United States District Court, District of Columbia
RUDOLPH CONTRERAS, UNITED STATES DISTRICT JUDGE.
matter is before the Court on defendants' motion to
dismiss or Transfer [ECF No. 8] and plaintiff's motions
to amend her complaint [ECF Nos. 20-21]. For the reasons
discussed below, the Court grants the defendants' motion
Bell, a former employee of the United States Department of
the Interior, filed an employment discrimination complaint in
the United States District Court for the Northern District of
California. Assistant United States Attorney Victoria
Boesch (“AUSA Boesch”) represented the defendant.
Discovery disputes arose, and among other rulings, the court
ordered plaintiff to undergo an independent medical
examination (“IME”). Mem. of Law in Support of
Mot. to Dismiss or Transfer, Ex. A (Order, Bell v. U.S.
Dep't of Interior, No. 2:12-cv-1414 (E.D. Cal. Aug.
19, 2013) at 14).
to plaintiff, AUSA Boesch scheduled “an [IME] with Dr.
Mark A. Mills at 0900 hours at 6635 Hillandale Road, Chevy
Chase, Maryland 20815” on August 21, 2013. Compl. at 3
¶ 1 (page numbers designated by ECF; paragraph numbers
designated by plaintiff). Plaintiff described the building as
“an attached end unit townhouse in a residential
community adjacent to the Clara Barton Historical
Park.” Compl. at 3 ¶ 3. The building did not
appear to be “a medical or office building, ” and
“there was no signage . . . to indicate . . . it was a
business at all - medical or otherwise.” Id.
at 3 ¶ 3. She “called 411 information which
revealed no number listed at that address in Chevy Chase for
a Dr. Mark Mills, MD.” Id. at 3 ¶ 5.
Plaintiff also called the United States District Court for
the District of Maryland, the United States Attorney's
Office for the District of Maryland, and the Maryland Board
of Physicians, and “none . . . had a Maryland address
for Dr. Mills.” Id. at 4 ¶ 5. Further,
plaintiff alleged, “the Maryland Medical Board of
Physicians showed no Maryland license having been issued to
Dr. Mark. J. Mills, MD current or past.” Id.
called AUSA Boesch to share her “safety concerns”
about Dr. Mills and to express her willingness “to
attend the IME at another location such as Dr. Mills[']
office complex in the District of Columbia or another
Business location.” Id. at 4 ¶ 6. AUSA
Boesch arranged a conference call for later that morning,
id. at 4 ¶ 7, which the Court presumes was a
telephone conference with the court, see Bell v. U.S.
Dep't of the Interior, No. 2:12-cv-1414, 2013 U.S.
Dist. LEXIS 130078, at *6 (E.D. Cal. Sept. 11,
2013). “Plaintiff . . . took pictures of
the area and townhouse and left[.]” Compl. at 4 ¶
plaintiff's view, defendants were “wrongfully and
forcefully pressuring [her] under threat to see Dr.
Mark Mills (to her detriment), an . . . unlicensed physician,
to take part in the IME . . . despite being informed . . .
that . . . Mark Mills was not licensed to practice medicine
in Maryland[.]” Id. at 5 ¶ 1 (emphasis in
original). She alleged that a “reasonable person”
would not pressure “a lone female[, ] to enter said
location for eight (8) hours with an unknown male . . ., into
a townhouse that had no sign indicating that it was a . . .
physician's office, that was adjacent to a large forest,
and/or with a man [she] did not know [or] had ever seen
before even if he was supposed to be a physician[, ]”
id. at 5 ¶ 2, particularly when “it was
not uncommon to hear of women going missing in the DC Metro
area, ” id. at 5-6 ¶ 2.
