Willingham v. V.A. Hospital Medical Center
Filing
42
ORDER denying Defendant's converted 18 Motion for Summary Judgment; and directing the Clerk to remove the stay of discovery. Signed by Judge J. Randal Hall on 021/19/2016. (jah)
IN THE UNITED
FOR THE
STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
LOUIS WILLINGHAM,
SR.,
*
Plaintiff,
*
v.
*
CV
115-025
*
UNITED STATES OF AMERICA,
*
*
Defendant.
ORDER
Currently before the Court is Defendant's converted motion
for summary judgment.
below,
(Doc.
18.)
For the reasons discussed
Defendant's motion is DENIED.
I.
A.
On
Background
Procedural Background
February
17,
proceeding pro se,
2015,
Plaintiff
Louis
Willingham,
filed a complaint in this Court,
Sr.,
alleging
medical malpractice against the Veteran Affairs Medical Center
("VA")
in Augusta,
Eventually,
Georgia
Defendant
in November
moved
to
2011.
dismiss
the
(See
case
Doc.
1.)
because
Plaintiff did not timely and adequately present his claims to
the appropriate agency.
(Doc.
18.)
Specifically,
Defendant
argued that the letter Plaintiff sent the agency did not contain
his
signature
or
a
sum
certain,
making
the
Defendant also produced a Standard Form 95
his
signature
the
SF-95
and
that
a
sum
certain.
Plaintiff
("SF-95")
Moreover,
submitted
in
request
invalid.
that lacked
Defendant
February
2014
argued,
was
not
timely because it was not within the two-year limit provided for
in
28
U.S.C.
§ 2401(b).
Plaintiff
responded
and
essentially
argued that someone from the VA' s office assisted him with his
complaint and that the person assisting him erroneously prepared
the deficient complaint.
was
not
timely
sent
He also
because
he
argued that the
did
not
receive
second SF-95
notice
of
the
problems with his claim until after the two-year period had run.
Plaintiff,
evidence
although
by
he
Defendant,
challenged
failed
to
the
present
SF-95
his
presented
own
as
evidence.
Thus, there was no evidence before the Court upon which it could
equitably toll Plaintiff's claims.
evidence
outside the pleadings,
to dismiss
into
a motion
Because Defendant presented
the Court converted the motion
for summary judgment and allowed the
parties to submit additional arguments and evidence.
Plaintiff,
now
represented
additional
brief
and
an
by
counsel,
affidavit.
(Doc.
has
(Doc. 33.)
an
Defendant
40.)
submitted
has
not presented any additional arguments or evidence.
B.
Plaintiff's Affidavit
Plaintiff
equitable
has
tolling
submitted his
own affidavit
is appropriate
in this
as
evidence
case.
affidavit presents the following factual assertions.
that
Plaintiff's
In spring
2013,
help
Plaintiff,
him
patient
with
after
his
claim,
advocate,
responsibility
met
who
to
claim . . . ."
learning
with
a
the
informed
assist
(Doc.
about
him
[Plaintiff]
40,
Ex.
1
VA
employee
employee,
that
with
("PI.
who
could
known
"it
as
was
his
a
tort
preparing
Decl.")
II
1-3.)
Plaintiff met with the patient advocate several more times,
in
July
2013,
the
patient
advocate
informed
would draft the appropriate letter on
I 7.)
a
Plaintiff
and
that
Plaintiff's behalf.
he
(Id.
And the patient advocate indicated to Plaintiff that the
letter would contain all necessary information to bring a claim.
(Id.
I
instructed
Counsel,
The
9.)
Plaintiff
which
patient
to
advocate
mail
Plaintiff
it
prepared
the
(Id.
did.
to
I
VA
8.)
a
Office
After
letter
of
and
Regional
not
hearing
anything about his claim, in January 2014, Plaintiff visited the
patient
advocate again
and was informed that he would need to
speak with Roosevelt Childs at the Office of Regional Counsel.
(Id. I 14.)
Plaintiff did so,
had
a
a
sent
November.1
letter
(Id. I 15.)
the wrong address-an
(Id.
117.)
Childs
to
and Childs informed Plaintiff he
Plaintiff
regarding
the
sent
Plaintiff a new
promptly completed and mailed in.
seen before.
SF-95,
which he
(I 20-21.)
1 The letter to which Plaintiff refers was cited by Defendant in its
motion to dismiss.
(Doc.
18,
in
Childs, however, had sent the letter to
address Plaintiff had never
then
claim
Ex.
2.)
II.
