ASSAAD-FALTAS v. GRIFFIN No. LR-C-87-439.
708 F.Supp. 1035 (1989)
Marie-Therese H. ASSAAD-FALTAS, Plaintiff, v. Robert GRIFFIN, Defendant.
United States District Court, E.D. Arkansas, W.D.
March 16, 1989.
Marie-Therese Halim Assaad Faltas, Durham, N.C., pro se.
Richard Pence, Asst. U.S. Atty., Little Rock, Ark., for defendant.
ROY, District Judge.
Before the Court is the defendant's Motion to Dismiss Plaintiff's Complaint. All of the other defendants that were originally named in the pleadings have been dismissed by separate order. The Court construes this motion as one under Fed.R. Civ.P. 12(b)(6) for failure to state a claim under which relief can be granted, and since affidavits are being considered by the Court, the motion will be treated as one for summary judgment. Fed.R.Civ.P. 12(b)(6).
In the plaintiff's complaint, the only allegation relevant to defendant Griffin is contained in paragraph 8 under Count IV. In that paragraph, the plaintiff contends:
Defendant Robert Griffin is employed by the Veterans Administration, and holds the position of Supervisor, Histopathology section, Laboratory Service. As such, according to his affidavit which was attached to his Motion to Dismiss, he is responsible for the daily function of the Histopathology section and for all property and supplies. In his affidavit, Mr. Griffin sets out the facts which resulted in his investigation of missing scrub suits from the VA Hospital. These facts are set out as follows:
In her response to the Motion to Dismiss, plaintiff states that Mr. Griffin's brief "presumes this Court and the plaintiff to be concluded by his affidavits that he acted within the outer perimeter of his duty; ... Furthermore, a ruling of law as to whether Mr. Griffin acted within the outer perimeter of his duties vel non must await a determination of fact of where that perimeter is and consequently, the completion of discovery. The attached affidavit, nonetheless, rebuts defendant's." The attached affidavit of the plaintiff's states:
The plaintiff has failed to give the Court any specific reason or evidence as to how Mr. Griffin's actions were outside the scope of his duties. Plaintiff failed to produce Mr. Griffin's job description to rebut Griffin's affidavit. In fact, an affidavit was submitted by Mr. Vincent J. Parrish, Director of the John L. McClellan Memorial Veterans Hospital, wherein Mr. Parrish stated that "all actions taken by Robert Griffin on the dates referred to in the above-referenced complaint were made in the scope of his employment as Supervisor, Histopathology Section, Laboratory Service, at the John L. McClellan Memorial Veterans Hospital, Little Rock, Arkansas." In addition, the very nature of Mr. Griffin's title, Supervisor, Histopathology section, Laboratory Service, indicates that Mr. Griffin would be responsible for supplies and property in the section and that missing scrub suits would be within the realm of his position.
Furthermore, plaintiff does not deny taking the scrub suits. Instead, she said she merely "transferred" them. In plaintiff's Counter-Statement of Material Facts filed in response to the other defendants' Motion for Summary Judgment and Statement of Material Facts, plaintiff asserts:
As stated by the defendant, federal employees have absolute immunity from common law tort claims for actions taken within the outer perimeter of their line of duty. Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959); Poolman v. Nelson, 802 F.2d 304, 307 (8th Cir.1986); Bushman v. Seiler, 755 F.2d 653, 655-656 (8th Cir. 1985); Wallen v. Domm, 700 F.2d 124, 125 (4th Cir.1983). In order for the conduct of the federal employee to come within the outer perimeter of his line of duty, "[T]he act must have more or less connection with the general matters committed by law to the officer's control or supervision, and not be manifestly or palpably beyond his authority." Poolman v. Nelson, supra, at 308-309, quoting from Gross v. Sederstrom, 429 F.2d 96, 100 (8th Cir.1970).
The Court is also aware of the recent Supreme Court case of Westfall v. Erwin, 484 U.S. 292, 108 S.Ct. 580, 98 L.Ed.2d 619 (1988), which also requires a finding that the challenged conduct is discretionary in nature. A review of the affidavits clearly indicates that the conduct in question was an appropriate exercise of discretion which a person in defendant's position must possess if the Veterans' Hospital is to function effectively. Thus, both tests set out in Westfall have been satisfied.
Based upon the foregoing, the Court finds that at all times pertinent to the plaintiff's allegations, the defendant Robert Griffin was acting within the scope of his official duties and responsibilities. Furthermore, the conduct was of a discretionary nature. Consequently, the plaintiff's claim against the defendant Robert Griffin, VA employee, for libel and slander is barred by immunity. The complaint must therefore be dismissed.
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