Dunn v. U.S. Dep't of Veterans Affairs
| Decision Date | 13 August 2020 |
| Docket Number | Civil Action No. 3:18cv699 |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | DENNIS L. DUNN, Plaintiff, v. UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, et al., Defendants. |
This matter comes before the Court on Defendants United States Department of Veterans Affairs ("DVA") and United States' Motion to Dismiss pro se Plaintiff Dennis L. Dunn's Second Amended Complaint ("SAC"),1 brought pursuant to Federal Rules of Civil Procedure 12(b)(1)2 and 12(b)(6).3 (ECF No. 19.) Dunn failed to reply to the Motion to Dismiss, and the time to do so has expired. This matter is ripe for disposition. The Court dispenses with oral argument because the materials before it adequately present the facts and legal contentions, and argument would not aid the decisional process. The Court exercises jurisdiction pursuant to 28 U.S.C.§ 1346.4 For the reasons that follow, the Court will grant the Motion to Dismiss the Second Amended Complaint.
This medical malpractice claim, filed pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346, arises out of an allegedly botched prostate surgery performed on Dunn at the McGuire Veterans Medical Center (the "McGuire VA Center") in Richmond, Virginia on June 21, 2012. (SAC 1, ECF No. 18.) Because this matter comes before the Court on Dunn's Second Amended Complaint, the Court will discuss Dunn's previous complaints and the Court's dismissal without prejudice of Dunn's First Amended Complaint before addressing Dunn's factual allegations in the Second Amended Complaint.
On September 7, 2017, Dunn filed an administrative tort claim with DVA alleging that he sustained injuries during a prostate surgery performed at the McGuire VA Center on June 21, 2012. (SAC 2.) On February 12, 2018, DVA sent Dunn a letter notifying him that his claim was denied (the "Denial Letter").5 .) Eight months later, on October 12, 2018, Dunn initiated this case pro se by filing a Motion to Proceed In Forma Pauperis, (ECF No. 1), which the Court granted, (ECF No. 2). On January 3, 2019, Dunn filed his Original Complaint. (ECF No. 5.) The Court ordered Dunn to file an Amended Complaint to both provide in "simple and straightforward terms why [he] thinks that he is entitled to relief" and establish "why [this] Court had jurisdiction over his case." (Jan. 24, 2019 Order 1-2, ECF No. 4.) Dunn attempted to remedy these deficiencies by filing the First Amended Complaint, naming only the DVA as Defendant. (ECF No. 6.)
On June 28, 2019, the DVA filed a Motion to Dismiss Dunn's First Amended Complaint (the "First Motion to Dismiss"), (ECF No. 11), which the Court granted, (Dec. 16, 2019, Mem. Op. & Order, ECF Nos. 16-17). The Court determined that: (1) Dunn had failed to state a claim under Rule 12(b)(6) by "not timely filing [his] case as required by 28 U.S.C. § 2401(b)6"; (2) this Court lacked jurisdiction under Rule 12(b)(1) because Dunn "did not obtain the expert certification of merit required by the [Virginia Medical Malpractice Act]";7 and, (3) this Court lacked jurisdiction over DVA under Rule 12(b)(1) because sovereign immunity "shield[ed] DVAfrom suit." (Dec. 16, 2019 Mem. Op. 5, ECF No. 16.) Given Dunn's pro se status, this Court dismissed his case without prejudice, and granted Dunn leave to file a Second Amended Complaint by no later than January 10, 2020. (Id. 17; see Dec. 16, 2019 Order.)
On January 9, 2020, Dunn timely filed his Second Amended Complaint, naming both DVA and the United States as defendants. (SAC 1.) In response to the Second Amended Complaint, DVA filed a Motion to Dismiss on the grounds that the Second Amended Complaint did "not remedy the deficiencies identified in Defendant's motion to dismiss and the Court's Memorandum Opinion." (Mem. Supp. Mot. Dismiss SAC 3, ECF No. 20; Mot. Dismiss SAC, ECF No. 19.) Specifically, Defendants submit that Dunn: (1) did not identify "any justification that would excuse his failure to file this action within six months of the denial of his administrative . . . claim;" and, (2) did not remedy his failure to comply with the VMMA's mandatory expert certification requirements. (Mem. Supp. Mot. Dismiss SAC 3.)
