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Wood v. Jackson Hospital

United States District Court, M.D. Alabama, Northern Division

August 23, 2018

FREDDIE EUGENE WOOD, Plaintiff,
v.
JACKSON HOSPITAL, et al., Defendants.

          REPORT AND RECOMMENDATION

          DAVID A. BAKER UNITED STATES MAGISTRATE JUDGE.

         In his twenty-four count amended complaint, [1] Plaintiff Freddie Eugene Wood sues Defendants, Jackson Hospital, Joe Riley, Dr. Maher Farah, Dr. Richard Sample, Dr. Steven O'Mara, Alabama Board of Medical Examiners, and Stan Ingram for federal and state law claims arising out of an incident (and subsequent events) on August 17, 2015, when Plaintiff sought medical treatment from Jackson Hospital's emergency department. This case is again before the court on Defendants' motions to dismiss the amended complaint (Docs. 47, 48, 49). The parties have been afforded the opportunity to fully brief the matters. For the reasons stated below, the undersigned RECOMMENDS the motions to dismiss (Docs. 47, 48, 49) be granted as to the federal claims and that the Court decline to exercise jurisdiction over the state law claims. Should the Court wish to reach the merits of the state claims, they should also be dismissed.

         I. JURISDICTION

         The court's subject matter jurisdiction is invoked under 28 U.S.C. § 1331 as to Plaintiff's federal causes of action. The court may exercise supplemental jurisdiction over Plaintiff's state law claims pursuant to 28 U.S.C. § 1367. Defendants Jackson Hospital and its CEO Joe Riley contest personal jurisdiction.[2]The parties do not contest venue, and the court finds sufficient information of record to support venue. See 28 U.S.C. § 1391. On October 3, 2017, this matter was referred to the undersigned for review by United States District Judge Myron H. Thompson. (Doc. 23); see also 28 U.S.C. § 636(b); Rule 72, Fed. R. Civ. P.; United States v. Raddatz, 447 U.S. 667 (1980); Jeffrey S. v. State Bd. of Educ. of State of Ga., 896 F.2d 507 (11th Cir. 1990).

         II. LEGAL STANDARDS

         Federal Rule of Civil Procedure 8 provides that a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The pleader must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “[D]etailed factual allegations” are not required, but mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action” are not enough. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). On a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court “accept[s] the allegations in the complaint as true and constru[es] them in the light most favorable to the plaintiff.” Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003).

         III. PROCEDURAL AND FACTUAL BACKGROUND [3]

         Plaintiff filed this lawsuit against Defendants on July 21, 2017. (Doc. 1). In his initial complaint, he raised federal and state law claims. Defendants moved to dismiss Plaintiff's complaint (Docs. 9, 12, 13), and the court heard argument on October 25, 2017. On March 6, 2018, the court granted Defendants' motions to dismiss and allowed Plaintiff leave to file an amended complaint. (Doc. 40). Plaintiff filed his amended complaint March 20, 2018. (Doc. 42). As pled by Plaintiff, the amended complaint brings federal claims under “the Americans with Disabilities Act of 1990 as Amended Title II--Public Services, Americans with Disabilities Act of 1990 as Amended Title III, 42 U.S.C. § 12102 Disability Discrimination, 42 U.S.C. § 1132, 42 U.S.C. § 12182, Section 54 of the Rehabilitation Act of 1973, Section 1557 of the Patient Protection and Affordable Care Act (ACA), Title 42 CFR § 489.24 Duty to Provide an ‘Appropriate' Medical Screening Evaluation, 42 CFR § 1003, the Emergency Medical Treatment and Active Labor Act (“EMTALA”) 42 U.S.C. § 1395dd, The False Claims Act (FCA), 31 U.S.C. §§ 3729-3733 and The Health Care Quality Improvement Act of 1986, as amended 42 U.S.C. § 11101.” (Doc. 42, ¶¶ 9, 37-61, 118-260). He additionally alleges state law claims of negligence, negligent supervision, fraudulent misrepresentation, libel, negligent infliction of emotional distress, and tortious interference with a business relationship. Id. ¶¶ 62-117, 261-308. Defendants' motions to dismiss the amended complaint are before the court. (Docs. 47, 48, 49). Plaintiff filed a response in opposition (Doc. 50), and Defendants replied (Docs. 51, 53). The well-pleaded factual allegations in Plaintiff's Amended Complaint are stated below and are assumed to be true for purposes of the instant motions.

