Budik v. Ashley

• Decision Date: 14 April 2014
• Docket Number: Civil Action No. 12-1949 (RBW)
• Parties: EDITH M. BUDIK, Plaintiff, v. RICANTHONY R. ASHLEY, M.D., Defendant.
• Court: U.S. District Court — District of Columbia

EDITH M. BUDIK, Plaintiff, v. RICANTHONY R. ASHLEY, M.D., Defendant.

Civil Action No. 12-1949 (RBW)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SO ORDERED: April 14, 2014

MEMORANDUM OPINION

The pro se plaintiff in this case, Edith M. Budik, filed a complaint against the defendant, Lieutenant Colonel Ricanthony R. Ashley ("Lt. Col. Ashley"), asserting claims of defamation and fraud, violations of the Privacy Act, 5 U.S.C. § 552a (2012), and violations of the Confidentiality of Medical Quality Assurance Records statute, 10 U.S.C. § 1102 (2012). See Amended Complaint ("Compl.") ¶¶ 3, 25-26, 30-31, 33-34, 36, Conclusion. Currently before the Court is the defendant's Motion to Substitute the United States and Dismiss ("Def.'s Mot."). Upon careful consideration of the parties' submissions,¹ the Court concludes that the defendant's motion must be granted.

I. BACKGROUND

The plaintiff was employed as a staff radiologist at Landstuhl Regional Medical Center ("Landstuhl") in Landstuhl, Germany, from November 5, 2007, through February 25, 2008.Compl. ¶ 1. Lt. Col. Ashley was her supervisor. Id. ¶ 2. "As [her] supervisor, [the] [d]efendant completed a rating . . . of [the] [p]laintiff's clinical performance on a DA Form 5374."² Id. ¶ 3; see also id., Exhibit ("Ex.") 20 (January 2, 2009 Declaration of Lt. Col. Ashley ("Ashley Decl.")) at 2. Lt. Col. Ashley "initially filled out the evaluation without comments," however, the credentialing department told him that "if there were issues with Dr. Budik, they should be included on the assessment." Id., Ex. 20 (Ashley Decl.) at 2 ("[The credentialing department] stressed that I should be sure to document any issues for future consideration on the form."). The credentialing department "sent the form back to [Lt. Col. Ashley] and [he] commented that [the plaintiff] had some issues with some of the clinical staff." Id., Ex. 20 (Ashley Decl.) at 2. Specifically, Lt. Col. Ashley added the following comments to the plaintiff's DA Form 5374: "Col[.] Budik had some problems with staff interaction which resulted in several complaints and clinicians going to other radiologists instead of her." Id., Ex. 20 (Ashley Decl.) at 1 (internal quotation marks omitted); see also Compl. ¶¶ 18-19.

On May 20, 2008, after the conclusion of the plaintiff's employment at Landstuhl, she applied for a position as a neuroradiologist at the Dartmouth-Hitchcock Medical Center ("Dartmouth"). Id. ¶ 8. On June 25, 2008, Colonel Steven Princiotta ("Col. Princiotta"), the Deputy Commander of Clinical Services of Landstuhl, telephoned the plaintiff. Id. ¶ 9. During the telephone call, the "[p]laintiff inquired of the status of the Dartmouth evaluation, and [Col.] Princiotta stated that he had not yet completed the evaluation [for] Dartmouth but would do so." Id. "Five days after the call from [Col.] Princiotta, on June 30, 2008, the credentialing process at Dartmouth suddenly stopped." Id. ¶ 11. On or around October 30, 2008, the "[p]laintiff learnedthat [Col.] Princiotta . . . had signed the Dartmouth rating form," id. ¶ 24 (citing Compl., Ex. 17 (Unredacted Dartmouth Professional Practice Evaluation), and that it contained the same statement Lt. Col. Ashley had written on the plaintiff's DA Form 5374, see Compl., Ex. 9 (Partially Redacted Dartmouth Professional Practice Evaluation) at 2-3; Compl. ¶ 24.

"On or about August 14, 2008, [the] [p]laintiff applied [for a position] as a civilian [d]iagnostic [r]adiologist through Sterling Medical, a civilian-hiring agent for Malcolm Grow Medical Center . . . at Andrews Air Force Base, Maryland." Id. ¶ 12. Sterling Medical also "received an evaluation report directly from [Landstuhl]" that included "the same 'troublesome' statement that had been written on the Dartmouth [rating] form." Id. ¶¶ 16-17.

