Sumpter v. United States
Filing
35
MEMORANDUM OPINION AND ORDER overruling in part and sustaining in part Plaintiff's 32 , 33 and 34 Objections; granting the United States' 10 MOTION to dismiss as to the negligence claim for failure to fill a 2015 prescription and a s to any claim for punitive damages; denying the 10 Motion as to the negligence and medical malpractice claims included within Mr. Sumpter's administrative tort claim; staying this matter for a period of sixty (60) days to permit the Plaintiff to (a) determine whether to continue pro se or to have counsel make an appearance on his behalf and (b) comply with the MPLA and amend his complaint accordingly. Signed by Judge Irene C. Berger on 05/10/2018. (cc: USMJ Aboulhosn; attys; any unrepresented party) (msa)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION
JOSHUA RONALD SUMPTER,
Plaintiff,
v.
CIVIL ACTION NO. 5:16-cv-08951
UNITED STATES,
Defendant.
MEMORANDUM OPINION AND ORDER
The Plaintiff, Joshua Ronald Sumpter, filed a pro-se Complaint (Document 2), pursuant to
the Federal Tort Claims Act (FTCA), asserting medical negligence claims against the Department
of Veterans Affairs. By Standing Order (Document 3) entered on September 16, 2016, this matter
was referred to the Honorable Omar J. Aboulhosn, United States Magistrate Judge, for findings of
fact and recommendation for disposition. The United States moved to dismiss on February 28,
2017. In a Proposed Findings and Recommendation (PF&R) (Document 22) entered on July 31,
2017, Judge Aboulhosn recommend that the United States’ motion to dismiss be granted and this
matter be dismissed. The Court granted the Plaintiff an extension of time to file objections, and
his objections to the PF&R (Document 32) were filed on November 13, 2017. The Plaintiff filed
additional submissions supplementing his objections on November 30, 2017 and December 11,
2017 (Documents 33 & 34.)
The Court has reviewed the PF&R, the objections, and the
underlying briefing. For the reasons stated herein, the Court finds that the objections should be
sustained in part, and the United States’ motion to dismiss should be granted in part and denied in
part.
FACTS1
Mr. Sumpter was medically retired from the military in July 2006, with service related
multiple sclerosis (MS). He received a diagnosis before leaving the military, but asserts that the
VA failed to provide treatment in accordance with the diagnosis. He established a medical
relationship with the Beckley Veterans’ Affairs Medical Center (VA) in October 2006. His
treatment providers insisted on redundant examinations, failed to provide treatment within the
standard of care, treated his MS as non-service connected, and refused to refer him to an external
neurologist for treatment. He alleges that Dr. George Murphy, who reviewed his MRI in 2006,
was negligent in failing to identify the brain lesions and white matter indicative of MS.
On several occasions, VA providers failed to connect Mr. Sumpter’s symptoms, including
cognitive decline, vision problems, and neuropathy, with his MS diagnosis. His primary care
provider failed to adjust his treatment based on notes and records from emergency and specialist
visits. Mr. Sumpter asserts that he did not begin receiving disease-modifying treatment, which
can slow or alter the progression of MS, until August 2011. Because of the delay in appropriate
treatment, he progressed to clinically definitive MS and was unable to return to active military
service. He now receives care at outside facilities, some at his own expense, and reports some
improvement. He also reports difficulty obtaining his prescriptions and occasional confusion
regarding the appropriate prescriptions. In particular, he cites an instance on or about March 6,
1 The Court has accepted the Plaintiff’s factual allegations as true, except as to facts relevant to the Court’s jurisdiction
for which the parties submitted evidence.
2
2015, when the VA failed to fill a prescription despite three attempts. Mr. Sumpter’s complaint
alleges negligence, malpractice, delayed medical care, and delay of benefits.
