Charnesha Alexander v. USA, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13720
Non-Argument Calendar
____________________
CHARNESHA ALEXANDER,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
PAUL ROLSTON,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket Nos. 4:19-cv-00138-RH-MAF,
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2 Opinion of the Court 21-13720
4:18-cv-00177-RH-MAF
____________________
Before W ILSON, ROSENBAUM , and ANDERSON, Circuit Judges.
PER CURIAM:
Charnesha Alexander appeals the judgment in favor of de-
fendants Paul Rolston and the United States after trial on her claim
that she was sexually abused by Rolston, a physician assistant at
FCI Tallahassee, during a medical examination at the federal prison
in September 2016. She sued Rolston individually under
Bivens1
for violating her Eighth Amendment right to be free from cruel and
unusual punishment. And she brought claims against the govern-
ment under the Federal Tort Claims Act (“FTCA”) for negligence
and vicarious liability. A jury heard the claim against Rolston and
returned a verdict in his favor. The FTCA claims were submitted
for a bench trial to the district court, which entered judgment for
the government. Alexander appeals, challenging the district
court’s handling of various evidentiary matters at trial and its reso-
lution of the FTCA claims. After careful review, we affirm.
I.
In March 2019, Alexander filed a § 1983 lawsuit alleging that
she was sexually abused by Physician Assistant Rolston during a
1
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.
388 (1971).
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21-13720 Opinion of the Court 3
medical examination on September 27, 2016, while she was a fed-
eral prisoner at FCI Tallahassee. She asserted that Rolston’s sexual
abuse amounted to cruel and unusual punishment under the
Eighth Amendment, and that the government was both negligent
for failing to protect Alexander and vicariously liable for Rolston’s
conduct as his employer.
Alexander’s case went to trial in hybrid form. A jury heard
her claim against Rolston individually. Her FTCA claims against
the government, plus some additional evidence not given to the
jury, were submitted to the district court for resolution by bench
trial.
See Fed. R. Civ. P. 52.
A.
Before diving into the details of the trial, we start with some
of the district court’s pretrial evidentiary rulings, which are rele-
vant to several issues on appeal but which Alexander does not di-
rectly challenge. In June 2021, following pretrial and status confer-
ences in May 2021, the court entered a pretrial order ruling on the
parties’ motions in limine and other matters.
In relevant part, the district court put limits on the evidence
Alexander could present or elicit at trial. The court prohibited Al-
exander from mentioning to the jury “Rolston’s reputation among
inmates and comments about [him],” the history of assaults or
other misconduct by FCI Tallahassee personnel and any related in-
vestigations that did not involve Rolston, and settlements with
other alleged victims, among other information.
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4 Opinion of the Court 21-13720
Nonetheless, the district court allowed evidence of other al-
leged assaults by Rolston, as well as “the conduct of unnecessary
PAP smears by [him], whether occurring before or after the alleged
assault of Ms. Alexander.” The latter statement refers to two affi-
davits prepared in connection with a Bureau of Prisons (“BOP”) in-
vestigation into Rolston. In the affidavits, Letitia Davis, a nursing
assistant at FCI Tallahassee, asserted that Rolston conducted Pap
tests and anal exams when they were not necessary or wanted, and
that half of the Pap tests she observed Rolston perform were un-
necessary. The court explained that Alexander could use the evi-
dence to impeach Davis’s testimony at trial “with a prior incon-
sistent statement,” but not “as affirmative evidence on its own” be-
cause it was hearsay.
B.
At trial, Alexander testified that Rolston sexually abused her
during a medical examination in September 2016. Alexander ex-
plained that, while she was a prisoner at FCI Tallahassee, she had
requested to see a doctor for a vaginal bacterial infection. By the
time she was seen, though, she had used a home remedy to fix the
problem, and she informed medical staff that the visit was unnec-
essary when she arrived. Yet Rolston still wanted to do a Pap test
and pelvic exam, even after finding out that Alexander had her pe-
riod and felt uncomfortable.
