WAVERLY v. Emory Healthcare Inc et al
Filing
19
ORDER granting 4 Motion to Dismiss Complaint; granting 7 Motion to Dismiss Party. Ordered by Judge Clay D. Land on 10/23/2013. (CGC)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
FRANCESTA WAVERLY,
*
Plaintiff,
*
vs.
*
CASE NO. 4:13-CV-142 (CDL)
EMORY HEALTHCARE, INC., et al., *
Defendants.
*
O R D E R
In a classic shotgun Complaint, pro se Plaintiff Francesta
Waverly
seeks to relitigate
claims she lost in state court,
alleges violations of criminal law that have no private civil
right
of
generally
action,
randomly
complains
about
cites
her
inapplicable
predicament
statutes,
while
allege facts supporting any cause of action.
and
failing
to
For the reasons
explained in the remainder of this Order, Defendants’ motions to
dismiss (ECF Nos. 4 & 7) are granted.
MOTION TO DISMISS STANDARD
When considering a 12(b)(6) motion to dismiss, the Court
must
accept
complaint
as
and
true
all
facts
limit
its
consideration
exhibits attached thereto.
set
forth
to
in
the
the
plaintiff’s
pleadings
and
Bell Atl. Corp. v. Twombly, 550 U.S.
544, 556 (2007); Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949,
959
(11th
Cir.
2009).
“To
survive
a
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
Twombly,
550
U.S.
at
570).
The
complaint
must
include
sufficient factual allegations “to raise a right to relief above
the
speculative
level.”
Twombly,
550
U.S.
at
555.
“[A]
formulaic recitation of the elements of a cause of action will
not do[.]”
Id.
Although the complaint must contain factual
allegations that “raise a reasonable expectation that discovery
will reveal evidence of” the plaintiff’s claims, id. at 556,
“Rule
12(b)(6)
does
not
permit
dismissal
of
a
well-pleaded
complaint simply because ‘it strikes a savvy judge that actual
proof of those facts is improbable,’” Watts v. Fla. Int’l Univ.,
495 F.3d 1289, 1295 (11th Cir. 2007) (quoting Twombly, 550 U.S.
at 556).
PLAINTIFF’S ALLEGATIONS
After the state court dismissed her medical malpractice and
fraud
action
against
Defendants
Emory
Healthcare,
Inc.,
Otis
Brawley, Amelia Zelnak, and Carl D’Orsi (“Emory Defendants”),
Waverly filed the present action against the same defendants and
three additional Defendants: Emory Healthcare employee Marilyn
McKeown and Emory Healthcare outside counsel Angela Fortsie and
Eric
Frisch
Defendants”).
of
Carlock,
Copeland
&
Stair,
LLP
(“Carlock
In her state court action, Waverly alleged that
2
Brawley, Zelnak, and D’Orsi committed medical malpractice and
fraud by not timely diagnosing Waverly with breast cancer.
See
generally Defs.’ Mot. to Dismiss Ex. A, State Court Complaint,
ECF
No.
4-1.
Waverly
The
did
not
state
file
O.C.G.A. § 9-11-9.1.
court
an
dismissed
expert
the
affidavit
action
as
because
required
by
The Georgia Court of Appeals affirmed.
Waverly’s present action is based on her contention that
the participants in her state court case violated various laws.
Compl. ¶ 4, ECF No. 1.
Waverly randomly cites the following
authority in her Complaint: 42 U.S.C. § 1983; 42 U.S.C. § 1985;
18 U.S.C. §§ 1001, 1503, 1512, 1519, 1621, and 2071; Federal
Rule of Civil Procedure 56(c)(1), (h); 5 U.S.C. § 552 (a), (f);
and
O.C.G.A. §§
51-6-1
and
-2.
Id.
¶
3.
Waverly’s
main
complaint is that the state court judge who dismissed her state
court action should not have done so and should have recused
herself.
Id. ¶ 5.
court
the
on
alleging
in
affidavit,
Waverly also blames her defeat in state
lawyers
who
conclusory
lost
hearing
represented
fashion
that
transcripts,
the
they
and
Emory
Defendants,
submitted
requested
containing Waverly’s personal health information.
a
false
documents
Id. ¶¶ 6-7.
Her Complaint also includes a statement that Waverly received a
letter
from
Emory
Healthcare
related to her records.
regarding
Id. ¶ 7.
3
a
breach
in
security
DISCUSSION
I.
