United States District Court, D. Connecticut
RULING AND ORDER ADOPTING RECOMMENDED RULING AND
DENYING LEAVE TO AMEND
A. BOLDEN UNITED STATES DISTRICT JUDGE.
September 6, 2018, Ngola Santos (“Plaintiff”)
sued Eye Physicians and Surgeons, P.C.
(“Defendant”), alleging, inter alia,
violations of the Americans with Disabilities Act, 42 U.S.C.
§ 12101 (the “ADA”), and the False Claims
Act, 29 U.S.C. § 3721. Complaint, dated Sept. 10, 2018
(“Compl.”), ECF No. 1.
October 1, 2018, Magistrate Judge William I. Garfinkel
recommended that Mr. Santos's Complaint be dismissed for
failure to state a claim. See Recommended Ruling,
dated Oct. 18, 2018 (“Rec. Ruling”), ECF No. 11.
reasons explained below, the Court ADOPTS
Judge Garfinkel's recommended ruling,
DISMISSES the Complaint under 28 U.S.C.
§ 1915(e)(2)(B) with prejudice, and
DENIES both of Mr. Santos's pending
motions to amend the Complaint, ECF Nos. 7 and 12, as futile.
FACTUAL AND PROCEDURAL BACKGROUND
August 31, 2015, Mr. Santos allegedly went to Eye Physicians
and Surgeons' office in Orange, CT, where Dr. Sharpiro
and an unknown technician (referred to in the Complaint as
“Jane Doe”) examined his eyes. Compl. ¶ 7.
Mr. Santos alleges that, after the eye exam, Dr. Sharpiro
informed him that he saw cataracts in Mr. Santos's left
eye and believed that Mr. Santos had diplopia (double vision)
in the eye. Id. ¶ 8. Dr. Sharpiro allegedly
instructed Mr. Santos to return after “several
months” for another eye exam to determine whether
surgery would be necessary to correct the cataracts and
Santos alleges that he then “asked the Defendant”
to complete his insurance company's short-term disability
benefits forms. Id. ¶ 9.
days later, Mr. Santos allegedly called Defendant's main
office in Milford, CT, “after being instructed by a
voicemail by Defendant, ” to get an update on the
forms. Id. ¶ 10. Mr. Santos alleges that he
“faced hostility and retaliation from a tech, Jane Doe
2[.]” Id. ¶¶ 10-16. When he asked
her for an update on the form, she allegedly told him-without
checking his records-that “[w]e are not giving you
Disability.” Id. ¶ 12. Mr. Santos alleges
that he tried to explain her that “Defendant's
duty” was only to complete the form, and that his
insurance company would determine whether he gets disability
benefits or not. Id. ¶ 14. But Jane Doe 2
allegedly “wouldn't listen” and “would
not cooperate and fill out the forms[.]” Id.
Santos alleges that he then asked to speak with the manager,
and that his call was then taken by Defendant's practice
administrator, D. Breen. Id. ¶ 16. D. Breen
allegedly “immediately” told him that they would
not be giving him disability. Id. Mr. Santos alleges
that after he explained “the process, ” D. Breen
agreed to fill out the forms and submit them to the insurance
company. Id. Mr. Santos alleges that
“Defendant retaliated in anger by asking [him] why he
didn't schedule the surgery, ” even though
“surgery was not necessary for several months at that
time, since only near sight was substantially affected,
” and that Defendant “did not want to support
[him] being out of work on [s]hort term disability and other
arbitrary reasons” unless Mr. Santos scheduled surgery.
Id. ¶ 19.
November 2015, Mr. Santos alleges that his employer gave him
an ADA accommodation sheet to be filled out in order to
determine whether he was eligible for accommodation at work,
” Id. ¶ 20. Mr. Santos alleges that
Defendant completed the sheet, but “sabotaged” it
by not acknowledging that he had “any impairment,
” which resulted in the “misrepresentation”
of Mr. Santos's impairments to his employer and prevented
him from receiving accommodations, as his employer thought he
was “not ill or impaired.” Id. ¶
22; see ADA Accommodation Sheet, dated November 7,
2019, annexed as Ex. 2 to Compl.
