Willingham v. V.A. Hospital Medical Center

Filing 33

ORDER directing the Clerk to convert Defendant's motion to dismiss (doc. 18) into a motion for summary judgment. The parties are directed to file any arguments and evidence within twenty-four days from the date of this Order. Compliance due by 12/19/2015. Signed by Judge J. Randal Hall on 11/25/2015. (thb)

IN THE UNITED
FOR THE

STATES DISTRICT COURT

SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

LOUIS WILLINGHAM,

*

SR.,

*
*

Plaintiff,

*

CV 115-025

v.
*

UNITED STATES OF AMERICA,
*
*

Defendant.

0

Presently

before

dismiss.

(Doc. 18.)

converts

Defendant's

the

R

D

E

R

Court

is

Defendant's

motion

For the reasons discussed below,
motion

into

a motion

for

to

the Court

summary

judgment

and allows the parties additional time to submit arguments and
evidence.

I.

This

attempt
Medical

matter

to

bring

Center

Background

arises

from

a tort

action

("VA")

in

Plaintiff

against

Augusta,

Louis

the

Willingham's

Veteran

Georgia.

Affairs

Plaintiff's

complaint alleges that, in November .2011, he visited the VA with
an injured toe, and during that visit,
with a blister.
at

the

VA

(Doc.

recommended

1 at 3.)
that

a doctor diagnosed him

Eventually,

Plaintiff's

toe

however,
be

a doctor

amputated,

to

which Plaintiff consented.
when

he

(Id. )

awoke

Then,

from

(Id.)

But,

surgery,

his

over

the

his

objections,

foot

his

knee.

Morphine,

even

(Id. )

Plaintiff also

though

his

medical

had

Plaintiff

doctor performed a second amputation,
to

according to Plaintiff,
been

amputated.

claims

that

which removed his
asserts

records

that

show

he

an

the

leg up

was

given

allergy

to

that medicine and that he was subjected to Methicillin-resistant

Staphylococcus

aureus

("MRSA").

(Id.

at 4.)

Plaintiff

also

alleges that he fell into a coma at some point following this
incident.

(Id.

Following

at 5.)

an

attempt

to

file

his

complaint

with

the

appropriate agency,

Plaintiff filed this action in this Court.

Upon

the

this

filing,

Magistrate

Judge

screened

Plaintiff's

complaint and determined that the complaint should be dismissed
because

Plaintiff

appropriate agency.

had

not

timely

(Doc. 7.)

presented

his

claims

Defendants

now

move

the

When Plaintiff objected to that

ruling, the Magistrate Judge vacated the recommendation.
10.)

to

to

dismiss

the

claims

(Doc.
because

Plaintiff did not timely present them to the appropriate agency.

Plaintiff

has

responded

and

essentially

argues

that

he

is

entitled to equitable tolling because he diligently pursued his
claims.

II.

Legal Standard

In considering a motion to dismiss under Rule 12(b)(6),

the

court tests the legal sufficiency of the complaint,

not whether

the plaintiff will ultimately prevail on the merits.

Scheuer v.

Rhodes,

all

416 U.S.

facts

232,

236

(1974).

alleged in the

inferences

in

the
v.

The

however,

court,

Ramsey,

conclusions as true,
Iqbal, 556 U.S.

complaint and construe

light most

Hoffman-Puqh

The court must accept as true

312

need

favorable
F.3d

not

1222,

accept

to

the

all

reasonable

plaintiff.

1225

(11th

Cir.

the

complaint's

only its well-pleaded facts.

See
2002).

legal

Ashcroft v.

662, 678-79 (2009).

A complaint also must ''contain sufficient factual matter,

accepted as true,

on its face.'"

'to state a claim to relief that is plausible

Id^ at 678 (citing Bell Atl. Corp. v. Twombly,

550 U.S.

544,

570 (2007)).

"factual

content

inference

that

alleged."

that
the

Id.

allows

standard

therefore,

court

is

to

liable

draw
for

the
the

reasonable
misconduct

"The plausibility standard is not akin to a

that

Additionally,

the

defendant

'probability requirement,'

possibility

The plaintiff is required to plead

a

but it asks for more than a sheer

defendant

has

acted

unlawfully."

Id.