During the exam, Alexander felt Rolston touch her clitoris
twice in circular motions while he inserted his fingers into her
vagina. The nursing assistant and chaperone, Davis, was not
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21-13720 Opinion of the Court 5
looking at the time. Alexander began to cry once Rolston finished
the exam and left the room. As she was crying, Rolston returned
and offered to conduct a breast exam, which she refused. Then,
while Alexander was waiting to leave the medical area, a guard saw
her crying and advised her to “speak up” for herself and others “[i]f
he did something to you,” which Alexander understood to refer to
“the other women that it had happened to that [she] wasn’t aware
of.”
Five other women testified about similar experiences during
medical exams conducted by Rolston at FCI Tallahassee. The
court repeatedly made clear to the jury that it could evaluate this
testimony for only the purpose of evaluating Rolston’s intent when
examining Alexander. Several women reported that Rolston
touched their clitoris, sometimes with circular motions, during a
pelvic exam or Pap test. A few said he squeezed their breasts or
pinched their nipples during breast exams in ways that felt inappro-
priate. Many of these witnesses also testified that they did not re-
port the sexual abuse for fear of retaliation or loss of privileges. Be-
cause of complaints by Alexander and others, Rolston was trans-
ferred to a men’s facility.
Rolston testified in his defense and called several witnesses,
including supervisors and coworkers. After a brief rebuttal witness,
the case against Rolston was submitted to the jury. The jury re-
turned a verdict for Rolston, finding he did not engage in a sexual
act or sexual contact during his exam of Alexander.
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6 Opinion of the Court 21-13720
C.
After Alexander rested her case, the government moved for
judgment on the two claims against it. The district court noted
that it could “find facts” on its own as to those claims, in contrast
to the claim against Rolston, which was for the jury. The court
heard argument from the parties and then entered judgment for
the government.
On the battery claim, the district court found that if Rolston
committed the sexual acts alleged, he was not “doing the govern-
ment’s business” or a “slight deviation” from that business, but ra-
ther a “profoundly different undertaking than what he was hired to
do and could appropriately do.” So, in the court’s view, the alleged
conduct was outside the scope of both his employment and the
government’s vicarious liability.
On the negligence claim, the district court concluded that
there was “no failure to use reasonable care” that harmed Alexan-
der. The court explained there was no evidence that the govern-
ment was aware Rolston had been accused of sexual misconduct
before July 2016, when an inmate named Shendolyn Blevins com-
plained that Rolston had touched her breasts through her shirt
without a chaperone present. The court noted, however, that dur-
ing the prompt BOP investigation of her complaint, Blevins “said
very clearly nothing inappropriate happened during the exam,”
and that she just wanted a female provider or chaperone. Because
Blevins denied improper sexual contact, the court reasoned that
the government was not negligent in allowing Rolston to continue
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21-13720 Opinion of the Court 7
to perform “well woman” exams. The court also noted that Alex-
ander was not harmed by the lack of a female chaperone because
one was present for her exam with Rolston.
II.
We start with the district court’s evidentiary rulings, which
we review for an abuse of discretion.
Lamonica v. Safe Hurricane
Shutters, Inc., 711 F.3d 1299, 1317 (11th Cir. 2013). The court has
broad authority to control the admissibility of evidence and the
manner of examining witnesses.
United States v. Pon, 963 F.3d
1207, 1223 (11th Cir. 2020);
City of Tuscaloosa v. Harcros Chems.,
Inc., 158 F.3d 548, 556 (11th Cir. 1998);
see Fed. R. Evid. 611(a).
The abuse-of-discretion standard allows “a range of choice for the
district court,” so long as the court does not make a mistake of law
or a clear error of judgment.
Cook ex rel. Estate of Tessier v. Sher-
iff of Monroe Cnty., 402 F.3d 1092, 1103–04 (11th Cir. 2005).
Even where a district court abuses its discretion on an evi-
dentiary issue, relief is not warranted unless “substantial rights
were affected.”
