Dash v. Department of the Army

Filing 29

ORDER that the Defendant's 10 Motion to Dismiss is granted. The Clerk is directed to close this case and terminate all pending motions. Signed by Judge J. Randal Hall on 10/31/2014. (jah)

IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

DEBBIE LLOYD DASH,

*
•

Plaintiff,

*
*

v.

*

UNITED STATES

DEPARTMENT

OF

CV

112-015

*

THE ARMY,

*

Defendant.

*

ORDER

Presently
this

action

before

for

lack

the
of

Court

is

Defendant's

subject matter

motion

jurisdiction.

to

dismiss

(Doc.

10.)

Upon due consideration, Defendant's motion is GRANTED.

I.

On
for

a

January
Zenker's

17,

2007,

BACKGROUND

Plaintiff

Diverticulum

at

the

Debbie
U.S.

Dash underwent
Army

Medical

surgery

Department

Dwight D. Eisenhower Army Medical Center ("DDEAMC") at Ford Gordon,

Georgia.

(Compl., Doc. 1, at 4.)

There were complications from the

surgery, of which Ms. Dash and her husband, Franklin Dash, were made
aware.

(Id. )

According to Ms. Dash, she woke up from surgery with

a tube in her neck because a muscle

in her throat was

torn during

surgery, but the doctor assured her husband that he "would take care
of [her]."

(Id.)

As a result of the complications, however,

Ms.

Dash spent time in the ICU and required a second surgery the next
day.

(Id.)
On

November

administrative
received

by

DDEAMC.

23,

2009,

claim

the

(Doc.

Dash

alleging

Officer
10,

Ms.

of

Ex.

the

A.)

filed

medical
Center

Although

a

Standard

malpractice,
Judge

Ms.

95

which

Advocate

Dash

Form

was

("OCJA")

initially

at

reported

that the surgery occurred in January 2008,

she corrected this error

on

March

December

9,

2009.

(Id.,

Ex.

C.)

On

1,

2010,

Claims Division of the Department of the Army sent Ms.

denying her claim based on
Tort Claims Act's

D.)

ten

months

reconsideration

September 27,
E-H.)

Dash a letter

comply with the

two-year limitations period.

of

after

that

her

surgery.

decision,

both

2010 and January 10,

Federal

(Id.,

September

Exs.

27th

Ex.

which

twice

were

letter to

sought

denied

(Id.,

on

Exs.

Dash that she had six months

file

2011,

Ms.

Dash filed

alleging medical malpractice and fraud.
l:ll-cv-39,

Doc.

1 (S.D.

referred to as "Dash I") .
time

of

Dash

suit

in

district

court.

in this

Court,

F, H.)

On March 25,

Case No.

Ms.

2011 respectively.

Each denial letter informed Ms.

from the

the

Tort

Specifically, Ms. Dash's claim was filed in November 2009, two

years and

(Id.,

("FTCA")

her failure to

the

to

serve,

the

a complaint

Dash v.

Chasen,

Ga. March 25, 2011)

et al.,

(hereinafter

After affording Ms. Dash an extension on
United

States

Magistrate

Judge

issued

a

Report and Recommendation that Ms. Dash's complaint be dismissed for
failure

to

timely

effect

service.

(Dash

I

at

Docs.

8,

10.)

Concurring with the recommendation, this Court dismissed Ms. Dash's
2

complaint without prejudice on November 28, 2011.
13.)

(Dash I at Doc.

Ms. Dash appealed this decision to the Eleventh Circuit Court

of Appeals,

which affirmed the dismissal

on January

10,

denied her petition for rehearing en banc on March 20,
Doc. 24, Ex. 1.)
December

9,

January 27,

2014.

Amidst

this

January 27,

and

2012.

also

the

moved

appeal,

denied

a

to

stay

of

termination of the

Ms.

Dash

filed

to

for

rehearing

on

a

second

complaint

on

alleging medical malpractice and fraud.

consideration

Ms.

Dash's

2014

appellate process,

dismiss

(doc.
the

25).

January

of

this

appeal.

stay and proceed with the case (doc.

motion

petition

Her second complaint arises out of the same facts

resolution

September 30,

(See

(Id.)

as her March 2011 complaint,

Defendant

2013.

and

the Supreme Court denied certiorari on

Thereafter,

2013,

2013,

second

(Doc.

case

15.)

Following

Defendant moved to

24),

pending

lift

the

which this Court did on

Now before the Court is Defendant's
2012

complaint

for

lack

of

subject

matter jurisdiction (doc. 10).

II.

Ms.
under

DISCUSSION

Dash brings her claims against the Department of the Army

the

FTCA.

