Fulton v. Richardson

          REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

          GRAY M. BORDEN UNITED STATES MAGISTRATE JUDGE

         Pending 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.

         I. FACTS AND PROCEDUAL HISTORY

         This 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.

         In her 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.

         Fulton 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.

         Richardson seeks to dismiss Fulton's claims for lack of jurisdiction and for failure to state a claim.

         II. STANDARDS OF REVIEW

         A. Dismissal Pursuant to Rule 12(b)(1)

         A Rule 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).

         B. Dismissal Pursuant to Rule 12(b)(6)

         The 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.

         III. DISCUSSION

         Richardson 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 ...