Tapia v. Dr. Muhamed et al

Filing 20

MEMORANDUM OPINION: Accordingly, by separate order, the Court will dismiss Ms. Tapia's federal law claims under 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim. The Court will dismiss Ms. Tapias state law claims without prejudice pursuant to 28 U.S.C. § 1367(c)(3) and ask the Clerk to please close this file. Signed by Judge Madeline Hughes Haikala on 1/17/2023. (DNW)

FILED
2023 Jan-17 AM 10:55
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

JULIE TAPIA,
Plaintiff,
v.
DR. MUHAMED et al.,
Defendant.

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Case No.: 2:22-cv-01081-MHH

MEMORANDUM OPINION
Julie Tapia filed her pro se complaint in this action on August 26, 2022. (Doc.
1). With it, she filed a motion to proceed without prepayment of a filing fee. (Doc.
2). In that motion, Ms. Tapia asked the Court to appoint an attorney to represent
her. (Doc. 2). 1
Initially, Ms. Tapia’s case was randomly assigned to a magistrate judge. (Doc.
3). The magistrate judge granted Ms. Tapia’s motion to proceed without prepayment
of a filing fee and denied Ms. Tapia’s motion for appointment of counsel. (Doc. 5,
pp. 2-3). By statute, when the magistrate judge granted Ms. Tapia’s motion to
proceed without prepayment of a filing fee, the magistrate judge had to review Ms.

1

Shortly after she filed her initial complaint, Ms. Tapia amended her complaint to correct the year
of the incident about which she complains. (Doc. 4).

Tapia’s complaint to determine whether Ms. Tapia adequately alleged claims against
the defendants she named. (Doc. 5, p. 3, citing and explaining 28 U.S.C. §
1915(e)(2)(B)). 2 Because federal courts are courts of limited jurisdiction, the
magistrate judge also had to review Ms. Tapia’s complaint to determine whether
federal jurisdiction exists. (Doc. 5, p. 4); see Fed. R. Civ. P. 12(h)(3) (“If the court
determines at any time that it lacks subject-matter jurisdiction, the court must
dismiss the action.”); Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th
Cir. 1999). Based on her review of Ms. Tapia’s initial complaint, the magistrate
judge, in an order to show cause, instructed Ms. Tapia to explain why the Court
should not dismiss the complaint for lack of subject matter jurisdiction. (Doc. 5, pp.
4-6).

2

The magistrate judge explained:
When a plaintiff is granted in forma pauperis status, a court is required to review
the plaintiff’s complaint and dismiss it sua sponte if it is frivolous or malicious,”
“fails to state a claim on which relief may be granted,” or “seeks monetary relief
against a defendant who is immune from such relief.” See 28 U.S.C. §
1915(e)(2)(B). “A claim is frivolous if it is without arguable merit either in law or
fact.” Thomas v. Pentagon Fed. Credit Union, 393 Fed. Appx. 635, 637 (11th Cir.
2010). Likewise, the Eleventh Circuit has affirmed the dismissal of claims as
frivolous where federal subject matter was lacking. See Linge v. State of Ga., Inc.,
569 Fed. Appx. 895, 896 (11th Cir. 2014).

(Doc. 5, pp. 3-4) (footnote omitted). The Linge decision rests on an application of the RookerFeldman doctrine, a jurisdictional principle.

Ms. Tapia responded to the show cause order. (Doc. 6).3 The magistrate
judge found that Ms. Tapia did not identify a basis for federal jurisdiction in her
response to the show cause order, so the magistrate judge asked the Clerk of Court
to reassign Ms. Tapia’s case to a district court judge to consider whether Ms. Tapia’s
claims may proceed. (Doc. 7). After the Clerk of Court randomly reassigned Ms.
Tapia’s case to the undersigned judicial officer, (Doc. 8), Ms. Tapia supplemented
her response to the show cause order, and she filed an amended complaint. (Docs.
9, 11). Ms. Tapia also filed several notices. (Docs. 10, 12, 13, 14, 15, 16, 17, 18,
19).
Because Ms. Tapia is proceeding pro se, to determine whether Ms. Tapia has
alleged viable claims and a basis for federal jurisdiction, the Court considers Ms.
Tapia’s initial and amended complaints together. The Court also considers the
information Ms. Tapia provided in her responses to the magistrate judge’s show
cause order and in the notices that she submitted. 4

In her response to the show cause order, Ms. Tapia stated: “I do not wish to have a lawyer at this
time.” (Doc. 6, p. 1).
3

