Wellman v. Ctrs. for Disease Control & Prevention

• Decision Date: 21 February 2022
• Docket Number: 2:20-cv-00813-MHT-SRW
• Court: U.S. District Court — Middle District of Alabama
• Parties: PHILIP W. WELLMAN, Plaintiff, v. CENTERS FOR DISEASE CONTROL AND PREVENTION et al., Defendants.

PHILIP W. WELLMAN, Plaintiff,
v.
CENTERS FOR DISEASE CONTROL AND PREVENTION et al., Defendants.

No. 2:20-cv-00813-MHT-SRW

United States District Court, M.D. Alabama, Northern Division

February 21, 2022

REPORT AND RECOMMENDATION ^[1]

SUSAN RUSS WALKER UNITED STATES MAGISTRATE JUDGE

I. Introduction

Before the court are Defendants' motion to dismiss (Doc. 39), Plaintiff's amended complaint (Doc. 24) and Plaintiff's response (Doc. 43).^[2] Defendants contend that Plaintiff's claims for damages against the federal government are barred by sovereign immunity and that his

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amended complaint also fails to state claims upon which relief may be granted. (Doc. 40, at 3).

For the reasons set forth below, the court concludes that Defendants' motion is due to be granted and that Plaintiff's claims are due to be dismissed without prejudice.

II. Background

On October 8, 2020, pro se Plaintiff Philip W. Wellman filed this action against Defendants “Centers for Disease Control and Prevention, ” “The Department of Health & Human Services, ” and “National Institute of Health (NIH), ” alleging the following claims: “Your declaration of a State of Emergency for the COVID-19 diagnosis criteria for a series of pneumonia and influenza related symptoms and the allegations of the existence of a ‘novel coronavirus' is based on a series of assumptions that are patently false.” (Doc. 1 at 2, 4). Defendants filed a motion to dismiss, contending, among other things, that Plaintiff's complaint was a shotgun complaint. (Doc. 18, at 4). Finding that the complaint was a shotgun complaint, the court denied Defendants' motion to dismiss without prejudice, and ordered Plaintiff to file an amended complaint that complied with Rules 8, 9, 10, and 11 of the Federal Rules of Civil Procedure alleging specific facts and causes of action. (Doc. 23, at 10).

On October 4, 2021, Plaintiff filed his amended complaint against the following enumerated Defendants: (1) The Department of Health & Human Services (“HHS”); (2) Alex Azar, Secretary of HHS; (3) Centers for Disease Control and Prevention (“CDC”); (4) Robert R. Redfield, Director of the CDC; (5) National Institute of Health (“NIH”); (6) Anthony S. Fauci, Director of the National Institute of Allergy and Infectious Diseases (“NIAID”); (7) the United States Department of Justice (“DOJ”); and (8) William P. Barr, Attorney General. (Doc. 24, at 1-3). Plaintiff alleges violations of his constitutional rights under the First, Eighth, Ninth, Tenth, and Eleventh Amendments. Id. at 1, 3-5. Additionally, Plaintiff cites the “Alabama Constitution” and Ala. Code §§ 6-5-100 - 104. Id. at 4. Plaintiff alleges that Defendants' “declaration of a State of

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Emergency for the COVID-l9 virus had no diagnostic or testing criteria” and were “NOT ACCURATE enough to qualify as scientific proof.” Id. at ¶ 21. In count one of the amended complaint, entitled “Negligence, ” Plaintiff alleges that “Defendants (1-6)” were negligent and breached a duty of care by failing “to deliver via [the] media correct information about the COVID-19 virus, ” and that Plaintiff “incurred injury from not being treated properly by medical professionals.” Id. at ¶ 22. In count two, entitled, “False Imprisonment, ” Plaintiff alleges that “Defendants (1-6) prior to January 2020 willfully started the false and misleading information about COVID-19 virus and that all states would or should require quarantine (false imprisonment) to flatten the curve of COVID-19 spread, ” leading Alabama to issue a “stay at home order, ” which “was imposed on Plaintiff without [his] consent and without authority of law.” Id. at ¶ 23. Count three alleges a claim for “Intentional Infliction of Emotional Distress.” Id. at ¶ 24. Plaintiff generally alleges that “Defendants (1-6)” released false and misleading information in or around December 2019 to the media about how COVID-19 spread and said that “no treatments were available, when in fact there were treatments.” Id. at ¶¶ 24, 25-30. Lastly, count four alleges a claim for “Fraud.” Id. at ¶ 31. Plaintiff alleges that “Defendants (1-6) as of December 2019 knew [that] other and cheaper therapies existed, ” but presented false facts to the Food and Drug Administration (“FDA”) “about the treatments and protocols available to the public” and “report[ed] far more cases for Covid-19 and Covid-19 related deaths th[a]n there really were.” Id. at ¶¶ 31, 37.