         A. August 17, 2015 Incident

         Between 1:00 and 1:30 a.m. on August 17, 2015, Plaintiff went to Jackson Hospital's emergency room for complaints of severe back pain and high blood pressure. (Doc. 42, ¶ 13). Plaintiff was initially triaged, taken to a room, and placed on a gurney. Id. ¶ 14. A short male came into the room, whom Plaintiff later determined was Dr. Sample, and was verbally aggressive toward Plaintiff. Id. ¶¶ 14, 15. Plaintiff feared for his safety and left Jackson Hospital. Id. ¶ 15. Plaintiff sought treatment at another hospital on the afternoon of August 17, 2015. Id. ¶ 17. Plaintiff made a complaint to Jackson Hospital that day about the incident with Dr. Sample. Id. ¶ 16. On September 30, 2015, Plaintiff was purportedly informed that Dr. O'Mara suspended Dr. Sample for twenty-one days without pay because of the incident. Id. ¶ 18. Plaintiff later learned that the attending physician's name listed on his medical records was changed. Id. ¶ 28.

         B. Thanksgiving Day Incident

         Plaintiff presented to Jackson Hospital's emergency room for treatment on November 26, 2015, and was treated during this visit by Dr. O'Mara. Id. ¶ 19. When asked, Plaintiff told Dr. O'Mara that his primary care physician was Dr. Ogunbi. Id. On December 5, 2015, Plaintiff received a letter from Dr. Ogunbi stating he would no longer treat Plaintiff. Id. ¶ 20. On December 7, 2015, Plaintiff called Dr. Ogunbi's office to inquire why Dr. Ogunbi would no longer be his treating physician, and he was told that doctors from Jackson Hospital's emergency room reported that Plaintiff was belligerent and had to be escorted off Jackson Hospital's premises on Thanksgiving Day 2015. Id. ¶¶ 21, 22. Plaintiff alleges the report of the Thanksgiving Day incident was false. Id. ¶ 23. On March 16, 2016, Plaintiff spoke with the Chief of Security for Jackson Hospital who stated there were no security incidents on November 26, 2015 (Thanksgiving Day 2015). Id. ¶ 29; see also Doc. 43-4.

         C. Plaintiff's Subsequent Treating Doctors

         On or about December 17, 2015, Plaintiff began treating with Dr. Preet Kiran for pain management. Id. ¶ 24. When Plaintiff returned for a follow-up visit to Dr. Kiran on January 14, 2016, Plaintiff states Dr. Kiran was rude to him and refused to treat him. Id. ¶ 25. Plaintiff began treating with Dr. Steven Allen for pain care management on January 23, 2016. Id. ¶ 19. In September 2016, Plaintiff saw Dr. Allen to discuss recommendations for his back surgery. Id. ¶ 36. The nurse practitioner advised Plaintiff Dr. Allen could no longer treat him because Plaintiff was “doctor shopping, ” “selling medications on the street, ” a “drug addict, ” and “would be arrested by the Montgomery District Attorney's Office.” Id.

         D. Complaint to the Board and Investigation by Ingram

         Plaintiff filed his first complaint with the Alabama Board of Medical Examiners on February 20, 2016. Id. ¶ 27. Plaintiff received a letter in April 2016 from Larry Dixon about an investigation of doctor shopping conducted by Investigator Stan Ingram. Id. ¶ 30. Ingram is the Chief Investigator with the Alabama Board of Medical Examiners. Id. ¶ 8. Plaintiff called and spoke with Dixon who said a new investigation would be conducted with a different investigator. Id. ¶ 30. Ingram called Plaintiff to state he was reopening the case and conducting the new investigation. Id. ¶ 31. Plaintiff called Ingram several weeks later to follow up on the investigation and Ingram said he was focused on the complaints about Dr. Sample and Dr. Farah. Id. ¶ 33. Plaintiff received a letter in August 2016 from the Board regarding the outcome of the investigation of the complaints into both Dr. Sample and Dr. Farah. Id. ¶ 34.

         Plaintiff filed exhibits to his complaint including his resume (Doc. 43-1), an October 2015 letter from the Social Security Administration finding that his disability is continuing (Doc. 43-2), medical records dated 2014, 2015, and 2016 with reports of MRIs and CT scans of his lumbar spine showing disc bulges at multiple levels (Doc. 43-3), and a September 2016 letter to Plaintiff from Drs. William O. Sargeant, D.O. and John K. Porter, D.O. declining to provide professional services as his physician (Doc. 43-6). Plaintiff also conventionally filed a flash drive with audio recordings.

