Carter v. United States of America et al

Filing 53

MEMORANDUM, DECISION & ORDER -- the defendant's 37 Motion for Summary Judgment is granted. This case is dismissed with prejudice. Signed by Judge Norman A. Mordue on 4/30/12. Service via USPS certified/rr and regular mail (Article #9171969009350009017303). (mnm) Modified on 5/1/2012 to include Article #).(mnm).

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
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RICHARD L. CARTER,
Plaintiff,
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5:09-CV-34 (NAM/GHL)

UNITED STATES OF AMERICA,
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Defendant.
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APPEARANCES:
Richard L. Carter
Plaintiff, pro se

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Office of the United States Attorney
Mark E. Morrison, Assistant United States Attorney
228 Walnut Street
P.O. Box 11754
Harrisburg, Pennsylvania 17108

Hon. Norman A. Mordue, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
In this dental malpractice action under the Federal Tort Claims Act, 28 U.S.C. § 2671, et
seq., defendant moves (Dkt. No. 37) for summary judgment. Defendant’s motion, filed October
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25, 2011, is based on plaintiff’s failure to submit an expert report supporting his claim.
Defendant properly notified plaintiff of the consequences of failing to respond to the motion (Dkt.
No. 39). In opposition to defendant’s motion, plaintiff filed a letter dated November 1, 2011
(Dkt. No. 38), stating that he had found an expert witness and requesting an extension of time to
respond to the summary judgment motion. On November 8, 2011, the Court granted the request,
extended to December 5, 2011 plaintiff’s time to respond to the motion, and stated: “No further
extensions will be considered without good cause shown.”

On December 8, 2011, plaintiff moved (Dkt. No. 40) for an extension of time to submit an
expert report. Plaintiff submitted supplemental papers dated January 5, 2012 (Dkt. No. 42), again
requesting additional time. On February 13, 2012, this Court issued a Memorandum-Decision and
Order (Dkt. No. 44) granting plaintiff’s motion “to the extent that the Court will accept any expert
report submitted on or before March 1, 2012.” The Court added:

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The extension of time to March 1, 2012 will mean that plaintiff has been
given four months to oppose the summary judgment motion. Plaintiff has
received numerous accommodations and lengthy extensions of time
throughout the progress of this case, which was commenced on January 12,
2009. The Court will grant no further extensions.
Thereafter, the Court received a letter from plaintiff (Dkt. No. 50) dated March 1, 2012,
stating that “Dr. Fallon” had told him “to come back tomorrow and he would have the letter for
me to pick up in person to my expert.” Plaintiff stated that he would take the letter directly to the

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expert, that he was “confident” the expert would work on it as quickly as possible, and that upon
receipt of the expert’s report he would bring it to the court house.
Eight weeks later, on April 24, 2012, this Court received a submission from plaintiff dated
April 13, 2012 and postmarked April 23, 2012 (Dkt. No. 52). Plaintiff encloses a letter from Paul
T. Fallon, D.D.S. dated March 2, 2012, addressed “To Whom It May Concern,” stating that he
examined plaintiff on August 19, 2005; that plaintiff had pain and swelling of the lower left first

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and second molar and wanted them removed; and that Dr. Fallon removed the two molars without
complication. The purpose of plaintiff’s submission to the Court is not clear; however, no expert
report is enclosed, nor does plaintiff assert that one is forthcoming.
The Court has accorded plaintiff ample opportunity to pursue this case, which was
commenced more than three years ago. Even assuming that this pro se plaintiff was not aware

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that he needed an expert until he received defendant’s summary judgment papers, six months
have passed since defendant made the summary judgment motion. Plaintiff has been apprised
repeatedly of the need to obtain an expert report, and he has been given a generous amount of
time to do so.
Without an expert supporting his claims, plaintiff cannot make out a prima facie case at
trial, because he cannot show that defendant breached the standard of dental care in the
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community or that any acts by defendant proximately caused his injuries. See Kushner v.
Schervier Nursing Care, 2011 WL 1201936, *7 (S.D.N.Y. March 23, 2011) (citing Milano v.
Freed, 64 F.3d 91, 95 (2d Cir. 1995)). Plaintiff’s failure to have an expert is “dispositive.” Sitts
v. United States, 811 F.2d 736, 742 (2d Cir. 1987). Thus, despite affording plaintiff all the
lenience to which he is entitled by virtue of his pro se status, the Court is compelled to grant

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summary judgment dismissing the case.
It is therefore
ORDERED that defendant’s motion (Dkt. No. 37) is granted; and it is further
ORDERED that the case is dismissed with prejudice; and it is further
ORDERED that the Clerk of the Court is directed to serve copies of this MemorandumDecision and Order in accordance with the Local Rules of the Northern District of New York.

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IT IS SO ORDERED.
Date: April 30, 2012
Syracuse, New York

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