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Sowers v. United States

United States District Court, E.D. Virginia, Alexandria Division

December 20, 2018

Frank Sowers, Plaintiff,
v.
United States of America, et al., Defendants.

          MEMORANDUM OPINION

          T.S. ELLIS, III UNITED STATES DISTRICT JUDGE.

         Frank 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.[1] 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).

         I. Material Facts Common to All Claims

         The following undisputed material facts are pertinent to Sowers' claims against all defendants:[2]

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. ¶ 3.
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. ¶ 23.
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 - 24.
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. ¶ 25.

         II. United States' Motion to Dismiss or in the Alternative, for Summary Judgment

          Sowers 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]

         A. Additional Pertinent Undisputed Facts

         1. 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.[3]

         2. Sowers filed the instant action no later than December 28, 2017, when the complaint was entered on the docket.[4]

         3. 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.

         4. The Bureau of Prisons ("BOP") denied Sowers' administrative tort claim on April 2, 2018, over three months after this lawsuit was filed. GEX 6.

         B. Failure to Exhaust Administrative Remedies

         1. Standard of Review

         Federal 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).

         2. Analysis

         The 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);[5]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).

         To 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 jurisdiction.").

         Here, 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" § 2675(a)).

         Just as 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.

         C. Failure to Comply with the Virginia Medical Malpractice Act

         Even if 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 ("VMMA").[6]

         That provision provides:

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.

         This 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. ...


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