UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

RICHARD AFOLABI-BROWN,

Plaintiff,

v. Civil Action No. 18-1409 (EGS)

ALBERT C. COOMBS, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Richard O. Afolabi-Brown brings this action, pro

se, against Unity Health Care, Inc. (“UHC”) and Dr. Cassandra

Wright alleging, inter alia, that they committed negligence

under District of Columbia law by referring him to health care

providers who assaulted him as part of a Medicaid fraud scheme.

The United States substituted itself for UHC and Dr. Wright, and

moved to dismiss the complaint pursuant to Federal Rule of Civil

Procedure 12(b)(1) for failure to exhaust administrative

remedies as required under the Federal Tort Claims Act (“FTCA”),

. The Court has carefully considered the

government’s motion, plaintiff’s response, the government’s

reply thereto, the applicable law, and the entire record herein.

For the reasons that follow, the government’s motion to dismiss

is GRANTED. I. Background

The following facts, which the Court must accept as true at

this stage of the proceedings, are set forth in Mr. Afolabi-Brown’s

complaint and were supplemented by his opposition to the motion to

dismiss. Notice of Removal, ECF No. 1-2 (“Compl.”); Pl.'s Opp’n,

ECF No. 12. See Schnitzler v. United States,

(D.C.

Cir. 2014)(requiring a court to consider a pro se plaintiff's

“filings as a whole” in resolving a motion to dismiss).

Mr. Afolabi-Brown visited Dr. Wright in November 2014 at a

clinic run by UHC, seeking dental care after a recent root

canal. Compl., ECF No. 1-2 at 2. 1 Dr. Wright determined that Mr.

Afolabi-Brown should receive a permanent crown on one of his

teeth, and she referred him to The Washington Dental Studio

(“WDS”), for that service. Id. at 3. On December 9, 2014, Mr.

Afolabi-Brown went to WDS and was seen by Dr. Albert C. Coombs.

Id. at 1, 5–6. Instead of providing Mr. Afolabi-Brown with the

permanent crown, and over Mr. Afolabi-Brown’s objection, Dr.

Coombs performed numerous procedures on his other teeth,

including the removal of multiple bridges, caps, and fillings.

Id. at 6.

Within a few days, Mr. Afolabi-Brown visited the District

1 When citing electronic filings throughout this Opinion, the Court cites to the ECF header page number, not the page number of the filed document. 2 of Columbia’s Medicaid offices to file a formal complaint and

was told that WDS and Dr. Coombs had already been reimbursed for

the procedures. Id. at 8–9. After realizing that he had been the

victim of “a scam[] perpetrated through Medicaid” Mr. Afolabi-

Brown next filed an official complaint with the District of

Columbia Board of Dentistry (the “Board”).” Id. at 10. The Board

responded, informing Mr. Afolabi-Brown that it had found that no

violations occurred because he provided “prior authorization to

do [the procedures].” Id.

In 2017, Mr. Afolabi-Brown filed a complaint in the

Superior Court for the District of Columbia. Id. at 1. He later

filed an “Addendum to Second Amendment Complaint” in the

Superior Court, adding specific claims against each defendant.

Pl.’s Opp’n, ECF No. 12 at 42, 52–57. Against UHC and Dr.

Wright, his claims included negligence and aggravated assault.

Id. at 52–55. Mr. Afolabi-Brown sought punitive damages as well

as damages for emotional distress and loss of consortium. Id. at

53–55. He alleges that UHC and Dr. Wright either specifically

knew of previous complaints against WDS and Dr. Coombs, or else

should have known not to make referrals to them. Id. at 47, 54.

The government entered a notice of removal certifying that

UHC and Dr. Wright acted “within the scope of their office or

employment at the time of the alleged incidents” and

substituting itself for those defendants under

3 2679(d)(1). Notice of Removal, ECF No. 1 ¶ 3. The government

subsequently moved to dismiss for lack of subject matter

jurisdiction under Rule 12(b)(1), ECF No. 8, Mr. Afolabi-Brown

has filed his opposition, ECF No. 12, and the government has

filed its reply, ECF No. 15. The motion to dismiss is ripe for

adjudication.

II. Legal Standard

A “pro se complaint is entitled to liberal construction.”

