Afolabi-Brown v. Coombs ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RICHARD AFOLABI-BROWN,
Plaintiff,
v. Civil Action No. 18-1409 (EGS)
ALBERT C. COOMBS, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
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
1 When citing electronic filings throughout this Opinion, the
Court cites to the ECF header page number, not the page number
of the filed document.
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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. §
3
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
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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
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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.
§ 233, and that they were acting within the scope of their
employment as if they were employees of the Public Health
Service. See Defs.’ Mot. to Dismiss ECF No. 8. The Court
addresses each argument in turn.
1. UHC and Dr. Wright Are Employees Under the PHSA
The PHSA regulates the determination by the government that
defendants in a given matter are PHS employees. Pursuant to the
Federally Supported Health Centers Assistance Act (“FSHCAA”), 42
U.S.C. § 233, the Secretary may deem a “public or non-profit
private entity receiving Federal funds under” 42 U.S.C. § 254b
to be a PHS employee with FTCA coverage. 42 U.S.C.
§ 233(g)(1)A),(g)(4). The PHSA also provides for the Secretary
to deem employees or contractors of the entity to be PHS
employees, covered by the FTCA in the same manner as the entity.
42 U.S.C. § 233(g)(1)(A); see also El Rio Santa Cruz
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Neighborhood Health Ctr., Inc. v. Dep't of Health & Human
Servs., 300 F. Supp. 2d 32, 34 (D.D.C. 2004), aff'd sub nom. El
Rio Santa Cruz Neighborhood Health Ctr., Inc. v. U.S. Dep't of
Health & Human Servs., 396 F.3d 1265 (D.C. Cir. 2005). Once the
Secretary makes this determination, it “shall be final and
binding upon the Secretary and the Attorney General and other
parties to any civil action or proceeding,” 42 U.S.C.
§ 233(g)(1)(F), with “[e]ligible entities [to] be covered . . .
on and after the effective date of [the] determination.” 42
C.F.R. § 6.5.
In this case, the government has presented documents from
DHHS, Health Resources and Services Administration (“HRSA”),
showing that the Secretary deemed UHC and Dr. Wright to be PHS
employees for the period from January 1, 2013 through December
31, 2014, the relevant timeframe for Mr. Afolabi-Brown’s
allegations. Def.’s Mot. to Dismiss, Ex. 1 to Meredith Torres
Decl., ECF No. 8-2 at 3–6. This evidence of the Secretary’s
final determination is enough to bring UHC under FTCA coverage.
See Hinton v. U.S., 714 F. Supp. 2d 157, 158 n.1 (D.D.C
2010)(citing certification from HRSA as evidence that defendant
UHC was considered a PHS employee for purposes of the FTCA). As
to Dr. Wright’s status, the Secretary’s determination includes
coverage for UHC’s “full- and part-time employees” and
“contractors who are licensed or certified individual health
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care practitioners providing full-time services,” as provided
for in section 233(g)(1)(A). See id. at 4, 6; see also Torres
Decl., ECF No. 8-2 ¶ 6 (stating Dr. Wright was an employee of
UHC “at all times relevant to the Plaintiff’s complaint in this
case”). Additionally, Mr. Afolabi-Brown has stated that Dr.
Wright provided dental services at UHC during the period of time
covered by the Secretary’s determination. Pl.’s Opp’n, ECF No.
12 at 16. He does not allege that Dr. Wright was a volunteer, an
independent contractor providing only part-time services, or in
any other type of relationship with UHC that would leave her
uncovered by the FTCA. 2 Accordingly, UHC and Dr. Wright are
employees of the Public Health Service for purposes of the FTCA.
