Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kasparian v. United States

United States District Court, D. Massachusetts

May 8, 2017

ABRAHAM KASPARIAN, JR., Plaintiff,
v.
UNITED STATES OF AMERICA, DUFFY HEALTH CENTER, INC., DUNCAN MACALLISTER, WESLEY KLEIN, and MICHAEL FUSCO, Defendants.

          MEMORANDUM AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

          ALLISON D. BURROUGHS U.S. DISTRICT JUDGE.

         Plaintiff Abraham Kasparian, Jr. filed suit in Barnstable County Superior Court, Massachusetts, against Defendants Duffy Health Center and three of its federal employees, Wesley Klein, D.O., Michael Fusco, R.N., and Duncan Macallister, following an alleged refusal to provide him with medical treatment at the Duffy Health Center on February 26, 2016. Kasparian's complaint alleges breach of contract (Count I), intentional infliction of emotional distress (“IIED”) (Count II), and “violation of right to medical treatment and care” causing extreme pain (Count III). [ECF No. 1-3]. On July 27, 2016, the federal employees removed the case to this court because they are covered by the Federal Tort Claims Act by virtue of their employment with Duffy Health Center.[1] [ECF No. 1]. On August 8, 2016, Defendants moved to substitute the United States as the proper party as to Counts II and III [ECF No. 5], which was allowed by this Court on August 31, 2016 [ECF No. 8]. Although the federal employees were ultimately dismissed from Counts II and III in favor of the United States, they remain defendants against Count I. On September 2, 2016, the federal employees and the United States moved to dismiss the complaint in its entirety. [ECF No. 10]. For the reasons discussed below, the Court grants the motion and dismisses the complaint.

         I. BACKGROUND

         In the original complaint filed in state court [ECF No. 1-3 at 10-16], Kasparian sets forth the following factual allegations. On or about January 18, 2016, Kasparian was a patient of Duffy Health Center. Id. ¶ 6. He made an appointment on February 26, 2016 for a complete behavioral review, which was required by the terms of his probation, and to review a number of medical issues given his age and chronic health issues. Id. ¶¶ 7-9. On February 25, 2016, Kasparian received a phone call from a staff member at the Duffy Health Center informing him that his appointment was cancelled and that if he came to the Duffy Health Center he would be trespassing. Id. ¶ 10.

         Kasparian then alleges that the Chief Probation Officer, Brian Webber, informed him that the appointment had not been cancelled after Webber called Duffy Health Center. Id. ¶ 11-12. On February 26, 2016, Kasparian arrived at the Duffy Health Center for the appointment he believed was scheduled, and was met by Defendants Klein and Fusco, who reiterated that his medical appointment had been cancelled and that if he did not leave he would be arrested as a trespasser. Id. ¶¶ 13-14. Klein and Fusco then presented Kasparian with a document entitled “Trespass Statute Notice, ” and informed him that the Barnstable Police had been called. Id. ¶ 14. Kasparian, confused, told them about Webber's phone call confirming his appointment, but Defendants Klein and Fusco said that this phone call had not been made. Id. ¶ 15. Kasparian then phoned Webber, who informed him that he should leave. Id. ¶ 18.

         Before leaving, Kasparian asked Klein for assistance with refilling his medication for his mental health needs, and Klein said he could not do so. Id. ¶ 19. Kasparian alleges that he “suffered humiliation and great emotional distress from the wrongful actions of the Defendants.” Id. ¶ 21. After leaving the Duffy Health Center, Kasparian tried to refill his mental health medication at Cape Cod Hospital's Emergency Center, where he told nurse Ellen Carty that the Duffy Health Center would not help him with his supply. Id. ¶ 22. Carty then phoned the Duffy Health Center. Id. ¶ 23. Kasparian alleges that, based on what he could overhear during that call, Klein tried to get Carty to turn Kasparian away as well. Id. Kasparian heard Carty and Klein discussing “sexual assault.” Id. ¶ 24. Kasparian told Carty that he had been released from prison on January 6, 2016, but that he had never been involved in such an incident. Id. Kasparian did admit to Carty that he had assaulted his former wife in 2002. Id. Again, Kasparian alleges that he suffered humiliation and emotional distress when giving this explanation to Carty. Id. Upon discharging him from the hospital, Carty reiterated in her instructions that Kasparian was not welcome at the Duffy Health Center, that he would need to find a primary care provider, and that he should not wait until the supply of his medications was low. Id. ¶ 27. Kasparian claims that these papers are now a part of his medical records, which he alleges interferes with his right to have medical treatment, causes him to suffer humiliation and emotional distress, and caused him to suffer physical pain because he was not able to obtain a diagnosis at the Duffy Health Center for an ailment eventually diagnosed as “acute colitis-presumed infectious.” Id. ¶¶ 27-29.

