West v. United States
| Decision Date | 29 August 2018 |
| Docket Number | No. 3:17-cv-01430,3:17-cv-01430 |
| Parties | KENDRIA WEST, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — Middle District of Tennessee |
Pending before the Court is Defendant's motion to dismiss (Docket Entry No. 13). For the reasons stated below, the Magistrate Judge RECOMMENDS that this motion be GRANTED and that this action be DISMISSED WITH PREJUDICE.
Plaintiff, Kendria West, proceeding pro se, filed this action under the Federal Tort Claims Act, ("FTCA"), 28 U.S.C. § 1346(b)(1), against the United States and the United States Department of Veterans Affairs ("VA") for negligence and intentional infliction of emotional distress. On November 15, 2017, the Court granted leave to Plaintiff to file the complaint in forma pauperis, pursuant to 28 U.S.C. 1915(a), and the action was referred to the Magistrate Judge for entering a scheduling order for the management of the case and for disposition of pre-trial, non-dispositive motions and for a report and recommendation on all dispositive motions. (Docket Entry No. 4).
Plaintiff alleges that starting on or about May 20, 2015, VA medical doctors failed to properly diagnose Plaintiff as having Trichorrhexis nodosa1 and therefore were negligent and breached their fiduciary duty by failing to provide "competent health analysis and actual healthcare." (Docket Entry No. 1, at 4-5, 20).2 Plaintiff alleges that the doctors refused to test her for Trichorrhexis Nodosa. Id. at 4-5, 15. In essence, Plaintiff alleges that Defendant's medical doctors violated the applicable standards of professional care, which caused Plaintiff to experience stress, anguish, and physical and psychological suffering. Id. at 6. Plaintiff alleges that the doctors' negligent practices caused her to suffer from emotional abuse and distress. Id.
Plaintiff alleges that she is an "expert" in this medical action because she was a Hospital Corpsman in the United States Navy from 1986 to 1990 and through her education and work experiences she understands "the day to day operations of healthcare." Id. at 7-8. Plaintiff also alleges that she continues to update her knowledge through "independent study." Id. at 8. Throughout her complaint, Plaintiff alleges that various doctors at VA facilities in Nashville and Murfreesboro, repeatedly failed or intentionally refused to adequately diagnose and treat her various medical conditions, including a gluten issue and thyroid and progesterone issues. Id. at 29-32. Plaintiff alleges that Dr. Arzubiaga and Dr. Livingood improperly relied on past medical tests performed in 2009 without doing updated medical tests. Id. at 4, 26-27. In support, Plaintiff attaches to her complaint various documents, consisting of research, administrative and medicalrecords, and various internet dermatology definition searches. Id. at 40-138. Plaintiff filed an administrative claim with the VA on or about June 8, 2015. (Docket Entry No. 14-1). On May 25, 2017, after consideration and re-consideration, the VA denied Plaintiff's administrative claim. (Docket Entry No. 1, at 48, 57).
Before the Court is Defendant's motion to dismiss (Docket Entry No. 13) under 12(b)(1) and (12(b)(6), contending that Plaintiff's failure to file a certificate of good faith for medical malpractice claims, as required by Tenn. Code Ann. § 29-26-122, bars this action. In response, Plaintiff asserts that a certificate of good faith is not necessary because "extraordinary cause" applies. (Docket Entry No. 18, at 1). Plaintiff asserts that exhausting her administrative remedies before filing suit demonstrated "good faith efforts," and that she was not informed that under Tennessee law she needed to provide a certificate of good faith. Id. at 1-2. Plaintiff also asserts that she is an "expert" because she previously worked different jobs in a "medical facility/environment," and because she "ran tests outlined by the American Hair Loss Association and the answer was there just like workup protocol said it would be." Id. at 3. Lastly, Plaintiff contends that her financial status alone demonstrates extraordinary cause to excuse a certificate of good faith. Id. at 5-6. Defendant filed a reply (Docket Entry No. 19), addressing Plaintiff's first two assertions.
