D'Aquin et al v. Starwood Hotels and Worldwide Properties Inc et al

Filing 52

ORDER AND REASONS granting 47 Motion to Dismiss; granting 49 Motion to Dismiss. Signed by Judge Helen G. Berrigan on 11/10/2015. (Reference: 15-2842)(kac)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

THOMAS D’AQUIN and ESTHER KELLY

CIVIL ACTION

VERSUS

NO: 15-1963
C/W 15-2842

STARWOOD HOTELS AND WORLDWIDE
PROPERTIES INC, ET AL

SECTION C(1)
Pertains to: 15-2842

ORDER AND REASONS
Before the Court are two motions to dismiss by Touro Infirmary, Orthopaedic Associates
of New Orleans, and Douglas Neil Lurie, M.D. (collectively “defendants”). See Civ. A. 15-1963,
Rec. Docs. 47 and 49. Having considered the record, the law, and absence of any objection to
defendants’ motions, and for the reasons discussed herein, the Court hereby GRANTS the
motions to dismiss.
I.

Background
This is a pro se action for compensation stemming from what plaintiff alleges to be

discriminatory treatment of plaintiff and plaintiff’s wife perpetrated by defendants in violation of
the Civil Rights Act of 1964. According to the complaint currently before the Court, the plaintiff,
Thomas D’Aquin, appears to allege that he and his wife, based on their status as an interracial
couple and his wife’s immigrant status, were discriminated against when they sought medical
care for his wife’s ankle. See Civ. A. 15-2842, Rec. Doc. 1. It appears that plaintiff alleges that
he was denied access to a doctor, that defendants refused to conduct certain tests and
examinations on plaintiff’s wife, did not replace a wet cast plaintiff’s wife was wearing, gave
prescriptions without the advice of a doctor and, somewhere during this time, that defendants
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said “something incredibl[y] racist.” See id. at 1–2. Plaintiff appears to further allege that, either
during that same visit or later, he and his wife again sought medical attention from defendants
and again were denied proper care, discriminated against because of a “discriminatory method
that Defendants have for paying for service,” wrongfully removed plaintiff’s wife’s cast, and
performed unnecessary surgery. See id.
From there, it appears plaintiff alleges defendants denied him access to his wife’s medical
records, which delayed her ability to receive needed medical services in the United Kingdom.
See id. at 2. It appears plaintiff alleges that because of the defendants’ discrimination, plaintiff’s
wife had to forego an opportunity to return to the United States and missed an opportunity to
become a tennis pro for four clubs in Dallas, Texas. See id. at 2. Plaintiff seeks $2,000,000 from
each defendant under the Civil Rights Act of 1964 for pain and suffering resulting from the
defendant’s alleged discrimination and “the fact that through this discrimination [plaintiff] will
have to live through the fact his child will not be born in the United States and cannot benefit
from the United States has to offer and cannot be President.” Id. at 3.
Defendants argue that plaintiff’s complaint in this action is deficient on two grounds.
First, that it is duplicative of a complaint already filed by plaintiffs against the defendants and
which has already been dismissed by the Court. Compare Civ. A. 15-1963, Rec. Docs. 6 at 10–
11, with Civ. A. 15-2842, Rec. Doc. 1; see also Civ. A. 15-1963, Rec. Doc. 48. Second, that the
complaint fails to state a claim. See generally Civ. A. 15-1963, Rec. Doc. 47-1 at 3–7.
II.

Standard of Review
As a threshold matter, the Court notes that it interprets pleadings and briefs of pro se

litigants liberally “to afford all reasonable inferences which can be drawn from them.” In re Tex.
Pig Stands, Inc., 610 F.3d 937, 941 n.4 (5th Cir. 2010). A motion to dismiss will be granted

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when a complaint does not provide, “enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The complainant must plead facts that raise the right of recovery above speculation.
Twombly, 550 U.S. at 555-556. In assessing a motion to dismiss, a court must take all wellpleaded factual allegations of the complaint as true and draw all reasonable inferences in favor of
the plaintiff. In re Katrina Canal Breaches Litigation, 459, F.3d 191, 205 (5th Cir. 2007).
Furthermore, a district court has discretion to dismiss a complaint currently before it where the
court finds it to be duplicative of a previously filed claim. See Cambridge Toxicology Group v.
Exnicios, 495 F.3d 169, 178 (5th Cir. 2007).
III.

Discussion
Both because it is duplicative and because it fails to state a plausible claim, the Court

dismisses the complaint currently before it with prejudice.
The complaint currently before the Court is duplicative of the complaint the Court has
already dismissed with prejudice for failing to state a claim. Compare Civ. A. 15-1963, Rec.
Docs. 6 at 10–11, with Civ. A. 15-2842, Rec. Doc. 1; see also Civ. A. 15-1963, Rec. Doc. 48. In
the already dismissed complaint, plaintiff and his wife alleged that plaintiff and his wife, as
result of discrimination, faced objectionable hospital billing practices, had to obtain medical
treatment in the United Kingdom, were delayed in obtaining medical records, and that plaintiff’s
wife did not receive appropriate tests and received poor ankle surgery. See Civ. A. 15-1963, Rec.
Doc. 6 at 10–11. While not exactly the same as the complaint currently before the Court, the
material substance, and flaws, of the earlier dismissed complaint predominate the substance of

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the complaint here. As before, the assertions against defendants’ alleged mistreatment of plaintiff
are conclusory and speculative. As the Court concluded in its earlier dismissal, the plaintiff has
not set forth the specific grounds necessary to conclude that it was plausible that defendants
treated plaintiff differently on the basis of race or nationality. See Civ. A. 15-1963, Rec. Doc. 48
at 5.

Accordingly,
IT IS ORDERED that the motions to dismiss by Douglas Neil Lurie and Orthopaedic
Associates of New Orleans (Rec. Doc. 47) and Touro Infirmary (Rec. Doc. 49) are GRANTED
and the complaint filed in Civil Action 15-2842 is DISMISSED WITH PREJUDICE.

New Orleans, Louisiana this 10th day of November, 2015.

__________________________________
HELEN G. BERRIGAN
UNITED STATES DISTRICT JUDGE

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