’s Second Mot. Dismiss, ECF No. 10; Mem. P. & A. Supp. Def.’s Seco nd Mot. Dismiss, ECF No.
10-1. The Medical Center argues thatsovereign immunity bars Mr. John son’s claims for three

reasons: (1) despite the Federal Tort Claims Act (FTCA)’s waiver of the fede ral government’s sovereign immunity, federal agencies such as the Medical Cent er still enj oy sovereign immunity; (2) the FTCA waives sovereign imm unity only when the plaintiff’s cl aims arise from the federal employees’ acts within the scope of their employment, and there is no such allegation or determination here; and (3) the FTCA does not waive soverei gn immunity for Mr. Johnson’s cl aims because they arise from intentional torts exem pted from the FTCA waiver of s overeign immunity.
See Mem. P. & A. Supp. Def.’s Second Mot. Dismiss 4–7. 1

1 Although the Court does not reach t he Medical Center’s argumen t that Mr. Johnson’s claims arise from intentional to rts exempted from the FTCA waiv er of sovereign immunity, the Court finds the Medical Center’s discussion of the FTCA excepti ons enumerated in 28 U.S.C. § 2680(h) incomplete. See Mem. P. & A. Supp. Def.’s Sec ond Mot. Dismiss 6–7. Notably, th e Medical Center does not addres s the impact of 38 U.S.C. § 7316( f). See Levin v. United States , 133 S. Ct. 1224, 1234 (2013) (stating that 38 U.S.C. § 7316(f) expresses “Congress’ intent to abrogate § 2680(h)” in suits again st the Department of Veterans Affairs); Ingram v. Faruque , 728 F.3d 1239, 1246 (10th Cir. 2013) (“‘§ 2680(h) does not bar application of the FTCA to [intentional] tort claims ari sing out of the conduct of VA medi cal personnel with in the scope of’4 Because the Court agrees with the Medical Center’s first argume nt, the Court need not address the Medical Center’s s econd and third arguments to dism iss Mr. Johnson’s claims. But the Court sua sponte grants M r. Johnson leave to amend his Comp laint to substitute the United States as the appropriate def endant under the FTCA and to prope rly allege whether he believes the Medical Center employees w ere acting within or outside the scope of their employment, along with the facts sup porting such belief.

III. STANDARD OF REVIEW The Medical Center has moved to dismiss the Complaint for lack of subject-matter jurisdiction, citing Rul e 12(b)(1) of the Fed eral Rules of Civi l Procedure. See Mem. P. & A. Supp. Def.’s Second Mot. Dismiss 4. Federal courts are courts o f limited jurisdiction, and the law presumes that “a cause lies outside this limited jurisdicti on.” Rasul v. Bush , 542 U.S. 466, 489 (2004) (quoting Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377 (1994)). Thus, to survive a Rule 12(b)(1 ) motion to dismiss, a plaintiff bears the burden of establishing that a court has jurisdiction over his claim. See Steel Co. v. Citizens for a Better Env’t , 523 U.S. 83, 103–04 (1998) (standing and Artic le III jurisdiction); Moms Against Mercury v. FDA , 483 F.3d 824, 828 (D.C. Cir. 2007) (subject-matter jurisdiction). T o determine whether jurisdiction exists, a court may “consider the complaint supplemented by und isputed facts evidenced in the record, or the complaint suppl emented by undisputed facts plus the court’s resolution of disputed facts.” Coal. for Underground Expansion v. Mineta , 333 F.3d 193, 198 (D.C. Cir. 2003). “If sovereign immunity has not b een waived, a claim is subject to dismissal under Rule 12(b)(1) for lack of subjec t matter jurisdiction.” Clayton v. District of Columbia , 931 F. Supp. 2d