2. UHC and Dr. Wright Were Acting Within Their Scope
of Employment
After the Secretary determines PHS employee status, the
Attorney General may certify that the entity and the employee
were acting within the scope of employment “at the time of the
incident out of which the suit arose,” leading to the action’s
removal to federal court and to the substitution of the
government for the defendants. 42 U.S.C.§ 233(c). By regulation,
2 It is unclear whether Mr. Afolabi-Brown argues in his
Opposition Memorandum that Dr. Wright is also a contractor, see
Pl.’s Opp’n, ECF No. 12 at 4–5, but assuming that he does and
that he is correct, status as a contractor does not preclude an
individual from coverage under the PHSA. See, e.g., 42 U.S.C. §
233(g)(1)(A)(stating Secretary may deem certain contractors to
be PHS employees covered by the FTCA in the same manner as the
entity).
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this certification has been delegated to the “United States
Attorney for the district where the civil action or proceeding
is brought,” or the Director of the “Torts Branch, Civil
Division, [or] Department of Justice.” 28 C.F.R. § 15.4(a). The
certification “does not conclusively establish as correct the
substitution of the United States as defendant in place of the
employee. But it does constitute prima facie evidence that the
employee was acting within the scope of his employment.” Council
on Am. Islamic Relations v. Ballenger, 444 F.3d 659, 662 (D.C.
Cir. 2006)(internal citations and quotation marks omitted). A
plaintiff who challenges the certification “bears the burden of
coming forward with specific facts rebutting the certification.”
Id. (quoting Stokes v. Cross, 327 F.3d 1210, 1214 (D.C. Cir.
2003)).
In this case, the government has submitted a certification
by Daniel F. Van Horn, Chief of the Civil Division, Office of
the United States Attorney for the District of Columbia. Notice
of Removal, Ex. B, ECF No. 1-3 at 1. Mr. Van Horn certifies that
both UHC and Dr. Wright were acting within their scope of
employment as “employees of the Public Health Service.” Id.Mr. Afolabi-Brown has failed to provide any facts that
rebut the government’s certification, and the Court agrees that
the defendants were acting within the scope of their employment.
In defining the scope of employment, this Court must look to
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District of Columbia law, which provides as follows:
(1) Conduct of a servant is within
the scope of employment if, but only if:
(a) it is of the kind he is employed to
perform;
(b) it occurs substantially within the
authorized time and space limits;
(c) it is actuated, at least in part, by
a purpose to serve the master, and
(d) if force is intentionally used by the
servant against another, the use of force
is not unexpectable by the master.
(2) Conduct of a servant is not within
the scope of employment if it is different in
kind from that authorized, far beyond the
authorized time or space limits, or too little
actuated by a purpose to serve the master.
Ballenger, 444 F.3d at 663 (citing Restatement (Second) Of
Agency (1958) § 228).
With respect to Dr. Wright, Mr. Afolabi-Brown alleges that
she evaluated him, recommended that a cap be placed on one
tooth, and referred him to WDS. See Compl., ECF No. 1-2 at 3.
UHC served as Mr. Afolabi-Brown’s health care provider both
before and after the incident, and employed Dr. Wright at the
time of her referral. See id. Mr. Afolabi-Brown claims that both
Dr. Wright and UHC failed to protect him, and that they had
“foreknowledge of complaints of incidences of Assault and
Battery” upon referred patients. Pl.’s Opp’n, ECF No. 12 at 44.
However, because Mr. Afolabi-Brown has not provided detailed
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information to back up these allegations, this Court can only
treat them as conclusory statements, not as specific facts that
serve to rebut the scope-of-employment presumption favoring the
defendants. See Stokes, 327 F.3d at 1214. None of the facts in
Mr. Afolabi-Brown’s complaint indicate that UHC or Dr. Wright
departed from their ordinary role of serving patients and
providing health care. Accordingly, UHC and Dr. Wright were PHS
employees acting within their scope of employment at the time of
the events described by Mr. Afolabi-Brown, which allows the
government to substitute itself on their behalf and the suit to
be governed by the FTCA.
