United States District Court, M.D. Alabama, Northern Division
DANA R. FULTON, Plaintiff,
JENNIFER B. RICHARDSON, D.M.D., Defendant.
REPORT AND RECOMMENDATION OF THE MAGISTRATE
M. BORDEN UNITED STATES MAGISTRATE JUDGE
before the court is a motion to dismiss filed by Defendant
Jennifer B. Richardson (Doc. 19) directed to the first
amended complaint and a motion to dismiss (Doc. 25) directed
to the second amended complaint. On June 29, 2018, Plaintiff
Dana R. Fulton, proceeding pro se, filed a
complaint, stating that she brings the case pursuant to the
Americans with Disabilities Act. Doc. 1. Pursuant to 28
U.S.C. § 636(b)(1), this case was referred to the
undersigned United States Magistrate Judge for consideration
and disposition or recommendation on all pretrial matters.
Doc. 6. For the reasons stated herein, the Magistrate Judge
RECOMMENDS that the motion to dismiss (Doc. 19) directed to
the first amended complaint be DENIED as moot, considering
that a subsequent amended complaint has taken the place of
the first one, and that the motion to dismiss directed to the
second amended complaint (Doc. 25) be GRANTED.
FACTS AND PROCEDUAL HISTORY
court has ordered Fulton to file amended complaints with
specific directions as to what should be included in those
filings. Docs. 16 & 17. In response to the court's
Orders, Fulton filed amended complaints on September 24, 2018
and November 26, 2018. Doc. 17 & 25. Richardson seeks the
dismissal of these complaints. In ordering Fulton to file the
second amended complaint, the court explained to Fulton that
she cannot refer to facts in her brief that are not pleaded
in the amended complaint or rely on a recorded conversation
the substance of which is not pleaded in the amended
complaint, and that she must not rely on conclusory labels
but must instead set forth the facts known to her which
support her claim or claims in numbered counts. Doc. 24.
second amended complaint, Fulton has alleged that she was a
dental patient of Defendant Jennifer Richardson, M.D. Doc. 24
at 1. Fulton alleges that Richardson discriminated against
her because of her disabling condition, Multiple Sclerosis.
Doc. 24 at 1. Fulton alleges that she told Richardson about
her condition and all of the conventional treatments she
would not be able to have when she “hired”
Richardson. Doc. 24 at 4. She alleges that Richardson agreed
to these conditions, but did not complete Fulton's care.
Doc. 24 at 4. Fulton alleges that on her final visit to
Richardson's office she provided information on exposure
of her child to blood by a worker in the office, which had
happened on Fulton's child's last visit to the
office. Doc. 24 at 10. Fulton characterizes this report as a
“confrontation.” Doc. 24 at 11. Fulton alleges
that she has recorded conversations regarding this
interaction and others but does not allege the substance of
the conversations. Doc. 24 at 11. Fulton also states that she
brought to the attention of Richardson's staff that there
was a foreign object placed in her denture but Richardson did
nothing about it. Doc. 24 at 9. Fulton alleges that the
denture manufacturers were motivated by anger against her.
Doc. 24 at 8.
alleges in Count 1 of her amended complaint that Richardson
did not want the responsibility of caring for Fulton due to
her disability and did not want to assume any liability
associated with Fulton's health, so she refused to fix
Fulton's dentures. Doc. 24 at 2-3. In Count 2, Fulton
alleges that Richardson broke an oral contract to treat her.
In Count 3, Fulton alleges that Richardson committed a
fraudulent misrepresentation because she tried to force
Fulton to accept a plain acrylic denture. In Count 4, Fulton
states that Richardson and the denture manufacturers
committed medical retaliation by placing a foreign object in
her dentures. Doc. 24 at 8. In Count 5, Fulton alleges that
Richardson “abused” her insurance coverage by
“using up [her] denture benefits.” Count 6 states
that Richardson has been intentionally covering up a
potentially infectious contagion. Count 7 claims that
Richardson is covering up blood-borne exposure to her child.
Finally, Count 8 is asserted as a claim for a HIPAA violation
for failure to turn over medical records.
seeks to dismiss Fulton's claims for lack of jurisdiction
and for failure to state a claim.
STANDARDS OF REVIEW
Dismissal Pursuant to Rule 12(b)(1)
12(b)(1) motion challenges the district court's subject
matter jurisdiction and takes one of two forms: a facial
attack or a factual attack. A facial attack on the complaint
requires the court to assess whether the plaintiff has
alleged a sufficient basis for subject matter jurisdiction,
while a factual attack challenges the existence of subject
matter jurisdiction based on matters outside the pleadings.
Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir.
1990). The burden of proof on a Rule 12(b)(1) motion is on
the party averring jurisdiction. Thomson v. Gaskill,
315 U.S. 442, 446 (1942).
Dismissal Pursuant to Rule 12(b)(6)
court accepts the plaintiff's factual allegations as
true, Hishon v. King & Spalding, 467
U.S. 69, 73 (1984), and construes the complaint in the
plaintiff's favor. Duke v. Cleland, 5 F.3d 1399,
1402 (11th Cir. 1993). In analyzing the sufficiency of
pleading, the court is guided by a two-prong approach: (1)
the court is not bound to accept conclusory statements of the
elements of a cause of action, and (2) where there are
well-pleaded factual allegations a court should assume their
veracity and then determine whether they plausibly give rise
to entitlement to relief. See Ashcroft v. Iqbal, 556
U.S. 662, 678- 79 (2009). “[A] plaintiff's
obligation to provide the grounds of his entitle[ment] to
relief requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007). To survive a motion to dismiss, a
complaint need not contain detailed factual allegations, but
instead must contain only enough facts to state a claim to
relief that is plausible on its face. Id. at 570.
The factual allegations must be enough to raise a right to
relief above the speculative level. Id. at 555.
has moved to dismiss Fulton's amended complaint on the
basis of a lack of subject matter jurisdiction, arguing that
there is no nexus alleged between Fulton's disability and
any actions by ...