United States District Court, E.D. Virginia, Alexandria Division
ELLIS, III UNITED STATES DISTRICT JUDGE.
Sowers, a federal inmate proceeding pro se, has filed a civil
rights action, pursuant to Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971) and the Federal Tort Claims Act ("FTCA"),
alleging that he was not provided with proper medical care
over a two-week period during his former incarceration at FCC
Petersburg. The matter is before the Court on
dispositive motions filed by all defendants. In each
instance, plaintiff was provided with the notice required by
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975)
and Local Rule 7(K), and in each instance plaintiff has filed
a response. After careful consideration, plaintiffs FTCA
claim against the United States of America must be dismissed
for lack of subject matter jurisdiction and in the
alternative for failure to state a claim pursuant to
Fed.R.Civ.P. 12(b)(6). In addition, summary judgment must be
entered in favor of defendants Lt. Heather Williams, Dr. Mark
DiCocco, and Dr. Katherine Laybourn (collectively, the
"individual federal defendants") on plaintiffs
Bivens claim that they violated his Eighth Amendment
right to be free of cruel and unusual punishment. Plaintiffs
claim against defendant Ms. Goffaux, an independent
contractor employed as a x-ray technician at FCC Petersburg,
must be dismissed, and plaintiffs letter to the Court dated
June 10, 2018 and docketed on July 13, 20181 will be
construed as an unauthorized sur-reply seeking discovery, and
denied. Plaintiffs claims against unserved defendants
identified only as Unknown Lieutenant, Unknown Health
Services Administrator, and Unknown Medical Staff must be
dismissed, without prejudice, pursuant to Fed.R.Civ.P. 4(m).
Material Facts Common to All Claims
following undisputed material facts are pertinent to
Sowers' claims against all defendants:
1. At all times relevant to this action, Sowers was an inmate
confined at the Federal Prison Camp in the Federal
Correctional Complex in Petersburg, Virginia. Compl. ¶
2. Plaintiff underwent surgery to repair an inguinal hernia
on December 21, 2015. Compl. ¶ 13.
3. Eight days after the hernia surgery, starting at around
midnight on December 29, 2017 and continuing into the
following morning, plaintiff began to experience shortness of
breath and chest pain. Compl. ¶ 14.
4. From December 29, 2015 until January 14, 2016, plaintiff
was examined and treated repeatedly by medical professionals
at FCC Petersburg in an attempt to diagnose his condition.
Compl. ¶¶ 15-22.
5. When staff at FCC Petersburg were unable to identify the
cause of plaintiff s discomfort after taking x-rays on two
occasions and examining him on several others, plaintiff was
transported to the Federal Medical Center in Burner, North
Carolina ("FMC Burner") on January 14, 2016. Compl.
6. Upon plaintiffs arrival at FMC Butner a CT scan was
performed which revealed a pulmonary embolism, for which
plaintiff was treated immediately. Compl. ¶¶ 23 -
7. Plaintiff alleges that the delay in diagnosing and
treating his embolism has caused "a complete permanent
change in the way his body functions," in particular in
that he "struggles with stamina" and has noticed a
decreased energy level and shortness of breath. Compl. ¶
United States' Motion to Dismiss or in the Alternative,
for Summary Judgment
has sued the United States pursuant to the FTCA for what he
describes as the negligent medical care he received at FCC
Petersburg from December 29, 2015 through January 14, 2016.
The United States has moved for dismissal of the claim on the
grounds that prior to filing this lawsuit, Sowers failed to
exhaust his administrative remedies and failed to consult
with a medical expert as required by the Virginia Medical
Malpractice Act ("VMMA"). [Dkt. No. 16-17, 19]
Additional Pertinent Undisputed Facts
Sowers submitted an administrative tort claim on September
17, 2017, which was received on October 4, 2017, in which he
alleged that he had received negligent medical care from FCC
Peterburg's medical staff and from defendant Ms. Goffaux,
a contract x-ray technician employed at that institution,
when his pulmonary embolism went undiagnosed for two weeks.
Compl. ¶ 2; GEX 2 - 3.
Sowers filed the instant action no later than December 28,
2017, when the complaint was entered on the
Prior to filing the complaint, Sowers failed to consult any
expert and failed to obtain an expert certification that any
FCC Petersburg medical professional deviated from the
standard of care or that such a deviation caused his
purported injuries. GEX 4-5.
Bureau of Prisons ("BOP") denied Sowers'
administrative tort claim on April 2, 2018, over three months
after this lawsuit was filed. GEX 6.
Failure to Exhaust Administrative Remedies
Standard of Review
district courts are courts of limited jurisdiction and
possess only the jurisdiction granted to them by the United
States Constitution and federal statutes. Exxon Mobil
Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552
(2005). When a district court lacks subject matter
jurisdiction over an action, the action is subject to
dismissal pursuant to Fed.R.Civ.P. 12(b)(1). Arbaugh v.
Y&H Corp., 546 U.S. 500, 506-07 (2006). In
determining whether jurisdiction exists, "the district
court is to regard the pleadings' allegations as mere
evidence on the issue, and may consider evidence outside the
pleadings without converting the proceeding to one for
summary judgment...." Richmond. Fredericksburg &
Potomac Railroad Co. v. United States, 945 F.2d 765, 768
(4th Cir. 1991). A Rule 12(b)(1) motion to dismiss should be
granted when "the material jurisdictional facts are not
in dispute and the moving party is entitled to prevail as a
matter of law." Balfour Beatty Infrastructure, Inc.
v. Mayor and City Council of Baltimore, 855 F.3d 247,
251 (4th Cir. 2017).
