                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA
____________________________________
                                     )
SAMUEL T. DEMISSE,                   )
                                     )
                  Plaintiff,         )
                                     )
      v.                             )  Civil Action No. 18-2223 (ABJ)
                                     )
MEDSTAR WASHINGTON                   )
HOSPITAL CENTER,                     )
                                     )
                  Defendant.         )
____________________________________)


                                MEMORANDUM OPINION

       Plaintiff, appearing pro se, has sued Medstar Washington Hospital Center (“Medstar”) in

the District of Columbia for discrimination and negligence.       Plaintiff complains about the

treatment he received when he visited defendant’s emergency room. Defendant has moved to

dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) [Dkt. # 9]. The Court,

satisfied of its jurisdiction, finds that plaintiff has stated no viable claim. So it will grant

defendant’s Rule 12(b)(6) motion for the reasons explained more fully below.

                                       BACKGROUND

       A. Factual Allegations

       At approximately 10 a.m. on September 25, 2018, plaintiff arrived at Medstar because he

was in pain, felt dizzy, had a rapid heartbeat, and was breathing rapidly. Compl. at 2. After

checking in, plaintiff “waited for some minutes” before a nurse called his name and took his

temperature and blood pressure. Id. Plaintiff then discussed via video his “pains” with a doctor,

who told plaintiff that “another doctor will visit” him “and will order some medications[.]” Id.

                                               1
Plaintiff had certain tests done, including an electrocardiogram (“EKG), and he spoke with a

physician’s assistant. After about 30 minutes, plaintiff was offered two tablets of Tylenol “and

other medicine,” which he “refused” because he was “waiting for a doctor.” Compl. at 3.

Finally, plaintiff alleges, “after a long wait a doctor came and asked [him] question and suggestion

about [his] insurance without understanding [his] pain.” Id. The doctor told plaintiff that he was

sending him home and left the room. After about 30 more minutes, “a 5th and different nurse

came with a discharge paper” and informed plaintiff about accessing his medical records online.

Id. When plaintiff “denied that,” the nurse threatened to call security.” Id. Plaintiff conveyed

his dissatisfaction with his “treatment in the emergency room and generally in the hospital.” Id.

Plaintiff “also refused to sign the discharge paper,” and he “left the hospital without examination

and enough treatment for [his] pains,” although admittedly he was prescribed ibuprofen. Id.

       Plaintiff alleges that during the visit, he saw seven medical professionals:

               1. A nurse who took his blood pressure and body temperature
               without any explanation.

               2. A doctor on the computer screen who asked him questions and
               told me another doctor will see me without any treatment and
               suggestion.

               3. A nurse who took an EKG “picture of his heart” without
               explanation and without informing him of the result printed on the
               paper

               4. A nurse who took him to another room and told him to sit in a
               room where he waited for more than 1 hour.

               5. A nurse who brought Tylenol and other medication and a cup
               with her hand.

               6. A PA-C, who brought a piece of paper and asked him different
               questions but did not offer treatment of the pains that brought him
               to the emergency room.

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                 7. A doctor who told him “in a toned voice” that he was going to
                 send him home without any treatment or diagnosis.

Compl. at 5. 1

        B. Claims

        In the section of the complaint captioned “Statement of Claims, Negligence,

Discrimination (civil right violation),” plaintiff states: “I have been treated in this hospital unfairly,

discriminated by changing medical professionals, and make me wait for a very long period of time

in the emergency room, denied me the right medical treatment.” Compl. at 6. In addition,

plaintiff claims that he was discharged “before [he was] ready.” Id. As a result, plaintiff claims

he has suffered “anxiety, stress, depression, psychological and emotional distress[.]” Id. He seeks

compensatory damages of $1,000,000 as well as punitive damages. Id.

