United States District Court, M.D. Alabama, Northern Division
REPORT AND RECOMMENDATION
A. BAKER UNITED STATES MAGISTRATE JUDGE.
twenty-four count amended complaint,  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
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.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).
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).
PROCEDURAL AND FACTUAL BACKGROUND 
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.
August 17, 2015 Incident
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.
Thanksgiving Day Incident
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.
Plaintiff's Subsequent Treating Doctors
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.”
Complaint to the Board and Investigation by Ingram
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.
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.
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),
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,
Claims against Joe Riley due to be Dismissed
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.
Claims against Drs. Farah, Sample, and O'Mara
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
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.
ADA Claims against Dr. Sample (Counts 1, 8)
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,
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 ...