McIver v. V.A. United States et al

Filing 101

ORDER granting 92 Motion to Dismiss for Failure to State a Claim. Signed by Chief Judge Terrence W. Boyle on 11/21/2018. Copy sent via US Mail to Shirley Verrette McIver at 213 McCoy Drive, Bennettsville, SC 29512. (Stouch, L.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:18-CV-9-BO
. SHIRLEY MCIVER,
Plaintiff,
V.

UNITED STATES OF AMERICA, et al.,
Defendants.

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ORDER

This matter is before the Court on defendant Dr. Gordon's motion to dismiss. [DE 92]. The
matter is ripe for disposition. For the following reasons, defendant's motion to dismiss [DE 92] is
GRANTED. Additionally, plaintiffs claims against Dr. Arle are DISMISSED for failure to
properly serve.
BACKGROUND
Plaintiff was treated for breast cancer beginning in 2003. Plaintiff, who is a veteran,
received care directly from the North Carolina and South Carolina Veterans' Administration
Medical Centers, as well as from private providers. She has two basic factual allegations. First,
that her care providers misread her mammogram, failing to diagnose her. Second, that she was
prescribed Tamoxifen, which, when mixed with certain other medications, can cause
complications. She received the mammogram in 2004 and a letter disclosing the medication issue
in 2009.
Plaintiff first exhausted her administrative remedies, filing a Federal Tort Claims Act
administrative claim in 2015. That claim was denied in 2015. Then, proceeding prose, plaintiff
filed the instant lawsuit in federal court in South Carolina in April 2017 [DE 1]. The case was
permitted to proceed as to the government and two private care providers, Dr. Arle and Dr. Gordon.

The case was then transferred to this district [DE 61]. In May 2018, the Court granted the
government's motion to dismiss, leaving only Dr. Arle-who has not been properly served-and
Dr. Gordon.
In October 2017, defendant Dr. Gordon moved to dismiss for failure to state a claim.
[DE 92]. That same month, a hearing was held before the undersigned. [DE 94]. Plaintiff filed a
response in opposition to Dr. Gordon's motion to dismiss. [DE 98].
DISCUSSION
When considering a motion to dismiss under Rule 12(b)(6), "the court should accept as
true all well-pleaded allegations and should view the complaint in a light most favorable to the
plaintiff." Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). A complaint must
state a claim for relief that is facially plausible. Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007). Facial plausibility means that the court can "draw the reasonable inference that the
defendant is liable for the misconduct alleged," as merely reciting the elements of a cause of
action with the support of conclusory statements does not suffice. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). The court need not accept the plaintiffs legal conclusions drawn from the facts,
nor need it accept unwarranted inferences, unreasonable conclusions, or arguments. Philips v.

Pitt County Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009). Prose plaintiffs are entitled to have
their pleadings construed liberally. Erickson v. Pardus, 551 U.S. 89, 94 (2007) ("A document
filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must
be held to less stringent standards than formal pleadings drafted by lawyers." (internal quotation
marks omitted)).
This Court has diversity jurisdiction over plaintiffs claims. Courts sitting in diversity
generally apply the forum state's substantive laws, which includes applicable statutes of

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limitations. Bonham v. Weinraub, 413 Fed. App'x 615, 616 (4th Cir. 2011). Here, plaintiffs
medical malpractice claim is governed by North Carolina's three-year statute oflimitations for
personal injury actions. Williams v. Haigwood, 2012 U.S. Dist. LEXIS 139235, at *14 (E.D.N.C.
Sep. 25, 2012). Plaintiffs only claim against Dr. Gordon is that he misread a 2004 mammogram.
Because her cause of action accrued in 2004, the applicable statute of limitations ran until 2007.
Plaintiff, however, did not bring her claim until 2017. As such, plaintiffs claim against Dr.
Gordon is barred by the statute qf limitations and must be dismissed.
Additionally, plaintiffs claims against Dr. Arle must be dismissed. Rule 4(m) of the
Federal Rules of Civil Procedure requires plaintiffs to serve the summons and complaint on a
defendant within ninety days of filing. Unless a plaintiff shows good cause for failing to serve a
defendant within ninety days, dismissal is appropriate. The Federal Rules of Civil Procedure still
apply to prose parties. Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 149-52 (1984).
In the Court's May 2018 order, plaintiff was given an additional thirty days to effect
proper service on Dr. Arle. Plaintiff failed to properly serve Dr. Arle within those thirty days.
Plaintiff has had multiple opportunities to effect proper service and has failed to do so. Thus,
plaintiffs claims against Dr. Arle must be dismissed.

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CONCLUSION
For the reasons discussed above, defendant Dr. Gordon's motion to dismiss [DE 92] is
GRANTED. Plaintiffs claims against Dr. Arle are also DISMISSED for failure to properly serve.
The Clerk is DIRECTED to close the case.

SO ORDERED, this

_a_j_ day of November, 2018.

~ld_.
TERRENCE W. BOYLE
CHIEF UNITED STATES

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