Trueman v. United States of America et al

Filing 29

ORDER denying without prejudice 26 Motion for Preliminary Injunction; granting 16 Motion to Amend/Correct; granting 18 Motion for Extension of Time to Answer Charles E. Best, Jr., Department of Veterans Affairs (VA) Wilmington North Carolin a Outpatient Clinic (WVAOPC), Sharon F. Troyon and United States of America answer due 4/12/2013 or when Plaintiff files an amended complaint, whichever is earlier. The parties are reminded to read the order in its entirety for further information. Signed by Senior Judge James C. Fox on 1/22/2013. Copy sent to plaintiff via US Mail. (Edwards, S.)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NORTH CAROLINA

SOUTHERN DIVISION

No. 7: 12-CV-73-F

JEFFERY TRUEMAN,
Plaintiff,

v.
UNITED STATES OF AMERICA,
DEPARTMENT OF VETERANS
AFFAIRS (VA) WILMINGTON
NORTH CAROLINA OUTPATIENT
CLINIC (WVAOPC) and PHYSICIAN
ASSISTANT SHARON F. TROYON
and WVAOPOC PRACTICE
MANAGER CHARLES E. BEST, JR.,
Defendants.

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ORDER

This matter is before the court on the Motion to Amend Original Complaint [DE-16] filed
by the pro se Plaintiff Jeffrey Trueman ("Plaintiff' or "Trueman"), the Motion for Extension ofTime
to File Responsive Pleading [DE-18] filed by Defendant the United States of America, and a
"Petition for Preliminary Injunctive (PI) Relief Under the Deasy-Precedent (DP) in the Interest of
the Public Trust & Veteran's Health & Well-Being From Continued Medical Neglect, Abandonment,
and Malpractice Since the Filing of the Original Complaint" [DE-26] filed by Plaintiff. For the
reasons stated herein, Plaintiffs Motion to Amend is ALLOWED, Defendant United States' Motion
for Extension of Time is ALLOWED, and Plaintiffs Petition is DENIED WITHOUT PREJUDICE
to renew.

I. PROCEDURAL HISTORY
On March 27, 2012, proceeding pro se, Plaintiff Jeffery Trueman ("Trueman" or "Plaintiff')
filed an application to proceed injormapauperis [DE-I]. In an order filed on March 29, 2012 [DE­

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3], United States Magistrate Judge William A. Webb allowed Plaintiff's application and directed the
Clerk of Court to file the Complaint [DE-4]. On April 17, 2012, Plaintiff filed a "Notice of Motion
of Motion for Expedited Hearing to Restore the Plaintiffs Feres Doctrine Mandated (FDM) Pain
Management Program (PMP) and Successful Treatment Plan to its Previous Status Prior to the
Involvement of Defendant Physician Assistant Troyon" [DE-9].
In the Original Complaint, Plaintiff alleges he served in the United States Navy from 1982
until his honorable discharge in 1994. Compl. [DE-4]

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1, 3. He receives medical care from the

Department of Veterans Affairs ("VA"). In 2006, during his treatment by the VA, he received a
recommendation for a "Pain Management Program" which included both acupuncture treatment and
daily prescribed pain medication. Compl.

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3; 21. On February 28, 2012, Plaintiff met with

Defendant Sharon F. Troyon, his new primary care provider and a physician assistant with the V A.
Plaintiff alleges Troyon did not authorize acupuncture treatment, and instructed Plaintiff to wean off
his pain medication within a five-day period. Compl.

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23-24. He alleges Troyon "has a dislike

in prescribing pain medication to Veterans" and that he has since been "abandoned" by the V A.
Compl.

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3. He asserts claims under the Federal Tort Claims Act ("FTCA") alleging, inter alia,

medical malpractice.
On April 17,2012, Plaintiff filed a "Notice of Motion & Motion for Expedited Hearing to
Restore the Plaintiffs Feres Doctrine Mandated (FDM) Pain Management Program (PMP) and
Successful Treatment Plan to its Previous Status Prior to the Involvement of Defendant Physician
Assistant T royon" [D E-9]. Therein, Plaintiff requested an expedited hearing and sought declaratory
and injunctive relief. Specifically, he sought "a declaration that the medically unsound termination
of his 'Pain Management Program (PMP), by Defendant [Troyon] was arbitrary, premature, and
medically ill-advised due to the totality of his ..." health history. Notice [DE-4] at p.2. He asked