Malpractice and Fraud Claims Against Emory Defendants
To
the
extent
Waverly
attempts
to
assert
medical
malpractice and fraud claims against the Emory Defendants
this action, those claims are barred by res judicata.
in
“Under
res judicata, also known as claim preclusion, a final judgment
on
the
merits
bars
the
parties
to
a
prior
action
from
re-
litigating a cause of action that was or could have been raised
in that action.”
1296
(11th
Defendants
In re Piper Aircraft Corp., 244 F.3d 1289,
Cir.
2001).
To
must
establish
invoke
that
(1)
res
a
judicata,
court
the
of
Emory
competent
jurisdiction rendered the prior decision; (2) there was “a final
judgment
on
the
merits;”
(3)
both
cases
“involve
the
same
parties or their privies;” and (4) both cases “involve the same
causes of action.”
Id.
All four requirements are met here.
There is no dispute that a court of competent jurisdiction, the
Superior
Court
of
Dekalb
judgment on the merits.
County,
Georgia,
rendered
a
final
Both cases involve the same parties and
one additional Emory Healthcare employee.
based on the same set of facts.
And both cases are
Waverly even acknowledges that
the two actions are the same when she alleges in her Complaint
that this action “is a result of incidents that occurred in
[her]
original
case.”
Compl.
4
¶ 4.
Waverly
raised
medical
malpractice and fraud claims in the state court action, and she
may not re-litigate them here.
II.
Those claims are thus dismissed.
Plaintiff’s Remaining Claims
A.
Claims Under 42 U.S.C. § 1983 and 42 U.S.C. § 1985
Waverly also alleges claims pursuant to 42 U.S.C. § 1983
(“§ 1983”) arising from Defendants alleged violation of her due
process and equal protection rights.
claims,
Waverly
must
allege
To prevail on her § 1983
sufficient
facts
that
if
proven
would establish that she “was deprived of a right secured by the
Constitution
or
federal
law
and
that
such
deprivation
committed by a person acting under color of state law.”
was
Huls v.
Llabona, 437 F. App’x 830, 832 (11th Cir. 2011) (per curiam).
Pretermitting whether Waverly has alleged sufficient facts to
support a constitutional violation, Waverly has alleged no facts
that any Defendant was acting under color of state law at the
time of the alleged violation.
A person acts under color of
state law if his acts are “fairly attributable to the state.”
Id. (internal quotation marks omitted).
Here, Waverly does not
allege any claims against any state actors.
claims
against
two
private
corporations
Rather, she alleges
and
their
employees.
These Defendants are not state actors subject to suit under §
1983, and Waverly’s § 1983 claims are therefore dismissed.
Waverly also alleges a claim, purportedly pursuant to 42
U.S.C. § 1985 (“§ 1985”), that Defendants conspired to interfere
5
with her civil rights.
a
claim
under
§
To the extent Waverly attempts to assert
1985(2),
that
claim
fails.
allegations relate to a state court proceeding.
Waverly’s
Section 1985(2)
forbids conspiracies to obstruct justice in federal courts.
See
Alhallaq v. Radha Soami Trading, LLC, 484 F. App’x 293, 296-97
(11th Cir. 2012) (per curiam) (noting that obstruction in “any
court of the United States” means federal courts).
this part of § 1985(2) does not apply here.
Therefore,
While § 1985(2)
also prohibits conspiracies to obstruct justice with intent to
deny a person equal protection of the laws, the only reference
in Waverly’s Complaint to a conspiracy between Defendants and
the
state
court
judge
is
a
vague
allegation
that
they
all
conspired to conceal the fact that the judge’s spouse may have
somehow
been
affiliated
with
Emory.
Compl.
¶
5.
These
allegations do not contain sufficient facts to state a claim
that the Defendants conspired to violate Waverly’s civil rights
with the intent to deny her equal protection under the law.
Cox
v.
Mills,
465
F.
App’x
885,
887
(11th
Cir.
2012)
See
(per
curiam) (noting that a “plaintiff must plead in detail, through
reference to material facts, the relationship or nature of the
conspiracy”
and
may
not
state
a
§
1985(2)
claim
by
simply
stringing together “discrete events, without showing support for
a reasoned inference that the private and state actors agreed to
6
violate
the
omitted).
plaintiff’s
rights”)
(internal
quotation
marks
Waverly’s § 1985(2) claims are therefore dismissed.
To the extent Waverly attempts to assert a
§ 1985(3),
that
§ 1985(3),
a
claim
also
plaintiff
fails.
must
To
state
state
claim under
a
claim
under
sufficient
facts
that
establish both “invidious discriminatory intent as well as the
violation of a serious constitutional right.”
Cook v. Randolph
Cnty., Ga., 573 F.3d 1143, 1156 (11th Cir. 2009).
