Baxter, II v. Boente et al
Filing
47
MEMORANDUM OPINION. Signed by District Judge James C. Cacheris on 9/20/2016. (dvanm, )
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
JAMES O. BAXTER, II,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
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M E M O R A N D U M
1:15cv633 (JCC/IDD)
O P I N I O N
This matter is before the Court on the Motion to
Dismiss [Dkt. 38] filed by Defendant United States of America.
For the reasons that follow, the Court will deny the Motion in
its entirety.
I. Background
The following allegations of fact set forth in
Plaintiff’s Complaint are taken as true for purposes of the
present Motion.
See Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009).
Plaintiff James O. Baxter, II, is a former inmate of
Federal Correctional Complex Petersburg (“FCC Petersburg”).
Am. Comp. [Dkt. 37] ¶ 1.
His claims arise out of allegedly
inadequate medical care that he received during the period of
his incarceration.
See
In December of 2009, Plaintiff complained to FCC
Petersburg’s medical staff that he was experiencing discomfort
in his genitals.
See id. ¶ 11.
He believed his symptoms to be
consistent with Peyronie’s Disease — a disorder characterized by
an abnormal and painful curvature of the penis.
See id.; Pl.’s
Exh. B [Dkt. 1-2] at 28.
Plaintiff repeatedly requested to see an urologist
over the following months.
Am. Comp. [Dkt. 37] ¶ 12.
On March
15, 2010, a physician’s assistant determined without examining
Plaintiff that Plaintiff need not see a specialist.
Id. ¶ 13.
Plaintiff continued to complain of discomfort, and was finally
permitted to see an urologist on September 11, 2011.
Id. ¶ 14.
The urologist confirmed that Plaintiff was, in fact, suffering
from Peyronie’s Disease. Id.
The urologist recommended that Plaintiff begin taking
vitamin E and return the following month.
See id.
Plaintiff,
however, was not permitted to schedule a follow-up examination
with the urologist.
Plaintiff learned eight months after his
initial appointment that the urologist’s contract with FCC
Petersburg had been terminated.
Id. ¶ 15.
The prison medical
staff refused to permit Plaintiff to see an outside specialist,
requiring that he wait for FCC Petersburg to contract a new
urologist.
Id. ¶ 16.
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Eventually FCC Petersburg retained a new urologist and
Plaintiff was permitted to see him.
The urologist found that
Plaintiff continued to suffer from Peyronie’s Disease and
suggested that Plaintiff contact him if Plaintiff’s symptoms
worsened.
Am. Comp. Exh. A [Dkt. 37-1] at 3.
Plaintiff continued to request treatment, and was
permitted to see an urologist again on June of 2012.
Am. Comp.
[Dkt. 37] ¶¶ 17-19; Am. Comp. Exh. B [Dkt. 37-2] at 2.
During
this visit, the urologist requested radiological imaging of
Plaintiff’s genitals.
Am. Comp. [Dkt. 37] ¶ 20.
Due to
administrative delays and an error on the part of the testing
facility, the imaging was not completed until April of 2013.
See id. ¶¶ 20-26.
Around that same time, Plaintiff was informed that a
new treatment for Peyronie’s Disease would become available in
November of 2013.
Id. ¶ 26.
Plaintiff submitted a request to
undergo the new treatment to Dr. K. Laybourne, a member of FCC
Petersburg’s medical staff.
See id. ¶ 27.
Dr. Laybourne,
however, did not submit Plaintiff’s request to FCC Petersburg’s
administration until several months after the date by which
Plaintiff had hoped to begin treatment.
See id. ¶¶ 28-33.
When
Dr. Laybourne finally did submit the request, Plaintiff alleges
that she mischaracterized the urologist’s findings and as a
result the request for treatment was denied.
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See id. ¶¶ 34-35.
After August of 2013, Plaintiff was not permitted any
further appointments with an urologist during the period of his
incarceration.
Id. ¶ 48.
Plaintiff was, however, permitted
examinations with non-specialist members of FCC Petersburg’s
medical staff.
See id. ¶ 49.
During one of these visits,
Plaintiff learned that medication prescribed to him three years
earlier for an unrelated condition had potentially contributed
to his Peyronie’s Disease.
Id.
Six months after his release from custody, Plaintiff
filed suit.
Plaintiff alleged medical malpractice and
constitutional torts based on FCC Petersburg’s failure to
adequately treat his Peyronie’s Disease.
He named Dana J.
Boente, United States Attorney for the Eastern District of
Virginia, and United States Attorney General Loretta E. Lynch as
Defendants.
On July 6, 2016, on Defendant’s motion, the Court
issued a Memorandum Opinion [Dkt. 33] and Order [Dkt. 34]
substituting the United States for the named defendants and
dismissing Plaintiff’s claims alleging constitutional torts.
As
to Plaintiff’s medical malpractice claim, the Court found that
Plaintiff had not complied with the Virginia Medical Malpractice
Act, Va. Code § 8.01-20.1 (“VMMA”).
medical malpractice plaintiffs
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The VMMA requires that
obtain[ ] from an expert witness whom the plaintiff
reasonably believes would qualify as an expert witness
pursuant to subsection A of § 8.01-581.20 a written
opinion signed by the expert witness that, based upon
a reasonable understanding of the facts, the defendant
for whom service of process has been requested
deviated from the applicable standard of care and the
deviation was a proximate cause of the injuries
claimed.
