Opinion
Case No. 2:18-cv-00671-RMG-MGB
01-28-2019
Neal Gerald Thomas, Plaintiff, v. United States of America, Defendant.
REPORT AND RECOMMENDATION
Plaintiff, proceeding pro se and in forma pauperis, brought this action pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq. This matter is before the Court upon a Motion to Dismiss, or in the alternative, Motion for Summary Judgment filed by the United States. (Dkt. No. 36.) For the reasons set forth herein, the undersigned recommends granting Defendant's motion.
Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) and Local Rule 73.02(B)(2)(e), D.S.C., all pretrial matters in cases involving pro se litigants are referred to a United States Magistrate Judge for consideration.
BACKGROUND
This civil action arises from alleged negligence occurring at a Veteran's Administration ("VA") medical center. Specifically, Plaintiff alleges that the "VA provided a false medical diagnosis that the plaintiff was/is suffering from a neurological disease including schizophrenia, delusions, [and] psychotic. Relying on this diagnosis, Plaintiff deteriorated into perpetual homelessness, severe alcohol abuse, and chronic depression concurrent with suicidal ideations." (Dkt. No. 11 at 5.) Under "Relief" section of the Amended Complaint, Plaintiff alleges that the VA should acknowledge Plaintiff's "earned law degree, published written works submitted to the VA during early stages of medical diagnosis and treatment, [and Plaintiff's] involvement in labor law cases." (Id. at 5.) According to Plaintiff, this "acknowledgment will work towards a remedy on correcting the VA's creation, maintenance, use and/or reliance on inaccurate, incomplete, and/or false medical records on veterans, . . . in diagnosing and/or treating the mental health of veterans, including the plaintiff." (Id. at 5-6.) Plaintiff requests thirteen million dollars in damages. (Id. at 6.)
While the Amended Complaint is vague on details, Plaintiff's subsequent briefing provides a more comprehensive view of his allegations. (Dkt. No. 42.) It appears that "Defendant concluded Plaintiff was delusional and mentally disabled" because Plaintiff "told them he had a law degree, [had] settled cases in court, and [had] written law books that had been put up on the internet by the library of Congress . . . " (Dkt. Nos. 42 at 4; 42-1 at 1.) Plaintiff alleges that it was "unintentional, negligent, medical conduct" to diagnose Plaintiff with a neurological disease based on this information because "it was a simple matter of calling the [Charleston] Federal Court, my law school, or googling the title of my books" to confirm Plaintiff's statements. (Dkt. Nos. 42 at 4; 42-1 at 1.) According to Plaintiff, "When I told them of their mistake, they assured me my neurological disease had nothing to do with that. They were adamant that I was neurologically disabled." (Dkt. No. 42-1 at 1.)
Plaintiff brought the instant action on March 12, 2018. (Dkt. No. 1.) On December 12, 2018, Defendant filed a Motion to Dismiss, or in the alternative, Motion for Summary Judgment. (Dkt. No. 36.) By Order filed December 13, 2018, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Plaintiff was advised of the dismissal procedure and the possible consequences if he failed to adequately respond to the motion. (Dkt. No. 37.) Plaintiff filed a Response in Opposition to Defendant's motion on January 14, 2019. (Dkt. No. 42.) Plaintiff attached to his response brief four documents labeled "Affidavit/Declaration"—each document included Plaintiff's signature and was dated January 12, 2019. (Dkt. No. 42-1.)
STANDARDS
A. Liberal Construction of Pro Se Complaint
Plaintiff brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, a pro se complaint is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means that only if the court can reasonably read the pleadings to state a valid claim on which the complainant could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the complainant's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court "conjure up questions never squarely presented." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
B. Rule 12(b)(6) Dismissal Standard
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a claim should be dismissed if it fails to state a claim upon which relief can be granted. When considering a motion to dismiss, the court should "accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff." Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). However, the court "need not accept the legal conclusions drawn from the facts" nor "accept as true unwarranted inferences, unreasonable conclusions, or arguments." Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). Further, for purposes of a Rule 12(b)(6) motion, a court may rely on only the complaint's allegations and those documents attached as exhibits or incorporated by reference. See Simons v. Montgomery Cty. Police Officers, 762 F.2d 30, 31 (4th Cir. 1985). If matters outside the pleadings are presented to and not excluded by the court, the motion is treated as one for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 12(d).
C. Summary Judgment Standard
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment "shall" be granted "if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "Facts are 'material' when they might affect the outcome of the case, and a 'genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party." The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In ruling on a motion for summary judgment, "'the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.'" Id. (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990).