                                        LEGAL STANDARD

        “To survive a [Rule 12(b)(6)] motion to dismiss, 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 pleaded factual content “allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. at 678, citing Twombly, 550

U.S. at 556. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for

more than a sheer possibility that a defendant has acted unlawfully.” Id., quoting Twombly, 550



1
  Plaintiff recounts a similar visit to Medstar’s emergency room on August 9, 2018, for similar
symptoms, where he was given “different medications such as a dose of glucose” and then
discharged. Compl. at 3-4. The alleged circumstances are not materially different from the
emergency room visit at issue.
                                                 3
U.S. at 556. A pleading must offer more than “labels and conclusions” or a “formulaic recitation

of the elements of a cause of action,” id., quoting Twombly, 550 U.S. at 555, and “[t]hreadbare

recitals of the elements of a cause of action, supported by mere conclusory statements, do not

suffice.” Id., citing Twombly, 550 U.S. at 555.

       When considering a motion to dismiss under Rule 12(b)(6), the complaint is construed

liberally in the plaintiff’s favor, and the Court should grant the plaintiff “the benefit of all

inferences that can be derived from the facts alleged.” Kowal v. MCI Commc'ns Corp., 16 F.3d

1271, 1276 (D.C. Cir. 1994). Where the action is brought by a pro se plaintiff, a district court has

an obligation to consider “all of [his] filings together” before dismissing the complaint, Richardson

v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999), because such complaints are held “to less

stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519,

520-21 (1972).

       Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences

are unsupported by facts alleged in the complaint, nor must the Court accept plaintiff’s legal

conclusions. See Kowal, 16 F.3d at 1276; see also Browning v. Clinton, 292 F.3d 235, 242 (D.C.

Cir. 2002). In ruling upon a motion to dismiss for failure to state a claim, a court may ordinarily

consider only “the facts alleged in the complaint, documents attached as exhibits or incorporated

by reference in the complaint, and matters about which the Court may take judicial notice.”

Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002), citing EEOC v. St. Francis

Xavier Parochial Sch., 117 F.3d 621, 624-25 (D.C. Cir. 1997).




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                                            ANALYSIS

        A. Discrimination

        Plaintiff alleges that Medstar discriminated against him based on his race “by changed

nurses, doctors and medical professionals.” Compl. at 5. He also implies that his national origin

and age may have been contributing factors; he states that he is from Ethiopia, and that “senior

patients” received preferential treatment.     Id.   Plaintiff refers to “federal laws” prohibiting

“discrimination based on national origin, race, color, religion, disability, sex, and familial status,”

but he has not invoked any particular law. Id.

        The problem is that plaintiff has alleged no facts tying the challenged behavior to his race

or national origin that would “nudge” his claim “across the line from conceivable to plausible.”

Twombly, 550 U.S. at 570. And “the tenet that a court must accept as true all of the allegations

contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. Therefore,

the discrimination claim will be dismissed.

        B. Negligence

        Defendant posits that the dismissal of plaintiff’s federal claim deprives this Court of

jurisdiction over the negligence claim. Mem. of P. & A. at 5. But since the discrimination claim

conferred original jurisdiction, the Court may exercise pendant or supplemental jurisdiction “over

all other [related State and common law] claims,” or it may decline to do so. 2 28 U.S.C. § 1367.

Whether to retain jurisdiction “is a matter left to the sound discretion of the district court,” Ali

Shafi v. Palestinian Auth., 642 F.3d 1088, 1097 (D.C. Cir. 2011) (quotations and citations omitted),

and in exercising that discretion, the Court applies a two-part test crafted by the Supreme Court.



2
    The term “State” includes the District of Columbia. 28 U.S.C. § 1367(e).
                                                 5
         The Court must first “determine whether the state and the federal claims ‘derive from a

common nucleus of operative fact’; if they do, the court has the power, under Article III of the

Constitution, to hear the state claim.” Women Prisoners of D.C. Dep't of Corr. v. D.C., 93 F.3d

910, 920 (D.C. Cir. 1996), quoting United Mine Workers of America v. Gibbs, 383 U.S. 715, 725

(1966). The Court “must then decide whether to exercise its discretion to assert jurisdiction over

the state issue,” considering such factors as “judicial economy, convenience and fairness to

litigants.”   Id., quoting United Mine Works, 383 U.S. at 726.         Plaintiff’s negligence claim

intertwines with the federal claim, and it is equally insubstantial. So, it is appropriate to retain

jurisdiction and dismiss that claim as well.

