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Date: 02-20-2018

Case Style:

A.V. Avington, Jr. v. Indian Health Care Resource Center of Tulsa

Northern District of Oklahoma Federal Courthouse
Tulsa, Oklahoma

Case Number: 17-5099

Judge: Monroe G. McKay

Court: United States Court of Appeals for the Tenth Circuit on appeal from the Northern District of Oklahoma (Tulsa County)

Plaintiff's Attorney: Pro Se

Defendant's Attorney: Not Available

Description: Plaintiff A.V. Avington, Jr., proceeding pro se, filed a civil rights complaint
accusing the Indian Health Care Resource Center of race and age discrimination, as well
as intentional infliction of emotional distress, under a theory of respondeat superior.
Plaintiff alleged that when he entered the Center as a walk-in patient, he was made to
* This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
United States Court of Appeals
Tenth Circuit
February 16, 2018
Elisabeth A. Shumaker
Clerk of Court
wait longer to see a doctor because he is black. Plaintiff claims that white walk-in
patients were seen more promptly, though his complaint did not provide factual support
explaining how he knew the other people in the clinic were also walk-in patients or that
their medical conditions were not more serious than his. Plaintiff did eventually see a
doctor that afternoon after waiting five-and-a-half hours.
Plaintiff sought in forma pauperis status, which led the district court to review his
complaint under 28 U.S.C. § 1915(e)(2)(B)(ii). In doing so, the district court noted that
Plaintiff’s purported claims of race and age discrimination relied heavily on Title VII and
employment-related allegations, yet “the Complaint contains no facts that would state a
plausible claim of employment discrimination.” (District Court Opinion and Order at 4.)
The district court opined that Plaintiff may have copied his employment-related
allegations from “other complaints that he has filed in this courthouse.” (Id.) As Plaintiff
is not and has never been an employee of the Center, the district court dismissed any
employment discrimination claims with prejudice.
Though Plaintiff only made a “passing reference to § 1981,” the district court also
considered whether the Complaint had stated a claim for “‘racial discrimination in the
making, performance, modification, and termination of contracts, and the enjoyment of
all the benefits, privileges, terms, and conditions of the contractual relationship.’” (Id.
at 5 (quoting Reynolds v. School Dist. No. 1 of Denver, Colo., 69 F.3d 1523, 1532 (10th
Cir. 1995) (quoting 24 U.S.C. § 1981)).) The district court concluded that Plaintiff’s
§ 1981 claim failed because he had “not alleged facts supporting a plausible claim that
any alleged intentional discrimination interfered with a contract,” and dismissed this
claim with prejudice. (Id.) Lastly, the district court determined that Plaintiff’s
“Complaint does not set forth any facts that would rise to the level of outrageousness
required to set forth an emotional distress claim under Oklahoma law,” and dismissed his
claim for intentional infliction of emotional distress with prejudice as well. (Id. at 7.)
Plaintiff filed a motion to reconsider the district court’s dismissal of his complaint
with prejudice, arguing that he had set forth a claim of retaliation for exercise of
constitutional rights and should be given the opportunity to amend his complaint. The
district court denied the motion on the grounds that Plaintiff had not addressed the
authorities or analysis set forth in the district court’s order but merely asked to revisit
issues that had already been addressed. The district court further explained that the
Complaint never asserted a substantive due process claim, and even if it had, the factual
allegations in the Complaint would not have supported such a claim.
Plaintiff now appeals, asserting that the district court abused its discretion in
refusing to allow him to amend his complaint to make a racial discrimination claim under
Title VI of the Civil Rights Act of 1964, which prohibits “discrimination under any
program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. Plaintiff
did not make a Title VI claim in his Complaint or in his motion for reconsideration.
Indeed, it appears that this theory of the case was never presented to the district court.
Moreover, though a Title VI claim is somewhat more factually appropriate, assuming that
the Indian Health Care Resource Center receives federal financial assistance, allowing
Plaintiff to amend his complaint to include a Title VI cause of action would have been
futile because the alleged facts do not support a plausible discrimination claim.
Plaintiff asserts that he was treated differently on the basis of race, alleging that
white walk-in patients were seen before him. Plaintiff offers no factual support to show
how he knew whether these patients had appointments or were truly walk-in patients like
him, despite the fact that the district court already pointed out this deficiency in his
complaint. Even if we take the walk-in status of the white patients as true, Plaintiff has
not alleged facts to show that these patients had similar or less severe medical conditions
than his. Under Plaintiff’s alleged facts, several nondiscriminatory reasons exist for
allowing the other patients to be seen sooner. Plaintiff alleges that the triage receptionist
told him that the other patients’ needs were more important than his. This allegation does
not establish that he was discriminated against, since a triage receptionist at a medical
center must prioritize patients according to their appointments and the severity of their
conditions. The triage receptionist may have also prioritized other patients who did not
have Plaintiff’s documented history of missing scheduled appointments at the Center.
Although pro se plaintiffs are usually allowed to amend their complaints, dismissal with
prejudice for failure to state a claim is proper “where it is obvious that the plaintiff cannot
prevail on the facts he has alleged and it would be futile to give him an opportunity to
amend.” Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001) (citation omitted).
The district court did not abuse its discretion in dismissing Plaintiff’s Complaint with
prejudice for failure to state a claim.

Outcome: For the foregoing reasons, and for substantially the same reasons given by the
district court, we AFFIRM the dismissal of this case with prejudice. We DENY
Plaintiff’s request for court-appointed counsel.

Plaintiff's Experts:

Defendant's Experts:


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