Petition for Writ of Certiorari — Wilson Ochar, Petitioner v. Roy S. Rubenfield

USCA4 Appeal: 25-1135

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 25-1135

WILSON OCHAR,

Plaintiff - Appellant,

v.

ROY S. RUBENFIELD,

Defendant - Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at

Alexandria. Patricia Tolliver Giles, District Judge. (l:24-cv-01001-PTG-IDD)

Submitted: May 22, 2025

Before KING, AGEE, and WYNN, Circuit Judges.

Affirmed as modified by unpublished per curiam opinion.

Wilson Ochar, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

Decided: May 28, 2025

USCA4 Appeal: 25-1135

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PER CURIAM:

Wilson Ochar filed this civil action in a Virginia circuit court, then removed it to

federal district court. The district court dismissed Ochar’s federal claims for failure to state

a claim, declined to exercise supplemental jurisdiction over his state law claims, and

remanded the state law claims to the Virginia court. Ochar appeals.

Because Ochar removed his own complaint from state court to federal court, the

district court lacked jurisdiction over this action. See 28 U.S.C. § 1441(a) (providing that

only “the defendant or the defendants” may remove state action to federal court); Common

Cause v. Lewis, 956 F.3d 246, 252 (4th Cir. 2020) (indicating that removal is a

jurisdictional matter). Accordingly, we affirm the district court’s order as modified to

reflect that the federal claims are dismissed without prejudice for lack of subject matter

jurisdiction. We deny each of Ochar’s pending motions. We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before this

court and argument would not aid the decisional process.

AFFIRMED AS MODIFIED

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Case l:24-cv-01001-PTG-IDD

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IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

Alexandria Division

WILSON OCHAR,

)

)

Plaintiff,

v.

)

)

Civil Action No. l:24-cv-1001 (PTG/IDD)

)

ROY S. RUBENFIELD

)

Defendant.

)

)

ORDER

Plaintiff Wilson Ochar (“Plaintiff”), proceeding pro se, filed this civil action against Roy

S. Rubenfield (“Defendant”). Plaintiff alleges that Defendant engaged in “medical malpractice”

in conducting surgery on Plaintiff. Dkt. 1-1 (“CompL”) at 1. Plaintiff requests a refund for the

surgery, which he contends costed about $10,000. Id. However, he requests $2,500,000 in

damages. Id. at 25.

Plaintiff originally filed suit in the Fairfax County Circuit Court and filed a “Notice of

Removal” in this Court in June of 2014.1 Dkt. 1. Plaintiff brings claims under Virginia Code §

8.01-581.1 et seq., which falls under the chapter of the Virginia Code entitled “Medical

Malpractice”; and 18 U.S.C. § 1035, a criminal statute that prohibits false statements relating to

health care matters. Compl. at 1. Plaintiff also mentions 28 C.F.R. § 42.104 but alleges no factual

allegations in support of any claim brought under this regulation. Id. at 20.

1 Under 28 U.S.C. § 1441, a case is usually removed by a defendant, not a plaintiff.

Because the Court will dismiss/remand all claims, it will not address whether removal procedure

was proper. However, other courts have found that “[w]hile a plaintiff has the prerogative to

choose the initial form for a suit, once it is filed in state court, there is no valid authority

providing a plaintiff the ability to remove the case to federal court.” Murray v. Hamby, 2014

WL 11638565, at *1 (E.D. Tenn. Aug. 13, 2014) (collecting cases that “explicitly deny th[e]

power [to remove the case] to the original plaintiff in an action”).

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Plaintiffs Complaint is accompanied by two Applications to Proceed in District Court

Without Prepaying Fees or Costs. Dkts. 2,15. Given that Plaintiff has sought to proceed in forma

pauperis, the Court will screen the Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B), which

provides that the Court “shall dismiss” an action filed in forma pauperis “at any time if the court

determines that” the action “fails to state a claim on which relief may be granted,” among other

things. “In evaluating a case under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim, a

court may appropriately look to cases decided under Federal Rule of Civil Procedure 12(b)(6) for

guidance.” Gray v. Brent, 2014 WL 1327011, at *2 (E.D.N.C. Apr. 2, 2014) (citing De’Lonta v.