" [p] ro se pleadings are held to a less stringent

than

pleadings

drafted

by

be

liberally

construed."

attorneys

Trawinski

and

will,

v

United

Technologies, 313 F.3d 1295, 1297 (11th Cir. 2002) (per curiam).

Moreover,

materials
into

a

a

court

outside

motion

F.3d 1272,

materials

the

for

1275-75

must

complaint

summary

the

(2)

undisputed."

2005).

complaint

when the materials are "(1)

without

judgement.

(11th Cir.

outside

generally

avoid

converting
See

Day

v.

considering

the

Taylor,

A court may only consider

without

converting

the

motion

And "undisputed" generally means

that the authenticity of the document is not challenged.

Ill.

claims

400

central to the plaintiff's claim and

Id. at 1276.

Plaintiff's

motion

Id.

Discussion

are

based

on

the

alleged

medical

malpractice of doctors at the VA, so they are brought under the
Federal

Tort

Claims

Act

("FTCA").

The

FTCA

permits

the

government to be sued in tort for certain actions by federal
officials.

840,

843

See Motta ex rel. A.M.

(11th Cir.

2013).

v.

United States,

717 F.3d

But in order to bring the suit

against the government, a plaintiff must "present the claim in
writing to the appropriate agency 'within two years after such
claim accrues.'"

Id^ (quoting 28

U.S.C.

§ 2401(b)).

These

claims are presented to the appropriate agency on what is called
a Standard Form 95 or through "other written notification."
C.F.R.

§ 14.2(a).

Failure

to

present

the

claim

to

28
the

appropriate agency within two years after the claim accrues may
result

in

the

claim

being

"forever

barred."

28

U.S.C.

§ 2401(b).

must

be

Moreover,

to

be

"^accompanied

by

a

certain.'"

Dalrymple

(11th Cir.
the

2006)

Eleventh

v.

considered

claim

United

for

jurisdictional.

See

money

States,

(quoting 28 C.F.R.
Circuit

presented,

in

F.3d

1318,

460

this

claim

damages

§ 14.2(a)).

considered

that

a

sum
1324

Until recently,

requirement

to

be

id. ("When the sum certain is omitted,

the

administrative claim fails to meet the statutory prerequisite to

maintaining

a

suit

against

the

government,

and

leaves

district court without jurisdiction to hear the case."
omitted)

(internal

quotation

marks

omitted)).

the

(citation

The

Supreme

Court, however, recently ruled that the FTCA's time bars are not

jurisdictional.
Ct.

1625,

filing

1638

See United States v. Wong,
(2015).

requirements

equitable tolling.

Accordingly,

of

28

U.S.C.

Id. at 1638.

U.S.

, 135 S.

the Court held that the

§ 2401(b)

are

subject

to

A motion to dismiss based on

timeliness, therefore,: is properly brought under Federal Rule of
Civil Procedure 12(b)(6),

United States, _
*2

instead of 12(b)(1).

See Harris v.

F. App'x _, No. 15-10664, 2015 WL 5729978, at

(11th Cir. Oct.

In this case,

1, 2015).

Defendant has moved to dismiss

Plaintiff's

claims because he did not timely file the Standard Form 95 or

another writing demanding a sum certain.

argues
include

that
a

Plaintiff

sum

certain.

filed a Standard
Along with

That is,

Form

95

its motion

Defendant

but
to

failed
dismiss,

Defendant

filed in

not

attached

November

include

a

a

copy

2013

of

that

Standard

and includes

signature

or

a

Form

Plaintiff's

sum certain.

95,

which

name,

but

(Doc.

Defendant also included a letter dated November 4,

Department

of

Veteran

Affairs

Office

of

18,

was

does

Ex.

A.)

2013 from the

Regional

Counsel

informing Plaintiff that his Standard Form 95 was being returned
because it did not include an amount of damages.

(Doc.

18,

B.)

Form

95

Defendant

then

Plaintiff

filed

signature

and

untimely.

a

(Doc.

in

sum

18,

points

to

February

a

2014

certain,

Ex. C.)

second

Standard

that

was

but

includes

ultimately

Ex.

that

Plaintiff's

denied

as

Defendant argues that the second

Standard Form 95 is the only one that is sufficient to meet the

requirements

of the statute,

and because

it was not timely

filed, Plaintiff's claims should be barred.