As to her last assertion, the Magistrate Judge noted that Plaintiff, although not well-worded, apparently asserts that to require a doctor's certificate from an individual, proceeding in forma pauperis and who alleges that she is at least 60% below the poverty level, denies her due process and equal protection under the law. (Docket Entry No. 20, at 1). The Magistrate Judge noted that this assertion may raise an issue as to whether the THCLA is unconstitutional insofar as it requires a certificate of good faith, which a pauper cannot afford. Id. The Magistrate Judge orderedDefendant to file a supplement their reply, addressing this aspect of Plaintiff's argument and ordered notice to be sent to the Tennessee Attorney General, so that the Tennessee Attorney General may have an opportunity to be heard if so desired. Id. at 2. Defendant filed a supplemental reply (Docket Entry No. 21), and the State has filed a response (Docket Entry No. 22), addressing the constitutionality issue.
A Fed. R. Civ. P. 12(b)(1) motion to dismiss a claim for lack of subject matter jurisdiction may consist of either a "facial attack" or a "factual attack." O'Bryan v. Holy See, 556 F.3d 361, 375 (6th Cir. 2009).
"A facial attack on the subject-matter jurisdiction alleged in the complaint questions merely the sufficiency of the pleading." And, However, "conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss."
Id. at 375-76 (citations omitted). "A factual attack, on the other hand, is not a challenge to the sufficiency of the pleading's allegations, but a challenge to the factual existence of subject matter jurisdiction." United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994) (emphasis omitted). On a factual attack, "no presumptive truthfulness applies to the factual allegations, and the court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Id. (citation omitted). The plaintiff bears the burden of proof that jurisdiction exists under a 12(b)(1) factual attack. DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004). Because Defendant's 12(b)(1) motion is asserting a facial attack rather than a factual attack, "the applicable standard is the same one applied in a Rule 12(b)(6) context." Tennessee Protection and Advocacy, Inc. v. Bd. of Educ. of Putnam County, Tenn., 24 F. Supp.2d 808, 813 (M.D. Tenn. 1998).
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Jackson v. Ford Motor Co., 842 F.3d 902, 906 (6th Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A claim to relief is plausible if the facts pled "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 556 (2007)). The plausibility standard requires Id. (quoting Twombly, 550 U.S. at 556-57) (brackets and internal quotation marks omitted).
A court must construe the complaint "'in the light most favorable to the plaintiff, accept all its allegations as true, and draw all reasonable inferences in favor of the plaintiff.'" Mills v. Barnard, 869 F.3d 473, 479 (6th Cir. 2017) (citation omitted). However, courts "need not accept as true legal conclusions or unwarranted factual inferences, and conclusory allegations or legal conclusions masquerading as factual allegations will not suffice." D'Ambrosio v. Marino, 747 F.3d 378, 383 (6th Cir. 2014) (citation omitted). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. Further, "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not 'show[n]'-'that the pleader is entitled to relief.'" Id. at 679 (citation omitted). While pro se complaints are liberally construed and are held "to less stringent standards than formal pleadings drafted by lawyers," Haines v. Kerner, 404 U.S. 519, 520 (1972), pro se complaints "must still contain 'enough facts to state a claim to relief that is plausible on itsface.'" Brown v. Matauszak, 415 F. App'x 608, 612 (6th Cir. 2011) (quoting Twombly, 550 U.S. at 570).
"A motion under Rule 12(b)(6) is directed solely to a complaint itself . . . ." Sims v. Mercy Hosp., 451 F.2d 171, 173 (6th Cir. 1971). Yet, in evaluating a plaintiff's complaint, under Fed. R. Civ. P. 10(c), any matters attached to the pleadings are considered part of the pleadings as are documents that a defendant attaches to a motion to dismiss that are referred to in the complaint and "central" to the claim. Fagan v. Luttrell, 225 F.3d 658, No. 97-6333, 2000 WL 876775, at *2 (6th Cir. June 22, 2000) (citing Weiner v. Klais and Co., Inc., 108 F.3d 86, 89 (6th Cir. 1997)); Rondigo, L.L.C. v. Township of Richmond, 641 F.3d 673, 680-81 (6th Cir. 2011) (...
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