Angelone, 330 F.3d 630, 633 (4th Cir. 2003) (“The standards for reviewing a dismissal under §

1915(e)(2)(B)(ii) are the same as those for reviewing a dismissal under Federal Rule of Civil

Procedure 12(b)(6).”)).

Plaintiff alleges that Defendant violated 18 U.S.C. § 1035, a criminal statute. However,

“[a] private person may not initiate a criminal action in the federal courts.” Ras-Saleh: 7 Tafari:

El v. Glasser and Glasser PLC, 2011 WL 1869845, at *1 (4th Cir. 2011) (per curiam). Thus,

Plaintiffs claim under 18 U.S.C. § 1035 will be dismissed for failure to state a claim.

Plaintiff also cites to 28 C.F.R. § 42.104, which states, in part, that “[n]o person in the

United States shall, on the ground of race, color, or national origin be excluded from participation

in, be denied the benefits of, or be otherwise subjected to discrimination under any program to

which this subpart applies.” Plaintiff merely cites 28 C.F.R. § 42.104 and alleges that “[he]

believe[s] that [he] also experienced separate treatment with the price that [he] was charged

compared to other patients.” Compl. at 20-21. To the extent Plaintiff attempts to bring any claim

for discrimination, he has failed to allege factual allegations sufficient to survive dismissal under

28 U.S.C. § 1915(e)(2)(B)(ii). A complaint that makes a conclusory allegation that the defendant

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took an action adverse to the plaintiff, motivated by race, is not sufficient to survive a motion to

dismiss under Federal Rule of Civil Procedure 12(b)(6). See Coleman v. Md. Ct. ofAppeals, 626

F.3d 187,180-91 (4th Cir. 2010) (“[T]he complaint fails to establish a plausible basis for believing

... that race was the true basis for [the plaintiff’s] termination.”), affd on other grounds, Coleman

v. Ct. of Appeals of Md., 566 U.S. 30 (2012). Thus, Plaintiff has failed to state a claim of

discrimination as a matter of law and any such claim is dismissed under 28 U.S.C. §

1915(e)(2)(B)(ii).

Assuming, arguendo, that the Court has supplemental jurisdiction over Plaintiffs medical

malpractice claims under Virginia Code § 8.01-581.7 et seq., a state statute, it will exercise its

discretion to decline to exercise supplemental jurisdiction under 28 U.S.C. § 1367(c)(3). Under

28 U.S.C. § 1367(c)(3), a “district court[] may decline to exercise supplemental jurisdiction over

a claim” over which it would have supplement jurisdiction “if... the district court has dismissed

all claims over which it has original jurisdiction.” When “all... federal questions [are] gone,

there may be the authority to keep [this case] in federal court..., but there is no good reason to

do so.” Arrington v. City ofRaleigh, 369 F. App’x 420, 423 (4th Cir. 2010) (quoting Waybright

v. Frederick County, MD, 528 F.3d 199,209 (4th Cir.2008)).

Accordingly, it is hereby

ORDERED that Plaintiff’s claim under 18 U.S.C. § 1035 is DISMISSED; it is further

ORDERED that Plaintiffs claim under 28 C.F.R. § 42.104 is DISMISSED without

prejudice; it is further

ORDERED that Plaintiffs claim under Virginia Code § 8.01-581.1 et seq. is

REMANDED to the Fairfax County Circuit Court; and it is further

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ORDERED that the pending motions in this action (Dkts. 2. 9, 13, 15, 16) are DENIED

as moot.

Entered this 7 ^day of November 2024.

Alexandria, Virginia

Patricia Tolliver Giles

United States District Judge

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Additional material

from this filing is

available in the

Clerk's Office.