Bell v. United States of America ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
YOLANDA BELL, :
:
Plaintiff, :
:
v. : Civil Action No. 16-2083 (RC)
:
UNITED STATES OF AMERICA, et al., :
:
Defendants. :
MEMORANDUM OPINION
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
1
Plaintiff refers in her complaint, see Compl. at 7 n.6, to a miscellaneous action in the United
States District Court for the Eastern District of Virginia, see Bell v. Jewell, No. 1:13-mc-0023
(E.D.V.A. July 15, 2013). The Court may, see Jones v. Lieber, 579 F. Supp. 2d 175, 178-79
(D.D.C. 2008), and does take judicial notice of public records filed in this miscellaneous case
and the underlying employment discrimination case, see Bell v. U.S. Dep’t of the Interior, No.
3:11-cv-6650 (N.D. Cal. Dec. 27, 2011), which was transferred to the United States District
Court for the Eastern District of California in May 2012, see Bell v. U.S. Dep’t of the Interior,
No. 2:12-cv-1414 (E.D. Cal. May 24, 2012).
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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,
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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
2
The Magistrate Judge, who on July 31, 2013 granted defendant’s motion to compel the IME
pursuant to Rule 35 of the Federal Rules of Civil Procedure, explained:
The morning of the scheduled examination, on August 21, 2013, plaintiff drove to
Dr. Mills’ office but would not leave her car to enter his office for the examination.
Plaintiff refused to appear for the examination claiming that she was concerned
with Dr. Mills’ office location. That same morning, following some telephonic
discussions between the parties, the court held a telephonic conference with the
parties during which plaintiff articulated the following additional concerns: Dr.
Mills’ office was located in a residential area, his office is not zoned properly, and
he is not licensed to practice in Maryland. Defense counsel represented that Dr.
Mills spoke with plaintiff outside his office, assured her that she was at his office
and offered for her to look around his office. The undersigned considered
plaintiff’s objections and specifically declined to vacate the August 19, 2013, order
requiring the examination . . . . During the telephone conference, the court
explained to plaintiff that the court had previously found Dr. Mills to be eminently
well-qualified to conduct the examination, and the fact that his office is in what she
considers a residential area does not alter the court’s ruling . . . . Notwithstanding
the court’s ruling, and the earlier admonition on August 21, 2013, regarding failure
to comply with discovery rules and orders, plaintiff refused to comply with this
court’s explicit order to appear for her examination.
Bell, 2013 U.S. Dist. LEXIS 130078, at *7-9 (E.D. Cal. Sep. 11, 2013). The presiding district
judge ultimately dismissed the case with prejudice due to plaintiff’s failure to comply with court
orders. Bell v. U.S. Dep’t of Interior, No. 2:12-cv-1414 (E.D. Cal. Nov. 21, 2013).
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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.
3
The only proper defendant to an action under the FTCA is the United States of America. See,
e.g., Johnson v. Veterans Affairs Med. Ctr., 133 F. Supp. 3d 10, 16 (D.D.C. 2015). Although
plaintiff names the Department of Justice and an unspecified United States Attorney’s Office, see
Compl. at 1 (caption), the Court proceeds as if there is a single defendant, the United States of
America.
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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
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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 the scope of his office or employment, under
circumstances where the United States, if a private person, would be liable to the claimant in
accordance with the law of the place where the act or omission occurred.” 28 U.S.C. §
1346(b)(1).
For purposes of this Memorandum Opinion, the Court presumes without deciding that
venue in this district is proper and that District of Columbia tort law applies. A plaintiff bringing
a negligence claim must show: “that there was a duty of care owed by the defendant to the
plaintiff, a breach of that duty by the defendant, and damage to the interests of the plaintiff,
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proximately caused by the breach.” Girdler v. United States, 923 F. Supp. 2d 168, 187 (D.D.C.
2013) (citations and internal quotation marks omitted). Defendants argue that “[p]laintiff has not
sufficiently alleged any of these elements.” Mem. of Law in Support of Mot. to Dismiss or
Transfer (“Defs.’ Mem.”) at 8.
First, defendants contend that plaintiff “does not adequately allege that AUSA Boesch,”
who was opposing counsel in plaintiff’s employment discrimination lawsuit, “owed her a legal
duty.” Id. The purported duties plaintiff identifies pertain to professional ethics and AUSA
Boesch’s obligations as an officer of the Court. For example, plaintiff refers in footnotes to three
provisions of the ABA Model Code of Professional Responsibility. See Compl. at 6 ¶ 3. Not
one is an obligation owed to an adverse party. Rather, because “there is no common
law duty between a plaintiff and opposing counsel, [there is] no standard of care that could be
breached.” Ginsberg v. Granados, 963 A.2d 1134, 1141 (D.C. 2009). Accordingly, plaintiff’s
negligence claims “must fail because an attorney owes no duty to opposing counsel or an adverse
party.” Conservative Club of Washington v. Finkelstein, 738 F. Supp. 6, 9 (D.D.C. 1990); see
Morovitz v. Marvel, 423 A.2d 196 (D.C. 1980) (finding that “a negligence action will not lie by a
former defendant against adverse counsel . . . primarily for the reason that there is an absence of
privity of contract between counsel and an opposing party and for public policy reasons”).