Proctor v. Fluor Enters., Inc., 494 F.3d 1337, 1352
(11th Cir. 2007). That standard is met only if “the error probably
had a substantial influence on the jury’s verdict.”
Id. (quotation
marks omitted).
Alexander contends that the district court abused its discre-
tion in handling five evidentiary issues, which resulted in an unfair
trial, but we are not persuaded. We consider each issue in turn.
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8 Opinion of the Court 21-13720
A.
First, the record does not support Alexander’s claim that she
was “never permitted to explore reasons why a prisoner might be
afraid to decline unwanted care.”
The trial transcript shows that the district court allowed Al-
exander to inquire about these matters so long as the testimony
was limited to “why the witness did what the witness did” and was
not simply a conduit for rumors. For instance, Alexander testified
that she did not feel free to decline treatment in prison because “it’s
what they say” and “[y]ou are up under their rules.” Blevins testi-
fied that she “didn’t question” the medical staff or Rolston
“[b]ecause [she] didn’t want to go to the SHU,” or the Special Hous-
ing Unit, and the jury heard why the SHU was less desirable. An-
other witness, Daphne Rodriguez, testified that she had suffered
retaliation after disagreeing with prison medical providers, stating
that “[t]hey don’t help you at all” and will ignore your requests for
treatment. In addition, multiple witnesses testified about fear of
retaliation or loss of privileges for reporting sexual abuse in prison.
Alexander cites two instances where the district court pur-
portedly “shut her counsel down” when inquiring why inmates
might be afraid to decline care or report abuse. But in those
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21-13720 Opinion of the Court 9
instances, the court appears to have simply sustained narrow ob-
jections to specific questions, not imposed any broad prohibitions.2
In one instance, the district court sustained two objections
to questions of Alexander about refusing medical treatment at FCI
Tallahassee as leading, and Alexander does not dispute that the
questions were leading as phrased. Moreover, the questions lacked
foundation because Alexander had not yet testified about her ex-
amination with Rolston or whether she felt free to decline Rol-
ston’s conduct.
In the other instance, a witness was permitted to describe in
general terms the negative consequences she suffered after disa-
greeing with prison medical providers. But the district court pro-
hibited counsel from inquiring about “specific episodes of that kind
of problem.” Because that witness’s testimony was admitted “only
for the purpose of evaluating Rolston’s intent,” her specific interac-
tions with prison officials other than Rolston were not relevant to
the issues at trial and instead could have confused the issues and
wasted time. We cannot say that the district court abused its dis-
cretion in excluding this evidence.
2 At some points in the trial transcripts, the basis for or fact of an objection are
not apparent. The district court addressed this matter at trial, explaining that
“there will be a number of places where I have said ‘sustained’ without the
transcript [saying] that anybody said ‘objection’. Because you were standing
up, and it seemed clear to me what the objection was, and so I said ‘sus-
tained.’” We therefore look to the surrounding context to inform our analysis
of the court’s rulings.
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10 Opinion of the Court 21-13720
B.
Nor did the district court abuse its discretion in exercising
control over the examination of Davis, a nursing assistant at FCI
Tallahassee. As we noted above, Davis prepared affidavits for pur-
poses of a BOP investigation stating her opinions that Rolston con-
ducted Pap tests and anal exams which were not necessary or
wanted, and that half of the Pap tests she observed Rolston perform
were unnecessary. Alexander called Davis as a witness during her
case-in-chief, and her counsel began asking Davis about the prior
statements in the affidavits on direct examination without first elic-
iting testimony about the matters covered in the affidavits.
The district court sustained multiple objections to this line
of inquiry, ultimately advising Alexander’s counsel, “You may ask
her on the stand what her testimony is. You may not ask her first
what her testimony was at some other time.” The court then per-
mitted counsel to ask over objection, “Do you believe that Paul
Rolston did Pap smears 50 percent of the time that were unneces-
sary?” Davis responded indirectly that prisoners were frequently
“scheduled for something else but when [Rolston] looked in the
computer he would say that they would need a Pap smear” as well.
Alexander’s counsel did not seek further clarification or elaboration
of this response, nor did he attempt to impeach Davis at that time
with her prior statements.
