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Bell v. United States

United States District Court, District of Columbia

March 16, 2018

YOLANDA BELL, Plaintiff,
v.
UNITED STATES OF AMERICA, et al., Defendants.

          MEMORANDUM OPINION

          RUDOLPH CONTRERAS, UNITED STATES DISTRICT JUDGE.

         This 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 to dismiss.

         I. BACKGROUND

         Yolanda 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.[1] 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).

         According 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.

         Plaintiff 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).[2] “Plaintiff . . . took pictures of the area and townhouse and left[.]” Compl. at 4 ¶ 7.

         In 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.

         Plaintiff 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.[3] 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. at 9.

         II. DISCUSSION

         A. Dismissal Under Rule 12(b)(6)

         A 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).

         A 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 defendants.

         B. Plaintiff's Complaint Fails to Allege a Negligence Claim

         The 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 ...


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