Cole v. United States

• Decision Date: 03 August 2018
• Docket Number: No. 1:15-cv-01105-JDB-cgc,1:15-cv-01105-JDB-cgc
• Parties: GARRICK D. COLE, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
• Court: U.S. District Court — Western District of Tennessee

GARRICK D. COLE, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

No. 1:15-cv-01105-JDB-cgc

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE EASTERN DIVISION

August 3, 2018

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS AND CERTIFYING THAT APPEAL WOULD NOT BE TAKEN IN GOOD FAITH

I. PROCEDURAL HISTORY

Before the Court is the March 12, 2018 motion to dismiss filed by Defendant, the United States of America. (Docket Entry ("D.E.") 1.)

On May 4, 2015, Plaintiff, Garrick D. Cole, a federal inmate proceeding pro se, filed a complaint asserting claims under 42 U.S.C. § 1983, the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680, and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), against Defendants, the United States of America, the United States Marshals Service ("USMS"), and U.S. Marshal for the Western District of Tennessee Jeffrey Holt. (D.E. 1; see D.E. 15.) After submitting the necessary filings, United States District Judge James D. Todd granted Plaintiff permission to proceed in forma pauperis and assessed the civil filing fee in accordance with the Prison Litigation Reform Act ("PLRA"), 28 U.S.C. § 1915(a)-(b). (D.E. 6; see D.E. 15.) Following Judge Todd's denial on March 23, 2016, of Cole's motion for appointment of counsel, (D.E. 9; D.E. 4), the inmate filed a petition for a writ of mandamus with the Sixth Circuit, (D.E. 13), which dismissed the cause "for want of prosecution" after Plaintiff failed to pay the filing fee or timely submit a motion to proceed in forma pauperis, (D.E. 18).

On November 7, 2017, Judge Todd dismissed all of Plaintiff's Bivens and 42 U.S.C. § 1983 claims "for failure to state a claim on which relief can be granted, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1)," (D.E. 15 at PageID 85). Bivens, 403 U.S. 388. Accordingly, two of the defendants, the USMS and U.S. Marshal Holt, were dismissed from this action, (D.E. 15 at PageID 76-77, 82-85), and Cole's remaining claim under the FTCA against the United States was allowed to advance beyond the initial screening.¹ (D.E. 15 at PageID 76, 84-85.)

Two weeks later, Plaintiff submitted a "Motion to Amend the Complaint and It's [sic] Supporting Documentation," (D.E. 17), which was postmarked November 21, 2017, and entered six days later, (D.E. 17-3). Additionally, summonses were timely returned executed on January 22, 2018. (D.E. 19.) After this matter was reassigned pursuant to Administrative Order 2018-09 to the undersigned in February 2018, (D.E. 20), the Government timely filed a motion to dismiss on March 12, 2018, (D.E. 21).

On April 3, 2018, the Court directed the Government to respond to Cole's motion to amend his complaint and held the motion to dismiss in abeyance. (D.E. 23.) Defendant responded on April 17, 2018, "reassert[ing] the defenses raised in that motion," summarizing the four primary arguments raised in the motion, and arguing, among other things, that the Court's "[a]cceptance of the proposed [a]mended [c]omplaint would have no impact on the pending [m]otion to [d]ismiss." (D.E. 24 at PageID 183-84; see D.E. 25 at PageID 192.) On April 23, 2018, the Court granted Plaintiff's pending motion, permitting him to amend his original complaint with the facts alleged in his motion to amend ("Amended Complaint") and noting that "[t]he only remaining claim in this case is Cole's FTCA claim against the United States." (D.E. 25 at PageID 190-92 & n.2 (citing D.E. 17; D.E. 1).) The Court further directed the inmate "to respond to the Government's motion to dismiss." (D.E. 25 at PageID 192.) Following the Court's grant of two extensions of time for Plaintiff to respond, (D.E. 29; D.E. 27), he submitted a filing on June 29, 2018.² (D.E. 30.) The Government has not filed a reply to Cole's response, and the time for doing so has passed. See Local R. W.D. Tenn. 12.1(c).

II. FACTUAL BACKGROUND

In the November 7, 2017 screening order, Judge Todd explained the factual circumstances giving rise to Plaintiff's FTCA claim:

Cole alleges that he suffers from severe kidney failure diagnosed as end stage renal disease ("ESRD") which, if the patient does not receive a kidney transplant, must be treated with regular dialysis by either hemodialysis or peritoneal dialysis.³ ([D.E.] 1 at [PageID] 2.) Cole states that he elected to receive peritoneal dialysis for its convenience and the greater independence it would allow him because it is self-administered. (Id. at [PageID] 3.)

On the same day that he was released on bond, Cole was seen by a surgeon at Jackson Surgical Associates for evaluation to replace the right-side perma catheter used for his peritoneal dialysis with a "more enduring dialysis option." (Id.) Thereafter, on March 14, 2013, Cole states that he underwent a laparoscopic procedure to receive a Tenckhoff catheter for peritoneal dialysis. (Id.)