Ordinarily, “[o]nce an amended complaint is filed, the original pleadings are considered
‘abandoned’ and are ‘no longer a part of [the plaintiff's] averments.’” TVPX ARS, Inc. v. Annuity
Ins. Co., 959 F.3d 1318, 1327 (11th Cir. 2020) (quoting Hoefling v. City of Miami, 811 F.3d 1271,
1277 (11th Cir. 2016)). But when a plaintiff proceeds pro se, a district court often will read the
plaintiff’s initial and amended complaints and supplemental filings together to give the plaintiff
the benefit of all information presented to the court. See Aufderhaar v. Warder, No. 8:21-CV-419MSS-CPT, 2021 WL 7448081, at *3 (M.D. Fla. Nov. 3, 2021), report and recommendation
adopted, No. 8:21-CV-419-MSS-CPT, 2021 WL 7448085 (M.D. Fla. Nov. 30, 2021); Roth v.
Farmingdale Union Free Sch. Dist., 2019 WL 3281126, at *1 n. 2 (E.D.N.Y. July 19, 2019) (“All
facts are taken from the complaint, amended complaint, and attached exhibits.... Courts ordinarily
4

Reading Ms. Tapia’s submissions together, she has asserted claims against
Children’s Hospital, Cahaba Medical Care, and Drs. Muhammed, Duckworth,
Franks, and Ahalt. (Doc. 1). 5 Ms. Tapia alleges that she took her 13-year-old
daughter to an appointment at Cahaba Medical Care on October 21, 2020. (Doc. 1,
p. 13; Doc. 4; Doc. 15, pp. 2, 4).6 Ms. Tapia asserts that when someone at the
medical facility asked her daughter if she (her daughter) was suicidal, her daughter
answered “no” but indicated that she had been suicidal two years earlier. (Doc. 1,
p. 13; Doc. 15, p. 2).7 Ms. Tapia alleges that someone at the medical facility blocked
she and her daughter from leaving and called the police. Ms. Tapia alleges that she
did not receive medication refills for herself and her daughter; that individuals at the
medical facility refused to draw blood, take blood pressure, or perform a physical

do not consider prior iterations of a complaint, but because the plaintiff proceeds pro se, I interpret
both the original and amended complaint together as the operative complaint.”).
5

In her most recent amended complaint, Ms. Tapia names only Dr. Muhammed as a defendant.
(Doc. 11). It appears that Ms. Franks is a physician’s assistant, i.e., a PA. (Doc. 15, p. 4). Ms.
Ahalt appears to be a nurse practitioner, i.e., an NP. (Doc. 15, p. 2).
6

In her initial complaint, Ms. Tapia alleged that she and her daughter visited Cahaba Medical
Center on October 25. (Doc. 1, p. 13). In a notice that she submitted, Ms. Tapia provided an
October 21, 2020 medical record from that visit and confirmed in writing that the visit took place
on October 21, 2020. (Doc. 15, p. 2). The medical record indicates that Ms. Tapia’s daughter was
13 years old on October 21, 2020. (Doc. 15, p. 1).

7

The October 21, 2020 medical record that Ms. Tapia submitted to the Court contains information
that contradicts Ms. Tapia’s allegation. (Doc. 15, p. 1).

exam; and that individuals at the medical facility made racist remarks about her Latin
ethnicity. (Doc. 1, pp. 13-14; Doc. 6, p. 1; Doc. 9; Doc. 15, p. 2). 8
The same day, Dr. Muhammed evaluated Ms. Tapia’s daughter in the
psychiatric unit of Children’s Hospital. (Doc. 1, p. 5; Doc. 11, p. 5; Doc. 15, p. 5).9
Ms. Tapia alleges that while Dr. Muhammed evaluated her daughter, two guards or
police officers refused to admit her to the evaluation room. (Doc. 1, p. 5; Doc. 11,
pp. 3, 5). Ms. Tapia asserts that Dr. Muhammed told DHR that Ms. Tapia was
abusing her daughter, and the accusation was false. (Doc. 11, p. 6). 10
Ms. Tapia alleges that Dr. Muhammed only scheduled an appointment for her
daughter with a therapist. (Doc. 9, p. 2; Doc. 15, p. 5).11 She asserts that Dr.

8

Ms. Tapia includes in the medical records she submitted to the Court an October 27, 2020 record
concerning a visit she made to Cahaba Medical Care for hip and back pain. (Doc. 15, pp. 3-4).
The record does not seem to be related to the claims Ms. Tapia asserts concerning incidents on
October 21, 2020.