Washington v. Geren,

(D.D.C. 2009)

(citing Haines v. Kerner,

(1972)). However,

“[a] federal district court may only hear a claim over which

[it] has subject matter jurisdiction; therefore, a Rule 12(b)(1)

motion for dismissal is a threshold challenge to a court’s

jurisdiction.” Gregorio v. Hoover,

(D.D.C. 2017)(citations and internal quotation marks omitted).

To survive a Rule 12(b)(1) motion, the plaintiff bears the

burden of establishing that the court has jurisdiction. Lujan v.

Defenders of Wildlife,

(1992). “Because Rule

12(b)(1) concerns a court’s ability to hear a particular claim,

the court must scrutinize the plaintiff’s allegations more

closely . . . than it would under a motion to dismiss pursuant

to Rule 12(b)(6).” Schmidt v. U.S. Capitol Police Bd.,

(D.D.C. 2011)(citations omitted). In reviewing a

motion to dismiss pursuant to Rule 12(b)(1), the court “may

4 consider materials outside the pleadings” in determining whether

it has jurisdiction to hear the case. Jerome Stevens Pharm.,

Inc. v. FDA,

(D.C. Cir. 2005). The court

must accept as true all of the factual allegations in the

complaint and draw all reasonable inferences in favor of the

plaintiff, but the court need not “accept inferences unsupported

by the facts alleged or legal conclusions that are cast as

factual allegations.” Rann v. Chao,

(D.D.C. 2001)(citation omitted).

III. Analysis

The government moves to dismiss Mr. Afolabi-Brown’s

complaint based on his alleged failure to exhaust his

administrative remedies. See generally, Def.’s Mot. to Dismiss,

ECF No. 8. As a threshold matter, the Court first determines

whether the government properly substituted itself as a

defendant under the Public Health Service Act (“PHSA”),

. Having found that the substitution was proper, the

Court then turns to whether Mr. Afolabi-Brown exhausted his

administrative remedies.

A. The Government Properly Substituted Itself for Defendants

Plaintiff demands monetary damages for claims arising from

dental treatment provided by defendants. Under the PHSA, the

government may substitute itself for employees of the Public

5 Health Service (“PHS”) who are defendants in state civil

actions, bringing the action under the FTCA, so long as

Secretary of Health and Human Services (the “Secretary”) has

deemed the defendants to be PHS employees, and the Attorney

General has certified that these defendants were acting in their

scope of employment when they performed the acts which gave rise

to the suit.

(c),(g)(1)(A). The government

asserts that UHC is a grantee of the Department of Health and

Human Services (“DHHS”) by operation of the PHSA, see

, and that they were acting within the scope of their

employment as if they were employees of the Public Health

Service. See Defs.’ Mot. to Dismiss ECF No. 8. The Court

addresses each argument in turn.

1. UHC and Dr. Wright Are Employees Under the PHSA

The PHSA regulates the determination by the government that

defendants in a given matter are PHS employees. Pursuant to the

Federally Supported Health Centers Assistance Act (“FSHCAA”),

, the Secretary may deem a “public or non-profit

private entity receiving Federal funds under” 42 U.S.C. § 254b

to be a PHS employee with FTCA coverage.

(g)(1)A),(g)(4). The PHSA also provides for the Secretary

to deem employees or contractors of the entity to be PHS

employees, covered by the FTCA in the same manner as the entity.

(g)(1)(A); see also El Rio Santa Cruz

6 Neighborhood Health Ctr., Inc. v. Dep't of Health & Human

Servs.,

(D.D.C. 2004), aff'd sub nom. El

Rio Santa Cruz Neighborhood Health Ctr., Inc. v. U.S. Dep't of

Health & Human Servs.,

(D.C. Cir. 2005). Once the

Secretary makes this determination, it “shall be final and

binding upon the Secretary and the Attorney General and other

parties to any civil action or proceeding,”

(g)(1)(F), with “[e]ligible entities [to] be covered . . .

on and after the effective date of [the] determination.”

.