38 U.S.C. § 7316(f).” (alterati on in original) (quoting Franklin v. United States , 992 F.2d 1492, 1502 (10th Cir. 1993)).5 192, 200 (D.D.C. 2013) (citing FDIC v. Meyer , 510 U.S. 471, 475 (1994) (“Sovereign immunity is jurisdictional i n nature.”)). Courts “may not find a waiver unless Congress’ intent is ‘unequivocally expressed’ i n the relevant statute.” Hubbard v. Adm’r, EPA , 982 F.2d 531, 532 (D.C. Cir. 1992) (quoting United States v. Mitchell , 445 U.S. 535, 538 (1980)). The Medical Center has also move d to dismiss the Complaint for failure to state a claim upon which relief can be granted, citing Rule 12(b)(6) of the F ederal Rules of Civil Procedure.
See Mem. P. & A. Supp. Def.’s Sec ond Mot. Dismiss 4. The Federal R ules of Civil Procedure require that a complaint contai n “a short and plain statement o f the claim” to give the defendant fair notice of the claim and the grounds upon which it rests. Fed. R. Civ. P. 8(a)(2); accord
Erickson v. Pardus , 551 U.S. 89, 93 (2007) (per curiam) . Unlike the standard of r eview for a motion under Rule 12(b)(1), a court considering a motion under Rule 12(b)(6) presumes that the complaint’s factual allegations are true and construes them lib erally in the pl aintiff’s favor. See,

e.g. , United States v. Philip Morris, Inc. , 116 F. Supp. 2d 131, 135 (D.D.C. 2000). But the Medical Center’s motion i s properly adjudicated as a Ru le 12(b)(1) motion to dismiss for lack of subject-ma tter jurisdiction, not a Rule 12( b)(6) motion to dismiss for failure to state a claim. All three of the Medical Center’s arguments a llege that soverei gn immunity bars Mr. Johnson’s claims. See Mem. P. & A. Supp. Def.’s S econd Mot. Dismiss 4–7. Because sovereign immunity is a jurisdictional issue, FDIC v. Meyer , 510 U.S. 471, 475 (1994), the Court must rule on all of the Medical Center’s arguments using the Ru le 12(b)(1) standard of review, not the Rule 12(b)(6) standard of review. See Kelley v. FBI, 67 F. Supp. 3d 240, 255 (D.D.C. 2014) (explaining that, when consid ering a Rule 12(b)(1) motionto dismiss for lack of jurisdiction, as opposed to a Rule 12(b)(6) motion, a court “is not limited to the allegations of the complaint” (quoting Hohri v. United States , 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on6 other grounds , 482 U.S. 64 (1987)); see also CNA v. United States , 535 F.3d 132, 144–45 (3d Cir. 2008) (adopting the Rule 12(b) (1) standard of review in anFTCA sovereign immunity case, even when adjudicating jurisdicti onal facts intertwined with th e merits). Thus, the burden falls on Plaintiff Mr. Johnson to prove, in response to the Medical C enter’s contentions, that the government has waived its sovereign immunity. See Tri-State Hosp. Supply Corp. v. United
States , 341 F.3d 571, 575 (D.C. Cir. 2003) (pl acing the burden to pro ve waiver on the party bringing suit). He may not merel y rest on the factual allegatio ns made in his Complaint.

IV. ANALYSIS The Federal Tort Claims Act (FTC A) is a limited waiver of sover eign immunity that makes the federal government liable to the same extent as a pri vate individual for certain torts of federal employees acting within the scope of their employment. 28 U.S.C. §§ 1346, 2674; United
States v. Orleans , 425 U.S. 807, 813 (1976). The FTCA provides the exclusive remedy “[w]here a plaintiff seeks monetary damage s against a federal agency for torts committed by federal employees.” Lempert v. Rice , 956 F. Supp. 2d 17, 28 (D.D.C. 2013) (al teration in original) (quoting Jones v. United States , 949 F. Supp. 2d 50, 53 (D.D.C. 2013)); see 28 U.S.C. § 2679(b)(1) (declaring the FTCA r emedy “exclusive of any other civil action or proceeding for money damages”). Congress has als o specified that the FTCA reme dy is the exclusive remedy for suits, like this one, arisi ng from the alleged malpractice or negligence of Veterans Health Administration 2 employees exercising duties i n or for the Administration. See 38 U.S.C. § 7316(a)(1).