Id.
Plaintiff conceded that he had not obtained an expert
opinion before filing suit.
Accordingly, the Court dismissed
Plaintiff’s medical malpractice claim while permitting Plaintiff
to comply with the VMMA’s expert certification requirement and
file an amended complaint.
See Mem. Op. [Dkt. 33] at 13.
Plaintiff filed his Amended Complaint [Dkt. 37] on July 25,
2016, re-alleging his claim for medical malpractice and adding a
claim for intentional infliction of emotional distress.
Defendant now moves to dismiss Plaintiff’s Amended
Complaint for failure to attach the expert report that he
obtained between the dismissal of his previous Complaint and the
filing of his Amended Complaint.
II. Legal Standard
“The purpose of a Rule 12(b)(6) motion is to test the
sufficiency of a complaint; importantly, [a Rule 12(b)(6)
motion] does not resolve contests surrounding the facts, the
merits of a claim, or the applicability of defenses.” Edwards v.
City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). In
reviewing a motion to dismiss for failure to state a claim
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brought under Rule 12(b)(6), the Court “must accept as true all
of the factual allegations contained in the complaint,” drawing
“all reasonable inferences” in the plaintiff’s favor.
E.I. du
Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440
(4th Cir. 2011) (citations omitted).
Generally, the Court may
not look beyond the four corners of the complaint in evaluating
a motion brought under Rule 12(b)(6).
See Goldfarb v. Mayor &
City Council of Baltimore, 791 F.3d 500, 508 (4th Cir. 2015).
In evaluating Defendant’s Motion, the Court is mindful
that Plaintiff is proceeding in this matter pro se.
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) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)).
III. Analysis
Defendant argues that the Court should dismiss
Plaintiff’s medical malpractice claim because his Amended
Complaint does not attach the expert opinion required by the
VMMA.
See Mem. in Supp. of Mot. to Dismiss [Dkt. 39] at 5-8.
The Court has little difficulty rejecting this argument.
The VMMA does not require that a medical malpractice
plaintiff submit an expert opinion with his or her complaint.
The statute provides that the filing of a medical malpractice
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claim “shall be deemed a certification that the plaintiff” has
met the expert certification requirement.
Va. Code § 8.01-20.1.
Accordingly, “[b]y [the VMMA’s] plain terms . . . the complaint
itself functions as a certification that a plaintiff has
obtained the requisite expert opinion.”
Sowers v. United
States, 141 F. Supp. 3d 471, 477 (E.D. Va. 2015).
Indeed, rather than compelling disclosure, the VMMA
states that no “defendant [shall] be entitled to” the expert
opinion unless and until “the certifying expert [is] identified
as an expert expected to testify at trial.”
20.1.
Va. Code § 8.01-
If a defendant demands proof that a plaintiff has in fact
obtained an expert opinion, the plaintiff need provide only
“assurance that he has obtained the expert opinion,” not the
opinion itself.
Sowers, 141 F. Supp. 3d at 478.
Defendant is
therefore plainly not within its rights to demand that Plaintiff
produce an expert opinion at this stage in the proceedings.
Defendant concedes in a footnote that “an expert
certification is not ordinarily required to be provided with a
complaint.”
n.2.
Mem. in Supp. of Mot. to Dismiss [Dkt. 39] at 7
Defendant contends, however, that the Court’s Order [Dkt.
34] on the prior Motion to Dismiss in this case “alter[ed] the
timing of the statutory certification requirement” and modified
“how such certification needed to be provided.”
of Mot. to Dismiss [Dkt. 39] at 7 n.2.
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Mem. in Supp.
Defendant reads too much into the Court’s Order.
The
Court granted Plaintiff leave to “file an amended complaint
including the expert certification required by Virginia Code
§ 8.01-20.1.”
See Order [Dkt. 34].
While perhaps ambiguously
worded, that Order did not purport to modify the timing or form
of the expert certification required by the VMMA.
Rather, it
simply permitted Plaintiff to file an amended complaint in
compliance with the statute.
The Court certainly did not
require Plaintiff to disclose his expert opinion before such
time as “the certifying expert [is] identified as an expert
expected to testify at trial.”
Va. Code § 8.01-20.1.
Plaintiff
therefore fully complied with both the VMMA and this Court’s
Order by obtaining an expert opinion and filing an amended
complaint without appending it.
Regardless, the issue appears to be moot.
Plaintiff
has submitted an expert opinion with his Opposition to the
instant Motion.
See Opp. Exh. A [Dkt. 42-1].
exceeded what the VMMA required of him.
He has therefore
In light of the above,
the Court will deny Defendant’s Motion to dismiss Plaintiff’s
medical malpractice claim.
Defendant also “politely suggests” in its Reply that
the Court erred in permitting Plaintiff to file an amended
complaint at all.
See Rep. [Dkt. 45] at 3.
