The opinion of the court was delivered by: BREWSTER
This matter came on regularly for hearing on defendant United States Navy's motion to dismiss for lack of subject matter jurisdiction. After careful consideration, the Court hereby GRANTS defendant's motion to dismiss and ORDERS plaintiff to show cause why his case against the individual defendants should not be dismissed for want of prosecution.
Robert LeCrone ("LeCrone") is suing the United States Navy and thirteen individuals. LeCrone's first cause of action is for medical malpractice. In 1991, plaintiff was initially diagnosed as having "bilateral increasing cervical lymph nodes[.]" Complaint P 6. Plaintiff received treatment at several Naval hospitals, including San Diego Naval Hospital where he was treated by defendant Miller. In February of 1993, his lymph nodes were biopsied, and LeCrone contends that due to the negligence of the doctor and his staff, the accessory nerve in his neck was severed, causing a loss of motor function in his left arm. Complaint PP 9-11. Plaintiff now suffers from complete left accessory nerve palsy. Complaint P 12. Plaintiff seeks damages for his personal injuries, for loss of economic potential and for past and future medical expenses. Complaint PP 14-15. This cause of action appears to be asserted against Captain Miller and Does 1-5 only. Plaintiff allegedly filed a claim under the Federal Tort Claims Act which was denied on September 13, 1995. Complaint PP 16-17. Plaintiff filed this suit on March 12, 1996.
LeCrone asserts a second cause of action for assault and battery. This cause of action is asserted against the United States Navy, all the other named individual defendants, and Does 6-10. On July 30, 1993, LeCrone alleges that Duane Frank, Henry Wright, Michael Williams, Kevin Hairston and Does 6-10 committed an assault and battery on him. Three of these defendants were drunk when they allegedly began to punch and kick plaintiff. Six more naval personnel allegedly ran to the scene and began punching and kicking plaintiff. Plaintiff alleges that he fell to the ground where defendants continued to kick him in the body and head. Complaint PP 18-20. Plaintiff alleges that he suffered severe injuries from this attack. Complaint P 21. Plaintiff was a petty officer third class and all of the alleged assailants were also enlisted Navy personnel, but he alleges that the assault was not incident to his military service. The defendants were allegedly participating in a Navy-sanctioned graduation celebration when the assault took place. Complaint PP 23-24.
LeCrone asserts a third cause of action for discrimination - violation of civil rights. This cause of action is asserted against the United States Navy, Commanding Officer, Legal Officer Lt. Vivian, and Does 10-20. Plaintiff allegedly reported the incident described above and filed a complaint with Lt. Vivian. He further alleges that Lt. Vivian failed to take any action against the personnel involved and refused to release the results of her investigation to plaintiff. Complaint PP 27-29. Plaintiff alleges that the assault against him was racially motivated because seven of the eight alleged assailants were black, and plaintiff is white. He contends that the Navy's refusal to prosecute the assailants constitutes reverse discrimination in violation of the United States Constitution and the California Constitution. Complaint PP 30-31.
LeCrone asserts a fourth cause of action for intentional infliction of emotional distress against the U.S. Navy, Commanding Officer, Legal Officer Lt. Vivian, and Does 10-20. He alleges that the Navy's decision not to prosecute the assailants on account of plaintiff's race constitutes intentional infliction of emotional distress. Complaint PP 34-35. LeCrone also asserts a fifth cause of action for negligent infliction of emotional distress against the same defendants on the same grounds. Complaint PP 38-40.
On January 13, 1997, defendant United States Navy filed a motion to dismiss for lack of subject matter jurisdiction. Plaintiff has filed no opposition to this motion.
Under Rule 12(b)(1), a defendant may seek to dismiss a complaint for "lack of jurisdiction over the subject matter." Fed. R. Civ. P. 12(b)(1). Federal subject matter jurisdiction must have a statutory basis. The primary sources of federal subject matter jurisdiction are federal question jurisdiction, 28 U.S.C. § 1331, diversity jurisdiction, 28 U.S.C § 1332, and supplemental jurisdiction, 28 U.S.C. § 1367.
B. The Navy's Motion to Dismiss
1. First Cause of Action for Medical Malpractice
Defendant U.S. Navy moves to dismiss the first cause of action for lack of subject matter jurisdiction. In Feres v. United States, 340 U.S. 135, 146, 95 L. Ed. 152, 71 S. Ct. 153 (1950), the Supreme Court crafted an exception to the general waiver of ...