Brant v. USA et al

Filing 6

PRISCS-INITIAL REVIEW ORDER DISMISSING 1 Complaint filed by Ramona Brant. The Clerk is directed to enter judgment and close this case Signed by Judge Vanessa L. Bryant on 1/14/2013.(Payton, R.) 1/15/2013

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

RAMONA BRANT,
Plaintiff,

:
:
:
v.
:
:
UNITED STATES OF AMERICA, et al., :
Defendants.
:

PRISONER
CASE NO. 3:12-cv-1355 (VLB)

INITIAL REVIEW ORDER
The plaintiff, currently incarcerated at FCI Danbury, files this complaint pro
se asserting claims of medical malpractice pursuant to the Federal Tort Claims
Act (“FTCA”), 28 U.S.C. § 1346(b). The named defendants are the United States of
America, Ms. Hurtel, Mr. Daley, PA Villa, Dr. Sanders, Dr. Ira Galin and the
Danbury Clinic Director.
Under 28 U.S.C. § 1915A (2000), the court must review prisoner civil
complaints and dismiss any portion of the complaint that is frivolous, malicious,
that fails to state a claim upon which relief may be granted, or that seeks
monetary relief from a defendant who is immune from such relief. Id.
Under 28 U.S.C. § 1915A (2000), the court must review prisoner civil
complaints and dismiss any portion of the complaint that is frivolous or
malicious, that fails to state a claim upon which relief may be granted, or that
seeks monetary relief from a defendant who is immune from such relief. Id. In
reviewing a pro se complaint, the court must assume the truth of the allegations,

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and interpret them liberally to “raise the strongest arguments [they] suggest[].”
Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). Although detailed allegations
are not required, the complaint must include sufficient facts to afford the
defendants fair notice of the claims and the grounds upon which they are based
and to demonstrate a right to relief. Bell Atlantic v. Twombly, 550 U.S. 544, 555-56
(2007). Conclusory allegations are not sufficient. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). The plaintiff must plead “enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at 570. But “‘[a] document filed pro se
is to be liberally construed and a pro se complaint, however inartfully pleaded,
must be held to less stringent standards than formal pleadings drafted by
lawyers.’” Boykin v. KeyCorp., 521 F.3d 202, 214 (2d Cir. 2008) (quoting Erickson
v. Pardus, 551 U.S. 89, 94 (2007)).
The plaintiff alleges that she suffered a heart attack as a result of the
negligent medical care provided at the correctional facility.
Under the FTCA, the United States has waived sovereign immunity for
claims seeking money damages for injuries caused by a federal official while
acting within the scope of his employment if a private person committing the
same act would be liable under the law of the state where the incident occurred.
See 28 U.S.C. § 1346(b). FTCA claims are not cognizable against individual
federal officials. See Castro v. United States, 34 F.3d 106, 110 (2d Cir. 1994) (“the
FTCA makes individual government employees immune from common-law tort
claims for acts committed within the scope of their employment”). The proper
defendant in an FTCA claim is the United States. As the plaintiff clearly identifies

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this case as brought pursuant to the FTCA, the claims against the individual
defendants are dismissed pursuant to 28 U.S.C. § 1915A.
The FTCA waives sovereign immunity and permits a lawsuit to proceed
against the United States under circumstances where a private person would be
liable under state law. In analyzing an FTCA claim, the court applies the
substantive law of the state where the incident occurred. See id.
The plaintiff is asserting a medical malpractice claim. State law requires
that before filing a medical malpractice claim, a reasonable inquiry be conducted
and a certificate of good faith accompanied by an opinion letter that medical
negligence has occurred must be filed with the complaint. The failure to file the
opinion letter is grounds for dismissal of the action. Conn. Gen. Stat. § 52-190a
(a) & (c). The plaintiff has not filed a good faith certificate with her complaint.
Thus, if this requirement is substantive, the complaint must be dismissed.
The Second Circuit has not yet determined whether the requirement of a
certificate of good faith in a medical malpractice action is substantive law or a
procedural requirement. Other courts addressing the issue, however, have held
that similar state laws are considered substantive requirements under the FTCA.
See Bramson v. Sulayman, 251 F. App’x 84, 87 n.2 (3d Cir. 2007) (holding affidavit
of merit requirement in New Jersey malpractice cases applies in federal court);
Cestnik v. Federal Bureau of Prisons, 84 F. App’x 51, 53-54 (10th Cir. 2003)
(holding Colorado’s requirement of certificate of merit is substantive requirement
applicable under FTCA); Mathison v. United States, 44 F. App’x 27, 29 (8th Cir.
2002) (applying similar Minnesota statute in FTCA claim); Williams v. United

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States, 754 F. Supp. 2d 942, 952 (W.D. Tenn. 2010) (listing district courts that have
held that malpractice certification statutes are substantive and apply in FTCA
cases). This court agrees with the other courts addressing this issue that the
good faith certificate requirement is substantive and applies in FTCA cases.
Although the plaintiff is proceeding pro se and is entitled to have her complaint
liberally construed, she is not excused from complying with procedural and
substantive requirements. See Triestman v. Federal Bureau of Prisons, 470 F.3d
471, 477 (2d Cir. 2006).
As the plaintiff has not provided the required certificate, the complaint is
dismissed without prejudice. The plaintiff may file a motion to reopen the case as
to the claim against the United States if she can provide a good faith certificate
supported by a medical opinion of negligence.
ORDERS
In accordance with the foregoing analysis, the court enters the following
orders:
(1)

The complaint is DISMISSED without prejudice pursuant to 28 U.S.C.

§ 1915A.
(2)

The Clerk is directed to enter judgment and close this case.

SO ORDERED this 14 January 2013, at Hartford, Connecticut.

Vanessa L. Bryant
United States District Judge

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