HOWELL v. VAMC SALISBURY et al

Filing 4

MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 11/21/2012; that Plaintiff's instant Application for Leave to Proceed In Forma Pauperis (Docket Entry 1 ) is DENIED WITHOUT PREJUDICE. FURTHER that, on or before March 15, 2013, Plaintiff shall file an amended complaint (bearing the case number for this case) that sets forth adequate factual allegations to permit the review required by Section 1915(e)(2) and that satisfies the substantiv e requirements of Section 1A-1, Rule 9(j), along with a properly-completed, amended pauper application (or the requisite filing fee). By permitting such action, the Court expresses no opinion on whether any such amended complaint would survive a cha llenge predicated on the timing requirements associated with Section 1A-1, Rule 9(j). Failure by Plaintiff to file an amended complaint, along with a properly-completed, amended pauper application (or the requisite filing fee) by March 15, 201 3, may result in dismissal of this action without further notice. FURTHER that, in lieu of or in addition to filing any amended complaint in this case, Plaintiff may commence a new action by filing a complaint (without the case number for this case) that sets forth adequate factual allegations to permit the review required by Section 1915(e) (2) and that satisfies the substantive requirements of Section 1A-1, Rule 9(j), along with a properly-completed pauper application (or the requisite filing fee). By permitting such action, the Court expresses no opinion on whether any such new action would fail on statute of limitations grounds. (Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

THOMAS RAY HOWELL,
Plaintiff,
v.
PHYSICIANS AND STAFF,
VAMC-SALISBURY AND
VAMC-ASHEVILLE-NORTH CAROLINA,
Defendants.

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1:12CV1233

MEMORANDUM OPINION AND ORDER
This case comes before the Court on Plaintiff’s Application
for Leave to Proceed In Forma Pauperis (Docket Entry 1), filed with
Plaintiff’s pro se form Complaint (Docket Entry 2). The Court will
deny without prejudice Plaintiff’s request to proceed as a pauper
with directions.
LEGAL BACKGROUND
“The federal in forma pauperis statute, first enacted in 1892
[and now codified at 28 U.S.C. § 1915], is intended to guarantee
that no citizen shall be denied access to the courts ‘solely
because his poverty makes it impossible for him to pay or secure
the costs.’”

Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 953

(4th Cir. 1995) (en banc) (quoting Adkins v. E.I. DuPont de Nemours
& Co., 335 U.S. 331, 342 (1948)).

“Dispensing with filing fees,

however, [is] not without its problems.
the statute

d[o]

not face

the

same

Parties proceeding under
financial

constraints

as

ordinary litigants.

In particular, litigants suing in forma

pauperis d[o] not need to balance the prospects of successfully
obtaining relief against the administrative costs of bringing
suit.”

Nagy v. Federal Med. Ctr. Butner, 376 F.3d 252, 255 (4th

Cir. 2004). To address this concern, the in forma pauperis statute
provides that “the court shall dismiss the case at any time if the
court determines that – . . . (B) the action or appeal – (i) is
frivolous or malicious; (ii) fails to state a claim on which relief
may be granted; or (iii) seeks monetary relief against a defendant
who is immune from such relief.”

28 U.S.C. § 1915(e)(2).

As to the first of these grounds for dismissal, the United
States Supreme Court has explained that “a complaint, containing as
it

does

both

factual

allegations

and

legal

conclusions,

is

frivolous where it lacks an arguable basis either in law or in
fact.”

Neitzke v. Williams, 490 U.S. 319, 325 (1989).

In

assessing such matters, this Court may “apply common sense.”
Nasim, 64 F.3d at 954; see also Nagy, 376 F.3d at 256-57 (“The word
‘frivolous’

is

inherently

categorical definition.

elastic

. . .

and

not

susceptible

to

The term’s capaciousness directs

lower courts to conduct a flexible analysis, in light of the
totality of the circumstances, of all factors bearing upon the
frivolity of a claim.” (some internal quotation marks omitted)).
Alternatively, a plaintiff “fails to state a claim upon which
relief may be granted,” 28 U.S.C. § 1915(e)(2)(b)(ii), when the

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complaint does not “contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis added)
(internal

citations

omitted)

(quoting

Twombly, 550 U.S. 544, 570 (2007)).

Bell

Atlantic

Corp.

v.

“Where a complaint pleads

facts that are ‘merely consistent with’ a defendant’s liability, it
‘stops short of the line between possibility and plausibility of
‘entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557).
This standard “demands more than an unadorned, the-defendantunlawfully-harmed-me accusation.”

Id.

In other words, “the tenet

that a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions.”

