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Emrit v. National Institutes of Health

United States District Court, District of Columbia

January 29, 2016




The plaintiffs, Ronald Satish Emrit and Nicole Rocio Leal-Mendez, are two residents of Las Vegas, Nevada. They have brought suit pro se against the National Institutes of Health (NIH), the Centers for Disease Control (CDC), the U.S. Food and Drug Administration (FDA), and the U.S. Department of Health and Human Services (HHS) for alleged violations of the Constitution, the Americans with Disabilities Act of 1990 (ADA), Title VII of the Civil Rights Act of 1964, and 42 U.S.C. § 1983.[1] In addition, the plaintiffs assert common law claims of negligence and intentional infliction of emotional distress (“IIED”). See Compl. ¶¶ 1-3, ECF No. 1. The complaint stems from the plaintiffs’ alleged attempts to obtain a diagnosis and treatment for Leal-Mendez’s “mysterious, parasitic infection.” Compl. ¶ 19. The plaintiffs seek $45 million in money damages and an order compelling the defendants to treat Leal-Mendez with specific “pharmaceutical drugs.” Compl. at ECF pp. 15-17.

The defendants have moved to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure on the bases that the plaintiffs (1) failed to exhaust their administrative remedies prior to filing this lawsuit, and (2) have stated no claims upon which relief can be granted. For the reasons explained below, the Court finds that it lacks subject matter jurisdiction. Consequently, it will grant the defendants’ motion to dismiss, albeit for a different reason. See Fed. R. Civ. P. 12(h)(3) (requiring a court to dismiss an action “at any time” that subject matter jurisdiction is found wanting).


The plaintiffs’ allegations are as follows. For three years leading up to the filing of this action in December 2014, Leal-Mendez “tried to get assistance from the NIH, CDC, and even Walter Reed Hospital with regards to assisting her with diagnosing and treating her mysterious, parasitic infection, ” which she “believes” is the result of having contracted “a sexually-transmitted parasite from a criminal recidivist[.]” Compl. ¶¶ 19-20. As a result of the infection, Leal-Mendez suffers from pain and experiences blood and mucous secretions that she claims are not caused by her other various medical conditions. Allegedly, Leal-Mendez was seen by her primary care physician in or near Providence, Rhode Island, diagnosed with “polycystic ovaries, ” and prescribed medicine “to deal with and/or cope with [her] pain[.]” Id. ¶¶ 22, 24-25. Leal-Mendez “would like to be treated with . . . pharmaceutical drugs . . . used to treat mite-like parasites which can burrow under the skin/epidermis (like scabies).” Id. ¶ 26.

The plaintiffs’ claims are captioned in the complaint as follows: Count One: Negligence; Count Two: IIED; Count Three: ADA Violation; Count Four: Title VII Violation; Count Five: Violation of 42 U.S.C. § 1983; Count Six: Violation of the Equal Protection Clause; Count Seven:

Violation of the Due Process Clause; Count Eight: Violation of the Privileges and Immunities Clause.


Prior to reaching the merits of a claim, federal courts must “assure themselves of jurisdiction[.]” Mendoza v. Perez, 754 F.3d 1002, 1018 (D.C. Cir. 2014) (quoting Floyd v. District of Columbia, 129 F.3d 152, 155 (D.C. Cir. 1997) (internal alteration and quotation marks omitted)). See James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1092 (D.C. Cir. 1996) (instructing that a court has an affirmative obligation “to consider whether the constitutional and statutory authority exist for [it] to hear each dispute”) (citation and internal quotation marks omitted)).

A complaint may be dismissed on jurisdictional grounds when it “is ‘patently insubstantial, ’ presenting no federal question suitable for decision.” Tooley v. Napolitano, 586 F.3d 1006, 1009 (D.C. Cir. 2009) (quoting Best v. Kelly, 39 F.3d 328, 330 (D.C. Cir. 1994)). In addition, the “federal courts are without power to entertain claims otherwise within their jurisdiction if they are ‘so attenuated and unsubstantial as to be absolutely devoid of merit.’ ” Hagans v. Lavine, 415 U.S. 528, 536-7 (1974) (quoting Newburyport Water Co. v. Newburyport, 193 U.S. 561, 579 (1904)).

The plaintiffs’ tenuous allegations against the named defendants satisfy the foregoing standard. Consequently, the Court may dismiss the entire complaint on the sole ground that it is frivolous.[2] Nevertheless, as explained below, the Court finds certain claims foreclosed also under the doctrines of sovereign immunity and standing.

A. Sovereign Immunity

Sovereign immunity bars lawsuits for money damages against the United States and its agencies absent a specific waiver by the federal government. Wilson v. Obama, 770 F.Supp.2d 188, 191 (D.D.C. 2011) (citing Clark v. Library of Congress, 750 F.2d 89, 102-04 (D.C. Cir. 1984)). Section 1346(b) of the United States Code “grants the federal district courts jurisdiction over a certain category of claims for which the United States has waived its sovereign immunity and rendered itself liable.” FDIC v. Meyer, 510 U.S. 471, 477 (1994) (citation, internal quotation marks, and alteration omitted). Congress has not waived the United States’ immunity with respect to tort claims arising under the Constitution. Id. at 476-78. In addition, claims against the United States not sounding in tort and seeking damages exceeding $10, 000 are the exclusive province of the U.S. Court of Federal Claims. See 28 U.S.C. §§ 1346(a)(2), 1491(a)(1).

The Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-80, provides a limited waiver of sovereign immunity where a plaintiff seeks monetary damages against a federal agency for certain common law torts committed by federal employees. Wilson, 770 F.Supp.2d at 191 (citing Roum v. Bush, 461 F.Supp.2d 40, 46 (D.D.C. 2006)). The waiver does not occur, however, until the plaintiff has exhausted administrative remedies by "first present[ing] the claim to the appropriate Federal agency" and obtaining a final written decision or waiting six months after presentment. 28 U.S.C. § 2675(a). Such exhaustion “is a requirement of the FTCA, ” Wilson, 770 F.Supp.2d at 191 (citation omitted), that the Court of Appeals has deemed to be jurisdictional. See Simpkins v. District of Columbia Gov’t, 108 F.3d 366, 371 (D.C. Cir. 2007) (concluding that the “district court . . . lacked subject matter jurisdiction, or if not jurisdiction, the functional equivalent of it” over an unexhausted FTCA claim); Abdurrahman v. Engstrom, 168 Fed.Appx. 445, 445 (D.C. Cir. 2005) (per curiam) (affirming the district court’s dismissal of an unexhausted FTCA claim “for lack of subject ...

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