On September 5, 2013, while still on bond, Cole appeared before U.S. District Judge J. Daniel Breen for sentencing, at which time Judge Breen recommended that Cole be housed in the nearest medical facility able to treat Cole's illnesses. (Id. at [PageID] 3-4; see also [D.E. 1-3 at PageID 29-30].) During the sentencing hearing, Judge Breen allowed Cole's defense attorney, Dianne Smothers, and Defendant Holt time to contact the West Tennessee Detention Facility ("WTDF") in Mason, Tennessee to determine whether that facility could address Cole's medical needs. (Id. at [PageID] 4; see also [D.E. 1-3 at PageID 29-30].) Judge Breen then heard statements from both Ms. Smothers and Defendant Holt on that issue. ([D.E. 1-3 at PageID 29-30].) However, the complaint does not set out the substance of either statement.⁴ The termination of Cole's bond then was deferred to allow him to consult with his primary care doctor, Dr. Sakar. ([D.E.] 1 at [PageID] 4.)

During the consultation with Dr. Sakar on September 9, 2013, at which Ms. Smothers also was present, Ms. Smothers allegedly informed Dr. Sakar that the federal system did not accommodate peritoneal dialysis care, which Cole contends was "misinformation[.]" (Id.) Dr. Sakar then consulted Jackson Surgical Associates about removing the Tenckhoff catheter that had been placed the previous March. (Id.) Consequently, on October 3, 2013, Cole underwent surgery to remove the Tenckhoff catheter; later the same day another surgery was performed to put in place a tunneled hemodialysis catheter. (Id.)

On October 9, 2013, Cole alleges that he self-surrendered to the USMS and was housed at the WTDF,⁵ which was able to provide him medical treatment after his surgeries. (Id.) However, Cole alleges that following Judge Breen's recommendation at sentencing would have resulted in his immediate placement at the [United States Medical Center for Federal Prisoners ("USMCFP")], which he asserts is, in fact, able to accommodate peritoneal dialysis. Therefore, the Tenckhoff catheter would not have been removed and replaced by a hemodialysis catheter. (Id.) Cole alleges that the "needless surgeries . . . expose[d] his person to unnecessary peril of injury and pain" and caused him "excessive pain, suffering, and emotional duress." (Id.)

Plaintiff asserts that he was transferred to the USMCFP on or about January 11, 2014. (Id.) In March 2014, Dr. Wade T. Jordan, the USMCFP Clinical Director, consulted with a surgeon and recommended that Cole undergo another laparoscopic surgery to again place a catheter for peritoneal dialysis, essentially the fourth surgery for the same illness. (Id.) That surgery was performed on April 8, 2014. (Id. at [PageID] 5.) Yet a fifth surgery was performed on May 28, 2014, to remove the hemodialysis catheter. (Id.)

(D.E. 15 at PageID 77-79.)

III. STANDARDS OF REVIEW

The Government's current motion failed to cite any specific Federal Rule of Civil Procedure as grounds for dismissal. (D.E. 21.) However, several portions of Defendant's motion indicate that the United States intended for the motion to fall under Fed. R. Civ. P. 12(b).

A. Federal Rule of Civil Procedure 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) governs the Government's argument that dismissal is appropriate due to Plaintiff's failure to comply with Tenn. Code Ann. § 29-26-122. See infra Section IV.E. The Sixth Circuit has previously analyzed multiple dismissals under Rule 12(b)(6) for failing to provide a good faith certificate pursuant to Tennessee's Medical Malpractice Act ("TMMA") and has not challenged district courts' reliance on Fed. R. Civ. P. 12(b)(6) as grounds for dismissal. See Eiswert v. United States, 639 F. App'x 345, 346 (6th Cir. 2016) (recognizing that "[t]he district court dismissed the case on the ground that [the] [p]laintiffs failed to comply with Tenn. Code Ann. § 29-26-122," despite their alleged substantial compliance with the statute, and remanding to address whether they satisfied § 29-26-121 and "additional unresolved issues," including dismissal under Rule 12(b)(1) for failing to comply with Tennessee's statute of repose), remanded, No. 2:11-CV-304, 2018 WL 3030094, at *2, 7 (E.D. Tenn. June 18, 2018) (analyzing "whether . . . [the] plaintiffs failed to file a certificate of good faith and the action should be dismissed pursuant to Tennessee Code Annotated section 29-26-122" under Rule 12(b)(6)), appeal docketed, No. 18-5698 (6th Cir. July 9, 2018); Burns v. United States, 542 F. App'x 461 (6th Cir. 2013) (per curiam). Similarly, the Eastern District of Tennessee has interpreted a motion to dismiss "pursuant to Rule 12 of the Federal Rules of Civil Procedure," without a citation to a subsection of the rule, as falling under Rule 12(b)(6). Gazzola v. United States, No. 1:13-cv-414-HSM-SKL, 2015 WL 11108909, at *1-3 (E.D. Tenn. Sept. 1, 2015).

Rule 12(b)(6) permits a court to dismiss a complaint for "failure to state a claim upon which relief can be granted . . . ." Fed. R. Civ. P. 12(b)(6). In determining whether dismissal under the Rule is appropriate, "[t]he complaint is viewed...