In this case, the government has presented documents from

DHHS, Health Resources and Services Administration (“HRSA”),

showing that the Secretary deemed UHC and Dr. Wright to be PHS

employees for the period from January 1, 2013 through December

31, 2014, the relevant timeframe for Mr. Afolabi-Brown’s

allegations. Def.’s Mot. to Dismiss, Ex. 1 to Meredith Torres

Decl., ECF No. 8-2 at 3–6. This evidence of the Secretary’s

final determination is enough to bring UHC under FTCA coverage.

See Hinton v. U.S.,

, 158 n.1 (D.D.C

2010)(citing certification from HRSA as evidence that defendant

UHC was considered a PHS employee for purposes of the FTCA). As

to Dr. Wright’s status, the Secretary’s determination includes

coverage for UHC’s “full- and part-time employees” and

“contractors who are licensed or certified individual health

7 care practitioners providing full-time services,” as provided

for in section 233(g)(1)(A). See id. at 4, 6; see also Torres

Decl., ECF No. 8-2 ¶ 6 (stating Dr. Wright was an employee of

UHC “at all times relevant to the Plaintiff’s complaint in this

case”). Additionally, Mr. Afolabi-Brown has stated that Dr.

Wright provided dental services at UHC during the period of time

covered by the Secretary’s determination. Pl.’s Opp’n, ECF No.

12 at 16. He does not allege that Dr. Wright was a volunteer, an

independent contractor providing only part-time services, or in

any other type of relationship with UHC that would leave her

uncovered by the FTCA. 2 Accordingly, UHC and Dr. Wright are

employees of the Public Health Service for purposes of the FTCA.

2. UHC and Dr. Wright Were Acting Within Their Scope of Employment After the Secretary determines PHS employee status, the

Attorney General may certify that the entity and the employee

were acting within the scope of employment “at the time of the

incident out of which the suit arose,” leading to the action’s

removal to federal court and to the substitution of the

government for the defendants. 42 U.S.C.§ 233(c). By regulation,

2 It is unclear whether Mr. Afolabi-Brown argues in his Opposition Memorandum that Dr. Wright is also a contractor, see Pl.’s Opp’n, ECF No. 12 at 4–5, but assuming that he does and that he is correct, status as a contractor does not preclude an individual from coverage under the PHSA. See, e.g.,

(g)(1)(A)(stating Secretary may deem certain contractors to be PHS employees covered by the FTCA in the same manner as the entity). 8 this certification has been delegated to the “United States

Attorney for the district where the civil action or proceeding

is brought,” or the Director of the “Torts Branch, Civil

Division, [or] Department of Justice.”

(a). 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 his employment.” Council

on Am. Islamic Relations v. Ballenger,

(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.”

(quoting Stokes v. Cross,

(D.C. Cir.

2003)).

In this case, the government has submitted a certification

by Daniel F. Van Horn, Chief of the Civil Division, Office of

the United States Attorney for the District of Columbia. Notice

of Removal, Ex. B, ECF No. 1-3 at 1. Mr. Van Horn certifies that

both UHC and Dr. Wright were acting within their scope of

employment as “employees of the Public Health Service.”

Mr. Afolabi-Brown has failed to provide any facts that

rebut the government’s certification, and the Court agrees that

the defendants were acting within the scope of their employment.

In defining the scope of employment, this Court must look to

9 District of Columbia law, which provides as follows:

(1) Conduct of a servant is within the scope of employment if, but only if:

(a) it is of the kind he is employed to perform;

(b) it occurs substantially within the authorized time and space limits;

(c) it is actuated, at least in part, by a purpose to serve the master, and

(d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.

(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.

Ballenger,

(citing Restatement (Second) Of

Agency (1958) § 228).

With respect to Dr. Wright, Mr. Afolabi-Brown alleges that

she evaluated him, recommended that a cap be placed on one

tooth, and referred him to WDS. See Compl., ECF No. 1-2 at 3.

UHC served as Mr. Afolabi-Brown’s health care provider both

before and after the incident, and employed Dr. Wright at the

time of her referral. See id. Mr. Afolabi-Brown claims that both

Dr. Wright and UHC failed to protect him, and that they had

“foreknowledge of complaints of incidences of Assault and

Battery” upon referred patients. Pl.’s Opp’n, ECF No. 12 at 44.

