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Afolabi-Brown v. Coombs

United States District Court, District of Columbia

March 25, 2019

RICHARD AFOLABI-BROWN, Plaintiff,
v.
ALBERT C. COOMBS, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          EMMET G. SULLIVAN UNITED STATES DISTRICT JUDGE

         Plaintiff 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 is GRANTED.

         I. Background

         The 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).

         Mr. 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.[1] 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.

         Within 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 procedures].” Id.

         In 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.

         The 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.

         II. Legal Standard

         A “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 omitted).

         III. Analysis

         The 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.

         A. The Government Properly Substituted Itself for Defendants

         Plaintiff 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. ยง ...


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