        “In the District of Columbia, as elsewhere, ‘[t]o establish negligence a plaintiff must prove

a duty of care owed by the defendant to the plaintiff, a breach of that duty by the defendant, and

damage to the interests of the plaintiff, proximately caused by the breach.’” Novak v. Capital

Mgmt. & Dev. Corp., 452 F.3d 902, 907 (D.C. Cir. 2006), quoting District of Columbia v. Beretta,

U.S.A., Corp., 847 A.2d 1127, 1134 n.2 (D.C. 2004). This requires a showing that defendant’s

actions deviated from a national standard of care, focusing for example on “the course of action .

. . a reasonably prudent doctor with the defendant’s specialty would have taken under the same or

similar circumstances.” Hawes v. Chua, 769 A.2d 797, 806 (D.C. 2001) (internal quotation marks

and citation omitted).

        Plaintiff alleges that when he arrived at defendant’s emergency room, he “waited for

some minutes” for his name to be called. Compl. at 2. A nurse then checked his blood

pressure and temperature. The complaint reveals that (1) the hospital administered certain tests,

including an EKG; (2) plaintiff was offered Tylenol, but he refused it because he was waiting to


                                                 6
see a doctor; (3) plaintiff discussed his symptoms with several doctors; and (4) he received a

prescription for ibuprofen before he was discharged. Plaintiff takes issue primarily with the

amount of time he had to wait and the number of medical professionals he saw, but he has not

alleged that these frustrating circumstances deviated from the ordinary hospital emergency room

visit. 3

           Furthermore, plaintiff has not alleged that he suffered a physical injury or an exacerbation

of his symptoms due to the hospital’s alleged delay and/or inattention. Given the absence of any

allegation that would give rise to an inference that a duty was breached or some harm came to the

plaintiff as a result, the complaint does not set forth a plausible negligence claim. The mere fact

that plaintiff suffered stress and anxiety in the bustle of a hospital emergency room “stops [well]

short of the line between possibility and plausibility of entitlement to relief.” Iqbal, 556 U.S. at

678 (internal quotation marks and citation omitted). Accordingly, plaintiff’s negligence claim is

dismissed without prejudice. 4 See Rollins v. Wackenhut Servs., Inc., 703 F.3d 122, 131 (D.C. Cir.

2012), quoting Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996) (“This court has

instructed that ‘dismissal with prejudice is warranted only when a trial court determines that the




3
    In “[d]etermining whether a complaint states a plausible claim for relief,” a court may “draw
on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
4
   In his opposition to the motion to dismiss, plaintiff recounts a hospital visit on October 16,
2018, in addition to his “previous complaints,” and he mentions negligence and “medical neglect.”
Opp’n at 4-6 [Dkt. 14]. It is established in this circuit that a plaintiff cannot amend his complaint
through an opposition. See Furey v. Mnuchin, 334 F. Supp. 3d 148, 164 (D.D.C. 2018) (citing
cases). An amendment in this case would be futile in any event since the federal claim is
dismissed and diversity jurisdiction is lacking. See Def.’s Mem. at 5-6. Plaintiff is free to pursue
any common law claims and claims under D.C. law in the Superior Court of the District of
Columbia.
                                                  7
allegation of other facts consistent with the challenged pleading could not possibly cure the

deficiency.’”).

       The Court does not mean to suggest that plaintiff does not have a legitimate gripe about his

experience. But the fact that he -- like legions of emergency room patients of every race, religion,

and national origin -- was frustrated by the wait does not state a million-dollar claim.


                                         CONCLUSION

       For the foregoing reasons, the Court grants defendant’s motion to dismiss. A separate

Order accompanies this Memorandum Opinion.




                                                      AMY BERMAN JACKSON
DATE: January 30, 2020                                United States District Judge




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