B. Mr. Afolabi-Brown Failed to Exhaust His Administrative
Remedies
The FTCA requires that a claimant against the United
States, wishing to pursue the action in federal district court,
must first exhaust his administrative remedies. See 28 U.S.C. §
2675(a). To exhaust administrative remedies under the FTCA, “the
claimant shall have first presented the claim to the appropriate
[f]ederal agency and his claim shall have been finally denied by
the agency in writing and sent by certified or registered mail.”
Id. 3 “In this Circuit, a claim is considered adequately
3 Mr. Afolabi-Brown must also have filed the claim with the
agency “within two years after such claim accrues.” 28 U.S.C. §
2401(b). The Supreme Court has recently held that unlike
presentment, this time-bar is non-jurisdictional in nature, and
may be subject to equitable tolling at a court’s discretion.
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presented when a claimant provides the agency with ‘(1) a
written statement sufficiently describing the injury to enable
the agency to begin its own investigation, and (2) a sum-certain
damages claim.’” Tookes v. United States, 811 F. Supp. 2d 322,
331 (D.D.C. 2011)(quoting GAF Corp. v. United States, 818 F.2d
901, 905 (D.C. Cir. 1987)). The rationale for this
“jurisdictional prerequisite,” GAF Corp., 818 F.2d at 904, is
that “[n]otice of an injury will enable the agency to
investigate and ascertain the strength of a claim; [and] the
sum-certain statement of damages will enable it to determine
whether settlement or negotiations to that end are desirable,”
id. at 919–20. “In reviewing the presentment requirement
contained in 2675(a), the Supreme Court has ruled that pro se
litigants should be held to the same standard as litigants who
have retained counsel.” Stokes v. U.S. Postal Serv., 937 F.
Supp. 11, 14 (D.D.C. 1996)(citing McNeil v. United States, 508
U.S. 106, 113 (1993)).
The record establishes that Mr. Afolabi-Brown did not meet
United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1632–33 (2015).
This Court cannot now consider equitable tolling in this case,
as such arguments “are premature until it is shown that the
plaintiff presented [the] claim to the agency, and then that
claim was denied.” Jackson v. United States, 248 F. Supp. 3d
167, 171 n.3 (D.D.C. 2017). “At that point, if the plaintiff
failed to present [the] claim within two years of accrual or
within six months of denial, equitable tolling arguments may be
considered.” Id.12
his “minimal” burden to file an administrative FTCA claim.
Tookes, 811 F. Supp. 2d at 331 (stating “the FTCA only imposes
on claimants the burden of providing notice, not the burden of
substantiating claims”). As the government notes in its briefs,
Mr. Afolabi-Brown has not asserted, in his complaint or
opposition memorandum, that he has exhausted his administrative
remedies as required by the FTCA. Def.’s Mot. to Dismiss, ECF
No. 8 at 2–3. He has also failed to provide any evidence
demonstrating he presented his claim to the agency. The
government attaches a declaration by Meredith Torres, Office of
the General Counsel, DHHS, attesting that no claim by Mr.
Afolabi-Brown appears in the agency’s records. See Torres Decl.,
ECF No. 8-2 ¶¶ 4-6. Indeed, Mr. Afolabi-Brown himself indicates
that he filed a professional complaint with a Dental Board
rather than DHHS. Compl., ECF No. 1-2 at 8–11. Because Mr.
Afolabi-Brown did not file an administrative claim with the
appropriate federal agency, the Court lacks jurisdiction over
his claims. See Simpkins v. District of Columbia, 108 F.3d 366,
371 (D.C. Cir. 1997)(finding that the district court “lacked
subject matter jurisdiction, or if not jurisdiction, the
functional equivalent of it,” because the plaintiff had not
exhausted his administrative remedies). Accordingly, the
government’s motion to dismiss for lack of subject matter
jurisdiction is GRANTED.
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IV. Conclusion and Order
For the foregoing reasons, the government’s motion to
dismiss is GRANTED. Plaintiff’s complaint against the government
is hereby DISMISSED.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
March 25, 2019
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