DISCUSSION
In its Motion to Dismiss, or in the alternative, Motion for Summary Judgment, Defendant contends that this action should be dismissed because Plaintiff failed to file "an expert affidavit contemporaneously with his Complaint," as required under South Carolina law. (Dkt. No. 36 at 6-7.)
As noted above, Plaintiff has alleged that the VA was negligent in giving Plaintiff a "false medical diagnosis." (Dkt. No. 11 at 5; see also Dkt. No. 42.) Plaintiff has brought this claim against the United States of America. (Dkt. No. 11 at 2.) Based on such allegations, it appears he has brought his claim under the FTCA. Specifically, the FTCA provides that "[t]he United States shall be liable . . . relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674. In accordance with the FTCA, the Court must determine whether the United States is subject to liability by applying the substantive tort law of the state where the act or omission occurred. 28 U.S.C.A. § 1346(b)(1). Here, it is undisputed that South Carolina law applies, as the events giving rise to this action occurred in South Carolina. (Dkt. Nos. 36 at 4; 42 at 3.)
South Carolina law requires plaintiffs asserting medical malpractice claims to file "as part of the complaint an affidavit of an expert witness which must specify at least one negligent act or omission claimed to exist and the factual basis for each claim." S.C. Code § 15-36-100. Complaints without the required affidavit must be dismissed. S.C. Code § 15-36-100(C)(1). "Multiple judges within this district . . . have held . . . Section 15-36-100 [is] part of the substantive law of South Carolina and, consequently, appl[ies] to actions filed in federal court." Grant v. United States, Case No. 3:17-cv-0377-CMC, 2017 WL 2265956, at *9 (D.S.C. May 24, 2017). "The affidavit therefore is a mandatory prerequisite to the filing of a malpractice claim against the United States under the FTCA in this District." Rodgers v. Glenn, Case No. 1:16-cv-16-RMG, 2017 WL 1051011, at *4 (D.S.C. Mar. 20, 2017) (citing Chappie v. United States, Civ. No. 13-1790-RMG, 2014 WL 3615384 at * 1 (D.S.C. July 21, 2014); Millmine v. Harris, Case No. 3:10-cv-1595-CMC, 2011 WL 317643, at *2 (D.S.C. Jan. 31, 2011)). However, "[t]he contemporaneous filing requirement . . . is not required to support a pleaded specification of negligence involving subject matter that lies within the ambit of common knowledge and experience, so that no special learning is needed to evaluate the conduct of the defendant." S.C. Code Ann. § 15-36-100(C)(2).
There is no dispute here that Plaintiff did not file an expert affidavit with his Complaint, nor has he filed such an affidavit while the instant action has been pending. Thus, the Court must determine the threshold issue of whether Plaintiff's cause of action sounds in medical malpractice or ordinary negligence. Plaintiff argues that the subject matter of his claim "is of common knowledge or experience so that no special learning is needed to evaluate Defendant's conduct." (Dkt. No. 42 at 1.) According to Plaintiff, "this case . . . is about 'the recognized and generally accepted standards, practices and procedures in the community of veterans in South Carolina.'" (Id. at 3.) Plaintiff's allegations, however, make clear that this is not an ordinary negligence case where the standard of care can be determined without the knowledge of medical professionals. Plaintiff's claim hinges on his alleged "false medical diagnosis." (Dkt. No. 11 at 5 (emphasis added).) Specifically, Plaintiff claims he was falsely diagnosed with a neurological disease.
The documents labeled "Affidavit/Declaration" are merely sworn statements from Plaintiff that further detail the allegations made in his Amended Complaint. (Dkt. No. 42-1.)
