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Dunn v. United States Department of Veterans Affairs

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

December 16, 2019

DENNIS L. DUNN, Plaintiff,
v.
UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, Defendant.

          MEMORANDUM OPINION

          M. HANNAH LAUCK, UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Defendant United States Department of Veterans Affairs' ("DVA") Motion to Dismiss pursuant to Rules 12(b)(1)[1] and 12(b)(6).[2] (ECF No. 11.) Plaintiff Dennis L. Dunn (pro se) responded, (ECF No. 14), and DVA replied, (ECF No. 15).[3]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 Court will grant Dunn leave to amend the Amended Complaint.

         I. Factual and Procedural Background

         A. Factual Allegations[5]

         This 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."[6] (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. (Id.)

         Dunn 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.)

         B. Procedural Background

         On 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").[7] (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 complaint.

         The 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)[8] because he did not timely file this case after denial of his administrative claim, as required by 28 U.S.C. § 2401(b).[9] (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").[10] (Id.) Third, DVA asserts that the Court lacks jurisdiction because sovereign immunity shields DVA from suit. (Id.)

         Dunn 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.

         II. Standard of Review

         A. Pro Se Pleadings

         Courts 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).

         III. Analysis

         The 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.

         A. Statute of Limitations

         1. Standard of Review: Rule 12(b)(6)

         "A 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 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. 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)).

         Generally, 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 banc).

         2. Legal Standard; Statute of Limitations

         Statutes 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 ...


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