United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
G. SULLIVAN UNITED STATES DISTRICT JUDGE
Richard O. Afolabi-Brown brings this action, pro se,
against Unity Health Care, Inc. (“UHC”) and Dr.
Cassandra Wright alleging, inter alia, that they
committed negligence under District of Columbia law by
referring him to health care providers who assaulted him as
part of a Medicaid fraud scheme. The United States
substituted itself for UHC and Dr. Wright, and moved to
dismiss the complaint pursuant to Federal Rule of Civil
Procedure 12(b)(1) for failure to exhaust administrative
remedies as required under the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. §§ 1346. The Court
has carefully considered the government's motion,
plaintiff's response, the government's reply thereto,
the applicable law, and the entire record herein. For the
reasons that follow, the government's motion to dismiss
following facts, which the Court must accept as true at this
stage of the proceedings, are set forth in Mr.
Afolabi-Brown's complaint and were supplemented by his
opposition to the motion to dismiss. Notice of Removal, ECF
No. 1-2 (“Compl.”); Pl.'s Opp'n, ECF No.
12. See Schnitzler v. United States, 761 F.3d 33, 38
(D.C. Cir. 2014)(requiring a court to consider a pro
se plaintiff's “filings as a whole” in
resolving a motion to dismiss).
Afolabi-Brown visited Dr. Wright in November 2014 at a clinic
run by UHC, seeking dental care after a recent root canal.
Compl., ECF No. 1-2 at 2. Dr. Wright determined that Mr.
Afolabi-Brown should receive a permanent crown on one of his
teeth, and she referred him to The Washington Dental Studio
(“WDS”), for that service. Id. at 3. On
December 9, 2014, Mr. Afolabi-Brown went to WDS and was seen
by Dr. Albert C. Coombs. Id. at 1, 5-6. Instead of
providing Mr. Afolabi-Brown with the permanent crown, and
over Mr. Afolabi-Brown's objection, Dr. Coombs performed
numerous procedures on his other teeth, including the removal
of multiple bridges, caps, and fillings. Id. at 6.
a few days, Mr. Afolabi-Brown visited the District of
Columbia's Medicaid offices to file a formal complaint
and was told that WDS and Dr. Coombs had already been
reimbursed for the procedures. Id. at 8-9. After
realizing that he had been the victim of “a scam
perpetrated through Medicaid” Mr. Afolabi-Brown next
filed an official complaint with the District of Columbia
Board of Dentistry (the “Board”).”
Id. at 10. The Board responded, informing Mr.
Afolabi-Brown that it had found that no violations occurred
because he provided “prior authorization to do [the
2017, Mr. Afolabi-Brown filed a complaint in the Superior
Court for the District of Columbia. Id. at 1. He
later filed an “Addendum to Second Amendment
Complaint” in the Superior Court, adding specific
claims against each defendant. Pl.'s Opp'n, ECF No.
12 at 42, 52-57. Against UHC and Dr. Wright, his claims
included negligence and aggravated assault. Id. at
52-55. Mr. Afolabi-Brown sought punitive damages as well as
damages for emotional distress and loss of consortium.
Id. at 53-55. He alleges that UHC and Dr. Wright
either specifically knew of previous complaints against WDS
and Dr. Coombs, or else should have known not to make
referrals to them. Id. at 47, 54.
government entered a notice of removal certifying that UHC
and Dr. Wright acted “within the scope of their office
or employment at the time of the alleged incidents” and
substituting itself for those defendants under 28 U.S.C.
§ 2679(d)(1). Notice of Removal, ECF No. 1 ¶ 3. The
government subsequently moved to dismiss for lack of subject
matter jurisdiction under Rule 12(b)(1), ECF No. 8, Mr.
Afolabi-Brown has filed his opposition, ECF No. 12, and the
government has filed its reply, ECF No. 15. The motion to
dismiss is ripe for adjudication.
“pro se complaint is entitled to liberal
construction.” Washington v. Geren, 675
F.Supp.2d 26, 31 (D.D.C. 2009) (citing Haines v.
Kerner, 404 U.S. 519, 520 (1972)). However, “[a]
federal district court may only hear a claim over which [it]
has subject matter jurisdiction; therefore, a Rule 12(b)(1)
motion for dismissal is a threshold challenge to a
court's jurisdiction.” Gregorio v. Hoover,
238 F.Supp.3d 37, 44 (D.D.C. 2017)(citations and internal
quotation marks omitted). To survive a Rule 12(b)(1) motion,
the plaintiff bears the burden of establishing that the court
has jurisdiction. Lujan v. Defenders of Wildlife,
504 U.S. 555, 561 (1992). “Because Rule 12(b)(1)
concerns a court's ability to hear a particular claim,
the court must scrutinize the plaintiff's allegations
more closely . . . than it would under a motion to dismiss
pursuant to Rule 12(b)(6).” Schmidt v. U.S. Capitol
Police Bd., 826 F.Supp.2d 59, 65 (D.D.C. 2011)(citations
omitted). In reviewing a motion to dismiss pursuant to Rule
12(b)(1), the court “may consider materials outside the
pleadings” in determining whether it has jurisdiction
to hear the case. Jerome Stevens Pharm., Inc. v.
FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). The court
must accept as true all of the factual allegations in the
complaint and draw all reasonable inferences in favor of the
plaintiff, but the court need not “accept inferences
unsupported by the facts alleged or legal conclusions that
are cast as factual allegations.” Rann v.
Chao, 154 F.Supp.2d 61, 64 (D.D.C. 2001)(citation
government moves to dismiss Mr. Afolabi-Brown's complaint
based on his alleged failure to exhaust his administrative
remedies. See generally, Def.'s Mot. to Dismiss,
ECF No. 8. As a threshold matter, the Court first determines
whether the government properly substituted itself as a
defendant under the Public Health Service Act
(“PHSA”), 42 U.S.C. § 233. Having found that
the substitution was proper, the Court then turns to whether
Mr. Afolabi-Brown exhausted his administrative remedies.
The Government Properly Substituted Itself for
demands monetary damages for claims arising from dental
treatment provided by defendants. Under the PHSA, the
government may substitute itself for employees of the Public
Health Service (“PHS”) who are defendants in
state civil actions, bringing the action under the FTCA, so
long as Secretary of Health and Human Services (the
“Secretary”) has deemed the defendants to be PHS
employees, and the Attorney General has certified that these
defendants were acting in their scope of employment when they
performed the acts which gave rise to the suit. 42 U.S.C.
§ 233(c), (g)(1)(A). The government asserts that UHC is
a grantee of the Department of Health and Human Services
(“DHHS”) by operation of the PHSA, see
42 U.S.C. § ...