Id.1

The third ground for dismissal under 28 U.S.C. § 1915(e)(2)(B)
generally applies when doctrines established by the United States
Constitution

or

at

common

law

1

immunize

governments

and/or

Although the Supreme Court has reiterated that “[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,” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (internal citations and quotation
marks omitted), the United States Court of Appeals for the Fourth
Circuit has “not read Erickson to undermine Twombly’s requirement
that a pleading contain more than labels and conclusions,”
Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th Cir. 2008)
(internal quotation marks omitted) (dismissing pro se complaint);
accord Atherton v. District of Columbia Off. of Mayor, 567 F.3d
672, 681-82 (D.C. Cir. 2009) (“A pro se complaint . . . ‘must be
held to less stringent standards than formal pleadings drafted by
lawyers.’
But even a pro se complainant must plead ‘factual
matter’ that permits the court to infer ‘more than the mere
possibility of misconduct.’” (quoting Erickson, 551 U.S. at 94, and
Iqbal, 556 U.S. at 679, respectively)).
3

government personnel from damages. See, e.g., Pennhurst State Sch.
& Hosp. v. Halderman, 465 U.S. 89 (1984) (discussing sovereign
immunity of states and state officials under Eleventh Amendment);
Pierson v. Ray, 386 U.S. 547 (1967) (describing interrelationship
between 42 U.S.C. § 1983 and common-law immunity doctrines, such as
judicial, legislative, and prosecutorial immunity).
DISCUSSION
As an initial matter, Plaintiff has not answered “Yes” or “No”
to all of the subparts of Question 3 in his instant Application.
(See Docket Entry 1 at 2.)

Nor has he included any monthly bills

for food (or other necessities of life except rent and utilities)
in response to Question 5 in said Application.

(See id. at 3.)

The Court cannot adjudicate Plaintiff’s request for pauper status
without the foregoing information.
Further,

Plaintiff’s

Complaint

does not

contain

adequate

content to permit the review required by Section 1915(e)(2).

The

Complaint appears to assert a claim for “personal injury/ medical
malpractice” against “physicians and staff [of the] VAMC Salisbury
and Asheville, N.C.”

(Docket Entry 2 at 1.)

Under the heading

“STATEMENT OF CLAIM,” the type-written instructions on the form
Complaint direct as follows:
the FACTS of your case.

“State here as briefly as possible

Do this by identifying the alleged legal

wrong and by describing how each defendant . . . is personally
responsible for depriving you of your rights.

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Include relevant

times, dates, and places.”

(Id. at 2.)

In the space beneath that

admonition, the Complaint states only:
I am requesting a [sic] extension of time to complete
this action. I am waiting [sic] medical opinions from
doctors who are reviewing my claim. I pray and hope for
the courts [sic] understanding of my issues, as I was
unable to obtain legal assistance for my claim.
(Id.)

Finally, under the heading “RELIEF” and the instruction to

“[s]tate briefly and exactly what relief you want from this court,”
the Complaint identifies the following:

“Compassion for my injury

which resulted in permenate [sic] disability including additional
medical care as needed pain & suffering with consederation [sic]
that my life as I knew it no longer exsist [sic].”

(Id. at 4.)

The Complaint does not suffice for several reasons.

First,

consistent with the instructions on the complaint form Plaintiff
utilized, a complaint must set forth factual allegations showing
how each named defendant harmed the plaintiff.
8(a)(2); see also Iqbal, 556 U.S. at 678.

See Fed. R. Civ. P.

Moreover, in doing so,

a complaint must identify the time and place of the events alleged.
See Fed. R. Civ. P. 9(f); see also Eriline Co. S.A. v. Johnson, 440
F.3d 648, 656 (4th Cir. 2006) (“[I]n evaluating a complaint filed
in forma pauperis pursuant to § 1915, a district court may consider
a statute of limitations defense sua sponte when the face of the
complaint plainly reveals the existence of such defense.”).

The

dates of relevant events have particular significance in this case
because it appears any medical malpractice claim against employees

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of a Veterans Administration Medical Center would lie, if at all,
only under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§
1346(b) and 2671-2680, see, e.g., Smith v. United States, No.
1:10CV112,

2010

WL

780102,

at

*2-3

(M.D.N.C.

Feb.

25,

2010)

(unpublished),2 and statutes of limitations applicable to the FTCA
carry jurisdictional significance, see, e.g., Grumette v. United
States, No. 1:11CV37, 2012 WL 3113143, at *2 (M.D.N.C. July 31,
2012) (unpublished); Smith v. United States, No. 1:10CV112, 2011 WL
4899933, at *15 (M.D.N.C. Oct. 14, 2011) (unpublished).
In

addition,

Plaintiff

may

not

proceed

with

a

medical

malpractice claim under the FTCA for conduct occurring in North
Carolina without an expert certification required by N.C. Gen.
Stat.