In her initial complaint, Ms. Tapia alleged that her daughter visited Children’s Hospital on
October 25. (Doc. 1, p. 5). Later, Ms. Tapia submitted an October 21, 2020 medical record from
the Children’s Hospital visit. (Doc. 15, p. 5). In her November 21, 2022 amended complaint, Ms.
Tapia confirmed that the evaluation took place on October 21, 2020. (Doc. 11, p. 5). The October
21, 2020 medical record from Cahaba Medical Care states that that the nurse practitioner who saw
Ms. Tapia’s daughter called EMS to take Ms. Tapia’s daughter to Children’s Hospital for an
evaluation because Ms. Tapia’s daughter was “having active suicidal thoughts.” (Doc. 15, p. 1).
9

The medical records that Ms. Tapia submitted indicate that medical personnel were concerned
that one of Ms. Tapia’s older daughters was abusing her 13-year-old daughter. (Doc. 15, p. 1).
DHR investigated allegations of abuse concerning one of Ms. Tapia’s older daughters, not Ms.
Tapia. (Doc. 14, p. 3).
10

The medical records that Ms. Tapia submitted indicate that Ms. Tapia brought her daughter to
see a therapist on October 28, 2020 to follow up on the October 21, 2020 depression diagnosis
from Children’s Hospital. (Doc. 19, p. 2). Before Ms. Tapia’s daughter saw a therapist, a CRNP
reviewed Ms. Tapia’s daughter’s symptoms and identified no physical health concerns other than

11

Muhammed and other individuals at Children’s Hospital refused her daughter
asthma treatment and tests to determine why her daughter was in pain. (Doc. 6, p.
1; Doc. 9, pp. 1-2; Doc. 11, p. 6). Later, Ms. Tapia’s daughter received a diagnosis
from Children’s Hospital of an enlarged liver. (Doc. 9, p. 2; Doc. 11, p. 6; Doc.
19).12
As the magistrate judge explained, Ms. Tapia’s factual allegations do not
support a claim against the defendants under the United States Constitution or under
a federal statute. (See Doc. 5, pp. 4-5; Doc. 7, pp. 1-2). Ms. Tapia has asserted
claims under the Fourth and Fourteenth Amendment against parties who cannot be
held liable under either amendment on the facts Ms. Tapia has presented. Generally,
under 42 U.S.C. § 1983, a plaintiff may assert a claim against governmental actors
for a violation of a provision of the United States Constitution. Charles v. Johnson,
18 F.4th 686, 693 (11th Cir. 2021) (“The Supreme Court has held that the Fourth

asthma. (Doc. 19, p. 2). The CRNP examined Ms. Tapia’s daughter and found no indications of
physical illness but described Ms. Tapia’s daughter as “depressed; tearful.” (Doc. 19, p. 3). The
CRNP wrote that Ms. Tapia’s daughter avoided eye contact and continuously wrung her hands.
(Doc. 19, p. 3).
Ms. Tapia alleges that in October 2020, Children’s Hospital diagnosed her daughter with
depression and told her daughter to eat better. (Doc. 11, p. 6). The medical records that Ms. Tapia
submitted indicate that Cahaba Medical Care provided that diagnosis for Ms. Tapia’s daughter,
not Children’s Hospital. (Doc. 15, p. 1). The medical records that Ms. Tapia submitted indicate
on September 1, 2022, someone at Children’s Hospital ordered an abdominal ultrasound for Ms.
Tapia’s daughter. (Doc. 19, p. 3). On September 21, 2022, when Ms. Tapia’s daughter was 15
years old, Dr. Roslyn Morgan at Children’s Hospital diagnosed Ms. Tapia’s daughter with an
enlarged liver. (Doc. 19, p. 1).
12

Amendment applies only to governmental actions[],” and “[t]he Fourteenth
Amendment, by its own language, applies solely to state action.”). Cahaba Medical
Center, Children’s Hospital, and the four individual defendants are not governmental
entities or actors.

Rather, the defendants are private medical facilities and

individuals who work for those facilities. Ms. Tapia acknowledges that Cahaba
Medical Care is privately-owned. (Doc. 15, p. 6). Children’s Hospital “is a private,
not-for-profit medical center . . .” https://www.childrensal.org/about-childrens (last
visited January 6, 2023).13

Therefore, Ms. Tapia has not asserted a viable

constitutional claim against the defendants.
Ms. Tapia’s attempt to state a claim under a federal statute fairs no better than
her attempt to allege constitutional claims. In her response to the magistrate judge’s
show cause order, Ms. Tapia discussed Titles II and III of the ADA. (Doc. 6). As
the magistrate judge explained, because Ms. Tapia seeks money damages, (Doc. 1,
pp. 5, 13; Doc. 11, p. 4), she cannot pursue a claim against the defendants under Title
III of the ADA because Title III does not provide a private right of action for
damages. Thomas v. Murphy Oil Corp., 777 Fed. Appx. 377, 379-80 (11th Cir.
2019) (dismissing claims under Title III of the ADA for failure to state a claim where
13

See Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1278-79 (11th Cir. 1999) (“Fed. R. Evid.
201(b) provides for taking judicial notice of facts that are not subject to reasonable dispute because
they are capable of accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned. When SEC documents are relevant only to determine what statements
or disclosures are actually contained therein, there can be little question as to authenticity, nor can
the fact that such statements or disclosures were thus publicly filed be reasonably questioned.”).

the plaintiff sought only monetary damages). Title II of the ADA governs state
facilities, so that section of the ADA does not provide a basis for a federal claim in
Ms. Tapia’s lawsuit against private entities and individuals. Tennessee v. Lane, 541
U.S. 509, 513 (2004) (“Title II of the Americans with Disabilities Act of 1990 [],
104 Stat. 337, 42 U.S.C. §§ 12131–12165, provides that ‘no qualified individual
with a disability shall, by reason of such disability, be excluded from participation
in or be denied the benefits of the services, programs or activities of a public entity,
or be subjected to discrimination by any such entity.’ § 12132.”). Therefore, Ms.
Tapia has not stated a claim for relief under Title II or Title III of the ADA.
As an alternative to the ADA, Ms. Tapia asserts that the defendants violated
the Emergency Medical Treatment and Labor Act or EMTALA. (Doc. 9). Congress
enacted the EMTALA to prevent “emergency care providers [from] transferring
indigent patients from one hospital to the next while the patients’ emergency medical
conditions worsened.” Harry v. Marchant, 291 F.3d 767, 770 (11th Cir. 2002).
Under EMTALA, hospital emergency rooms are subject to two
principal obligations, commonly referred to as the appropriate medical
screening requirement and the stabilization requirement. See 42 U.S.C.
§ 1395dd (1994). The appropriate medical screening requirement
obligates hospital emergency rooms to provide an appropriate medical
screening to any individual seeking treatment in order to determine
whether the individual has an emergency medical condition. Id. §
1395dd(a). If an emergency medical condition exists, the hospital is
required to provide stabilization treatment before transferring the
individual. Id. § 1395dd(b).
Harry, 291 F.3d at 770.

Ms. Tapia has not alleged a viable claim under EMTALA. She alleges that
she and her 13-year-old daughter visited Cahaba Medical Care on October 21, 2020,
for “our appointment,” not emergency treatment. (Doc. 1, p. 13). Ms. Tapia does
not allege that Cahaba Medical Care provides emergency services. The medical
record that Ms. Tapia provided from the October 21, 2020 Cahaba Medical Care
appointment indicates that a nurse practitioner at the medical facility examined Ms.
Tapia’s daughter and eventually called EMS to take Ms. Tapia’s daughter to
Children’s Hospital because Ms. Tapia’s daughter “was having active suicidal
thoughts.” (Doc. 15, p. 1).14 Ms. Tapia alleges that Dr. Muhammed evaluated her
daughter in the psychiatric unit of Children’s Hospital, not the emergency
department. (Doc. 1, p. 5). Ms. Tapia does not allege that Children’s Hospital
transferred her daughter to another hospital. Therefore, Ms. Tapia may not pursue a
claim under EMTALA. 15

14

As noted above on page 4, Ms. Tapia alleges that her daughter was not having suicidal thoughts
on October 21, 2020, but one of the medical records that Ms. Tapia filed contradicts her assertion.
(Doc. 15, p. 1). In the context of motions to dismiss, a district court “generally [may] consider
exhibits attached to a complaint,” and, “if the allegations of the complaint about a particular exhibit
conflict with the contents of the exhibit itself, the exhibit controls.” Hoefling, 811 F.3d at 1277.
Logic dictates that this rule should apply when a district court reviews a complaint under 28 U.S.C.
§ 1915(e)(2)(B) to determine whether the claims in the complaint are frivolous or fail to state a
claim for which relief may be granted. Therefore, to the extent information in the medical records
and DHR record that Ms. Tapia filed contradict the factual allegations in her initial and amended
complaints, the Court credits the medical records and the DHR record.
EMTALA is not a federal medical malpractice statute. Harry, 291 F.3d at 770. If Ms. Tapia
wishes to assert a medical malpractice claim, she must do so under state law.
15