Mr. Sumpter filed an administrative claim with then Congressman Nick Rahall’s office on
August 8, 2014. The claim was finally denied on March 16, 2016, based on asserted untimeliness,
Dr. Murphy’s asserted status as an independent contractor and review by a neurologist finding that
his condition was not worsened as a result of his VA care. Mr. Sumpter’s complaint includes an
attached letter from Dr. Enrico Cappiello, director of radiology at Beckley VAMC, concluding
that Mr. Sumpter “had undiagnosed (MS) white matter disease from 2006 until 9/19/2012,”
evidenced by MRIs taken in 2006, 2007, and 2012. (Document 2 at 16.) Another attached letter
from Dr. John Berryman, chief of staff at Beckley VAMC, recommended that Mr. Sumpter be
provided disability benefits and noted that his MS symptoms were “expressed but not treated until
2012.” (Document 2 at 17.)2 Dr. Berryman further opines that “if treatment with appropriate
medications had been instituted in a timely fashion, Mr. Sumpter would not have the more
advanced form of MS he is experiencing at present.” (Id.)
STANDARD OF REVIEW
A. Objections to PF&R
This Court “shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C).
However, the Court is not required to review, under a de novo or any other standard, the factual or
legal conclusions of the magistrate judge as to those portions of the findings or recommendation
2 These letters were prepared in support of a separate claim for disability benefits filed with the VA.
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to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). In addition,
this Court need not conduct a de novo review when a party “makes general and conclusory
objections that do not direct the Court to a specific error in the magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). When reviewing
portions of the PF&R de novo, the Court will consider the fact that Petitioner is acting pro se, and
his pleadings will be accorded liberal construction. Estelle v. Gamble, 429 U.S. 97, 106 (1976);
Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978).
B. Motion to Dismiss – 12(b)(6)
A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure
to state a claim upon which relief can be granted tests the legal sufficiency of a complaint or
pleading. Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009); Giarratano v. Johnson, 521
F.3d 298, 302 (4th Cir. 2008). Federal Rule of Civil Procedure 8(a)(2) requires that a pleading
contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P. 8(a)(2). Additionally, allegations “must be simple, concise, and direct.” Fed. R. Civ.
P. 8(d)(1).
“[T]he pleading standard Rule 8 announces does not require ‘detailed factual
allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp v. Twombly,
550 U.S. 544, 555 (2007)). In other words, “a complaint must contain “more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly,
550 U.S. at 555. Moreover, “a complaint [will not] suffice if it tenders naked assertions devoid
of further factual enhancements.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557)
(internal quotation marks omitted).
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The Court must “accept as true all of the factual allegations contained in the complaint.”
Erickson v. Pardus, 551 U.S. 89, 93 (2007). The Court must also “draw[ ] all reasonable factual
inferences from those facts in the plaintiff’s favor.” Edwards v. City of Goldsboro, 178 F.3d 231,
244 (4th Cir. 1999). However, statements of bare legal conclusions “are not entitled to the
assumption of truth” and are insufficient to state a claim. Iqbal, 556 U.S. at 679. Furthermore,
the court need not “accept as true unwarranted inferences, unreasonable conclusions, or
arguments.” E. Shore Mkts., v. J.D. Assocs. Ltd. P’ship, 213 F.3d 175, 180 (4th Cir. 2000).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice . . . [because courts] ‘are not bound to accept as true a legal conclusion couched as
a factual allegation.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
To survive a motion to dismiss, “a complaint must contain sufficient factual matter,
accepted as true, ‘to state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 570). In other words, this “plausibility standard requires a plaintiff
to demonstrate more than ‘a sheer possibility that a defendant has acted unlawfully.’” Francis, 588
F.3d at 193 (quoting Twombly, 550 U.S. at 570). A plaintiff must, using the complaint, “articulate
facts, when accepted as true, that ‘show’ that the plaintiff has stated a claim entitling him to relief.”
Francis, 588 F.3d at 193 (quoting Twombly, 550 U.S. at 557). “Determining whether a complaint
states [on its face] a plausible claim for relief [which can survive a motion to dismiss] will . . . be
a context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Iqbal, 556 U.S. at 679.
