Opinion
C/A 9:23-cv-3251-DCC-MHC
02-28-2024
Corieal Larome Holmes, Plaintiff, v. United States of America, Defendant.
REPORT AND RECOMMENDATION
Molly H. Cherry, United States Magistrate Judge.
Plaintiff Corieal Larome Holmes (“Plaintiff”), proceeding pro se and in forma pauperis, brings this action under the Federal Tort Claims Act (“FTCA”), alleging negligence and breach of the duty of care by the health care department within the Bureau of Prisons (“BOP”) at Federal Correctional Institution (“FCI”) Williamsburg. He filed his Complaint on July 10, 2023, ECF No. 1, and an Amended Complaint on November 9, 2023, ECF No. 19.
Before the Court is Defendant's Motion to Dismiss the Amended Complaint (“Motion”). ECF No. 22. After the Court issued an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the dismissal procedures and the possible consequences if he failed to adequately respond to Defendant's Motion, Plaintiff filed a Response in Opposition to the Motion. ECF Nos. 23, 25. The matter is, therefore, ripe for review.
All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Civil Rule 73.02(B)(2)(d) (D.S.C.). Because Defendant's Motion is dispositive, this Report and Recommendation is entered for review by the District Judge. For the reasons that follow, the undersigned recommends granting the Motion.
I. BACKGROUND
Plaintiff alleges that, when he was transferred to FCI Williamsburg, he received a health care evaluation from Defendant, wherein he discussed a myriad of health issues, including that he needed daily medication to prevent the stent placed in his heart arteries from clogging. ECF No. 19 at ¶ 8. However, Plaintiff did not receive the medication and continued to complain, up until the day the stent became clogged, which caused a severe heart attack on May 5, 2019. Id. at ¶ 9. Plaintiff asserts that he was taken to an outside hospital for emergency surgery, as a result of Defendant's “negligent act or omissions regarding their failure to provide Plaintiff with proper medication, that would have prevented the stent valve from clogging. This breach of duty to Plaintiff cause[d] him to have a severe heart attack ....” Id. at ¶ 10.
Plaintiff previously filed a lawsuit against a registered nurse at FCI Williamsburg, pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), based upon the same set of facts, alleging deliberate indifference to a serious medical need, in violation of the Eighth Amendment. Holmes v. Borck, 9:22-cv-00595 (“the Bivens lawsuit”). The Bivens lawsuit was dismissed without prejudice. Id. at Dkt. No. 34.
According to the allegations in Plaintiff's Amended Complaint, he exhausted his administrative remedies “by way of the Federal Tort Claims Act (‘FTCA'), Standard Form 95, which is listed under BOP records under FTCA Claim Number: TRT-SER-2021-03978. (September 8, 2021).... ” Id. at ¶ 3. Plaintiff attaches to his Amended Complaint a copy of a letter from the United States Department of Justice denying the claim he submitted under the Federal Tort Claims Act. ECF No. 19 at 7. The letter is dated September 8, 2021, and indicates Plaintiff has six months from the date of mailing of the letter within which to bring a lawsuit. Id. Plaintiff alleges in his Amended Complaint that the letter, dated September 8, 2021, informed him that he had six months to bring the suit in an appropriate court. Id. at ¶ 3.
II. DISCUSSION
Defendant argues it is entitled to dismissal of this action pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim because Plaintiff did not timely file this lawsuit within six months from the date of the September 8, 2021 letter denying his administrative claim. The undersigned agrees Plaintiff did not timely file his lawsuit, which is dispositive of the action.
A. Legal Standard
“The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint.” Williams v. Preiss-Wal Pat III, LLC, 17 F.Supp.3d 528, 531 (D.S.C. 2014) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)); see Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (“A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.”). Pursuant to Rule 8 of the Federal Rules of Civil Procedure, a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed.R.Civ.P. 8(a)(2), such that the defendant will have “fair notice of what the claim is and the grounds upon which it rests,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted).
“[T]he facts alleged ‘must be enough to raise a right to relief above the speculative level' and must provide ‘enough facts to state a claim to relief that is plausible on its face.'” Robinson v. Am. Honda Motor Co., 551 F.3d 218, 222 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555, 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This plausibility standard is not analogous to a “probability requirement,” rather “it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.
When considering a Rule 12(b)(6) motion, the court is required to accept the allegations in the pleading as true and draw all reasonable factual inferences in favor of the party opposing the motion. E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011). Moreover, the court must evaluate “the complaint in its entirety, as well as documents attached or incorporated into the complaint.” Id. at 448. “A complaint should not be dismissed as long as it provides sufficient detail about the claim to show that the plaintiff has a more-than-conceivable chance of success on the merits.” Goldfarb v. Mayor & City Council of Balt., 791 F.3d 500, 511 (4th Cir. 2015) (internal quotation marks and brackets omitted).