Summary
genuine
dispute
entitled
56(a).
the
judgment
to
under
the
party,
in
appropriate
any
as
the
Inc.,
facts
in
Matsushita
574,
587
[its]
1428,
to
judgment
Liberty Lobby,
U.S.
is
material
a
matter
only
fact
of
if
"there
and
law."
Fed.
no
movant
the
is
is
R.
Civ.
P.
Facts are "material" if they could affect the outcome of
suit
view
as
Legal Standard
477
242,
light
the
(1986),
substantive
U.S.
most
Elec.
favor."
1437
governing
Indus.
248
law.
(1986).
favorable
Co.
Anderson
v.
The
Court must
the
to
Zenith
v.
non-moving
Radio
Corp.,
475
and must draw "all justifiable inferences
U.S.
v.
(11th Cir.
Four
1991)
Parcels
(en banc)
of Real
Prop.,
941
F.2d
(internal punctuation and
citations omitted).
In
notice
the
this
of
action,
the
summary
motion
34.)
Wainwright,
satisfied.
The
rules,
the
F.2d 822,
time
of
the
Court
summary judgment
the
in opposition,
Therefore,
772
Clerk
for
judgment
other materials
(Doc.
the
for
to
file
requirements
(11th Cir.
filing
1985)
materials
Plaintiff
informed him of
affidavits
and the consequences of
notice
825
right
and
gave
of
default.
Griffith
(per curiam),
in
opposition
expired, and the motion is now ripe for consideration.
or
v.
are
has
Ill.
As
noted above,
Discussion
because Plaintiff's
claim is brought under
the
Federal Tort Claims Act,
Plaintiff was
his
claim to
agency within
accrued.
28
States,
certain.
to
F.3d
840,
VA
Here,
timely.
of
However,
the
it
Equitable
agency was
ex
A.M.
after
v.
2013).
required
460
years
rel.
Cir.
United States,
Counsel
undisputed
that
because
agency
1638
(11th
Regional
is
is
equitable tolling.
1625,
843
Motta
two
to
it
United
Further,
include
F.3d 1318,
a
1324
sum
(11th
it is undisputed that Plaintiff's first claim
Office
and
Ct.
the
Dalrymple v.
certain,
with
§ 2401(b);
claim to
2006).
the
appropriate
U.S.C.
717
Plaintiff's
Cir.
the
required to present
not
the
failed
his
to
include
second
two-year period to
jurisdictional,
United States v.
it
Wong,
file
is
sum
was
claim
a
not
a
claim
subject
U.S.
to
, 135 S.
(2015).
tolling
is
sparingly used by
courts,
and
it
is
typically only appropriate "when a movant untimely files because
of extraordinary circumstances that are both beyond his
and unavoidable even with diligence."
And although it does
Motta,
717
not apply to mere negligence,
control
F.3d at
846.
courts will
apply equitable tolling "where the claimant has actively pursued
his judicial remedies by filing a defective pleading during the
statutory period
498
U.S.
89,
96
. . . ."
(1990).
Irwin v.
Dep't
The circumstances
of Veteran Affairs,
in
Plaintiff's
case
go beyond mere negligence, and equitable tolling is appropriate.
Plaintiff diligently pursued his claim.
patient
advocate
as
meeting
with
advocate
advocate
Then,
the
told
him
was
as
spring
until
an
he
adequate
2013,
and
received
he
what
complaint
the
VA
continued
the
for
after not hearing anything about his claim,
his own accord,
that
early
He began meeting with a
patient
his
claim.
Plaintiff,
on
again visited the patient advocate only to learn
Office
of
Regional
Counsel
had
sent
a
letter
concerning his complaint's insufficiencies to the wrong address.
Plaintiff then promptly filed a sufficient SF-95,
time.
The
Court
finds
that
Plaintiff's
albeit out of
diligence
viewed
alongside his reliance on the patient advocate warrants tolling.
Accordingly,
Defendant's motion is DENIED.
IV.
For
the
reasons
18) is DENIED.
case
pending
Because
the
discussed
Additionally,
resolution
Court
Conclusion
has
of
denied
above,
Defendant's
motion
(doc.
the Court stayed discovery in this
Defendant's
motion.
Defendant's
(Doc.
motion,
the
24.)
Clerk
is
directed to REMOVE the stay.
ORDER ENTERED
February, 2016.
at
Augusta,
Georgia
this
A/
HONORABLE
J
J.
/ /^day of
/7^2l
RANDAL
HALL
UNITE!? STATES DISTRICT JUDGE
IERN
DISTRICT
OF GEORGIA
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