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C. Motion to Dismiss – 12(b)(1)
A motion to dismiss pursuant to Rule 12(b)(1) raises the fundamental question of whether
a court is competent to hear and adjudicate the claims brought before it. “In contrast to its
treatment of disputed issues of fact when considering a Rule 12(b)(6) motion, a court asked to
dismiss for lack of jurisdiction may resolve factual disputes to determine the proper disposition of
the motion.” Thigpen v. United States, 800 F.2d 393, 396 (4th Cir. 1986) rejected on other
grounds, Sheridan v. United States, 487 U.S. 392 (1988) (but explaining that a court should accept
the allegations in the complaint as true when presented with a facial attack that argues insufficiency
of the allegations in the complaint). Reasonable discovery may be necessary to permit the
plaintiff to produce the facts and evidence necessary to support their jurisdictional allegations. Id.
The plaintiff has the burden of proving that subject matter jurisdiction exists. See Richmond,
Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.1991). Dismissal
for lack of subject matter jurisdiction is proper only if there is no dispute regarding the material
jurisdictional facts and the moving party is entitled to prevail as a matter of law. Evans v. B.F.
Perkins Co., a Div. of Standex Int'l Corp., 166 F.3d 642, 647 (4th Cir. 1999).
DISCUSSION
The Magistrate Judge recommends granting the United States’ motion to dismiss. He first
noted that, to the extent Mr. Sumpter sought to bring a delay of benefits claim appealing the VA’s
denial of disability benefits, that claim must be denied for lack of jurisdiction.
Next, the
Magistrate Judge points out that Mr. Sumpter admitted that he believed it was unnecessary to
provide a Notice of Claim or a Screening Certificate of Merit, and did not do so. Therefore, he
recommends dismissal for failing to comply with the MPLA. The Judge went on to find that if
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claims otherwise survived, the motion to dismiss for failure to comply with the statute of
limitations should be denied because there is a question of fact regarding when the Plaintiff learned
of the alleged negligence, although he found that equitable tolling was not justified. The PF&R
stated that dismissal for failure to exhaust administrative remedies was required as to claims related
to Mr. Sumpter’s 2015 prescriptions. Next, the Judge found that Mr. Sumpter did not demonstrate
that Dr. Murphy was an employee, as opposed to an independent contractor.
Finally, he
recommended dismissal of Mr. Sumpter’s claim for punitive damages.
Mr. Sumpter argues that he complied with all applicable filing requirements. He indicates
that he did not intend to bring a claim related to his separate disability proceeding, and does not
object to dismissal of any such claim. He asserts that he did not file a notice of claim or screening
certificate of merit because he followed the instructions contained in the administrative denial,
describing the process by which claimants may file suit in federal court within six months of final
denial of a claim. He further notes that notifications of the claim were sent to officials during the
FTCA administrative claims process. Mr. Sumpter argues that it was not necessary to submit a
screening certificate of merit because Dr. Berryman and Dr. Cappiello supplied letters recognizing
errors in the VA’s diagnosis and treatment of his MS. He objects to the Magistrate Judge’s
conclusion that, if the facts ultimately demonstrate that his administrative tort remedy was filed
more than two years after he learned of his injury and its cause, he is not entitled to equitable
tolling. He stresses his diligence in contacting various officials for assistance, and states that his
MS causes cognitive difficulties, chronic fatigue, and vision problems that interfered with his
efforts to understand and review legal and medical information. Mr. Sumpter further disputes the
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finding that Dr. Murphy was an independent contractor for FTCA purposes. Finally, he argues
that the United States should waive its sovereign immunity with respect to punitive damages.
As an initial matter, Mr. Sumpter’s objections do not address the dismissal of claims related
to his 2015 prescriptions, and the motion to dismiss for failure to exhaust administrative remedies
should be granted as to those claims.
A. FTCA Statute of Limitations
The FTCA requires tort claims against the United States to first be presented to the
appropriate federal agency before suit may be initiated in federal court. 28 U.S.C. § 2675.
Claims must be presented to the agency within two years. Id. § 2401(b). If the agency denies
the claim, a federal tort claim must be filed within six months of the date of mailing of the notice
of denial. Id. “[T]he FTCA’s time bars are nonjurisdictional and subject to equitable tolling.”
United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1638 (2015). However, equitable tolling is
available only if plaintiffs “show that they have pursued their rights diligently and extraordinary
circumstances prevented them from filing on time.” Raplee v. United States, 842 F.3d 328, 333
(4th Cir. 2016), cert. denied, 137 S. Ct. 2274 (2017).
Mr. Sumpter filed his federal claim within six months of the final denial of his
administrative claim. The only issue here is whether his administrative tort claim was filed within
the two year statute of limitations. Mr. Sumpter objects to the finding that he is not entitled to
equitable tolling. The Magistrate Judge found that further factual development was needed to
determine when Mr. Sumpter’s cause of action accrued, but that he had not shown that he was
entitled to equitable tolling. The United States did not object to the recommendation that the
motion to dismiss based on the statute of limitations be denied, given the factual dispute as to when
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Mr. Sumpter should have been aware of the alleged negligence and medical malpractice. The
Court finds that any ruling regarding equitable tolling is premature. Equitable tolling serves as
an extension of the applicable statute of limitations where a plaintiff failed to file on time despite
diligent effort.
Absent a determination that Mr. Sumpter, in fact, failed to timely file his
administrative tort claim, it is unnecessary to reach the question of whether he would be entitled
to equitable tolling. Thus, should the evidence ultimately show that Mr. Sumpter’s claim was not
timely filed, he will retain the opportunity to demonstrate that he is entitled to equitable tolling.
B. Independent Contractor
The FTCA waives sovereign immunity for certain torts committed by employees of the
United States, but does not waive immunity as to the acts of independent contractors. Logue v.
United States, 412 U.S. 521, 527-28 (1973); Robb v. United States, 80 F.3d 884, 887 (4th Cir.
1996). Reviewing case law, the Fourth Circuit explained that “only where the Government has
the power under the contract to supervise a contractor's ‘day-to-day operations’ and ‘to control the
detailed physical performance of the contractor’ can it be said that the contractor is an employee
or agent of the United States within the intendment of the Act.” Wood v. Standard Prod. Co., 671
F.2d 825, 829 (4th Cir. 1982) (citations omitted). The court further held that “the real test is
control over the primary activity contracted for and not the peripheral, administrative acts relating
to such activity.” Id. at 832. The Fourth Circuit summarized the factors considered in Wood,
which involved a physician who contracted to provide services for the United States Public Health
Service, as follows:
In addition to noting PHS's lack of control of the physician's medical
judgment, the Wood court considered: (1) that the physician under
the contract was referred to as a “contract physician,” (2) that the
physician was to provide “outpatient” care, (3) general statements
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concerning the manner and quality of service required under the
contract, (4) the lack of control by the government over the
prescription of drugs and medical supplies, (5) the authority of the
physician to make referrals, (6) contractual requirements for office
hours and the ability of the physician to decline to see patients, (7)
the physician's responsibility to provide office space, support staff,
supplies, and equipment, (8) the percentage of the physician's total
practice which was devoted to activities under the contract, (9) the
nature of the compensation to the physician, including method (fee
schedule) and rates (similar to the physician's usual fees), (10) PHS
recordkeeping requirements, (11) prescribed methods of verifying
patient eligibility for treatment, and (12) the extent of PHS's review
of the physician's offices.
Robb, 80 F.3d at 889 (citing Wood, 671 F.2d at 830 & n. 10).
Discovery has not begun in this case, although the parties each attached some documents
to their briefing. The following facts are based on the evidence adduced by the parties at this
stage.3 The United States indicates that the contract with Dr. Murphy has been purged. The
United States contends that Dr. Murphy was an independent contractor who provided radiology
services through a contract with Jackson & Coker, a firm that provides locum tenens health care.4
A contract specialist with the VA indicates that Dr. Murphy would have been required to provide
his own liability insurance. Mr. Sumpter contends that Dr. Murphy was “an on-station fee base
employee.” (Document 34 at 2, citing a document entitled “Board Action” and att’d as Document
33-1.) The Plaintiff contends that Dr. Murphy’s office space was at the VA, and he worked
exclusively for the VA during his contract period. No information has been provided as to the
majority of the Wood factors. Given the information available at this stage, the Court finds that
3 Because the United States does not waive sovereign immunity as to torts committed by independent contractors, the
Court would lack jurisdiction if Dr. Murphy was an independent contractor. Therefore, documents not integral to the
complaint may be considered as to the motion to dismiss pursuant to Rule 12(b)(1).