Determining whether Plaintiff received a false medical diagnosis requires the knowledge of a medical professional. Such a claim falls outside the ambit of an ordinary negligence claim, and Plaintiff was therefore required to file the affidavit of an expert witness in accordance with South Carolina law. See § 15-36-100(B); Dawkins v. Union Hosp. Dist., 408 S.C. 171, 177-78, 758 S.E.2d 501, 504 (2014) (distinguishing "between medical malpractice and ordinary negligence actions," stating "if the patient . . . receives 'nonmedical, administrative, ministerial, or routine care,' expert testimony establishing the standard of care is not required, and the action instead sounds in ordinary negligence"); see also Harrison v. United States, Case No. 817-cv-02679- HMH-JDA, 2018 WL 2604870, at *6 (D.S.C. May 11, 2018) (quoting Delaney v. United States, 260 F. Supp. 3d 505, 510 (D.S.C. 2017) ("Plaintiff is alleging a medical malpractice claim 'masquerading as an ordinary negligence claim' because it rests on knowledge that medical professionals possess about effectively treating Plaintiff's injury, including what diagnostic procedures should have been used"), adopted by, 2018 WL 2573032 (D.S.C. June 4, 2018); Craig v. United States, Case No. 216-cv-03737-TMC-MGB, 2017 WL 6452412, at *3 (D.S.C. Nov. 6, 2017) (finding Plaintiff's allegations "about his medical care" do not "sound in ordinary negligence, and he was therefore required to file the affidavit of an expert witness"), adopted by, 2017 WL 6408968 (D.S.C. Dec. 15, 2017); Plaintiff's own statement that this case is about the "accepted standards . . . in the community of veterans" indicates that he realizes his claim concerns a more specialized standard of care than that in an ordinary negligence case. (Dkt. No. 42 at 3.)
Because Plaintiff failed to file the requisite affidavit of an expert witness, the undersigned recommends granting Defendant's Motion to Dismiss, or in the alternative, Motion for Summary Judgment (Dkt. No. 36) and dismissing Plaintiff's Complaint without prejudice. See, e.g., Craig, 2017 WL 6452412, at *3 (dismissing plaintiff's malpractice claim pursuant to FTCA for failing to file affidavit required by S.C. Code § 15-36-100); Gamez-Gonzalez v. United States, Case No. 4:14-2668-JMC-TER, 2017 WL 3084488, at *3 (D.S.C. May 17, 2017) (same), adopted by, 2017 WL 3067974 (D.S.C. July 19, 2017); Allen v. United States, Case No. 2:13-cv-2740-RMG, 2015 WL 1517510, at *3 (D.S.C. Apr. 1, 2015) (same); Burris v. United States, Case No. 2:14-cv-00430-MGL-WWD, 2014 WL 6388497, at *2 (D.S.C. Nov. 14, 2014) (same); Rotureau v. Chaplin, Case No. 2:09-cv-1388-DCN, 2009 WL 5195968, at *6 (D.S.C. Dec. 21, 2009) (same); see also Millmine v. Harris, Case No. 3:10-cv-1595-CMC, 2011 WL 317643, at *2 (D.S.C. Jan. 31, 2011) (holding that pre-suit notice and expert affidavit requirements in S.C. Code Ann. § 15-36-100 and § 15-79-125 are "the substantive law of South Carolina").
"A dismissal for failure to comply with S.C. Code 15-36-100 is without prejudice." Gamez-Gonzalez, 2017 WL 3084488, at *3 n.5 (citing Rodgers, 2017 WL 1051011, at *4).
Additionally, to the extent that Plaintiff's allegations could be liberally construed as a Bivens claim, no viable claim is stated because Plaintiff does not allege a violation of any federal constitutional, statutory, or treatise provision, and he does not name as a defendant any person who might be liable under the Bivens Doctrine. See Hall v. Clinton, 235 F.3d 202, 204-05 (4th Cir. 2000). In order to state a claim for relief under 42 U.S.C. § 1983 or the Bivens Doctrine where federal actors are concerned, an aggrieved party must sufficiently allege that he or she was injured by "the deprivation of any [of his or her] rights, privileges, or immunities secured by the [United States] Constitution and laws" by a "person" acting "under color of state law." See 42 U.S.C. § 1983; Monroe v. Page, 365 U.S. 167, 184-85 (1961); see generally 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1230 (2002). It is well settled that only "persons" may act under color of state law; therefore, a defendant in a § 1983 action must qualify as a "person ." Neither the United States or an agency thereof (such as the VA) is a proper Bivens defendant. An extension of Bivens to agencies of the federal government is not supported by the logic of Bivens itself, and the United States Supreme Court has held that there can be no Bivens cause of action for damages against a federal agency. See F.D.I.C. v. Meyer, 510 U.S. 471, 486 (1994). Close consideration of the pleading discloses that no other potential basis for the exercise of this Court's subject matter jurisdiction over Plaintiff's allegations is evident from the face of the Amended Complaint.
CONCLUSION
It is therefore RECOMMENDED, for the foregoing reasons, that Defendant's Motion to Dismiss, or in the alternative, Motion for Summary Judgment (Dkt. No. 36) be GRANTED, and that Plaintiff's Complaint be dismissed without prejudice.
IT IS SO RECOMMENDED.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE January 28, 2019
Charleston, South Carolina
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).