brings this action under the Federal Tort Claims Act
(“FTCA”), see 28 U.S.C. §§
2671-80, against the United States, see Compl. at
1-2 ¶ 2. She alleges that AUSA Boesch “failed
in her duty of care when she failed to exercise due diligence
by checking on the medical licensing and location of Dr. Mark
Mills prior to sending [p]laintiff to him for
examination.” Id. at 5 ¶ 1. Further,
plaintiff alleges that AUSA Boesch breached her “legal
duty to act with candor toward the tribunal, a duty to not
knowingly engage in illegal conduct or conduct contrary to a
disciplinary rule; conduct involving dishonesty or fraud,
conduct that is prejudicial to the administration of justice,
conduct that give[s] even the appearance of professional
impropriety; and a duty to always maintain her integrity,
candor and fairness in conduct, and not engage in any manner
of ‘fraud or chicane' [sic] in the pursuant of a
client's cause.” Id. at 6 ¶ 3
(footnotes omitted). Plaintiff faults AUSA Boesch for having
moved to dismiss plaintiff's employment discrimination
lawsuit rather than reschedule an IME with a licensed
physician at another location. Id. at 7 ¶ 5. As
a result, plaintiff alleges, she has suffered “loss of
enjoyment of life, despondency; sleep disruption/deprivation;
damage to reputation; emotional distress, humiliation, case
dismissal and exacerbated depression, ” id. at
7 ¶ 6. Plaintiff demands monetary damages. Id.
Dismissal Under Rule 12(b)(6)
plaintiff need only provide a “short and plain
statement of [her] claim showing that [she is] entitled to
relief, ” Fed.R.Civ.P. 8(a)(2), that “give[s] the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)) (internal quotation marks omitted). “A motion
to dismiss under Rule 12(b)(6) tests not whether the
plaintiff will prevail on the merits, but instead whether the
plaintiff has properly stated a claim.” Woodruff v.
DiMario, 197 F.R.D. 191, 193 (D.D.C. 2000). In
considering such a motion, the “complaint is construed
liberally in the plaintiff['s] favor, and [the Court]
grant[s] plaintiff the benefit of all inferences that can
be derived from the facts alleged.” Kowal v. MCI
Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).
However, “the [C]ourt need not accept inferences drawn
by plaintiff if such inferences are unsupported by the
facts set out in the complaint.” Id. Nor must
the Court accept “a legal conclusion couched as a
factual allegation, ” nor “naked assertions
devoid of further factual enhancement.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
marks and citation omitted).
complaint survives a motion under Rule 12(b)(6) only if it
“contain[s] sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face.” Id. A claim is facially plausible
“when the plaintiff pleads factual content that allows
the [C]ourt to draw [a] reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. (quoting Twombly, 550 U.S. at 556).
“[A] complaint [alleging] facts that are merely
consistent with a defendant's liability . . . stops short
of the line between possibility and plausibility of
entitlement to relief.” Id. (internal
quotation marks omitted) (citing Twombly, 550 U.S.
at 557). Although a pro se complaint is “held
to less stringent standards than formal pleadings drafted by
lawyers, ” Erickson, 551 U.S. at 94 (internal
quotation marks and citation omitted), it too “must
plead ‘factual matter' that permits the court to
infer ‘more than the mere possibility of misconduct,
'” Atherton v. District of Columbia Office of
the Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009)
(quoting Iqbal, 556 U.S. at 678-79), by the
Plaintiff's Complaint Fails to Allege a Negligence
United States enjoys sovereign immunity, United States v.
Sherwood, 312 U.S. 584, 586-87 (1941), and it “may
not be sued without its consent and . . . the existence of
consent is a prerequisite for jurisdiction, ”
United States v. Mitchell, 463 U.S. 206, 212 (1983).
“The [FTCA] Act is a limited waiver of sovereign
immunity, making the Federal Government liable to the same
extent as a private party for certain torts of federal
employees acting within the scope of their employment.”
United States v. Orleans, 425 U.S. 807, 813 (1976);
Tri-State Hosp. Supply Corp. v. United States, 341
F.3d 571, 575 (D.C. Cir. 2003). It confers on federal
district courts “exclusive jurisdiction of civil
actions on claims against the United States, for money
damages . . ., for injury or loss of property . . . caused by
the negligent or wrongful act or omission of any employee of
the Government while acting within ...