         On March 15, 2016, Kasparian met with his probation officer, who informed him that an employee at Duffy was afraid of him. Id. ¶ 30. Kasparian claims that this caused him more distress. Id.

         The United States, having been substituted as the proper party for Counts II and III, and the other defendants as federal employees of Duffy Health Center, now move to dismiss the complaint in its entirety pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). [ECF No. 11]. In his opposition to the motion [ECF No. 15], Kasparian argues that Defendants' actions violated Massachusetts state law, and he requests that his complaint be transferred back to Barnstable County Superior Court. He also requests that this Court order sanctions and enter a default judgment due to the defendants' failure to appear at depositions that he scheduled.

         II. LEGAL STANDARD

         In evaluating a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure Rule 12(b)(6), the Court must accept as true all well-pleaded facts, analyze those facts in the light most hospitable to the plaintiff's theory, and draw all reasonable inferences from those facts in favor of the plaintiff. U.S. ex rel. Hutcheson v. Blackstone Med. Inc., 647 F.3d 377, 383 (1st Cir. 2011). To avoid dismissal, a complaint must set forth “more than labels and conclusions, ” Bell Atl. Co. v. Twombly, 550 U.S. 544, 555 (2007), and must include “factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory, ” Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir. 2008) (internal quotations and citation omitted). The facts alleged, when taken together, must be sufficient to “state a claim to relief that is plausible on its face.” A.G. ex rel. Maddox v. Elsevier, Inc., 732 F.3d 77, 80 (1st Cir. 2013) (quoting Twombly, 550 U.S. at 570). The plausibility standard invites a two-step analysis. Id. “At the first step, the court ‘must separate the complaint's factual allegations (which must be accepted as true) from its conclusory legal allegations (which need not be credited).'” Id. (quoting Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012)). “At the second step, the court must determine whether the remaining factual content allows a reasonable inference that the defendant is liable for the misconduct alleged.” Id. (internal quotations and citation omitted). “[T]he combined allegations, taken as true, must state a plausible, not a merely conceivable, case for relief.” Sepulveda-Villarini v. Dep't of Educ. of P.R., 628 F.3d 25, 29 (1st Cir. 2010).

         When evaluating a motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), “[t]he existence of subject-matter jurisdiction ‘is never presumed'” because federal courts are courts of limited jurisdiction. Fafel v. Dipaola, 399 F.3d 403, 410 (1st Cir. 2005) (quoting Viqueria v. First Bank, 140 F.3d 12, 16 (1st Cir. 1998)). The Court may look beyond the pleadings in order to determine if it has jurisdiction over the matter. Gonzalez v. United States, 284 F.3d 281, 288 (1st Cir. 2002). In making this determination, the Court may “consider whatever evidence has been submitted, such as the depositions and exhibits submitted.” Aversa v. United States, 99 F.3d 1200, 1210 (1st Cir. 1996).

         The Court will construe Kasparian's allegations liberally because he is proceeding pro se and did not initially intend to file his claims in federal court. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). A pro se litigant, however, must still comply with procedural and substantive law. Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). Dismissal of a pro se complaint is appropriate when the complaint fails to state an actionable claim. Muller v. Bedford VA Admin. Hosp., No. 11-cv-10510, 2013 WL 702766, at *3 (D. Mass. Feb. 25, 2013) (citing Overton v. Torruella, 183 F.Supp.2d 295, 303 (D. Mass. 2001)).

         III. DISCUSSION

         a. Claims Against the United ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.