Waverly did
not
invidiously
allege
that
Defendants
had
a
class-based,
discriminatory animus, and she did not allege that Defendants
conspired to deprive her of a serious constitutional right that
was intended to be redressed under § 1985(3).
See Shuler v.
Swatek, 465 F. App’x 900, 903 (11th Cir. 2012) (“[T]he only
claims that have been recognized by the Supreme Court as viable
under
§
1985(3)
against
private
defendants
are
claims
for
deprivation of the right to interstate travel and freedom from
involuntary
servitude.”).
Accordingly,
Waverly’s
§ 1985(3)
claim is dismissed.
B.
Other Miscellaneous (Frivolous) Federal Claims
Waverly cites a variety of other federal statutes and rules
in
her
Complaint,
dismissal.
none
Obviously
of
unaware
which
that
save
her
criminal
Complaint
statutes
do
from
not
generally provide a stand-alone private civil cause of action,
Waverly refers to several criminal statutes in her Complaint:
7
18 U.S.C. §
1001
(criminalizing
false
statements
in
federal
proceedings); 18 U.S.C. § 1503 (criminalizing influencing jurors
in federal proceedings); 18 U.S.C. § 1512 (criminalizing witness
tampering);
18
U.S.C. §
1519
(criminalizing
falsification
of
records in federal and bankruptcy proceedings); 18 U.S.C. § 1621
(criminalizing
perjury);
and
18
U.S.C. §
2071
(criminalizing
concealment of documents filed in federal courts).
None of
these criminal statutes creates a private right of action.
To
the extent Waverly attempts to assert claims under them, those
claims fail.
See Hanna v. Home Ins. Co., 281 F.2d 298, 303 (5th
Cir. 1960) (“The sections of Title 18 may be disregarded in this
suit.
They
are
criminal
in
nature
and
provide
no
civil
remedies.”).1
Waverly also refers to 42 U.S.C. § 1320d-7(a)(2) in her
Complaint.
Portability
That statute, which is part of the Health Insurance
and
Accountability
Act
provides no private right of action.
of
1966
(“HIPAA”),
Sneed v. Pan Am. Hosp.,
370 F. App’x 47, 50 (11th Cir. 2010) (per curiam).
extent
that
Waverly
attempts
to
also
allege
a
claim
To the
based
upon
violations of HIPPA’s confidentiality provisions, that claim is
dismissed.
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981)
(en banc), the Eleventh Circuit adopted as binding precedent all
decisions of the former Fifth Circuit handed down prior to the close
of business on September 30, 1981.
8
Waverly also cites 5 U.S.C. § 552(a) and (f) in support of
her claims.
Those provisions are part of the federal Freedom of
Information
Act
and
have
no
application
here.
Defendants
speculate that Waverly meant to reference the Privacy Act of
1974, which is codified at 5 U.S.C. § 552a.
likewise has no application here.
basis for Waverly’s claims.
But that statute
Neither statute provides a
The Freedom of Information Act
requires federal agencies to make certain information available
to the public, and the Privacy Act imposes rules on disclosure
by federal agencies.
There is no federal agency named as a
Defendant in this case.
Therefore, no cause of action could
possibly exist against these Defendants.
Waverly also attempts to invent a cause of action based on
Federal Rule of Civil Procedure 56(c)(1), (h).
She alleges that
because Defendants allegedly submitted an affidavit supporting
summary judgment in the state court action in bad faith, this
court may order Defendants to pay reasonable expenses incurred
as a result.
But Waverly of course cannot base a claim in this
Court on an alleged violation of a federal rule during her state
court proceeding.
C.
Georgia Fraud Claims
Waverly also cites to Georgia’s fraud statutes, O.C.G.A. §§
51-6-1 and -2, in support of her claims.
As discussed above,
any fraud claims against the Emory Defendants are barred by res
9
judicata.
As to fraud claims against the Carlock Defendants,
those claims fail because Waverly did not plausibly allege (1) a
false representation by the Carlock Defendants, (2) scienter,
(3) intention to induce Waverly to act or refrain from acting,
(4) justifiable reliance by Waverly, and (5) resulting damage to
Waverly.
Fuller v. Perry, 223 Ga. App. 129, 131, 476 S.E.2d
793, 795 (1996).
Waverly’s fraud claims are thus dismissed.
CONCLUSION
For
the
reasons
explained
in
this
Order,
Defendants’
Motions to Dismiss (ECF Nos. 4 & 7) are granted.
IT IS SO ORDERED, this 23rd day of October, 2013.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE
10
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