Andrew Horace v. MD Now Medical Centers, Inc.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11337
Non-Argument Calendar
____________________
ANDREW HORACE,
Plaintiff-Appellant,
versus
MD NOW MEDICAL CENTERS, INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:22-cv-81965-DMM
____________________
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2 Opinion of the Court 23-11337
Before W ILSON , L UCK , and L AGOA, Circuit Judges.
PER CURIAM:
Andrew Horace, proceeding pro se, appeals the district
court’s order dismissing his third amended complaint against MD
Now Medical Centers, Inc. (“MD Now”), under Federal Rule of
Civil Procedure 12(b)(6). On appeal, Horace argues that (1) the
district court erred when it excluded evidence of his medical rec-
ords and expert witness statements and (2) the court failed to apply
the correct law. For the following reasons, we affirm.
I. BACKGROUND1
Horace initiated this case against MD Now in Florida state
court on March 22, 2022. Attached to this initial complaint is what
appears to be a medical provider’s note following Horace’s visit for
a “[c]ontusion of nose.” Horace subsequently amended his com-
plaint several times.
In his third amended complaint, filed on November 21, 2022,
Horace alleged the following facts. On March 5, 2022, Horace went
to MD Now, an “Urgent Care” operator, to have a PCR COVID test
done. Jaylen Williams, an MD Now employee, met Horace in the
lobby and appeared dissatisfied and had “poor body demeanor.”
1 Because we are reviewing a dismissal under Rule 12(b)(6), we take the factual
allegations in Horace’s complaint as true and construe them in the light most
favorable to Horace as the plaintiff. Timson v. Sampson, 518 F.3d 870, 872 (11th
Cir. 2008).
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23-11337 Opinion of the Court 3
Williams gave Horace an uncomfortable feeling, but Horace de-
cided to go to the medical room with Williams. Williams asked
Horace to sit at the edge of his chair and tilt his head back, at which
time Williams “forcefully inserted the swab in [his] left nostril in a
stabbing action.” Horace moved his body back, and his eyes began
to water. Williams then told Horace that the doctor would see him
shortly. Dr. Rami T. Mansour then entered the room. Horace told
Dr. Mansour what happened, but Dr. Mansour did not show him
compassion. Horace then reported what happened to the front
desk and returned to the center to complain to the manager. Ac-
cording to Horace, he filed a complaint with the U.S. Department
of Health and Human Services Office for Civil Rights on March 9,
2022, which issued a closure letter to MD Now to share with its
staff as part of an ongoing training to be in compliance with appli-
cable nondiscrimination laws.
Horace alleged that MD Now “must abide by Federal Civil
Rights laws,” but did not do so. According to Horace, Kathy
Vaughn assured him that Williams was no longer employed by MD
Now following his complaint. Horace alleged that Williams’s con-
duct towards him was “[u]nequivocally discriminatory.” He cited
Article 25 of the United Nations Universal Declaration of Human
Rights, which lists medical care as a human right, and claimed that
Williams violated that right.
Horace alleged two claims against MD Now. First, he al-
leged that MD Now violated Title VII of the Civil Rights Act of
1964 by discriminating against him on the basis of sexual
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4 Opinion of the Court 23-11337
orientation. Horace claimed that: his sexual orientation was “not
consistent with [MD Now’s] perception of acceptable gender
roles”; that his voice was “high pitched” and he appeared “well
groomed” on the day of the alleged incident; that Williams imme-
diately categorized him as gay when he met him based on his ap-
pearance; and that Williams caused him intentional harm because
of his sexual orientation. Second, he alleged that MD Now violated
his due process rights under the Fifth Amendment when MD Now
subjected him to a discriminatory environment, intentionally in-
flicted him harm because of his sexual orientation, and did not pro-
vide the required standard of care. Horace did not attach any med-
ical records or expert witness statements to his third amended com-
plaint.
