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Budik v. Ashley

United States District Court, D. Columbia.

April 14, 2014

EDITH M. BUDIK, Plaintiff,
v.
RICANTHONY R. ASHLEY, M.D., Defendant

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EDITH M. BUDIK, Plaintiff, Pro se, APO, AE.

For UNITED STATES OF AMERICA, Defendant: John J. Gowel, LEAD ATTORNEY, UNITED STATES ATTORNEY'S OFFICE FOR THE DISTRICT OF COL, Washington, DC.

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MEMORANDUM OPINION

REGGIE B. WALTON, United States District Judge.

The pro se plaintiff in this case, Edith M. Budik, filed a complaint against the defendant, Lieutenant Colonel Ricanthony R. Ashley (" Lt. Col. Ashley" ), asserting claims of defamation and fraud, violations of the Privacy Act, 5 U.S.C. § 552a (2012), and violations of the Confidentiality of Medical Quality Assurance Records statute, 10 U.S.C. § 1102 (2012). See Amended Complaint (" Compl." ) ¶ ¶ 3, 25-26, 30-31, 33-34, 36, Conclusion. Currently before the Court is the defendant's Motion to Substitute the United States and Dismiss (" Def.'s Mot." ). Upon careful consideration of the parties' submissions,[1] the Court concludes that the defendant's motion must be granted.

I. BACKGROUND

The plaintiff was employed as a staff radiologist at Landstuhl Regional Medical Center (" Landstuhl" ) in Landstuhl, Germany, from November 5, 2007, through

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February 25, 2008. Compl. ¶ 1. Lt. Col. Ashley was her supervisor. Id. ¶ 2. " As [her] supervisor, [the] [d]efendant completed a rating . . . of [the] [p]laintiff's clinical performance on a DA Form 5374." [2] Id. ¶ 3; see also id., Exhibit (" Ex." ) 20 (January 2, 2009 Declaration of Lt. Col. Ashley (" Ashley Decl." )) at 2. Lt. Col. Ashley " initially filled out the evaluation without comments," however, the credentialing department told him that " if there were issues with Dr. Budik, they should be included on the assessment." Id., Ex. 20 (Ashley Decl.) at 2 (" [The credentialing department] stressed that I should be sure to document any issues for future consideration on the form." ). The credentialing department " sent the form back to [Lt. Col. Ashley] and [he] commented that [the plaintiff] had some issues with some of the clinical staff." Id., Ex. 20 (Ashley Decl.) at 2. Specifically, Lt. Col. Ashley added the following comments to the plaintiff's DA Form 5374: " Col[.] Budik had some problems with staff interaction which resulted in several complaints and clinicians going to other radiologists instead of her." Id., Ex. 20 (Ashley Decl.) at 1 (internal quotation marks omitted); see also Compl. ¶ ¶ 18-19.

On May 20, 2008, after the conclusion of the plaintiff's employment at Landstuhl, she applied for a position as a neuroradiologist at the Dartmouth-Hitchcock Medical Center (" Dartmouth" ). Id. ¶ 8. On June 25, 2008, Colonel Steven Princiotta (" Col. Princiotta" ), the Deputy Commander of Clinical Services of Landstuhl, telephoned the plaintiff. Id. ¶ 9. During the telephone call, the " [p]laintiff inquired of the status of the Dartmouth evaluation, and [Col.] Princiotta stated that he had not yet completed the evaluation [for] Dartmouth but would do so." Id. " Five days after the call from [Col.] Princiotta, on June 30, 2008, the credentialing process at Dartmouth suddenly stopped." Id. ¶ 11. On or around October 30, 2008, the " [p]laintiff learned that [Col.] Princiotta . . . had signed the Dartmouth rating form," id. ¶ 24 (citing Compl., Ex. 17 (Unredacted Dartmouth Professional Practice Evaluation), and that it contained the same statement Lt. Col. Ashley had written on the plaintiff's DA Form 5374, see Compl., Ex. 9 (Partially Redacted Dartmouth Professional Practice Evaluation) at 2-3; Compl. ¶ 24.

" On or about August 14, 2008, [the] [p]laintiff applied [for a position] as a civilian [d]iagnostic [r]adiologist through Sterling Medical, a civilian-hiring agent for Malcolm Grow Medical Center . . . at Andrews Air Force Base, Maryland." Id. ¶ 12. Sterling Medical also " received an evaluation report directly from [Landstuhl]" that included " the same 'troublesome' statement that had been written on the Dartmouth [rating] form." Id. ¶ ¶ 16-17.

The plaintiff originally filed suit against Lt. Col. Ashley in the New York State Supreme Court of Orange County, New York. See Notice of Removal, ECF No. 1. The case was removed to the United States District Court for the Southern District of New York, id., and then transferred to this Court on December 3, 2012, see December 3, 2012 Minute Entry. The complaint asserts claims of fraud, misrepresentation, forgery, and defamation, and additionally alleges that the defendant violated the Privacy Act and a statute governing the confidentiality of medical quality assurance records. Compl. ¶ ¶ 3, 23, 26, 32, 34, 36, 38, Conclusion. The plaintiff seeks

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" all available remedies at law and/or equity," including $4,000,000 in lost wages and $4,000,000 " for damages to her reputation in the medical community, her career, and loss of future earnings." Id. at Conclusion. The defendant now moves to dismiss the plaintiff's claims for lack of subject matter jurisdiction and for failure to state a ...


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