Santos alleges that, when he made future attempts to contact
Eye Physicians and Surgeons for medical information, D. Breen
would “call or send a letter” telling Mr. Santos
that “they helped him enough and to never contact [the]
office again.” Id. ¶ 24. Mr. Santos
alleges that when he called to find out why he received the
letter, and D. Breen “rudely talked over [Mr. Santos]
and [hung] up the phone.” Id. ¶ 25.
Santos alleges that the actions of Eye Physicians and
Surgeons and its employees “resulted in [the]
termination” of his employment. Id. ¶ 26.
September 6, 2018, Mr. Santos sued Eye Physicians and
Surgeons, alleging multiple causes of action under federal
and state law. See Compl. Mr. Santos alleged two
federal claims, arguing that Defendant: (1) violated the
False Claims Act by creating a false claim concerning Mr.
Santos's accommodations at work, which created a false
claim for Mr. Santos's accommodations at work, and
resulted in him not receiving any accommodations,
id. ¶¶ 37-38 (Count Three); and (2)
violated the ADA by refusing to acknowledge Mr. Santos's
disability and impairments for the sake of disqualifying him
for accommodations and benefits, which resulted in him not
receiving accommodations and eventually termination from his
job, id. ¶¶ 45-46 (Count Four).
Santos also alleged five state-law claims, arguing that
Defendant: (1) committed medical malpractice by breaching
patient/physician confidentiality, id. ¶¶
27-29 (Count One); (2) committed fraud by intentionally and
negligently submitting fraudulent and misleading information
and denying knowledge of Mr. Santos's vision impairment,
id. ¶¶ 30-34 (Count Two); (3)
discriminated against him in violation of Connecticut General
Statute §§ 46(a)-64 et seq., which
prohibits discrimination in public accommodations on the
basis of race, color, ancestry, age, mental disability, and
physical disability, id. ¶¶ 48-49 (Count
Five); (4) orchestrated a “civil conspiracy”
against him “in discriminating and denying the
Plaintiff's accommodations and benefits for his
disability, ” id. ¶¶ 50-51 (Count
Six); and (5) breached its fiduciary duty to him,
id. ¶¶ 52-57 (Count Seven).
same day, Mr. Santos moved for leave to proceed in forma
pauperis. Motion to Proceed in forma pauperis,
dated Sept. 10, 2018, ECF No. 2.
September 11, 2018, the Court referred Mr. Santos's
motion for leave to proceed in forma pauperis to
Magistrate Judge Garfinkel. Order, dated Sept. 11, 2018, ECF
same day, Mr. Santos moved to amend his Complaint. Motion to
Perform First Relation Back of Amendment of Original
Complaint (“First Mot. to Amend Compl.”), dated
Sept. 11, 2018, ECF No. 7. Mr. Santos seeks to bring the
following additional state law claims against Eye Physicians
and Surgeons: (1) a claim for medical malpractice based on
failure to recognize symptoms, id. ¶¶
58-63; misreading or ignoring laboratory symptoms,
id. ¶¶ 64-66; failure to diagnose or
misdiagnosis, id. ¶¶ 67-69; disregarding
or not taking appropriate patient history, id.
¶¶ 70-73; and poor follow-up or aftercare,
id. ¶¶ 74-78; and (2) a claim for personal
injury, id. ¶¶ 79-80.
October 1, 2018, Magistrate Judge Garfinkel granted Mr.
Santos's motion for leave to proceed in forma
pauperis, but recommended that Mr. Santos's
Complaint be dismissed under 28 U.S.C. § 1915(e)(2)(B).
See Order, dated Oct. 1, 2018, ECF No. 8; Rec.