Because Ms. Tapia has not stated a claim under the federal law theories that
she mentions in her submissions, the Court must dismiss those claims pursuant to 28
U.S.C. § 1915(e)(2)(B). 16
State law governs the remainder of Ms. Tapia’s claims. The Court does not
have an independent basis for federal jurisdiction over those claims. Federal courts
are courts of limited jurisdiction, and a federal court may exercise jurisdiction over
state law claims under 28 U.S.C. § 1332, the statute that governs diversity
jurisdiction, when the amount in controversy exceeds $75,000, and the plaintiffs and

The magistrate judge determined that the Court lacks subject matter jurisdiction over Ms. Tapia’s
federal law claims. (Doc. 7, p. 2). Generally, a plaintiff establishes federal question jurisdiction
under 28 U.S.C. § 1331 by asserting claims under provisions of the United States Constitution and
federal statutes. A defendant may move to dismiss a claim for lack of subject matter jurisdiction
under Rule 12(b)(1) of the Federal Rules of Civil Procedure or for failure to state a claim upon
which relief may be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
16

“When a district court has pending before it both a 12(b)(1) motion and a 12(b)(6)
motion, the generally preferable approach, if the 12(b)(1) motion essentially
challenges the existence of a federal cause of action, is for the court to find
jurisdiction and then decide the 12(b)(6) motion. Williamson v. Tucker, 645 F.2d
404, 415 (5th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212
(1981). Exceptions to this rule exist, however, when “the plaintiff’s claim ‘has no
plausible foundation’ or ‘is clearly foreclosed by a prior Supreme Court decision.’”
Id. at 416.
Jones v. State of Georgia, 725 F.2d 622, 623 (11th Cir. 1984); see also McCants v. Alabama-West
Florida Conference of United Methodist Church, 372 Fed. Appx. 39, 40 (11th Cir. 2010) (quoting
the general rule from Jones but omitting exception). Transferring this analysis to the context of a
28 U.S.C. § 1915(e)(2)(B) review of pro se pleadings, the Court finds that it may exercise
jurisdiction over the subject matter of Ms. Tapia’s federal law claims, and the Court dismisses
those federal law claims under 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim.

defendants are citizens of different states. MacGinnitie v. Hobbs Group, LLC, 420
F.3d 1234, 1239 (11th Cir. 2005).
Here, Ms. Tapia seeks more than $75,000 in damages, but she and at least one
of the defendants are citizens of Alabama.

MacGinnitie, 420 F.3d at 1239

(“Complete diversity requires that no defendant in a diversity action be a citizen of
the same state as any plaintiff.”); Sweet Pea Marine, Ltd. v. APJ Marine, Inc., 411
F.3d 1242, 1247 (11th Cir. 2005) (“Diversity jurisdiction requires complete diversity
between named plaintiffs and defendants.”). Ms. Tapia has indicated that she resides
in Birmingham, Alabama, (Doc. 1, p. 1); she has not alleged that she is a citizen of
a state other than Alabama. Therefore, it appears she is a citizen of Alabama. 17 Ms.
Tapia has sued individuals who work in Birmingham, Alabama and presumably are
citizens of Alabama.18 Thus, the Court cannot exercise diversity jurisdiction over
this matter because there is not complete diversity between Ms. Tapia and the
defendants.
Under 28 U.S.C. § 1367(c)(3), the Court declines to exercise jurisdiction over
Ms. Tapia’s state law claims. 28 U.S.C. § 1367(c)(3) (“The district courts may
decline to exercise supplemental jurisdiction over a claim under subsection (a) if []

“The burden for establishing federal subject matter jurisdiction rests with the party bringing the
claim.” Sweet Pea Marine, 411 F.3d at 1247. Individuals “are only citizens of the state in which
they are domiciled, and they have only one domicile.” Molinos Valle Del Cibao, C. por A. v.
Lama, 633 F.3d 1330, 1346 (11th Cir. 2011).
17

18

Again, Ms. Tapia has the obligation to allege facts that establish subject matter jurisdiction.

the district court has dismissed all claims over which it has original jurisdiction[.]”).
The Court will dismiss those state law claims without prejudice so that Ms. Tapia
may file them in state court if she wishes. See 28 U.S.C. § 1367(d) for information
relating to the statute of limitations for claims dismissed without prejudice pursuant
to § 1367(c)(3).
Accordingly, by separate order, the Court will dismiss Ms. Tapia’s federal law
claims under 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim. The Court will
dismiss Ms. Tapia’s state law claims without prejudice pursuant to 28 U.S.C. §
1367(c)(3) and ask the Clerk to please close this file.
DONE and ORDERED this January 17, 2023.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE