McIver v. V.A. United States et al

Filing 83

ORDER granting 75 Motion to Dismiss for Failure to State a Claim. Signed by US District Judge Terrence W. Boyle on 5/21/2018. Plaintiff's claims against the United States of America are dismissed. Plaintiff has thirty (30) days from the date of entry of this order to effect proper service on defendant Arle, or her case against him will be dismissed as well. Copy sent via US Mail to Shirley Verrette McIver at 213 McCoy Drive, Bennettsville, SC 29512. (Stouch, L.)

IN THE UNITED STATES DISTRICT COURT
"FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:18-CV-9-BO

SHIRLEY MCIVER,
Plaintiff,
v.

UNITED STATES OF AMERICA, STEVEN W.
ARLE and DANIEL GORDON,
Defendants.

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ORDER

This matter is before the Court on the government's motion to dismiss [DE 75]. Plaintiff
has responded, the government has replied, and the matter is ripe for ruling. For the following
reasons, defendant's motion to dismiss is GRANTED.
BACKGROUND
This case arises out of plaintiffs treatment 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 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 District Court in South Carolina on April 18, 2017 [DE 1].
The case was permitted to proceed as to the government and two private care providers, Dr. Arle

and Dr. Gordon, both North Carolina residents. The case was then transferred to this district [DE
61]. The government has moved to dismiss the case on procedural grounds, arguing that it is
barred by the Federal Tort Claims Act's statute of limitations.
DISCUSSION
A motion to dismiss challenges the legal sufficiency of a complaint. Papasan v. Allain,
478 U.S. 265, 283 (1986). A Court should view the complaint in the light most favorable to the
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plaintiff, and accept all well-pleaded allegations as true. Mylan Labs., Inc. v. Matkari, 7 F.3d
1130, 1134 (4th Cir. 1993). The complaint must be facially plausible-conclusory statements
alone will not suffice. Aschroft v. Iqbal, 556, U.S. 662, 678 (2009).
The Federal Tort Claims Act ("FTCA") establishes a waiver of the general principle of
sovereign immunity. 28 U.S.C. §§ 2671-2680. It provides a cause of action for torts committed
by federal employees while acting within the scope of their official duties. Id. It also has strict
procedural rules, including a 2-year statute oflimitations. 28 U.S.C. § 2401(b); Muth v. United
States, 1F.3d246, 249 (4th Cir. 1993). A plaintiff who seeks relief under the FTCA must bring

her claim within two years of the accrual of her claim:
Prose plaintiffs are entitled to a certain amount ofleniency. Erickson v. Pardus, 551 U.S.

89, 94 (2007). But their lack of legal training does not excuse basic procedural or jurisdictional
failures. Here, plaintiff has alleged two factual claims, taken as true at this stage in the
proceedings. First, that the doctors at Carolina Imaging misread her first mammogram, in 2004.
Second, she was placed on two medications that should not be prescribed together, which she
was informed of in 2009. She filed her administrative claim in 2015. Both claims are
significantly outside the bounds of the FTCA's two-year limit. Therefore, plaintiffs claims
against the United States must be dismissed.

There are two other defendants in this case who are not affected by this dismissal: Dr.
Gordon, who has appeared, and Dr. Arle, who, as the South Carolina District Court noted, has
not been properly served. [DE 54 at 10]. Bearing plaintiff's prose status in mind, plaintiff is
GRANTED an additional thirty (30) days to properly serve defendant Arle. If she does not,
defendant Arle will be dismissed from the case as a result of plaintiff's failure to comply with
Rule 4 of the Federal Rules of Civil Procedure.
CONCLUSION
For the above reasons, defendant's motion to dismiss [DE 75] is GRANTED. Plaintiff's
claims against the United States of America are dismissed. Plaintiff has thirty (30) days from the
date of entry of this ord;r to effect proper service on defendant Arle, or her case against him will
be dismissed as well.

SO ORDERED, this Jl_ day of May, 2018.

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TERRENCE W. BOYLE
UNITED STATES DISTRICT JUDE