Plaintiff has responded with several reasons why his claim
should not be dismissed.

Plaintiff claims that,

in April 2013,

he began visiting the Department of Veteran Affairs

and that

someone in that office began working with him on his claims

against the VA.

He asserts that,

office instructed him to

his

behalf

Regional

about

Counsel.

his

allow that agency to

claims

And

eventually,

to

the

Plaintiff

mentioned a Standard Form 95 to him.

Veteran

claims

someone at that
send a letter on

Affairs

that

no

Office

one

of

ever

In fact, he alleges that

the agency led him to believe that the letter was a necessary

step

in

bringing

his

knowledge

as

Form 95.

Moreover,

the

to

Veteran

who

claim.
sent

the

only

Affairs

received

information

on

it

the

even

asserts

unsigned

Office

after
status

of

that

November

regarding the November

asserts that the letter was

he

He

4,

Regional

he

2013

2013

of

visited the

letter from

Counsel,

his

agency

claim.

He

no

Standard

Plaintiff

sent to the wrong address,

he

has

and that

and

requested

maintains

that

he

then filed a proper Standard Form 95 soon after he learned that

it

was

reasons

required.

justify

Essentially,

equitable

Plaintiff

tolling

in

argues

this

that

case.

these

Plaintiff,

however, has only presented these arguments in his brief without

any evidence.
claims

did

Plaintiff also argues in his brief that some of

not

accrue

until

well

after

November

2011.

Those

arguments also appear unsupported by evidence.

Generally,
movant

that

untimely

are

both

diligence."

quotation

"[e]quitable
files

beyond

tolling

because

his

of

control

is

appropriate

extraordinary

and

omitted).

Equitable

unavoidable

tolling

a

circumstances

Motta, 717 F.3d at 846 (citation omitted)

marks

when

may

even

with

(internal

also

be

appropriate when "the claimant has actively pursued his judicial
remedies by

filing a defective pleading during

period . . . ."
(1990)

the

statutory

Irwin v. Dep't Veteran Affairs, 498 U.S. 89, 96

(citations omitted).

As

mentioned,

Standard

Form

Plaintiff

95

did

Plaintiff

has

Defendant

and

not

the

relies

November

meet

the

responded with

on

4,

the

2013

statutory

reasons

he

November

letter

to

show

2013
that

requirements.

claims

support

But

tolling

the requirement and has disputed that he filed the November 2013
Standard Form 95.
the

November

disputed

the

file it.

The Court finds it inappropriate to consider

2013

Standard

document

at

Form

least

to

95

the

Additionally,

he

did not

See Day,

Accordingly,

to

to

convert

400 F.3d at

1276.

but he has not yet submitted evidence to

support those reasons.
this

motion

dismiss

the Court
into

a

finds it proper

motion

for

summary

And when a court converts a motion to dismiss into a

motion for summary judgment,
ten-day

Invs.,

that

has

Plaintiff has offered reasons why he is entitled

to equitable tolling,

least

extent

Plaintiff

And the Court cannot say that the letter referenced by

Defendant is "central" to the claim.

judgment.

because

notice

Inc. v. Lewis,

of

the court must give the parties at

the

conversion.

752 F.2d 599, 605

See

Prop.

(11th Cir.

Mgmt.

1985).

&

"The

purpose of this requirement is to make certain that the parties
are

aware of the

conversion and have

an

opportunity to

present

documents and arguments for and against the granting of summary
judgment."

Id.

The parties will now be afforded an opportunity to submit
evidence

and

arguments

in

support
8

of

their

positions.

Appropriate
things,
See

evidence

documents

Fed.

R.

Civ.

at

P.

judgment

affidavits

and

summary

based

56.

The parties

includes,
on

are

pergonal

among

other

knowledge.

directed to

file

any

arguments and evidence within TWENTY-FOUR DAYS from the date of
this

Order.

IV.

For

the

reasons

Clerk to CONVERT

set

Conclusion

forth

above,

the

Court

Defendant's motion to dismiss

(doc.

DIRECTS
18)

the

into a

motion for summary judgment.

ORDER ENTERED
November,

at

Augusta,

Georgia

this d£&— daY

of

2015.

HONSR&BKr J.

RANDAL HALL

UNITED /STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF GEORGIA