Here, Alexander has not shown an abuse of the district
court’s discretion. In Alexander’s view, the court erred in exclud-
ing Davis’s affidavits as hearsay because they were prior
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21-13720 Opinion of the Court 11
inconsistent statements admissible to impeach her.
See United
States v. Khanani, 502 F.3d 1281, 1292 (11th Cir. 2007) (“[P]rior in-
consistent statements of a witness are admissible to impeach that
witness.”). But as the district court explained, counsel attempted
to ask Davis about the content of the prior statements on direct
examination without first eliciting testimony that was inconsistent
with those statements. The court previously had warned counsel
he could not introduce Davis’s “out-of-court-statement[s] as affirm-
ative evidence on its own.” In our view, the court reasonably re-
quired counsel to first elicit testimony at trial inconsistent with Da-
vis’s prior statements before asking her about them. Indeed, a wit-
ness cannot be impeached if she has not testified in a way that is
inconsistent with the prior statement the questioner seeks to use to
impeach her.
Alexander maintains that it was proper to impeach Davis on
her response denying that she “ma[d]e any critical comment about
the way [Rolston] does Pap smears” and stating that she “just said
he did them different from what I saw other providers do them.”
We disagree. Counsel had not asked Davis any questions about
her views on the way Rolston did Pap tests or the necessity of the
procedures he conducted. So again, there was no basis to impeach
testimony on those points with prior statements. Nor is it apparent
that Davis’s testimony was inconsistent with the statements in her
affidavit, which likewise stated that she had never seen a medical
provider perform Pap tests like Rolston.
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12 Opinion of the Court 21-13720
C.
We see no support in the record for Alexander’s claim that
the district court prevented her from rebutting testimony about
training on or implementation of the Prison Rape Elimination Act
(“PREA”). Again, Alexander mischaracterizes the court’s rulings.
During cross-examination of Rolston, the district court pre-
vented Alexander’s counsel from asking about “complaints of sex-
ual violations at FCI by other officials” than Rolston. It then in-
structed the jury that whether “there had been violations of the
Prison Rape Elimination Act by other officials at the institution”
had “absolutely nothing to do with this case,” which was solely
about what “Mr. Rolston might have done.” But the court permit-
ted counsel to question Rolston generally about reporting PREA
complaints by inmates, and it said counsel could also inquire about
the incidents described in witness testimony. The court’s actions
are consistent with its pretrial evidentiary rulings, which Alexander
does not directly challenge on appeal. We see no abuse of the
court’s discretion.
D.
The district court did not abuse its discretion by admitting
reputation testimony supporting Rolston while excluding evidence
of his reputation in prison.
As part of his defense, Rolston called several witnesses to of-
fer testimony about his work performance and professionalism
based on personal knowledge as his coworkers or supervisors.
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21-13720 Opinion of the Court 13
During cross-examination of one of these witnesses—Harold
White, the assistant health service administrator at FCI Tallahas-
see—the district court sustained objections to the question, “Have
people come to you and said that he has multiple women com-
plaining about him?,” and an attempted follow-up question.
Outside the jury’s presence, the district court explained that
these questions violated the pretrial order’s prohibition on the jury
hearing evidence of Rolston’s reputation among inmates or com-
ments about him. Alexander’s counsel argued that the questions
were relevant to the case because “one of the nurses had reported
to [White] that there were complaints.” The court responded that
relevance was not an excuse to violate the pretrial order, and that,
if counsel had grounds for believing “this ought to be admitted, the
way to deal with it is to raise it with me outside the jury’s hearing.”
It does not appear the issue was raised again.
Alexander contends that Rolston opened the door to inquiry
into Rolston’s reputation by offering witness testimony about his
professionalism and sterling reputation. Her briefing, however,
fails to identify an instance where the district court prevented ques-
tioning of Rolston’s witnesses about the specific allegations by Al-
exander and the other women who testified at trial.
See Fed. R.
