Smith v. Bowser

• Decision Date: 30 September 2022
• Docket Number: 21-cv-878 (DLF)
• Parties: JOSEPH SMITH, Plaintiff, v. MURIEL BOWSER et al., Defendants.
• Court: U.S. District Court — District of Columbia

JOSEPH SMITH, Plaintiff,
v.
MURIEL BOWSER et al., Defendants.

No. 21-cv-878 (DLF)

United States District Court, District of Columbia

September 30, 2022

MEMORANDUM OPINION

DABNEY L. FRIEDRICH United States District Judge

Joseph Smith brings this action pro se under 42 U.S.C. § 1983 and the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, alleging that he is the victim of deliberate indifference to medical need by the District of Columbia Department of Corrections and that two of its guards have taken retaliatory actions against him. See Compl. at 3, Dkt. 1. Before the Court are (1) the government's motion to substitute itself as a defendant, Dkt. 30; (2) three motions to dismiss for failure to state a claim and for lack of subject matter jurisdiction, Dkts. 23, 30, 36; and (3) the plaintiff's motions for various forms of injunctive relief, Dkts. 16, 17, 18, 23. For the reasons that follow, the Court will grant the government's motion to substitute itself as a defendant, grant all motions to dismiss, and deny as moot the plaintiff's motions for injunctive relief.

I. BACKGROUND

Smith alleges that while incarcerated by the District of Columbia, he was denied a surgery that a previous doctor had ordered on his right shoulder rotator cuff; denied necessary medical accessories such as orthopedic shoes and insoles, glasses, and a knee brace; and given the wrong

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medication for pain, which caused “severe chronic pain and dizziness.”^[1] Compl. at 4-5. Smith says he now suffers “more severe” and continuous “pain and discomfort” because of these alleged actions from May 2019 to the present. Id.

Smith additionally alleges he has been harassed by two officers, Lt. Saunders and Sgt. Franklin, who Smith says have retaliated against him for filing complaints about his medical care. Mot. to Amend Ex. 18 at 2, Dkt. 15-1. According to Smith, Franklin made a comment about Smith being afraid of other inmates, intending for him to overhear it in a show of intimidation. Id. at 3. Smith alleges that Franklin and Saunders control the conduct of other inmates and officers and are a danger to everyone in the facility. Id. at 4-5. Smith also says that he was wrongly barred from a specific room during his recreation time as a retaliatory measure, and that an officer violated the facility's face mask policy and risked the spread of COVID-19. See Informal Grievance Form at 1, 3, Dkt. 23-1.

Smith brings claims against District of Columbia Mayor Muriel Bowser in her official capacity, the Mayor's Executive Office of Risk Management, and warden Lennard Johnson. He also names as defendants two employees of inmate medical provider Unity Medical, Dr. Eleni O'Donovan and grievance coordinator Traci Outlaw. He brings suit for damages, Compl. at 5, and also for various forms of injunctive relief, asking (1) to be sent to Walter Reed hospital for his shoulder surgery, Mot. for Order for Surgery, Dkt. 17; Letter, Dkt. 18; (2) for chronic pain medication, Mot. to Order Chronic Pain Medications, Dkt. 16; and (3) for orthopedic tennis shoes and quarter-inch insoles, Mot. for Orthopedic Tennis Shoes, Dkt. 23. In addition to those motions,

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before the Court are the United States's motion to replace O'Donovan as a defendant and to dismiss, United States's Mot. to Sub. and to Dismiss, Dkt. 30, Bowser's Motion to Dismiss, Dkt. 21, and Outlaw's Motion to Dismiss, Dkt. 36. In the time since the complaint was filed, Smith has been moved from the District of Columbia Department of Corrections to a Nevada facility and is currently in a facility in Tucson, Arizona. See Letter from Joseph Smith, Dkt. 28; Not. of Change of Address, Dkt. 40.

II. LEGAL STANDARD

Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a defendant to move to dismiss the complaint for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). To survive a Rule 12(b)(6) motion, a complaint must contain factual matter sufficient to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A facially plausible claim is one that “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This standard does not amount to a specific probability requirement, but it does require “more than a sheer possibility that a defendant has acted unlawfully.” Id.; see also Twombly, 550 U.S. at 555 (“Factual allegations must be enough to raise a right to relief above the speculative level.”). A complaint alleging facts that are “merely consistent with a defendant's liability . . . stops short of the line between possibility and plausibility.” Iqbal, 556 U.S. at 678 (internal quotation marks omitted). Well-pleaded factual allegations are “entitled to [an] assumption of truth,” id. at 679, and the court construes the complaint “in favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged,” Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012) (internal quotation marks omitted).

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“A document filed pro se is 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) (internal citation and quotation marks omitted). However, “the Supreme Court has made clear that . . . there is no requirement ‘that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel.'” Jean-Pierre v. BOP, 880 F.Supp.2d 95, 100 (D.D.C. 2012) (citing McNeil v. United States, 508 U.S. 106, 113 (1993)). Although a pro se complaint is generally entitled to liberal construction, see Washington v. Geren, 675 F.Supp.2d 26, 31 (D.D.C. 2009), the assumption of truth does not apply to a “legal conclusion couched as a factual allegation,” Iqbal, 556 U.S. at 678 (quotation marks omitted). An “unadorned, the defendant-unlawfully-harmed-me accusation” is not credited; likewise, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.

Under Federal Rule of Civil Procedure 12(b)(1), a party may move to dismiss an action or claim when the court lacks subject-matter jurisdiction. Fed.R.Civ.P. 12(b)(1). A motion for dismissal under Rule 12(b)(1) “presents a threshold challenge to the court's jurisdiction.” Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987). Federal district courts are courts of limited jurisdiction, and it is “presumed that a cause lies outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). Thus, “the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence.” Moran v. U.S. Capitol Police Bd., 820 F.Supp.2d 48, 53 (D.D.C. 2011) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)).

“When ruling on a Rule 12(b)(1) motion, the court must treat the plaintiff's factual allegations as true and afford the plaintiff the benefit of all inferences that can be derived from the facts alleged.” Jeong Seon Han v. Lynch, 223 F.Supp.3d 95, 103 (D.D.C. 2016) (internal

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quotation marks omitted). Those factual allegations, however, receive “closer scrutiny” than they would in the Rule 12(b)(6) context. Id. Also, unlike when evaluating a Rule 12(b)(6) motion, a court may consider documents outside the pleadings to evaluate whether it has jurisdiction. See Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). If the court determines that it lacks jurisdiction, the court must dismiss the claim or action. Fed.R.Civ.P. 12(b)(1), 12(h)(3).

III. ANALYSIS

A. The United States's Motion to Substitute and Motion to Dismiss

The United States moves to substitute itself as a defendant in place of O'Donovan, who allegedly denied Smith the surgery he requested, and in turn to dismiss the complaint for lack of subject matter jurisdiction. The Court will grant each motion.

First, the United States may substitute itself as a defendant under the Public Health Service Act (PHSA), 42 U.S.C. § 233. The PHSA allows the Secretary of Health and Human Services to deem employees of a “public or non-profit private entity receiving Federal funds” under 42 U.S.C. § 254b to be “employee[s] of the Public Health Service.” Id. § 233(g)(1)(A), (g)(4); see Afolabi-Brown v. Coombs, 2019 WL 1331039, at *3 (D.D.C. Mar. 25, 2019). For all claims against such employees arising from the “performance of medical . . . functions . . . while acting within the scope of [their] office or employment,” the “exclusive” remedy is against the United States. 42 U.S.C. § 233(a), (g)(1)(A). Here, the Secretary has deemed Unity and its employees...