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the court to, inter alia, order Defendants to reinstate his previous Pain Management Program,
including prescriptions for pain medication. Id. He asserted that he will run out of his pain
medication, hydrocodone, on or before April 18, or 20, 2012, and that his cessation of taking
hydrocodone "will present real danger to his abstinence from alcohol" and will aggravate his various
mental and physical health issues. Notice [DE-4] at p. 4.
In an Order filed on April 24, 2012, the court construed the Notice [DE-4] to be both a

motion for a temporary restraining order and a motion for preliminary injunction. The court denied
Plaintiff's request for a temporary restraining order and/or preliminary injunction, finding that
Plaintiff had failed to meet his burden of proof. Specifically, the court noted that it may grant a
temporary restraining order or a preliminary injunction only if the moving party demonstrates that
he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance ofequities tips in his favor, and that an injunction is in the public
interest," Winter v. Natural Res. De! Council, Inc., 555 U.S. 7,20 (2008), and that Plaintiff had not
established these requirements. See April 24, 2012 Order [DE-12].
On May 8, 2012, Plaintiff filed the Motion to Amend Original Complaint [DE-16].
Defendant the United States filed a response [DE-I 7] to the Motion to Amend, wherein Defendant
takes no position on the filing of an Amended Complaint, but objects to Plaintiff's suggestion that
the court rule on whether any claims asserted in the unseen Amended Complaint "relate back" to
other claims or toll prior claims asserted by Plaintiffunder the FTCA. Defendant also filed a Motion
for Extension of Time to File Responsive Pleadings [DE-I 8] seeking sixty days to file a response
to the Original Complaint, or if the court allows Plaintiff to file an Amended Complaint, sixty days
to file a responsive pleading to the Amended Complaint.
Subsequently, Plaintiff has sent other communications to the court wherein he attempts to

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provide further support for the filing of an amended complaint [DE-23; DE-25]. In the latter
communication, Plaintiff states that he anticipates to have an amended complaint "fully complete
and filed by early January 2013." [DE-25] at p. 6.
On December 14, 2012, Plaintiff filed the Petition for Preliminary Injunction [DE-26],
wherein the Plaintiff asks the court to, inter alia, compel the Department ofVeterans Affairs "to fee
base all the [Plaintiffs] medical care for civilian outpatient treatment in the interest of justice."
Petition for Preliminary Injunction [DE-26] at p. 10. Defendant the United States opposes the
motion for a variety of reasons [DE-27].
II. ANALYSIS
Rule 15 of the Federal Rules of Civil Procedure governs amendments to pleadings. Rule
15(a)(I) grants a party the right to "amend its pleading once as a matter of course," if done within
twenty-one (21) days after serving the pleading, FED.R.CIV.P.15(a)(1 )(A), or, "ifthe pleading is one
to which a responsive pleading is required," a party may amend once as a matter ofcourse, provided
that it does so within 21 days after service of a responsive pleading or 21 days after service of a
motion under Rule 12(b), (e), or (t), whichever is earlier. FED R.CIV.P. 15(a)(1)(B). Here,
Defendants have yet to file a responsive pleading to the Original Complaint, so Plaintiff is free to
file an amended complaint. His Motion [DE-16] is therefore ALLOWED, as indeed, he does not
need court approval to file an amended complaint. This order does not, however, constitute a
ruling on issues relating to "relation back" or tolling of any claims.
Given the length oftime that the Motion [DE-16] has been pending, and Plaintiff s repeated
assertions that he intends to file an amended complaint, the court finds it necessary to set a date
certain for Plaintiff to file any such amended complaint. Accordingly, Plaintiff shall file his
amended complaint-if he chooses to file one at all-on or before February 11,2013. Defendant's
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Motion for Extension of Time is ALLOWED, and Defendant shall file a responsive pleading within
sixty (60) days of February 11, 2013, or when Plaintiff files an Amended Complaint, whichever is
earlier.
Finally, as this court has previously noted, a court may grant a temporary restraining order
or a preliminary injunction only if the moving party demonstrates, inter alia, that he is likely to
succeed on the merits. Given that Plaintiffhas yet to file his intended amended complaint, the court
cannot make that assessment. Accordingly, Plaintiffs Petition for Preliminary Injunction [DE-26]
is DENIED WITHOUT PREJUDICE to refile after Plaintiff files an amended complaint, or if
Plaintiff chooses not to file an amended complaint, after February 11, 2013.
III. CONCLUSION
For the reasons stated herein, Plaintiffs Motion to Amend [DE-I6] is ALLOWED, and
Plaintiff shall file an amended complaint on or before February 11, 2013. Defendant United States'
Motion for Extension of Time [DE-IS] is ALLOWED, and Defendant United States shall file a
responsive pleading within sixty (60) days ofFebruary 11,2013, or when Plaintiff files an Amended
Complaint, whichever is earlier. Finally, Plaintiffs Petition [DE-26] is DENIED WITHOUT
PREJUDICE to refile after Plaintiff files an amended complaint, or if Plaintiff chooses not to file
an amended complaint, after February 11,2013.
Further, Plaintiff is reminded that all pleadings and motions filed with the court must comply
with Local Civil Rule 10.1, which provides, in pertinent part that such documents "be doubled­
spaced on single-sided, standard letter size (S lh x 11) paper, with all typed matter appearing in at
least 11 point font size with a one-inch margin on all sides." Local Civil Rule 1O.1(a).

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SO ORDERED. This :z.j. day of January, 2013.

enior United States District Judge

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