Evid. 405(a) (“On cross-examination of the character witness, the
court may allow an inquiry into relevant specific instances of the
person’s conduct.”). Plus, even assuming the questions by Alexan-
der’s counsel were valid impeachment and would justify overrid-
ing the pretrial order, there was no abuse of discretion because, as
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14 Opinion of the Court 21-13720
the court directed, the matter should have been raised with the
court beforehand.
Alexander’s real complaint appears to be the district court’s
pretrial ruling that she could not offer testimony about prison ru-
mors or Rolston’s reputation in prison. In particular, the court
barred Alexander from offering evidence that it was “common
knowledge among the inmates that Rolston performed unneces-
sary pelvic exams and took sexual liberties in the course of those
exams.” In refusing to admit this testimony, the district court ex-
plained that “we don’t try cases on rumors,” and that the rumor
evidence was not based on personal knowledge.3 Alexander offers
no rebuttal to the court’s explanation and has not shown that the
court made a clear error of judgment or a mistake of law by exclud-
ing this evidence.
Moreover, even if the district court abused its discretion by
improperly limiting cross-examination of White to show that
“White did nothing,” Alexander has not shown that this “error
probably had a substantial influence on the jury’s verdict.”
Proctor,
494 F.3d at 1352. White was a brief witness in the three-day trial
and one of several witnesses who testified about working with or
supervising Rolston. His testimony was not so significant that it
prejudiced Alexander, even assuming the court should have
3 Nevertheless, the district court permitted “evidence that anybody that
worked for the Bureau of Prisons ever heard the rumor” only for the claims
against the government.
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21-13720 Opinion of the Court 15
permitted inquiry into White’s knowledge of complaints against
Rolston. As the district court repeatedly emphasized, the actions
of other prison official like White were not relevant to the issue
before the jury, which concerned what happened during the exam
in September 2016. So evidence that “White did nothing” in re-
sponse to complaints about Rolston would have properly been ex-
cluded as irrelevant and confusing. And we see no indication more
broadly that Alexander was prevented from effectively impeaching
Rolston’s witnesses.
E.
Finally, Alexander claims that the district court should have
excluded, under Rules 403 and 408, Fed. R. Evid., evidence that Al-
exander filed a claim with the government—a presuit requirement
under the FTCA—for $5 million in damages arising from the
events involving Rolston. The parties dispute whether the dam-
ages request on an FTCA claim form is subject to Rule 408, which
generally prohibits evidence of compromise offers or negotiations,
but we need not resolve that issue. Even assuming Rule 408 ap-
plies, that rule excepts evidence admitted “for another purpose,
such as proving a witness’s bias or prejudice.” Fed. R. Evid. 408(b).
Here, the evidence was offered for impeachment purposes
on cross-examination and was arguably relevant to Alexander’s val-
uation of her claim and her biases as a witness.
See United States
v. Hall, 653 F.2d 1002, 1008 (5th Cir. Aug. 1981) (“[A] witness’s mo-
tivation for testifying, as well as any potential incentives for
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16 Opinion of the Court 21-13720
falsification, are always relevant lines of inquiry.”).4 Alexander has
developed no supporting argument for her assertion that the evi-
dence should have been excluded under Rule 403 as substantially
more prejudicial than probative. In any case, we are not persuaded
that any error on this point, which was a brief, isolated point on
cross-examination, had a prejudicial effect on the trial.
F.
More broadly, Alexander maintains that the district court’s
evidentiary errors resulted in a one-sided presentation of the evi-
dence and denied her a fair trial. But on closer inspection, her bold
claims of error, and at times her descriptions of the court’s actions
more generally, are simply not supported by the record. Rather,
the record reflects that the district court made and enforced clear,
reasonable guidelines about permissible evidence and questioning,
within which Alexander was afforded a full and fair opportunity to
present her case. No trial is perfect, and any evidentiary errors in
this case, in our view, fall well short of showing an effect on her
substantial rights.
See Proctor, 494 F.3d at 1352;
see also
McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 553
(1984) (“This Court has long held that a litigant is entitled to a fair
trial but not a perfect one, for there are no perfect trials.”) (cleaned
up).