In a paragraph entitled “Conclusion, ” Plaintiff alleges that on or around November 2020 he tested positive for COVID-19, but that his doctor would not see him, and that “[t]he fact that other treatments exist[ed] such as early diagnosis and the proper treatment of cheaper well establish[ed] medications would have alleviate[d] the symptoms and cured [him] without a lengthy and costly hospital stay” at Baptist East Medical Hospital. Id. at ¶ 38. In his prayer for relief,

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Plaintiff asks for an order directing Defendants to cease and desist violating his constitutional rights and a “judgment in the amount of 1000 ounces of 99.9% pure physical gold per each Defendant.” Id. at 11.

III. Legal Standards

A. Dismissal for Lack of Subject Matter Jurisdiction

Federal courts are “courts of limited jurisdiction” possessing “only that power authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenges a court's constitutional or statutory power to hear the case before it. Fed.R.Civ.P. 12(b)(1); Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). Such a challenge can come in two forms-either a facial attack or a factual attack. Scarfo v. Ginsberg, 175 F.3d 957, 960 (11th Cir. 1999). “Facial attacks challenge subject matter jurisdiction based on the allegations in the complaint, and the district court takes the allegations as true in deciding whether to grant the motion.” Morrison v. Amway Corp., 323 F.3d 920, 925 n.5 (11th Cir. 2003). Factual attacks, on the other hand, “challenge subject matter jurisdiction in fact, irrespective of the pleadings. In resolving a factual attack, the district court may consider extrinsic evidence such as testimony and affidavits.” Id. (citations omitted). “In other words, when a party raises a factual attack to subject-matter jurisdiction, the court is not obligated to take the allegations in the complaint as true, but may consider extrinsic evidence such as affidavits.” Walton v. Sec'y Veterans Admin., 187 F.Supp.3d 1317, 1324 (N.D. Ala. 2016) (citing Odyssey Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel, 657 F.3d 1159, 1169 (11th Cir.2011)); Butts v. ALN Grp., LLC, 512 F.Supp.3d 1301, 1305 (S.D. Fla. 2021) (“In a factual attack on subject matter jurisdiction that does not implicate the elements of the underlying cause of action, ‘no presumptive truthfulness attaches to the plaintiff's allegations, and the existence of disputed material facts will not preclude the trial

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court from evaluating for itself the merits of jurisdictional claims.'”) (quoting Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)). “The burden of proof on a motion to dismiss for lack of subject-matter jurisdiction is on the party asserting jurisdiction (i.e., Plaintiff).” Id.; Brewer v. Comm'r, 430 F.Supp.2d 1254, 1258 (S.D. Ala. 2006) (“Although defendant is the moving party, plaintiff is the party seeking to invoke the court's jurisdiction. As such, plaintiff bears the burden of establishing subject matter jurisdiction.”).

B. Dismissal for Failure to State a Claim

To survive a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6), the plaintiff must allege “enough facts to state a claim for relief that is plausible on its face.” Bell Atlantic Corp., v. Twombly, 550 U.S. 544, 570 (2007). The standard for a motion to dismiss under Rule 12(b)(6) was explained in Twombly, and refined in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), as follows:

Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Rule 8 marks a notable and generous departure from the hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief will … be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not shown - that the pleader is entitled to relief.

Iqbal, 556 U.S. at 678-79 (citations and internal edits omitted).

The Twombly-Iqbal two-step analysis begins “by identifying the allegations in the complaint that are not entitled to the assumption of truth” because they are conclusory. Id. at 680; Mamani v. Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (“Following the Supreme Court's approach in Iqbal, we begin by identifying conclusory allegations in the Complaint.”). After

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conclusory statements are set aside, the Twombly-Iqbal analysis requires the Court to assume the veracity of well-pleaded factual allegations, and then to determine whether they “possess enough heft to set forth ‘a plausible entitlement to relief.'” Mack v. City of High Springs, 486 Fed.Appx. 3, 6 (11th Cir. 2012) (citation omitted.) “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as...