MD Now removed the case to federal court. Then, MD
Now moved to dismiss Horace’s third amended complaint. MD
Now argued that there were no facts alleged that showed that Wil-
liams knew of Horace’s sexual orientation, or acted thereupon, be-
yond a speculative level. MD Now also argued that there were no
objective facts showing that Horace’s sexual orientation played a
role during Williams’s nasal swab. As to the Title VII claim, MD
Now contended that Horace failed to state a claim because Title
VII only prohibits unlawful employment practices and noted that
Horace was not its employee or applicant. As to the Fifth Amend-
ment claim, MD Now argued that the claim failed because the Fifth
Amendment does not apply to private actors such as itself. Horace
opposed MD Now’s motion.
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23-11337 Opinion of the Court 5
The district court granted MD Now’s motion to dismiss. As
to the Title VII claim, the court concluded that Horace could not
avail himself of Title VII given that he did not allege to be MD
Now’s employee. As to the Fifth Amendment claim, the court
found that the claim failed because the Fifth Amendment restricts
government actions and MD Now is a private institution. And even
construed broadly under another federal law, the district court
found his claims of discrimination were too speculative to survive
dismissal. The court found that any further amendments would be
futile. Accordingly, the district court dismissed Horace’s third
amended complaint with prejudice.
Horace then appealed and attached to his notice of appeal a
receipt of payment to an urgent care center for “[n]asal swelling”
and the medical provider’s note following his visit for “[c]ontusion
of nose” that was attached to his initial complaint.
II. ANALYSIS
We review de novo a district court’s ruling on a Rule 12(b)(6)
motion to dismiss, “accepting the allegations in the complaint as
true and construing them in the light most favorable to the plain-
tiff.” Timson v. Sampson, 518 F.3d 870, 872 (11th Cir. 2008). To sur-
vive a Rule 12(b)(6) motion to dismiss, a complaint must allege suf-
ficient facts to state a claim that is plausible on its face. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
While we hold pro se pleadings to a less stringent standard
than pleadings drafted by attorneys and thus liberally construe pro
se pleadings, we will not “serve as de facto counsel for a party” or
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6 Opinion of the Court 23-11337
“rewrite an otherwise deficient pleading in order to sustain an ac-
tion.” Campbell v. Air Jam. Ltd., 760 F.3d 1165, 1168-69 (11th Cir.
2014) (quoting GJR Invs., Inc. v. County of Escambia, 132 F.3d 1359,
1369 (11th Cir. 1998)). Additionally, issues not clearly raised by a
pro se litigant are deemed abandoned. Timson, 518 F.3d at 874. A
claim is abandoned on appeal when it is made in passing or raised
in a perfunctory manner without supporting arguments or author-
ity. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir.
2014). Further, an issue that was not raised in the district court and
is raised for the first time on appeal is considered forfeited, and we
will not address it absent extraordinary circumstances. Access Now,
Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331–32 (11th Cir. 2004) (noting
that we may exercise our discretion to consider a forfeited issue
when: (1) the issue involves a pure question of law and refusal to
consider it would result in a miscarriage of justice; (2) the party
lacked an opportunity to raise the issue at the district court level;
(3) the interest of substantial justice is at stake; (4) the proper reso-
lution is beyond any doubt; or (5) the issue presents significant
questions of general impact or of great public concern).
Here, Horace has forfeited his argument that the district
court erred when it did not consider his medical records and expert
witness statements because he did not raise this argument to the
district court nor demonstrates on appeal that any of the Access
Now exceptions to forfeiture apply. See id. Further, Horace has
abandoned his argument that the court failed to apply the correct
law by making only passing reference to this argument in his initial
brief. Sapuppo, 739 F.3d at 681; Timson, 518 F.3d at 874. Indeed,
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23-11337 Opinion of the Court 7
Horace does not explain how the district court failed to apply the
correct law, state what the correct law is, or describe how any evi-
dence would demonstrate that he pled a plausible claim for relief
under Title VII or the Fifth Amendment.
Accordingly, we affirm the district court’s dismissal order.
AFFIRMED.
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