Barnes v. United States of America

Filing 34

ORDER AND OPINION RULING ON REPORT AND RECOMMENDATION adopting 31 Report and Recommendation, granting 20 Motion to Dismiss, or, in the alternative, Motion for Summary Judgment filed by United States of America. Signed by Honorable Margaret B Seymour on 11/13/2017. (mdea )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Nathaniel Earl Barnes, Sr.,

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Plaintiff,
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vs.
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United States of America,
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Defendant.
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____________________________________)

C/A No. 3:17-823-MBS

ORDER AND OPINION

Plaintiff Nathaniel Earl Barnes, Sr., proceeding pro se, filed a complaint against Defendant
United States of America on March 29, 2017, asserting that he received personal injuries as the result
of negligent medical care provided in 2003 and 2005 while he was a patient at Dorn VA Medical
Center in Columbia, South Carolina. Plaintiff brings this action pursuant to the Federal Tort Claims
Act, 28 U.S.C. §§ 2671-2680 (FTCA). In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02,
D.S.C., this matter was referred to United States Magistrate Judge Paige J. Gossett for pretrial
handling.
On July 10, 2017, Defendant filed a motion to dismiss or, in the alternative, motion for
summary judgment. Defendant asserts that Plaintiff’s claims are barred by the two-year statute of
limitations applicable to claims brought under the FTCA. See 28 U.S.C. § 2401(b). Defendant also
contends that Plaintiff failed to provide an expert affidavit in support of his complaint as required
by S.C. Code Ann. § 15-36-100(B).
By order filed July 11, 2017, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),
Plaintiff was advised of the applicable procedures and the possible consequences if he failed to

respond adequately. Plaintiff filed a response in opposition on August 11, 2017. Plaintiff asserts
that his claims were timely brought upon discovery of his injuries. Plaintiff also contends that he
is in the process of consulting experts.
On September 22, 2017, the Magistrate Judge filed a Report and Recommendation in which
she determined that Plaintiff knew, or by the exercise of reasonable diligence should have known,
of his injuries more than two years prior to commencement of the within action. The Magistrate
Judge also observed that Plaintiff did not dispute he had not supplied an expert affidavit.
Accordingly, the Magistrate Judge recommended Defendant’s motion be granted. No party filed
objections to the Report and Recommendation.
The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight, and the responsibility for making a final determination remains with this
court. Matthews v. Weber, 423 U.S. 261, 270 (1976). This court is charged with making a de novo
determination of any portions of the Report to which a specific objection is made. The court may
accept, reject, or modify, in whole or in part, the recommendation made by the Magistrate Judge or
may recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). In the
absence of a timely filed objection, a district court need not conduct a de novo review, but instead
must “only satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation.” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
The court has thoroughly reviewed the record. The court concurs in the Report and
Recommendation and incorporates it herein by reference. Defendant’s motion to dismiss or, in the

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alternative, for summary judgment, is granted, with prejudice.
IT IS SO ORDERED.

/s/ Margaret B. Seymour
Senior United States District Judge
Columbia, South Carolina
November 13, 2017

NOTICE OF RIGHT TO APPEAL
Plaintiff is hereby notified of the right to appeal this order
pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.

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