4 It is not clear to the Court that the scope of Mr. Sumpter’s FTCA claim is limited to the acts and omissions of Dr.
Murphy. The narrative portion of his complaint asserts negligence on the part of his primary care providers, as well,
an issue not addressed in the briefing before the Magistrate Judge.
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limited discovery will be necessary to determine whether Dr. Murphy was an independent
contractor under the applicable legal standards. Therefore, the United States’ motion to dismiss
on the grounds that Dr. Murphy was not an employee should be denied.
C. MPLA
“Because the FTCA merely waives sovereign immunity to make the United States
amenable to a state tort suit, the substantive law of the state where the tort occurred determines the
liability of the United States.” Raplee, 842 F.3d. at 331. The West Virginia MPLA contains
substantive procedures and rules applicable to medical liability suits. Among other things, it
requires claimants to serve any health care providers they intend to sue with a notice of claim
setting forth the theory of liability, and a screening certificate of merit completed by an expert.5
Courts within this district have found that the MPLA applies to FTCA actions that involve
allegations of medical malpractice. See, e.g., Johnson v. United States, 394 F. Supp. 2d 854, 857
(S.D.W. Va. 2005) (Chambers, J.); Martin v. United States, No. CIV.A. 1:10-1399, 2012 WL
1111326, at *4 (S.D.W. Va. Mar. 30, 2012) (Faber, S.J.). Where a defendant asserts that the presuit notice of claim or screening certification of merit was not legally sufficient, the defendant
must provide the plaintiff with specific written notice of the asserted deficiencies, and the plaintiff
must have the opportunity to correct any deficiencies. Syl. Pt. 6, Cline v. Kresa-Reahl, 728 S.E.2d
87, 89 (W. Va. 2012). In certain circumstances where the information shared fully overlaps,
documents filed in an FTCA administrative claim may meet the requirements of a notice of claim
under the MPLA. Johnson, 394 F. Supp. at 858.
5 The screening certificate of merit is to include the expert’s familiarity with the standard of care, the expert’s
qualifications, the expert’s opinion regarding breach of the standard of care and the expert’s opinion as to causation.
W. Va. Code § 55-7B-6(b).
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The Court finds that the Magistrate Judge correctly found that Mr. Sumpter was required
to comply with the MPLA, and did not provide the United States with a sufficient notice of claim
or screening certificate of merit. Mr. Sumpter’s claim of medical malpractice in reading MRIs
and treating MS will require expert testimony. It is not clear whether the letters from Dr.
Berryman and Dr. Cappiello constitute deficient certificates of merit or Mr. Sumpter neglected to
send a certificate of merit entirely.6 In either case, however, the Court finds that dismissal is not
the appropriate remedy under the facts presented.
Mr. Sumpter is pro-se, and this case presents procedural hurdles that experienced attorneys
sometimes struggle to navigate.7 “The requirement of a pre-suit notice of claim and screening
certificate of merit is not intended to restrict or deny citizens' access to the courts.” Syl. Pt. 5,
Gray v. Mena, 625 S.E.2d 326, 328 (W. Va. 2005). The West Virginia Supreme Court and courts
within this district have emphasized that the MPLA is intended to prevent frivolous medical
malpractice lawsuits and promote pre-suit resolution of non-frivolous medical malpractice claims,
and motions regarding compliance with the MPLA should be reviewed in light of that statutory
purpose. Syl. Pt. 6, Hinchman v. Gillette, 618 S.E.2d 387, 389 (W. Va. 2005); Cooper v.
Appalachian Reg'l Healthcare, Inc., No. CIV.A. 5:04-1317, 2006 WL 538925, at *2–3 (S.D.W.