With

the

FTCA,

the

immunity under certain circumstances.
suit

under

the

requirements:
over

a

suit

FTCA

(1)
under

must

first

government

waives

sovereign

However, plaintiffs bringing

comply

with

two

basic

procedural

"A federal court may not exercise jurisdiction
the

FTCA

unless

the

claimant

first

administrative claim with the appropriate agency."

S.R.

files

v.

an

United

States,

555

omitted);
statute

F.

Supp.

and

of

(2)

2d

the

1350,

1354

plaintiff

limitations.

See

28

(S.D.

must

U.S.C.

Fla.

adhere

2008)

(citations

the

applicable

to

§ 2401(b).

Here,

Ms.

seemingly met her burden of filing an administrative claim;
Ms.

Dash

has

failed

to

comply

with

each

of

the

two

Dash

however,

statute

of

limitations requirements.
Specifically,

the FTCA provides that:

A tort claim against the United States shall be forever
barred unless it is presented in writing to the appropriate
Federal agency within two years after such claim accrues or
unless action is begun within six months after the date of
mailing,
by certified or registered mail,
of notice of

final

denial

of

the

claim by

the

agency

to

which

it

was

presented.

Id.

Thus,

"[i]t

is

undisputed that

under

section

2401(b),

a

tort

claim must be presented to the appropriate federal agency within two

years

after

the

six

months

within

claim

accrues

after

the

and

the

receipt

of

lawsuit
a

must

final

be

agency

Phillips v. United States, 260 F.3d 1316, 1317 (11th Cir.

As

the

a general

FTCA

begins

United States,

medical

rule,

to

run

the

two

when

775 F.2d 1491,

malpractice

cases,

year

the

plaintiff

1493

the

statute of

(11th Cir.

statute

of

is

commenced
decision."

2001).

limitations

injured.

1985).

under

Price

However,

limitations

is

v.

with

tolled

until the plaintiff "possesses the critical facts of her injury and

its cause."

Id.

Upon plaintiff's discovery that

"her injury is

probably attributable to some act of those who treated her, there is
no

longer

Here, Ms.

any

reason

to

toll

the

statute

Dash was injured on January 17,

the mistake

of

limitations."

Id.

2007, and was informed of

in surgery immediately thereafter but did not file her
4

administrative
months

after

record that

claim

the

Ms.

two

Dash

until
year

was

November
deadline

23,

2009

expired.

fully aware of

immediately following the surgery.

day.

unplanned surgery as

Thus,

Ms.

Dash

approximately

It

the

is

cause

clear

of

ten

from the

her

injuries

The doctor reported the mistake

to her husband on the day of the surgery,

second,

-

a result of

and Ms.

the

Dash underwent a

complication the next

failed to comply with the two year statute of

limitations imposed by the FTCA.
Moreover,
of

Ms.

Dash failed to

the

final

denial

file the instant complaint within

six

months

Ms.

Dash's complaint occurred on September 27,

her first law suit on March 25,

time

frame.

timely

However,

effect

service,

complaint until

that

and

of

her

2011,

action

Ms.

claim.

The

2010,

denial

of

and she filed

which was within the six month

was

Dash

dismissed

did

not

for

file

January 27, 2012 - one year and

the September 27th denial.

final

failure

the

to

instant

four months after

Although it is undisputed that Ms.

Dash

met the six month deadline with respect to her first complaint,

that

statute

of

dismissed.

1981)

of

an

limitations
See Goff v.

period

is

not

United States,

659

("It is also well established that

earlier

bringing

of

limitations

suit

the

was

suit

period.").1

without

later

Thus,

tolled

outside

Ms.

Dash

F.2d 560,

the

prejudice

when

fact

does

of

has

an

a
562

claim

is

(5th Cir.

that a dismissal

not

authorize

otherwise

failed

the

binding

to meet

both

1
Although Fifth Circuit decisions after September 30, 1981 are not binding
precedent, the Eleventh Circuit recognized the principle set forth in Goff in
Stein v. Reynolds Sec, Inc., 667 F.2d 33 (11th Cir. 1982).
5

applicable statute of limitations deadlines,

and her complaint must

be dismissed.

III.

Although
status

as

the

a pro

limitations,

we

Court

is

sympathetic

se litigant,
should

not

CONCLUSION

to

Ms.

"in construing
take

it

upon

Accordingly,

GRANTED.

Defendant's

motion

the

to

The CLERK is DIRECTED to CLOSE this

injuries

FTCA's

ourselves

waiver beyond that which Congress intended."

1318.

Dash's

to

Phillips,

dismiss

statute
extend

and
of
the

260 F.3d at

(doc.

10)

is

case and terminate all

pending motions.

ORDER ENTERED at Augusta, Georgia, this c$ J "~ day of October,
2014.

lELE

J.

STATES

RANDAL

HALL

DISTRICT JUDGE

fHERN DISTRICT OF GEORGIA