§

1A-1,

Rule

9(j)

or

factual

allegations

negligence under the doctrine of res ipsa loquitur.

2

establishing
See, e.g.,

“The Court further recognizes that actions under the [FTCA]
lie against the United States, not its constituent agencies or
individuals; however, because formal substitution of the United
States for [an] individual defendant cannot occur prior to
certification by the Attorney General that [the individual
defendant] acted within the scope of [his or] her employment as to
the matters at issue, 28 U.S.C. § 2679(d)(1), the Court will defer
any action regarding the captioning of the case.” Smith, 2010 WL
780102, at *3 n.3.
Given this circumstance, Plaintiff should
identify the individuals whom he contends engaged in medical
malpractice (and should not just refer generically to “physicians
and staff”). In addition, “[t]he only relief provided for in the
[FTCA] is ‘money damages.’
To the extent that [Plaintiff] is
seeking other relief, [this Court] lack[s] jurisdiction under the
FTCA to accord it.” Talbert v. United States, 932 F.2d 1064, 106566 (4th Cir. 1991) (internal citations omitted). Plaintiff thus
must clarify what relief he seeks. If Plaintiff wants to proceed
other than under the FTCA, he should make that clear as well.
6

Smith, 2011 WL 4899933, at *16-17.

Given the statement in the

Complaint that Plaintiff is “waiting [for] medical opinions from
doctors who are reviewing [his] claim” (Docket Entry 2 at 2) and
the request therein for an “extension of time to complete this
action” (id.), it appears Plaintiff may have some awareness of the
requirements of Section 1A-1, Rule 9(j).

Plaintiff, however, may

not appreciate all of the possible complications that arise as a
result of the intersection of Section 1A-1, Rule 9(j) and the FTCA.
In this regard, the Court observes that, under Section 1A-1,
Rule 9(j), if a prospective plaintiff so moves “prior to the
expiration of the applicable statute of limitations,” a North
Carolina superior court judge “may allow a motion to extend the
statute of limitations for a period not to exceed 120 days to file
a complaint in a medical malpractice action in order to comply with
this Rule, upon a determination that good cause exists for the
granting of the motion and that the ends of justice would be served
by an extension.”

N.C. Gen. Stat. § 1A-1, Rule 9(j).

This Court,

however, has not located any authority that would permit a federal
court to extend a statute of limitations applicable to the FTCA.
Further, given the above-noted fact that statutes of limitations
under the FTCA carry jurisdictional significance, the Court has
serious reservations about whether any such extension could occur.
Additionally, Plaintiff did not file a motion for extension of the
statute of limitations before he filed a complaint (as Section 1A-

7

1, Rule 9(j) apparently contemplates); instead, Plaintiff filed his
instant Complaint and requested therein an “extension of time to
complete this action” (Docket Entry 2 at 2), presumably for the
purpose of securing a certification (required by Section 1A-1, Rule
9(j)) from the “doctors who are reviewing [his] claim” (id.).3
Another federal court in North Carolina recently confronted a
situation

in

which

a

plaintiff

filed

a

complaint

and

then

“request[ed] an extension of time to comply [with Section 1A-1,
Rule 9(j)], arguing that he need[ed] additional time to acquire a
certified medical expert . . . .”

Savage v. United States, No.

5:10CT3169FL, 2011 WL 3664798, at *2 (E.D.N.C. Aug. 18, 2011)
(unpublished) (Flanagan, C.J.).

Said court observed that “the

North Carolina Supreme Court has held that a plaintiff may not be
granted an extension of time to amend his initial complaint to
include the necessary Rule 9(j) certification. Rather, ‘failure to
include the certification necessarily leads to dismissal.’”

Id.

(citing and quoting Thigpen v. Ngo, 355 N.C. 198, 204, 558 S.E.2d
162, 166 (2002)) (internal brackets and citation omitted).

The

Savage

and

Court

therefore

denied

the

requested

extension

“dismiss[ed] [the plaintiff’s] medical malpractice claim without
prejudice so that he may re-file the complaint with the requisite
9(j) certification.”

Id. at *3.

3

Nor does the Complaint supply sufficient information for the
Court to conclude that Plaintiff lodged that request within the
applicable limitations period, as Section 1A-1, Rule 9(j) requires.
8

By

contrast,

in

another

case

in

that

same

district,

a

plaintiff filed a pro se complaint that the court concluded set
forth a “federal civil rights claim” and a “general negligence
claim” and then, after securing counsel, the plaintiff filed an
amended

complaint

“set[ting]

forth

a

claim

for

medical

malpractice,” along with an affidavit that satisfied Section 1A-1,
Rule 9(j).