2 The Veterans Health Administr ation is a subdivision of the Uni ted States Department of Veterans Affairs. See 38 U.S.C. § 301(c)(2). The Administration in turn opera tes medical centers throughout the United States, including the Veterans Affairs Medical Center inWashington, D. C., which is a party to this case.7 Here, Mr. Johnson has sued the M edical Center and four unnamed Medical Center employees for torts arising out of actions taken by the employe es during his inpatient treatment at the Medical Center. The Medic al Center and its employees are agencies of the United States and subject to oversight by the Vet erans Health Administration. See Peacock v. United States , 597 F.3d 654, 659–60 (5th Cir. 2010) (finding a doctor employed by a Veterans Affairs hospital to be a United States employee for FTCA purposes); Our History , Washington DC VA Medical Center, http://www.washingtondc.va .gov/about/history.asp (last visited Sept. 25, 2015) (affiliating the Medical Center w ith the Veterans Health Admini stration and the U.S. Department of Veterans Affairs). Thus, assu ming that the Medical Center em ployees were acting within the scope of their employment, 3 the FTCA provides Mr. Johnson’s only possible avenue for relie f against the Medical Center.

See Locations—District of Columbia , U.S. Dep’t of Veterans Affairs, http://www.va.gov/ directory/guide/state.asp?dnum =ALL&STATE=DC#div1 (last visited Sept. 25, 2015) (listing “Washington DC VA Medical Center” as a Veterans Health Administ ration facility); Veterans Health Administration—About VHA , U.S. Dep’t of Veterans Affa irs, http://www.va.gov/health/ aboutVHA.asp (last visited Sept . 25, 2015) (“The Veterans Healt h Administration is home to the United States’ largest integrate d health care system consisting of 150 medical centers, nearly 1,400 community-based outpatient cl inics, community living cent ers, Vet Centers and Domiciliaries.”).
3 Without deciding the issue, the Court assumes for purposes of this analysis that the four Medical Center employees were acting within the scope of their employment. Mr. Johnson’s claims against the Medical Center must be dismissed regardless of whether the four Medical Cente r employees were acting within th e scope of their employment. If the employees were acting within the scope of their employment , then the FTCA covers their actions and requires Mr. Johnson t o sue the proper defendant (t he United States). Because Mr. Johnson did not, his claims against the Medical Center fail, as discussed later in this opinion. On the other hand, if the four Med ical Center employees were ac ting outside the scope of their employment, the FTCA wa iver of sovereign immunity would n ot reach their actions, and the United States would not be liable. See Russell v. Dupree , 844 F. Supp. 2d 46, 52 (D.D.C. 2012) (citing FDIC v. Meyer , 510 U.S. 471, 477 (1994)) (“To show that the government has waived its sovereign immunity unde r the FTCA, plaintiff must sh ow . . . that the employee was acting within his scope of employme nt at the time of the injuri ous act.”). Likewise, the Medical Center would not be liable because it is an agency of the feder al government and, as such, it8 To establish the FTCA waiver of sovereign immunity, the plainti ff must show that his claim is [1] against the United States, [2] for money damages, . . . [3] for injury or loss of property, or personal injury or death [4] caused by the neglige nt or wrongful act or omission of any employee of the Government [5] while acting within the scope of his office or employment, [6] under circumstances where the United States, if a private person, would be liable to the claimant in accordance w ith the law of the place where the act or omission occurred.

