United States District Court, E.D. Virginia, Richmond Division
DENNIS L. DUNN, Plaintiff,
UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, Defendant.
HANNAH LAUCK, UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant United States
Department of Veterans Affairs' ("DVA") Motion
to Dismiss pursuant to Rules 12(b)(1) and 12(b)(6). (ECF No. 11.)
Plaintiff Dennis L. Dunn (pro se) responded, (ECF
No. 14), and DVA replied, (ECF No. 15).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. For the reasons that follow, the Court
will grant the Motion to Dismiss. The Court will grant Dunn
leave to amend the Amended Complaint.
Factual and Procedural Background
medical malpractice claim, filed pursuant to the Federal Tort
Claims Act ("FTCA"), arises out of an allegedly
botched prostate surgery performed on Dunn at the Hunter
Holmes McGuire Veterans Affairs Medical Center in Richmond,
Virginia on June 21, 2012. (Am. Compl. 1, ECF No. 6.) Dunn
avers that his prostate was "damaged during the
surgery," causing chronic "urine leaks" that
force him to "wear diapers on a daily
basis." (Id. 1-2.) DVA's
"egregious act  has had a profound effect on
[Dunn's]... daily activities" and has caused his
"Major Depressive Disorder" to worsen.
alleges that doctors at the Veterans Affairs Medical Center
"concealed the injury for 5 years" by "lying
to [him] about why [he] had the leaking." (Id.)
Rather than disclose the injury, doctors attributed his
symptoms to an "enlarged prostate." (Id.
1.) In 2017, Dunn discovered the true cause of his symptoms
while reviewing his medical records, where he "saw in a
report [that] the VA Doctor admitted that [Dunn's]
prostate was damaged during the surgery." (Id.)
September 7, 2017, Dunn filed an administrative tort claim
with DVA. (Mem. Supp. Mot. Dismiss Ex. 2, 1, ECF No. 12-2.)
On February 12, 2018, DVA sent Dunn a letter notifying him
that his claim was denied (the "Denial
Letter"). (Id.) Eight months later, on
October 12, 2018, Dunn initiated this case by filing a Motion
to Proceed In Forma Pauperis, (ECF No. 1), which the
Court granted. On February 15, 2019, Dunn amended his
Amended Complaint brings a medical malpractice claim against
DVA seeking seven million dollars in "[p]unitive
[d]amages." (Am. Compl. 2.) DVA filed its Motion to
Dismiss, advancing three separate grounds for dismissal.
First, DVA proffers that Dunn fails to state a claim under
Rule 12(b)(6) because he did not timely file this case
after denial of his administrative claim, as required by 28
U.S.C. § 2401(b). (Mem. Supp. Mot. Dismiss 2.) Second, DVA
contends that the Court lacks jurisdiction because Dunn did
not obtain the necessary expert certification of merit
pursuant to Virginia Code § 8.01-20.1, the Virginia
Medical Malpractice Act ("VMMA").
(Id.) Third, DVA asserts that the Court lacks
jurisdiction because sovereign immunity shields DVA from
filed a Response in Opposition to the Motion to Dismiss, (ECF
No. 14), which included a "report," (Resp. Opp.
Mot. Dismiss 2), from Craig N. Bash, M.D., dated July 14,
2019, (Resp. Opp. Mot. Dismiss Ex. 2, ECF No. 14-2). The
report states that Dunn's symptoms were "not
expected or foreseeable outcomes of the biopsy," and
that the "illness is permanent in nature and thus is not
expected to improve with time." (Id. 1-2.) Dr.
Bash reports that the surgery caused Dunn's symptoms,
noting that his "records do not support another
alternative explanation (etiology)." (Id. 2.)
DVA filed a reply.
Standard of Review
Pro Se Pleadings
have a duty to construe pro se pleadings liberally.
Bracey v. Buchanan, 55 F.Supp.2d 416, 421 (E.D. Va.
1999). "[A] pro se complaint, 'however inartfully
pleaded,' must be held to 'less stringent standards
than formal pleadings drafted by lawyers.'"
Estelle v. Gamble, 429 U.S. 97, 106 (1976) (quoting
Haines v. Kerner, 404 U.S. 519, 520 (1972)). A
pro se plaintiff must nevertheless allege facts
sufficient to state a cause of action. Bracey, 55
F.Supp.2d at 421 (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. Circuit Court of
Hampton, No. 3:14cv372, 2014 WL 4072212, at * 1 (E.D.
Va. Aug. 14, 2014); see also Beaudett v. City of
Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Court will grant DVA's Motion to Dismiss. The Motion
asserts three independent grounds for dismissal: (1) Dunn
fails to state a claim under Rule 12(b)(6) by not timely
filing this case as required by 28 U.S.C. § 2401(b); (2)
this Court lacks jurisdiction under Rule 12(b)(1) because
Dunn did not obtain the expert certification of merit
required by the VMMA; and, (3) this Court lacks jurisdiction
under Rule 12(b)(1) because sovereign immunity shields DVA
from suit. (Mem. Supp. Mot. Dismiss 2.) The Court will grant
the Motion to Dismiss on all three grounds. The Court also
will grant Dunn leave to amend the Amended Complaint.
Statute of Limitations
Standard of Review: Rule 12(b)(6)
motion to dismiss under Rule 12(b)(6) tests the sufficiency
of a complaint." 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) ("A pleading that states a claim
for relief must contain... a short and plain statement of the
claim showing that the pleader is entitled to relief.")
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
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.
lqbal, 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 F.3d at 193 (citation omitted). The
Court must assume all well-pleaded factual allegations to be
true and determine whether, viewed in the light most
favorable to the plaintiff, they "plausibly give rise to
an entitlement to relief." Iqbal, 556 U.S. at
676-79; see also Kensington, 684 F.3d at 467
(finding that the court in deciding a Rule 12(b)(6) motion to
dismiss "'must accept as true all of the factual
allegations contained in the complaint' and 'draw all
reasonable inferences in favor of the plaintiff"
(quoting Kolon Indus., 637 F.3d at 440)).
a 12(b)(6) motion to dismiss "does not resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses." Republican Party of
N.C, 980 F.2d at 952 (citing 5 A Charles A. Wright &
Arthur R. Miller, Federal Practice and Procedure
§ 1356 (1990)). However, if "facts sufficient to
rule on an affirmative defense are alleged in the complaint,
the defense may be reached by a motion to dismiss filed under
Rule 12(b)(6)," including "the defense that
plaintiffs claim is time-barred." Goodman v.
Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en
Legal Standard; Statute of Limitations
of limitations "are designed to promote justice by
preventing surprises through the revival of claims that have
been allowed to slumber until evidence has been lost,
memories have faded, and witnesses have disappeared."
Order of R.R. Telegraphers v. Ry. Express Agency,321 U.S. 342, 348-49 (1944). To do so, statutes of
limitations provide strict filing deadlines that parties must
meet. See United States v. Kubrick,444 U.S. 111,
117 (1979). Congress formulates this balance to afford
plaintiffs "a reasonable time to present their
claims" while also "protecting] defendants and the