4 This Court adopted as binding precedent all Fifth Circuit decisions prior to
October 1, 1981.
Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.
1981) (
en banc).
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21-13720 Opinion of the Court 17
For these reasons, we affirm the judgment for Rolston.
III.
Next, we consider the FTCA claims, which were resolved by
bench trial. “On appeal from a bench trial, the district court’s con-
clusions of law are reviewed de novo, but its findings of fact shall
not be set aside unless clearly erroneous.”
Compulife Software Inc.
v. Newman, 959 F.3d 1288, 1301 (11th Cir. 2020) (cleaned up). A
factual finding is clearly erroneous if, based on the record as a
whole, we are confident that the court made a mistake.
Morris-
sette-Brown v. Mobile Infirmary Med. Ctr., 506 F.3d 1317, 1319
(11th Cir. 2007). But if the court’s account of the evidence is rea-
sonable, we must affirm.
Id.
A.
Alexander argues that the district court erred in evaluating
her FTCA negligence claim by focusing solely on the “74 days” be-
tween Blevins’s complaint and Alexander’s examination. In her
view, evidence of a broader “culture of impunity” at FCI Tallahas-
see with regard to sexual abuse by staff, including lengthy delays in
investigating Alexander’s and others’ allegations of sexual abuse,
foreseeably led to the harm she suffered.
The FTCA permits claims against the government for “vio-
lations of state law by federal employees.”
Shivers v. United States,
1 F.4th 924, 928 (11th Cir. 2021). To succeed on a claim of negli-
gence under Florida law, “a plaintiff must establish the four ele-
ments of duty, breach, proximate causation, and damages.”
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18 Opinion of the Court 21-13720
Limones v. Sch. Dist. of Lee Cnty., 161 So. 3d 384, 389 (Fla. 2015).
Whether a duty exists is a legal question, but “the remaining ele-
ments of negligence—breach, proximate causation, and dam-
ages—are to be resolved by the fact-finder.”
Id.
Alexander’s briefing largely sidesteps the reasons for the dis-
trict court’s ruling in favor of the government on her negligence
claim. The court found, in relevant part, that there was no evi-
dence of complaints about sexual misconduct by Rolston before
July 16, 2016, when an inmate, Blevins, complained that he con-
ducted a breast exam through her shirt without a chaperone pre-
sent. So, according to the court, the “whole question” was whether
the government “use[d] reasonable care between that date and
September 27th, 2016, when Ms. Alexander had her examination.”
On that question, the district court noted that Blevins later
“said very clearly nothing inappropriate happened during the
exam.” As a result, the court reasoned, it was “not negligent for
the government to allow Mr. Rolston to continue to conduct well
woman” exams. The court further explained that, even if the gov-
ernment had been negligent to allow Rolston to have previously
conducted an exam without a same-sex chaperone present, Alex-
ander did not suffer any resulting harm because a chaperone was
present for her examination. Accordingly, the court determined
that there was “no failure to use reasonable care” that harmed Al-
exander.
Here, Alexander has not shown that the district court com-
mitted a legal error or made clearly erroneous factual findings. We
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21-13720 Opinion of the Court 19
reject the claim that the court improperly “clos[ed] the door on the
past conduct of Rolston at FCI Tallahassee.” The court explained
that Alexander was free to present evidence against the govern-
ment “that anybody that worked for the Bureau of Prisons ever
heard the rumor” that “Rolston is a sexual abuser” before the as-
sault on Alexander. But as Alexander’s counsel admitted in the dis-
trict court, there was “[n]o evidence of any allegation against Mr.
Rolston before the assault on Ms. Alexander,” apart from Blevins’s
complaint. We also see no reason to second-guess the court’s rul-
ing that evidence of what prison officials heard or did after Alexan-
der’s September 27, 2016, exam was not relevant to what they
should have done before that date, which is what the negligence
claim was about. Negligence committed after Alexander’s injury
could not have foreseeably caused that injury.