enjoys sovereign immunity when no w aiver of sovereign immunity exists. FDIC v. Meyer , 510 U.S. at 474 (“Absent a waiver, s overeign immunity shields the F ederal Government and its agencies from suit.”). So, Mr. J ohnson’s claims against the Med ical Center must be dismissed, regardless of whether the four e mployees acted within or outsid e the scope of their employment. However, the legal sufficienc y of Mr. Johnson’s claims against the individual Medical Center employees (“Does 1–4”) could depend on whether their actions were within the scope of their employment. If the Medical Center employees were acting within the scope of their employment, the FTCA would requi re Mr. Johnson to sue the Unite d States, not the individuals. See Welsh v. Hagler , No. 14-0153, 2015 WL 1244095, at *7 ( D.D.C. Mar. 18, 2015) (“ Under the FTCA, ‘the United States is the on ly proper party defendant.’” (quoting Cureton v. U.S. Marshal Serv. , 322 F. Supp. 2d 23, 25 n.4 (D.D.C. 2004))). His claims agains t the individual employees, like his claims against the Med ical Center, would fail on this ground. But if the employees were found to be acting outside the scope of their employment during their search of Mr. Johnson a nd his belongings, the empl oyees might be liable in their individual capacities. See, e.g. , Majano v. United States , 469 F.3d 138, 139 (D.C. Cir. 2006) (illustrating that, in a suit s eeking relief against a federal employee rather than the federal government, the plaintiff’s “sole hope of success” required sho wing that the employee’s assault was not within the scope of her empl oyment, so that the FTCA would not render the employee herself immune from suit). If th e Medical Center employees were acting outside the scope of their employment, Mr. Johnson’s claims against the individual e mployees might be justiciable— although, as the Medical Center points out, such claims may be untimely under District of Columbia law. See Mem. P. & A. Supp. Def.’s Second Mot . Dismiss 8. Nonetheless, the government’s motion to dismiss does not seek dismissal of Mr. J ohnson’s claims against the four employees. Regardless, if the unnamed defenda nts are sued in their individ ual capacities, they must be served in their individual capacities under Federal Rule of Civil Procedure 4(e). Coulibaly v. Kerry , No. 14-0712, 2015 WL 5387422, at *7 ( D.D.C. Sept. 11, 2015) ( citing Simpkins v. D.C. Gov’t , 108 F.3d 355, 359 (D.C. Cir. 1997)) (“A federal official sued in his personal capacity must be personally served in accordance with Federal Rule of Ci vil Procedure 4(e).”). Until that occurs, these defendants are not properly before the Court.9 FDIC v. Meyer , 510 U.S. 471, 477 (1994) (alterations in original) (quoting 2 8 U.S.C. § 1346(b)). For an FTCA claim to be actiona ble, it must prove all six eleme nts. Id. The first element—that the FTCA claim must be against the Unite d States—is not a trifling matter: in this case, its absence compels dismissal of Mr. Johnson’s claims against the Medical Center. FTCA suits “must name the United States as defe ndant.” Goddard v. D.C. Redevelopment Land Agency , 287 F.2d 343, 345–46 (D.C. Cir. 1961). Even if a federal agen cy may sue and be sued in its own name , FTCA claims against that f ederal agency are barred. 28 U.S.C. § 2679(a). In sum, “[u]nde r the FTCA, the United States is the only proper party defendant.” Welsh v. Hagler , No. 14-0153, 2015 WL 1244095, at *7 (D.D.C. Mar. 18, 2015) (quoting Cureton v. U.S. Marshal Serv. , 322 F. Supp. 2d 23, 25 n.4 (D.D.C. 2004)). Failure to name the United States as the de fendant in an FTCA action requi res dismissal for lack of subjectmatter jurisdiction. See, e.g. , Kissi v. Simmons , No. 09-1377, 2009 WL 3429567, at *1 (D.D.C. Oct. 22, 2009); Cox v. Sec’y of Labor , 739 F. Supp. 28, 29 (D.D.C. 1990). In this case, Mr. Johnson has fa iled to name the United States as a defendant. For that reason, his claims must be dismissed for failure to establish a waiver of sovereign immunity under the FTCA. The Court grants t he Medical Center’s motion to dismiss on these grounds, without reaching the Med ical Center’s other arguments. However, as previously stated, the Court sua sponte grants Mr. Johnson l eave to amend his Complaint to s ubstitute the United States as the appropriate defendant under the FTCA and to properly allege whether he believes the Medical Center employees were acting within or outside the scop e of their employment, along with the facts supporting such belief.10 V. CONCLUSION For the foregoing reasons, the Medical Center’s second motion t o dismiss (ECF No. 10) is GRANTED . As a result, Mr. Johnson’s clai ms against Defendant Veterans Affairs Medical Center are dismissed. Mr. Johnson may, however, file an amendedcomplaint under Federal Rule of Civil Procedure 15(a) as set forth above. An order consisten t with this Memorandum Opinion is separately and contemporaneously issued.
Dated: September 28, 2015 RUDOLPH CONTRERAS United States District Judge