However, because Mr. Afolabi-Brown has not provided detailed

10 information to back up these allegations, this Court can only

treat them as conclusory statements, not as specific facts that

serve to rebut the scope-of-employment presumption favoring the

defendants. See Stokes,

. None of the facts in

Mr. Afolabi-Brown’s complaint indicate that UHC or Dr. Wright

departed from their ordinary role of serving patients and

providing health care. Accordingly, UHC and Dr. Wright were PHS

employees acting within their scope of employment at the time of

the events described by Mr. Afolabi-Brown, which allows the

government to substitute itself on their behalf and the suit to

be governed by the FTCA.

B. Mr. Afolabi-Brown Failed to Exhaust His Administrative Remedies

The FTCA requires that a claimant against the United

States, wishing to pursue the action in federal district court,

must first exhaust his administrative remedies. See

(a). To exhaust administrative remedies under the FTCA, “the

claimant shall have first presented the claim to the appropriate

[f]ederal agency and his claim shall have been finally denied by

the agency in writing and sent by certified or registered mail.”

3 “In this Circuit, a claim is considered adequately

3 Mr. Afolabi-Brown must also have filed the claim with the agency “within two years after such claim accrues.”

(b). The Supreme Court has recently held that unlike presentment, this time-bar is non-jurisdictional in nature, and may be subject to equitable tolling at a court’s discretion. 11 presented when a claimant provides the agency with ‘(1) a

written statement sufficiently describing the injury to enable

the agency to begin its own investigation, and (2) a sum-certain

damages claim.’” Tookes v. United States,

(D.D.C. 2011)(quoting GAF Corp. v. United States,

(D.C. Cir. 1987)). The rationale for this

“jurisdictional prerequisite,” GAF Corp.,

, is

that “[n]otice of an injury will enable the agency to

investigate and ascertain the strength of a claim; [and] the

sum-certain statement of damages will enable it to determine

whether settlement or negotiations to that end are desirable,”

at 919–20. “In reviewing the presentment requirement

contained in 2675(a), the Supreme Court has ruled that pro se

litigants should be held to the same standard as litigants who

have retained counsel.” Stokes v. U.S. Postal Serv.,

(D.D.C. 1996)(citing McNeil v. United States,

(1993)).

The record establishes that Mr. Afolabi-Brown did not meet

United States v. Kwai Fun Wong,

, 1632–33 (2015). This Court cannot now consider equitable tolling in this case, as such arguments “are premature until it is shown that the plaintiff presented [the] claim to the agency, and then that claim was denied.” Jackson v. United States,

, 171 n.3 (D.D.C. 2017). “At that point, if the plaintiff failed to present [the] claim within two years of accrual or within six months of denial, equitable tolling arguments may be considered.”

12 his “minimal” burden to file an administrative FTCA claim.

Tookes,

(stating “the FTCA only imposes

on claimants the burden of providing notice, not the burden of

substantiating claims”). As the government notes in its briefs,

Mr. Afolabi-Brown has not asserted, in his complaint or

opposition memorandum, that he has exhausted his administrative

remedies as required by the FTCA. Def.’s Mot. to Dismiss, ECF

No. 8 at 2–3. He has also failed to provide any evidence

demonstrating he presented his claim to the agency. The

government attaches a declaration by Meredith Torres, Office of

the General Counsel, DHHS, attesting that no claim by Mr.

Afolabi-Brown appears in the agency’s records. See Torres Decl.,

ECF No. 8-2 ¶¶ 4-6. Indeed, Mr. Afolabi-Brown himself indicates

that he filed a professional complaint with a Dental Board

rather than DHHS. Compl., ECF No. 1-2 at 8–11. Because Mr.

Afolabi-Brown did not file an administrative claim with the

appropriate federal agency, the Court lacks jurisdiction over

his claims. See Simpkins v. District of Columbia,

(D.C. Cir. 1997)(finding that the district court “lacked

subject matter jurisdiction, or if not jurisdiction, the

functional equivalent of it,” because the plaintiff had not

exhausted his administrative remedies). Accordingly, the

government’s motion to dismiss for lack of subject matter

jurisdiction is GRANTED.

13 IV. Conclusion and Order

For the foregoing reasons, the government’s motion to

dismiss is GRANTED. Plaintiff’s complaint against the government

is hereby DISMISSED.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge March 25, 2019

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