Garfinkel recommended dismissing Mr. Santos's Americans
with Disabilities Act claim because the Complaint: (1)
“does not allege facts to support that the defendant
discriminated against [him] as a result of a disability,
” id. at 3; (2) does not “allege what
reasonable accommodation [Mr. Santos] required and was
denied, or the nature of the discrimination that allegedly
occurred, id.; and (3) “seeks only monetary
compensation” when “the only remedy available
[for such a claim] is injunctive relief[, ]”
id. at 4. Judge Garfinkel also recommended that Mr.
Santos's False Claims Act claim be dismissed because Mr.
Santos: (1) “is not seeking to vindicate any rights
belonging to the federal government, but instead seeking
damages for injury to himself, ” id.; and (2)
is a pro se litigant and therefore may not pursue a
qui tam action under Second Circuit law,
id. at 5.
Garfinkel therefore recommended that both federal claims be
dismissed for failure to state a claim upon which relief can
be granted, and that the Court decline to exercise
supplemental jurisdiction over the remaining state law
claims. Id. at 5-6.
October 17, 2018, Mr. Santos moved for an extension of time
to object to the recommended ruling. Motion for Extension of
Time, dated Oct.17, 2018, ECF No. 10. On October 18, 2018,
the Court granted that motion. Order, dated Oct. 18, 2018,
ECF No. 11.
October 29, 2018, Mr. Santos moved to amend his Complaint to
add a claim of intentional infliction of emotional distress
under Connecticut law. Motion to Perform Second Relation Back
of Amendment of Original Complaint, dated Oct. 29, 2018
(“Second Mot. to Amend Compl. “), ECF No. 12,
same day, Mr. Santos objected to Judge Garfinkel's
Recommended Ruling. Motion of Objection to Recommended Ruling
of Dismissal, dated Oct. 29, 2018 (“Pl.'s
Obj.”), ECF No. 13. Mr. Santos argues, inter
alia, that Judge Garfinkel's recommended ruling
should be dismissed because: (1) Mr. Santos does have
physical and mental disabilities and Dr. Sharpiro and the
other staff at Eye Physicians and Surgeons were aware of
these disabilities, id. at 2-6; (2) the cases used
in Judge Garfinkel's recommendation were
“plagiarized, ” and are too dissimilar from Mr.
Santos's case to be used as comparisons, id. at
2, 4; and (3) Mr. Santos did not request compensation for
monetary damages, id. at 6. In his objection, Mr.
Santos responds to each paragraph in the recommended ruling.
See Id. at 1-9.
Santos requests that the Court “strike or
dismiss” Judge Garfinkel's recommended ruling.
Id. at 1, 9. In the alternative, if dismissal of his
action “is unavoidable, ” he requests that the
case instead be transferred to another court “in
accordance with” 28 U.S.C. § 1406(a), in the
interest of justice and to avoid problems of re-filing after
the statute of limitations on his claims may have run.
STANDARD OF REVIEW
U.S.C. § 1915(e) requires the Court to dismiss a pro
se litigant's case “at any time” if the
Court determines that the action is “(i) frivolous or
malicious; (ii) fails to state a claim on which relief may be
granted; or (iii) seeks monetary relief against a defendant
who is immune from such relief.” 28 U.S.C. §
state a claim on which relief can be granted, the complaint
must include sufficient facts to afford the defendants fair
notice of the claims and the grounds upon which they are
based and to demonstrate a right to relief. Bell Atl. v.
Twombly, 550 U.S. 544, 555-56 (2007). Conclusory
allegations are insufficient. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). Plaintiffs must plead “enough
facts to state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 570.
also well-established that “[p]ro se
complaints ‘must be construed liberally and interpreted
to raise the strongest arguments that they
suggest.'” See Triestman v. Fed. Bureau of
Prisons,470 F.3d 471, 474 (2d Cir. 2006); see also
Sykes v. Bank of Am.,723 F.3d 399, 403 (2d Cir. 2013)
(quoting Triestman, 470 F.3d at 474); Tracy v.