In his Second Amended Complaint, Dunn again brings a medical malpractice claim against DVA, alongside the United States, for injuries sustained during a purportedly botched surgery at the McGuire VA Center on June 21, 2012. (SAC 1.) Dunn claims that he has an "illness [] permanent in nature" stemming from the surgery. (SAC 2, ECF No. 18.) After the biopsy, Dunn began to have "urinary retention/leakage [problems]" that force him to "use [D]epends several times a day." (Id. 1.) He has also experienced "persistent pain, ED[,] andrecurrent infections" since the procedure was performed. (Id. 1-2.) Dunn's "injury has had a profound [effect] on [his] daily activities and has caused [his] Major Depressive Disorder to worsen." (Id. 2.)
Dunn alleges that doctors at the McGuire VA Center "concealed the injury for 5 years" by telling him that his "symptoms were due to an enlarge[d] prostate." (Id.) In 2017, Dunn discovered the true cause of his symptoms after viewing his medical records, when he saw "that during the biopsy [his] prostate was damaged during the procedure in 2012." (Id.) In his Second Amended Complaint, as in his First Amended Complaint, Dunn cites an "expert opinion" submitted by a Dr. Craig N. Bash, which finds that the injuries "were not expected or foreseeable outcomes of the biopsy," "state[s] that the illness is . . . not expected to improve with time," and reports that "the surgery caused [Dunn's] symptoms." (Id.)
Dunn requests the Court apply equitable tolling to his failure to timely file his administrative tort claim within the relevant six month period, from February 12, 2018 to August 12, 2018. (Id. 3.) He states that his case qualifies for equitable tolling on the grounds that "during the . . . delay [he] was dealing with [his] wife['s] circumstances," after she had "suffered a major stroke in 2015 and . . . spent the last 90 days of 2019 and 2020 at MCV and Vibra Hospital . . . for another major stroke." (Id.)
A. Pro Se Pleadings
Because Dunn proceeds pro se, the Court liberally construes his filings. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) () (internal quotation marks and citations omitted). District courtshave a duty to construe pro se pleadings liberally. Bracey v. Buchanan, 55 F. Supp. 2d 416, 421 (E.D. Va. 1999). A pro se plaintiff must nevertheless allege facts sufficient to state a cause of action. Id. (citation omitted). The Court cannot act as a pro se litigant's "advocate and develop, sua sponte, statutory and constitutional claims that the [litigant] failed to clearly raise on the face of [the] complaint." Newkirk v. Cir. Court of Hampton, No. 3:14cv372, 2014 WL 4072212, at *1 (E.D. Va. Aug. 14, 2014).
The Court will grant the United States' Motion to Dismiss Dunn's Second Amended Complaint.9 The Second Motion to Dismiss asserts two independent grounds for dismissal: (1) Dunn does not state a claim under Rule 12(b)(6) because he did not timely file his suit within six months of the denial of his FTCA administrative tort claim and Dunn has failed to establish that equitable tolling should apply; and, (2) that this Court lacks jurisdiction over Dunn's claim under Rule 12(b)(1) because he failed to comply with the VMMA. (Mem. Supp. Mot. Dismiss SAC 3.) The Court will grant the Motion to Dismiss on both grounds.
In his Second Amended Complaint, Dunn does not remedy the deficiencies in his First Amended Complaint by providing the Court with an adequate explanation that would necessitate applying equitable tolling. Because Dunn does not qualify for equitable tolling, the Court must dismiss his Second Amended Complaint for failure to state a claim.
"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." Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990)). To survive Rule 12(b)(6) scrutiny, a complaint must contain sufficient factual information to "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Fed. R. Civ. P. 8(a)(2) (). Mere labels and conclusions declaring that the plaintiff is entitled to relief are not enough. Twombly, 550 U.S. at 555. Thus, "naked assertions of wrongdoing necessitate some factual enhancement within the complaint to cross the line between possibility and plausibility of entitlement to relief." Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (internal quotation marks omitted).
A complaint achieves facial plausibility when the facts contained therein support a reasonable inference that the defendant is liable for the misconduct alleged. Twombly, 550 U.S. at 556; see also Ashcroft v. Iqbal, 556 U.S. 662 (2009). This analysis is context-specific and requires "the reviewing court to draw on its judicial experience and common sense." Francis, 588...
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