Court lacks subject matter jurisdiction over Sowers' FTCA
claim because he failed to exhaust his administrative
remedies prior to bringing the instant lawsuit. Generally,
the United States and its agencies enjoy sovereign immunity
from suit unless Congress has explicitly abrogated such
immunity. FDIC v. Meyer, 510 U.S. 471, 475 (1994).
The FTCA provides a limited waiver of that immunity insofar
as it allows the United States to be held liable "for
injury or loss of property, or personal injury or death
caused by the negligent or wrongful act or omission of any
employee of the Government... under circumstances where the
United States, if a private person, would be liable to the
claimant in accordance with the law of the place where the
act or omission occurred." 28 U.S.C. § 1346(b)(2);
see Suter v. United States, 441 F.3d 306, 310 (4th
Cir.), cert, denied, 127 S.Ct. 272 (2006). The
United States' waiver of sovereign immunity is limited,
however, and is subject to certain specific exceptions which
are jurisdictional in nature. See Medina v. United
States, 259 F.3dd 220, 223-24 (4th Cir. 2001). One such
exception is the requirement that a claimant must exhaust his
administrative remedies with the appropriate federal agency
prior to bringing suit in federal court. 28 U.S.C. §
2675(a);see also, McNeil v. United
States, 508 U.S. 106, 110-11 (1993) (dismissal required
where administrative remedies are not exhausted); Plyler
v. United States, 900 F.2d 41, 42 (4th Cir. 1990)
(administrative exhaustion requirement is jurisdictional and
cannot be waived).
exhaust administrative remedies under the FTCA, a claimant
not only must present an administrative claim to the BOP, but
also must afford the BOP at least six months to adjudicate
the claim prior to filing suit in federal court. See 28
U.S.C. § 2675(a). A claimant's failure to do so
requires dismissal of a prematurely-filed federal action. See
Plyler, 900 F.2d at 42 - 43 (where "six months
had not yet elapsed since the administrative claim was filed,
nor had the claim been denied by the agency" when a
federal complaint was filed, "the district court was
required ... to dismiss [the federal action] for lack of
Sowers submitted an administrative claim concerning his
medical care at FCC Petersburg on September 24, 2017, which
was received on October 4, 2017. GEX 2, 3. He filed the
complaint in this action three months later, on December 28,
2017. Dkt. No. 1. The administrative claim was denied on
April 2, 2018, over three months after the federal complaint
was filed. GEX 6. Under these circumstances no jurisdiction
exists to entertain Sowers' FTCA claim, because when the
complaint was filed "six months had not yet elapsed
since the administrative claim was filed, nor had the claim
been denied by" the BOP. Plyler, 900 F.2d at
42-43. The fact that Sowers' administrative claim was
denied after he initiated this federal lawsuit does not alter
that conclusion. See McNeil, 508 U.S. at 113
(holding that because the "FTCA bars claimants from
bringing suit in federal court until they have exhausted
their administrative remedies," the district court
properly dismissed claimant's federal action when he
"failed to heed that clear statutory command");
Plyler, 900 F.2d at 42-43 (where plaintiff failed to
wait six months after submission of his administrative claim
before filing suit, district court was without jurisdiction
when the lawsuit was filed, and could not obtain jurisdiction
by not acting on a motion to dismiss until the requisite
period expired); Bloch v. Executive Office of
the President, 164 F.Supp.3d 841, 863 (E.D. Va.
2016) (Ellis, J.) (denying plaintiffs motion to amend his
complaint with his efforts to exhaust administrative remedies
after the complaint was filed on the ground that the
"proposed amendment c[ould] not remedy the
jurisdictional fact that he failed to comply with"
in the foregoing authorities, Sowers failed to exhaust his
administrative remedies before filing this lawsuit, and the
court consequently was without jurisdiction to entertain the
matter at its inception. Neither the expiration of six months
since the administrative claim was filed nor the BOP's
denial of the claim after the filing of the instant complaint
can cure that jurisdictional defect. Accordingly, Sowers'
FTCA claim must be dismissed.
Failure to Comply with the Virginia Medical Malpractice
jurisdiction existed for this Court to consider Sowers'
FTCA claim, it is readily apparent the claim would be subject
to dismissal pursuant to Fed.R.Civ.P. 12(b)(6) because Sowers
has failed to comply with the pre-flling requirements of
Virginia's Medical Malpractice Act
Every motion for judgment, counterclaim, or third party claim
in a medical malpractice action, at the time the plaintiff
requests service of process upon a defendant, or requests a
defendant to accept service of process, shall be deemed a
certification that the plaintiff has obtained from an expert
witness whom the plaintiff reasonably believes would qualify
as an expert witness pursuant to subsection A of §
8.01-581.20 a written opinion signed by the expert witness
that, based upon a reasonable understanding of the facts, the
defendant for whom service of process has been requested
deviated from the applicable standard of care and the
deviation was a proximate cause of the injuries claimed.
provision requiring acquisition of an expert opinion applies
to claims brought against the United States pursuant to the
FTCA. Bond v. United States, 2008 WL 4774004 (E.D.
Va. Oct. 27, 2008) (Cacheris, J.). Virginia law requires
dismissal of any medical malpractice action in which the
plaintiff fails to complete the VMMA's pre-filing
requirements. Va. Code § 8.01-20.1 Thus, both the Fourth
Circuit and jurists of this court have held on numerous
occasions that failure to comply with the pre-filing
certification provision is fatal to a plaintiffs FTCA claim.
See, e.g., Parker v. United States, 475 F.Supp.2d
594, 597 (E.D.Va.) (Ellis, J.), aff'd, 251
Fed.Appx. 818 (4th Cir. 2007); Reed v. United
States, 2015 WL 1402127, at * 3-4 (E.D. Va. Mar. 25,
2015) (Brinkema, J.), aff'd, 620 Fed.Appx. ...