Second, defendants argue, even if AUSA Boesch owed a duty to plaintiff, the complaint
fails to allege adequately an actionable breach of that duty. See Defs.’ Mem. at 8-9. Review of
the docket of plaintiff’s employment discrimination case in the Eastern District of California
reveals that the court ordered the IME. Specifically, the court order provided that “[p]laintiff
shall appear for an independent medical examination by Dr. Mark Mills, M.D., on August 21,
2013, at 9:00 a.m., at 6635 Hillandale Road, Chevy Chase, Maryland 20815[.]” Id., Ex. A
7
(Order, Bell v. U.S. Dep’t of the Interior, No. 2:12-cv-1414 (E.D. Cal. Aug. 13, 2013)) at 14.
Moreover, once plaintiff balked at attending the IME based on the exact concerns raised in this
matter, the court did not reconsider its finding that there was “good cause for a Rule 35
examination because plaintiff’s allegations that defendant’s conduct caused her numerous
physical and mental health-related injuries put her mental state genuinely in controversy.” 4 Bell,
2013 U.S. Dist. LEXIS 130078, at *7 (internal quotation marks omitted). The Court concurs that
plaintiff does not allege adequately a breach of duty on the part of AUSA Boesch. 5
Third, to the extent that plaintiff’s complaint is interpreted as raising a claim of
misrepresentation or fraud, see Compl. at 7 ¶ 8, the FTCA precludes it. Expressly excluded from
the FTCA’s coverage is “[a]ny claim arising out . . . misrepresentation [or] deceit.” 28 U.S.C.S.
§ 2680(h). In other words, the FTCA “does not waive sovereign immunity for . . .
misrepresentation[] or deceit claims,” Budik v. United States, No. 14-5102, 2014 U.S. App.
LEXIS 21460, at *1 (D.C. Cir. Nov. 12, 2014), and the Court must dismiss them, see, e.g.,
Coulibaly v. Kerry, 213 F. Supp. 3d 93, 126 (D.D.C. 2016).
C. Plaintiff’s Motion to Amend the Complaint
The 21-day period within which plaintiff could have amended her complaint as a matter
of course under Fed. R. Civ. P. 15(a)(1) has passed. At this juncture, amendment of the
complaint is allowed “only with the [defendant’s] written consent or the court’s leave.” Fed. R.
Civ. P. 15(a)(2). “The court should freely give leave when justice so requires.” Id. Defendant
4
This court finding may even collaterally estop plaintiff from raising her current claims. See
Yamaha Corp. of Am. v. United States, 961 F.2d 245, 254 (D.C. Cir. 1992).
5
Defendants argue that “[p]laintiff does not plausibly allege that she suffered any damages due
to her being sent for an [IME].” Defs.’ Mem. at 9. It seems unlikely that plaintiff’s travels to
Chevy Chase, Maryland for an IME she refused to undergo resulted in the extreme and pervasive
harms she alleges. However, at this stage of the proceedings, the Court is not inclined to dismiss
this pro se plaintiff’s complaint merely because her demand for damages seems exaggerated.
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opposes the motion, see generally Opp’n to Pl.’s Mot. for Leave to File Am. Compl. at 3-6, and
the Court denies leave to amend.
The Court notes that plaintiff’s proposed amended complaint is substantially similar to
the original pleading – and suffers its same defect. It is no more successful in alleging a viable
negligence claim arising from the purported acts or omissions of AUSA Boesch. An amendment
is futile if it merely restates the same facts as the original complaint in different terms, reasserts a
claim on which the court previously ruled, fails to state a legal theory or could not withstand a
motion to dismiss.” Robinson v. Detroit News, Inc., 211 F. Supp. 2d 101, 114 (D.D.C. 2002)
(citation omitted); see also James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996)
(affirming denial of proposed amended complaint as futile). Where, as here, the proposed
amended complaint would not survive a motion to dismiss, leave to amend appropriately is
denied. See Hettinga v. United States, 677 F.3d 471, 480 (D.C. Cir. 2012) (citation omitted),
cert. denied, 133 S. Ct. 860 (2013).
III. CONCLUSION
The Court concludes that plaintiff’s complaint fails to state an FTCA claim upon which
relief can be granted. Accordingly, the Court grants defendants’ motion to dismiss the complaint
and denies as futile plaintiff’s motion to amend the complaint. An Order is issued separately.
DATE: March 16, 2018 /s/
RUDOLPH CONTRERAS
United States District Judge
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