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Allen v. United States

United States District Court, D. South Carolina, Charleston Division

April 1, 2015

Phyllis Lavern Allen, Plaintiff,
United States of America and Steven Swift, Defendants.



This matter is before the Court on the Report and Recommendation ("R&R") of the Magistrate Judge. (Dkt. No. 51.) For the reasons set forth below, the Court agrees with and ADOPTS the R&R as the order of the Court.


This case is a civil action filed by Plaintiff Phyllis Lavern Allen, pro se. For the purposes of this motion to dismiss, the Court assumes the facts alleged in the Complaint are true, construes the facts in Plaintiff's favor and draws all inferences in Plaintiff's favor. In December 2001, Plaintiff underwent a hysterectomy for the treatment of uterine fibroids at the Ralph H. Johnson Department of Veteran Affairs Medical Center (VA Medical Center) in Charleston, South Carolina. (Dkt. No.1 at 2-3.) In 2009, Plaintiff learned that the VA Medical Center removed her left ovary during the hysterectomy "without [her] knowledge, " and did not provide treatment for the removal. ( Id. at 2.)

Plaintiff was then diagnosed with severe depression. ( Id. ) According to Plaintiff, she did not understand why she was "having hot flashes, anxiety, [and] crying all the time." ( /d at 3.) After having blood work taken by Defendant Dr. Steven Swift (Dr. Swift) and his team, Plaintiff was told that her symptoms were "classic symptoms of menopause." ( Id. ) Plaintiff alleges that she was then placed on the wrong medication because Defendants did not "want to admit what they did." ( Id. ) Plaintiff asserts that Defendants "took her livelihood from [her]." ( Id. ) She seeks monetary damages and asks the Court to "remove the unemployability." ( Id. at 5.)

Plaintiff filed suit against the Department of Veteran Affairs on October 8, 2013. (Dkt. No.1.) Pursuant to 28 U.S.C. ยง 636(b) and Local Civil Rule 73.02(B)(2)(e) DSC, this case was assigned to a Magistrate Judge for all pretrial proceedings. After conducting an initial review, the Magistrate Judge issued an R&R recommending dismissal to the extent Plaintiff's claims were brought pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), because Bivens claims cannot be brought against agencies of the Federal Government. (Dkt. No.9 at 2-3.) The Magistrate Judge further recommended that, to the extent Plaintiff's claims were brought under the Federal Tort Claims Act (FTCA), dismissal was proper because there were no allegations that Plaintiff had exhausted her administrative remedies prior to filing suit, as required by the FTCA. ( Id. at 4.)

This Court then issued an order stating that "the United States of America [would] be substituted for the Department of Veterans Affairs" as the defendant for purposes of the FTCA claim. (Dkt. No. 18 at 1.) As for Plaintiff's Bivens claim, the Court advised Plaintiff that she must amend her Complaint to add the individual defendant(s) who Plaintiff believed violated her rights. ( Id. at 1-2.) Thereafter, the Court granted Plaintiff's motion to amend her Complaint to add Dr. Swift as a defendant. (Dkt. No. 24.)

Defendants moved for dismissal on September 30, 2014. (Dkt. Nos. 41; 42.) Plaintiff then filed a response opposing the motions. (Dkt. No. 49.) The Magistrate Judge then issued the present R&R recommending the Court grant Defendants' Motions to Dismiss. (Dkt. No. 51 at 10.) The Magistrate Judge first found that, because Plaintiff did not file "an affidavit of an expert witness together with her Complaint, " she failed to satisfy a mandatory prerequisite to the filing of a malpractice claim asserted under the FTCA, and Plaintiff's FTCA claim should therefore be dismissed. ( Id. at 6.) The Magistrate Judge then recommended the dismissal of Plaintiffs Bivens claim, finding that Plaintiff failed to bring her claim within the applicable three year statute of limitations. ( Id. at 7-9.) Plaintiff filed a timely written objection to the Magistrate Judge's R&R (Dkt. No. 53), to which Defendants responded. (Dkt. No. 54.)


A. Motion to Dismiss

Rule 12(b)(6) of the Federal Rules of Civil Procedure permits the dismissal of an action if the complaint fails "to state a claim upon which relief can be granted." Such a motion tests the legal sufficiency of the complaint and "does not resolve contests surrounding the facts, the merits of the claim, or the applicability of defenses.... Our inquiry then is limited to whether the allegations constitute a short and plain statement of the claim showing that the pleader is entitled to relief.'" Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (quotation marks and citation omitted). In a Rule 12(b)(6) motion, the Court is obligated to "assume the truth of all facts alleged in the complaint and the existence of any fact that can be proved, consistent with the complaint's allegations." E. Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). However, while the Court must accept the facts in a light most favorable to the non-moving party, it "need not accept as true unwarranted inferences, unreasonable conclusions, or arguments." Id.

To survive a motion to dismiss, the complaint must state "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). Although the requirement of plausibility does not impose a probability requirement at this stage, the complaint must show more than a "sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint has "facial plausibility" where the pleading "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

Pro se complaints are construed liberally to allow the development of meritorious claims and "must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, the requirement of a liberal construction does not mean that the Court can ignore a plaintiffs clear failure to allege facts that set forth a cognizable claim. See Well v. Dep't of Soc. Servs. for Baltimore, 901 F.2d 387, 391 (4th Cir. 1990) ("The special judicial ...

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