Despite her broad claims of a “culture of impunity” at the
prison, Alexander identifies no evidence that would have given
prison officials reason to credibly suspect Rolston of sexual abuse
at the time he examined her. She admits it was “not . . . clearly
erroneous” for the court to find that Blevins, after making the com-
plaint, “said very clearly nothing inappropriate happened during
the exam.” Because the sole complainant before Alexander had de-
nied sexual misconduct, the court reasonably concluded that the
government did not breach a duty to Alexander and others by per-
mitting Rolston to continue performing “well woman” exams, so
long as a chaperone was present.
See Morrissette-Brown, 506 F.3d
at 1319;
Limones, 161 So. 3d at 389.
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20 Opinion of the Court 21-13720
B.
Next, Alexander challenges the district court’s conclusion
that the government was not vicariously liable under the FTCA be-
cause any battery committed by Rolston against Alexander was
outside the scope of his employment.
Under the FTCA, the government’s vicarious liability is lim-
ited to instances where a government employee was “acting within
the scope of his or her employment.” 28 U.S.C. § 1346(b).
“[W]hether an employee’s actions are within the scope of his em-
ployment for purposes of the [FTCA] is an issue governed by the
law of the state where the incident occurred.”
S.J. & W. Ranch,
Inc. v. Lehtinen, 913 F.2d 1538, 1542 (11th Cir. 1990),
amended, 924
F.2d 1555 (11th Cir. 1991). Because the incident here occurred in
Florida, that state’s law governs.
Under Florida law, an employee’s conduct is “within the
course and scope of employment when it (1) is of the kind the em-
ployee is hired to perform, (2) occurs substantially within the time
and space limits authorized or required by the work to be per-
formed, and (3) is activated at least in part by a purpose to serve the
master.”
Goss v. Human Servs. Assocs., Inc., 79 So. 3d 127, 132
(Fla. 5th DCA 2012). Applying this three-part test, Florida court
have generally held sexual torts “to be outside the scope of an em-
ployee’s employment and, therefore, insufficient to impose vicari-
ous liability on the employer.”
Id. (quotation marks omitted);
Naz-
areth v. Herndon Ambulance Serv., Inc., 467 So. 2d 1076, 1078 (Fla.
5th DCA 2012).
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21-13720 Opinion of the Court 21
Alexander maintains that Rolston’s alleged conduct of
“[r]ubbing the clitoris without a medical purpose” could be de-
scribed as a “slight deviation” from the government’s business, not
an abandonment of it, and that Rolston “intersperse[d] actual work
in the employer’s behalf with actionable sexual conduct.” She cites
case law indicating that such “dual purpose” conduct by employees
may be within the scope of employment.
Yet, importantly, Alexander concedes that it was for the
“factfinder” to resolve whether Rolston’s conduct was within the
scope of his employment. And here, the factfinder was the district
court,
see Fed. R. Civ. P. 52, which found that the alleged sexual
battery was
not motivated by a purpose to serve the government’s
business, and that it was a “profoundly different undertaking than
what he was hired to do and could appropriately do.”
We are not convinced that the district court clearly erred in
finding that Rolston’s alleged sexual abuse was outside the scope of
his employment.
See Morrissette-Brown, 506 F.3d at 1319. Rather,
the record supports the court’s findings that the alleged sexual
abuse was not the kind of conduct Rolston was hired to perform
and was not motivated in any way by a purpose to serve the gov-
ernment. Those findings are also consistent with how Florida law
generally treats sexual torts by employees.
See Goss, 79 So. 3d at
132 (“[T]he sexual assault was not within the course and scope of
her employment because the act was not in furtherance of her em-
ployment.”). So even assuming the record supported a contrary
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22 Opinion of the Court 21-13720
finding, the district court’s view of the evidence was not clearly er-
roneous.
See Compulife Software, 959 F.3d at 1301.
IV.
For these reasons, we affirm the judgment for Rolston on
Alexander’s Eighth Amendment claim and for the government on
her claims under the FTCA.
AFFIRMED.
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