The plaintiff originally filed suit against Lt. Col. Ashley in the New York State Supreme Court of Orange County, New York. See Notice of Removal, ECF No. 1. The case was removed to the United States District Court for the Southern District of New York, id., and then transferred to this Court on December 3, 2012, see December 3, 2012 Minute Entry. The complaint asserts claims of fraud, misrepresentation, forgery, and defamation, and additionally alleges that the defendant violated the Privacy Act and a statute governing the confidentiality of medical quality assurance records. Compl. ¶¶ 3, 23, 26, 32, 34, 36, 38, Conclusion. The plaintiff seeks "all available remedies at law and/or equity," including $4,000,000 in lost wages and $4,000,000 "for damages to her reputation in the medical community, her career, and loss of future earnings." Id. at Conclusion. The defendant now moves to dismiss the plaintiff's claims for lack of subject matter jurisdiction and for failure to state a claim for which relief can be granted. The plaintiff opposes the motion.

II. STANDARDS OF REVIEW

A. Treatment of Pro Se Pleadings

The pleadings of pro se parties are to be "liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (internal citations and quotations omitted). However, even though a pro se complaint must be construed liberally, the complaint must still "present a claim on which the [C]ourt can grant relief." Chandler v. Roche, 215 F. Supp. 2d 166, 168 (D.D.C. 2002) (citing Crisafi v. Holland, 655 F.2d 1305, 1308 (D.C. Cir. 1981)).

B. Rule 12(b)(1) Motion to Dismiss

When a defendant moves for dismissal under Federal Rule of Civil Procedure 12(b)(1), "the plaintiff[] bear[s] the burden of proving by a preponderance of the evidence that the Court has subject matter jurisdiction." Biton v. Palestinian Interim Self-Gov't Auth., 310 F. Supp. 2d 172, 176 (D.D.C. 2004); see Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). A court considering a Rule 12(b)(1) motion must "assume the truth of all material factual allegations in the complaint and 'construe the complaint liberally, granting [a] plaintiff the benefit of all inferences that can be derived from the facts alleged.'" Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)). However, "the district court may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction." Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005) (citing Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992)).

C. Rule 12(b)(6) Motion to Dismiss

A Federal Rule of Civil Procedure 12(b)(6) motion tests whether the complaint "state[s] a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw [a] reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). While the Court must "assume [the] veracity" of any "well-pleaded factual allegations" in the complaint, conclusory allegations "are not entitled to the assumption of truth." Id. at 679.

III. LEGAL ANALYSIS

Before reaching the merits of the defendant's motion to dismiss, the Court will first address the defendant's motion to substitute the United States as the defendant.

A. Substitution of the United States as the Proper Defendant for the Plaintiff's Tort Claims

The defendant argues that the United States is the proper defendant for the plaintiff's tort claims and "moves this Court to substitute the United States as [the] [d]efendant for [the] [p]laintiff's claims against Colonel Ashley." Def.'s Mot. at 1; see also Def.'s Mem. at 1. The plaintiff opposes the motion. See generally Pl.'s Opp'n.

The Westfall Act, 28 U.S.C. § 2679(d)(1) (2012), which is part of the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680, governs certain tort claims procedures where such claims are made against the United States or agencies or officers thereof. Under the Westfall Act,

[u]pon certification by the Attorney General that the defendant employee was acting within the scope of his office of employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim . . . shall be deemed an action brought against the United States . . . and the United States shall be substituted as the party defendant.

28 U.S.C. § 2679(d)(1). By regulation, the Attorney General has delegated the certifying authority to "[t]he United States Attorney for the district where the civil action or proceeding is brought" and the United States Attorney may further delegate the authority to an Assistant United States Attorney. 28 C.F.R. § 15.4(a) (2013); see Stokes v. Cross, 327 F.3d 1210, 1212 (D.C. Cir. 2003). 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 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, 327 F.3d at 1214); see also Wurterich v. Murtha, 562 F.3d 375, 381 (D.C. Cir. 2009). "Once a court determines that the federal employee acted within the scope of employment, the case is, inter alia, restyled as an action against the United States that is governed by the Federal Tort Claims Act."...