“While no absolute bar exists, a motion to dismiss under Rule 12(b)(6) does not typically resolve the applicability of defenses to a well-pled claim.” Id. at 508; (citing Tobey v. Jones, 706 F.3d 379, 387 (4th Cir. 2013) (stating that a motion to dismiss under Rule 12(b)(6) “does not resolve contests surrounding facts, the merits of a claim, or the applicability of defenses”)). However, “in the relatively rare circumstances where facts sufficient to rule on an affirmative defense are alleged in the complaint, the defense may be reached by a motion to dismiss filed under Rule 12(b)(6). This principle only applies, however, if all facts necessary to the affirmative defense clearly appear on the face of the complaint.” Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc) (emphasis in original) (internal quotation marks and bracket omitted).
Additionally, pro se filings are to be “liberally construed” and a pro se complaint, “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers[.]” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citations omitted). This “[l]iberal construction of the pleadings is particularly appropriate where, as here, there is a pro se complaint raising civil rights issues.” Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009) (citation omitted); Williamson v. Stirling, 912 F.3d 154, 173 (4th Cir. 2018) (noting “we are obliged to construe [a complaint's] allegations liberally and with the intent of doing justice”). However, the requirement of liberal construction does not mean that the court can assume the existence of a genuine issue of material fact when none exists. See United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012); Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990) (“The ‘special judicial solicitude' with which a district court should view such pro se complaints does not transform the court into an advocate.”).
B. Limitations
Defendant contends that Plaintiff did not file timely file this lawsuit. The statute of limitations under the FTCA requires that (1) a claim must “be presented in writing to the appropriate Federal agency within two years after such claim accrues” and (2) “any suit under the FTCA be initiated within six months after the date of mailing . . . of notice of final denial of the claim by the agency to which it was presented.” Barnes v. United States, No. 3:17-823- MBS-PJG, 2017 WL 5441836, at *2 (D.S.C. Sept. 22, 2017) (quoting 28 U.S.C. 2401(b)), report and recommendation adopted by 2017 WL 5256882 (D.S.C. Nov. 13, 2017); see also Nellson v. Doe, No. 21-6206, 2023 WL 3336689, at *6 (4th Cir. May 10, 2023) (finding claim barred by the FTCA's six-month statute of limitations when the plaintiff “nevertheless waited to file the initial complaint in this action until . . . a full year after the BOP denied his administrative claim”). It is undisputed that Plaintiff's claim was denied on September 8, 2021; however, Plaintiff did not file this lawsuit until almost two years later, on July 10, 2023. ECF No. 1. Accordingly, Plaintiff's lawsuit is untimely under the FTCA's six-month statute of limitations.
The statute of limitations is an affirmative defense under Rule 8(c) of the Federal Rules of Civil Procedure. In this instance, facts sufficient to rule on this affirmative defense are alleged in Plaintiff's Amended Complaint, such that this defense can be reached via Defendant's Motion under Rule 12(b)(6). See Goodman, 494 F.3d at 464.
Plaintiff argues that his FTCA Complaint is timely because he incorporated and presented the FTCA claims at the same time he filed his Bivens lawsuit, Holmes v. Borck, 9:22-cv-00595-DCC-MHC (D.S.C.), for deliberate indifference to his serious medical needs. ECF No. 25 at 3; see note 1, supra. However, the Court dismissed Plaintiff's Bivens lawsuit. Holmes v. Borck, 9:22-cv-00595-DCC-MHC (D.S.C.) at Dkt. No. 34. Moreover, on June 7, 2023, the Court issued an Order in Plaintiff's Bivens lawsuit, denying Plaintiff's request for leave to file an amended complaintand noting that in the proposed amended complaint, Plaintiff was attempting to bring a new claim against a new defendant based on the same incident complained of in the complaint. Id. at ECF No. 40. Notably, the Court determined that, in his Bivens lawsuit, Plaintiff “made no reference to negligence, did not name the United States of America as a defendant, and gave no indication that he intended to pursue any claim beyond his constitutional claim.” Id. In short, the Court determined that the Complaint in Plaintiff's Bivens lawsuit had no correlation whatsoever with the FTCA.
Plaintiff filed his Bivens lawsuit, Holmes v. Borck, 9:22-cv-00595-DCC, on February 25, 2022, and moved to amend the lawsuit on January 3, 2023. Id. at Dkt. Nos. 1, 36.
Nevertheless, even assuming Plaintiff's proposed amended complaint in the Bivens lawsuit were to have been accepted as a claim under the FTCA, it was not filed until ten months after the administrative claim denial on September 8, 2021, rendering it outside the six-month statute of limitations under the FTCA.
Plaintiff's Amended Complaint establishes that Plaintiff's administrative FTCA claim was denied by the United States Department of Justice on September 8, 2021, such that any complaint pursuant to the FTCA would have to be filed by March 8, 2022. See ECF No. 19 at ¶ 3. Plaintiff did not file an FTCA Complaint until July 10, 2023, approximately twenty-two months after his claim denial.
III. RECOMMENDATION
For the reasons set forth above, it is RECOMMENDED that Defendant's Motion to Dismiss, ECF No. 22, be GRANTED, and that this case be DISMISSED.
The parties are directed to the attached Notice for their rights to file objections to this recommendation.
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).