Va. Mar. 3, 2006) (Faber, C.J.). Mr. Sumpter’s claim does not appear to be frivolous on the
substantive merits, and Dr. Berryman and Dr. Cappiello’s letters provide support for the dual
6 If Mr. Sumpter’s filings and paperwork supplied prior to filing suit, during the course of his administrative claim
and otherwise, constitute a deficient notice of claim and screening certificate of merit, the Court notes that there is no
evidence that the Defendant made a written request for a more definite statement. It is clear that the United States
contemplated the possibility that Dr. Berryman and Dr. Cappiello’s letters could be viewed as a screening certificate
of merit, based on discussion of their asserted deficiencies in the motion to dismiss.
7 The Court notes that Mr. Sumpter has referenced his attempts to obtain counsel. The Court has provided him time
to renew those efforts, if desired. The Court is unable to offer legal advice or recommend attorneys. However, the
West Virginia State Bar (www.wvbar.org) may have helpful resources to connect litigants with experienced counsel.
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propositions that Mr. Sumpter’s claim is potentially meritorious, and that the VA had some
understanding of the nature and merits of his claim prior to his filing suit.
The West Virginia Supreme Court has found that dismissal was too harsh of a remedy for
failure to comply with the MPLA where the plaintiff reasonably—though incorrectly—believed
the MPLA did not apply to her claim. Gray, 625 S.E.2d at 332; Blankenship v. Ethicon, Inc., 656
S.E.2d 451, 454 (2007).
This Court has held that “[r]ectifiable deficiencies are generally
insufficient to warrant dismissal unless the plaintiff has willfully ignored them and made no effort
to correct.” Earle v. City of Huntington, No. CV 3:14-29536, 2016 WL 3198396, at *5 (S.D.W.
Va. June 8, 2016) (Chambers, C.J.). Although the circumstances are not identical to prior cases,
and dismissal has been found appropriate in some instances, the Court finds that dismissal would
be too harsh of a remedy in this case. Therefore, the Court will deny the motion to dismiss for
failure to comply with the MPLA, and stay the case to permit Mr. Sumpter the opportunity to
demonstrate compliance and amend his complaint.
D. Punitive Damages
Finally, Mr. Sumpter objects to the dismissal of his claim for punitive damages. The
United States has not waived sovereign immunity for punitive damages. 28 U.S.C. § 2674. Mr.
Sumpter’s complaint includes a request for punitive damages, with a description explaining that
he seeks $10,000,000 “for the depreciation of my own and my family’s lives,” and that “actual
damages [are] not measurable.” (Compl. at 6.) Mr. Sumpter’s narrative suggests that some of
the damages he seeks would more accurately be classified as non-economic compensatory
damages, which may be recoverable under the FTCA. Molzof v. United States, 502 U.S. 301, 308
(1992) (determining that the waiver of sovereign immunity barred only damages legally classified
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as punitive damages, and does not bar damages “which are for some reason above and beyond
ordinary notions of compensation,” but do not “embod[y] an element of the defendant’s conduct
that must be proved before such damages are awarded.”) To the extent Mr. Sumpter seeks
punitive damages, as that term is legally defined, his claim for such damages should be dismissed.
CONCLUSION
Wherefore, after thorough review and careful consideration, the Court ORDERS that the
Plaintiff’s objections (Document 32, 33, & 34) be OVERRULED in part and SUSTAINED in
part.
The Court ORDERS that the United States’ Motion to Dismiss (Document 10) be
GRANTED as to the negligence claim for failure to fill a 2015 prescription and as to any claim
for punitive damages. The Court ORDERS that the Motion (Document 10) be DENIED as to
the negligence and medical malpractice claims included within Mr. Sumpter’s administrative tort
claim. The Court further ORDERS that this matter remain STAYED for a period of sixty (60)
days to permit the Plaintiff to (a) determine whether to continue pro se or to have counsel make
an appearance on his behalf and (b) comply with the MPLA 8 and amend his complaint
accordingly.
The Court DIRECTS the Clerk to send a copy of this Order to Magistrate Judge Omar J.
Aboulhosn, to counsel of record and to any unrepresented party.
ENTER:
May 10, 2018
8 Should the parties wish to engage in the pre-litigation mediation contemplated by the MPLA, they may jointly seek
appointment of a magistrate judge to conduct such mediation, if desired.
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