Williams v.

Haigwood,

No. 5:08CT3138BO,

2012

WL

4483883, at *7 (E.D.N.C. Sept. 27, 2012) (unpublished) (Boyle, J.).
In Williams:
[The] plaintiff’s medical malpractice claim set forth in
his [a]mended [c]omplaint ar[ose] out of the conduct,
transactions, and occurrences described in his original
[c]omplaint. Both complaints state[d] [that a particular
defendant] failed to properly treat [the] plaintiff’s
mental illness during his time at Bertie Correctional
Institution.
Both
state
that
the
emotional,
psychological, and physical harm that resulted from this
failure . . . were caused by [that defendant’s] failure
or negligence to provide proper medical care.
The
factual nexus between the two complaints is the same.
Id. at *6.
The Williams Court therefore denied a motion to dismiss the
medical malpractice claim based on a statute of limitations defense
on the ground that the medical malpractice claim in the amended
complaint related back to the date of filing of the original
complaint (which apparently fell within the limitations period).
See id.

Further, the Williams Court acknowledged that in Thigpen

“the North Carolina Supreme Court held one cannot cure a Rule 9(j)
deficiency in a medical malpractice complaint by filing an amended

9

complaint with expert certification that fails to allege that the
review took place before the original complaint was filed,” but
deemed Thigpen “inapplicable,” because, in the case before the
Williams Court, the plaintiff’s original complaint did not (in that
court’s view) assert a medical malpractice claim.

Id. at *8.

The relevant circumstances of this case do not mirror exactly
the procedural facts of either Savage or Williams and arguably may
fall somewhere between the two.

In any event, no controlling

authority appears to have addressed the precise situation at hand.
As a result, Plaintiff faces significant risks to the viability of
his claim no matter how he proceeds.

For example, if Plaintiff

files an amended complaint in this case along with an affidavit
that satisfies Section 1A-1, Rule 9(j), that filing may run afoul
of Thigpen. Conversely, if the statutory limitations period passes
between the time Plaintiff filed the instant Complaint and the time
he files any new action that complies with Section 1A-1, Rule 9(j),
his new filing may fail on limitations grounds (which limitations
period the Court may lack the authority to alter).
Given the uncertainty of the pertinent legal terrain and the
lack of information in Plaintiff’s filings about the dates of
underlying events, the Court cannot forecast a safe (or even best)
course for Plaintiff.

The Court thus will permit Plaintiff to

amend his Complaint in this case and/or to file a new action
(although he ultimately could not pursue both to fruition).

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The

Court will set an outer deadline for any such amendment (for casemanagement purposes), but will not set any deadline for Plaintiff
to institute a new case.

The Court’s action (or inaction) in this

regard, however, does not immunize Plaintiff from the consequences
of delay.

Whether he chooses to file an amended complaint in this

case or to commence a new action (or both), Plaintiff should
understand that any delay may doom his claim (assuming that a
potentially viable claim exists at this moment).
CONCLUSION
Neither the instant Application nor the related Complaint
provide sufficient information to permit the required review.
Moreover, Plaintiff’s filing of the instant Complaint in a manner
that fails to satisfy Section 1A-1, Rule 9(j) creates serious
procedural issues that the Court cannot resolve at this point.
IT IS THEREFORE ORDERED that Plaintiff’s instant Application
for Leave to Proceed In Forma Pauperis (Docket Entry 1) is DENIED
WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that, on or before March 15, 2013,
Plaintiff shall file an amended complaint (bearing the case number
for this case) that sets forth adequate factual allegations to
permit the review required by Section 1915(e)(2) and that satisfies
the substantive requirements of Section 1A-1, Rule 9(j), along with
a properly-completed, amended pauper application (or the requisite
filing fee).

By permitting such action, the Court expresses no
11

opinion on whether any such amended complaint would survive a
challenge predicated on the timing requirements associated with
Section 1A-1, Rule 9(j).

Failure by Plaintiff to file an amended

complaint,

a

along

with

properly-completed,

amended

pauper

application (or the requisite filing fee) by March 15, 2013, may
result in dismissal of this action without further notice.
IT IS FURTHER ORDERED that, in lieu of or in addition to
filing any amended complaint in this case, Plaintiff may commence
a new action by filing a complaint (without the case number for
this case) that sets forth adequate factual allegations to permit
the review required by Section 1915(e)(2) and that satisfies the
substantive requirements of Section 1A-1, Rule 9(j), along with a
properly-completed pauper application (or the requisite filing
fee). By permitting such action, the Court expresses no opinion on
whether any such new action would fail on statute of limitations
grounds.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
November 21, 2012

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