         IV. ANALYSIS

         In his amended complaint, Plaintiff sues Defendants for federal claims under the Americans with Disabilities Act (ADA) (counts 1, 2, 8, 9), Section 504 of the Rehabilitation Act of 1973 (counts 10, 11), the Patient Protection and Affordable Care Act (counts 12, 13), 42 C.F.R. § 489.24 (Counts 14, 15), EMTALA (counts 16, 17), False Claims Act (count 17), [4] and the Healthcare Quality Improvement Act of 1986 (count 18). See Doc. 42. Plaintiff's amended complaint also sues Defendants for state law claims of negligence (counts 3, 20), negligent supervision (count 4), fraudulent misrepresentation (counts 5, 6, 7, 19), libel (count 21), negligent infliction of emotional distress (count 22), and tortious interference with a business relationship (count 23). Defendants move to dismiss all claims. (Docs. 47, 48, 49).

         A. Claims against Joe Riley due to be Dismissed

         Other than referencing Joe Riley in the case caption, the introductory paragraph, and identifying him as Jackson Hospital's Chief Executive Officer, Plaintiff makes no other allegation related to Joe Riley or any act or omission on his part in the amended complaint. See Doc. 42. None of the causes of action in the twenty-four counts of the amended complaint are directed against Riley. Even those counts directed to “all Defendants”-17 (False Claims Act), 21 (libel), 22 (negligent infliction of emotional distress), and 23 (tortious interference with business relationship)-make no mention of Riley. Additionally, Plaintiff's conclusion to the amended complaint does not reference Riley. Id. at 61. Accordingly, Plaintiff's amended complaint is due to be dismissed against Defendant Joe Riley for failure to state a claim against Riley.

         B. Claims against Drs. Farah, Sample, and O'Mara Abandoned

         Drs. Farah, Sample, and O'Mara filed a Second Motion to Dismiss (Doc. 47) directed to Plaintiff's amended complaint. Plaintiff failed to file a response in opposition. The response that Plaintiff did file addresses only the motions of and claims against Defendants, Jackson Hospital, Joe Riley, Alabama Board of Medical Examiners, and Stan Ingram. See (Doc. 50). Although Plaintiff's pleading states it is in response to “Defendants” (sic) motions, (Doc. 50 at 1), the response does not address the arguments raised by the individual doctor Defendants.[5]

         The Eleventh Circuit has held that a party's failure to brief and argue an issue during the proceedings before the district court is grounds for finding that the issue has been abandoned. Coal. for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1326 (11th Cir. 2000). Moreover, federal courts in this circuit and others have concluded that a plaintiff's failure to respond to or oppose arguments raised in a defendant's pending motion may result in an abandonment of those issues. See Humphrey v. City of Headland, No. 1:12-CV-366-WHA, 2012 WL 2568206, at *2 (M.D. Ala. July 2, 2012) (collecting cases). Accordingly, Drs. Farah, Sample, and O'Mara's motion to dismiss (Doc. 47) is due to be granted for Plaintiff's failure to oppose the motion. Notwithstanding this recommendation, the court addresses substantively the claims against the individual doctors below and similarly concludes dismissal is warranted.

         C. Federal Claims

         1. ADA Claims against Dr. Sample (Counts 1, 8)

         In count 1 of the amended complaint, Plaintiff sues Dr. Sample for violating Title II of the ADA, which provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Plaintiff alleges he is a qualified individual with a disability because he suffers from a back injury with bulging and herniated disks, chronic obstructive pulmonary disease, post-traumatic stress disorder, anxiety disorder, and high blood pressure. (Doc. 42, ¶ 39). Plaintiff alleges Dr. Sample discriminated against him by “denying the Plaintiff the equal opportunity to use or enjoy the public accommodations, goods, services, or facilities, namely the Hospital emergency room department services.” (Doc. 42, ¶ 44).

         As argued by Dr. Sample in his motion to dismiss, there can be no claim against him under Title II because this subsection of the ADA applies to public entities, not individuals such as Drs. Sample, Farah, and O'Mara. (Doc. 47 at 2). A “public entity” under this subsection refers to “any State or local government, ” “any department, agency, special purpose district, or other instrumentality of a State or States or local government;” and “the National Railroad ...


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