Because the VMMA
requires that a plaintiff obtain an expert opinion before
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“service of process,” and “services of process” is “a term of
art that references the commencement of a civil action,”
Defendant argues the Court was required to dismiss Plaintiff’s
claims without leave to amend.
Id.
The Court declines to reconsider its earlier ruling.
The VMMA gives courts discretion when addressing a plaintiff’s
failure to obtain the required expert certification. It provides
that “[i]f the plaintiff did not obtain a necessary certifying
expert opinion at the time the plaintiff requested service of
process on a defendant as required under this section, the court
shall impose sanctions according to the provisions of § 8.01271.1 and may dismiss the case with prejudice.”
Va. Code §
8.01-20.1 (emphasis added).
Virginia Code section 8.01-271.1 requires only that
the Court impose “an appropriate sanction.”
Here, the Court
found it appropriate, in light of Plaintiff’s pro se status and
the interest of judicial economy, to dismiss Plaintiff’s medical
malpractice claim without prejudice pending his substantial
compliance with the VMMA.
Defendant provides no compelling
reason to revisit that decision.
Turning to Defendant’s arguments regarding Plaintiff’s
claim for intentional infliction of emotional distress (“IIED”),
the Court notes that these arguments also take as their premise
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that Plaintiff has failed to comply with the VMMA.
They
therefore fail for the same reasons discussed above.
Defendant first contends that Plaintiff’s IIED claim
is barred by the VMMA because it is based upon allegations of
medical malpractice.
See Mem. in Supp. of Mot. to Dismiss [Dkt.
39] at 8-9; see also Va. Code § 8.01-581.
But as Plaintiff has
now complied with the requirements of the VMMA, that provides no
reason to dismiss his claim.
Defendant argues further that because the VMMA bars
Plaintiff’s allegations of medical malpractice, the Court may
only consider portions of Plaintiff’s Amended Complaint that are
“independent” of those allegations in evaluating Plaintiff’s
IIED claim.
at 9.
See Mem. in Supp. of Mot. to Dismiss [Dkt. 39]
The only allegation Defendant deems sufficiently
“independent” pertains to demeaning comments made by Dr.
Laybourne.
See id.
Defendant therefore proceeds to argue at
length that Dr. Laybourne’s comments would not, standing alone,
support a claim for intentional infliction of emotional
distress.
See id. at 9-12.
But again, the Court is fully able to consider
Plaintiff’s allegations of medical malpractice.
Defendant’s argument is a straw man.
Moreover,
As Defendant concedes,
Plaintiff “pled his intentional infliction of emotional distress
claim . . . to encompass exclusively his allegations of medical
10
malpractice.”
Mem. in Supp. of Mot. to Dismiss [Dkt. 39] at 9.
Plaintiff plainly did not base his IIED claim on Dr. Laybourne’s
comments.
It is therefore irrelevant whether those comments
would support Plaintiff’s claim.
Accordingly, the Court finds
that Defendant provides no reason to dismiss Plaintiff’s IIED
claim.1
Finally, in its Reply [Dkt. 45], Defendant raises
several additional arguments regarding Plaintiff’s intentional
infliction of emotional distress claim.
“‘Typically, courts
will not consider an argument raised for the first time in a
reply brief.’”
Zinner v. Olenych, 108 F. Supp. 3d 369, 398
(E.D. Va. 2015) (quoting Touchcom, Inc. v. Bereskin & Parr, 790
F.Supp.2d 435, 446 (E.D.Va.2011)).
That general rule applies with particular force in
this instance.
“[T]he primary reason” that courts decline to
consider new arguments raised in a reply brief is to avoid
“prejudice[ing] [the opposing party] in its ability to respond
to the [new] argument.”
Id.
Plaintiff is proceeding pro se,
and the Court permitted Defendant to file its Reply late.
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Defendant also suggests — but only suggests — that
Plaintiff did not exhaust his administrative remedies with
respect to his claim for intentional infliction of emotional
distress. See Mem. in Supp. of Mot. to Dismiss [Dkt. 39] at 8.
Defendant, however, fails to elaborate on that suggestion.
Moreover, it appears that Plaintiff did in fact present his
claim of intentional infliction of emotional distress at the
administrative stage, and so exhausted his administrative
remedies. See Opp. [Dkt. 42] at 5-8.
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Plaintiff was therefore less able to respond to Defendant’s new
arguments, and had less time to do so, than is typical.
prejudice to Plaintiff is self-evident.
The
Accordingly, the Court
declines to dismiss Plaintiff’s IIED claim based on arguments
raised in Defendant’s Reply.
The Court notes, however, that intentional infliction
of emotional distress is a highly disfavored tort under Virginia
law.
See, e.g., Zaklit v. Glob. Linguist Sols., LLC, 53 F.
Supp. 3d 835, 847 (E.D. Va. 2014).
Success on such a claim is
“rare[ ],” id., and Plaintiff will face an uphill battle as the
case proceeds.
IV. Conclusion
For the foregoing reasons, the Court will deny
Defendant’s Motion in its entirety.
An appropriate order shall issue.
September 20, 2016
Alexandria, Virginia
/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
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