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Rosemond v. Rattray

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

October 31, 2016

Kenneth B. Rosemond, Plaintiff,
Daniel C. Rattray and Kathryn Simpson, Defendant.


          Kevin F. McDonald United States Magistrate Judge

         This matter is before the court on the defendants' motion to dismiss or, in the alternative, for summary judgment (doc. 26). Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(A) and Local Civil Rule 73.02(B)(2)(e) (D.S.C.), all pretrial matters in cases involving pro se litigants are referred to a United States Magistrate Judge for consideration.


         In his complaint, the plaintiff, who is proceeding pro se, alleges that medical providers[1] with the Department of Veterans Affairs (“VA”)[2] prescribed him risperidone, which the doctors knew or should have known caused males' breasts to become enlarged (doc. 1 at 3-4). He alleges the doctors did not stop administering the drug or give him anything to offset the problem, and his breasts have become permanently enlarged as a result (id.). The plaintiff further alleges that he has suffered psychological and physical damages as a result of the actions of these doctors (id.).

         The plaintiff attached a letter to his complaint that is addressed to him and dated January 20, 2015, from Elisabet Rainey, M.D., of the VA Outpatient Clinic in Greenville, South Carolina (doc. 1-2 at 2). The letter states that the plaintiff had been treated at the Greenville VA Mental Health Clinic since 2002 and was last seen by Dr. Rainey on July 15, 2014 (id.). The letter further states that the plaintiff has been treated for paranoid schizophrenia and was stable on his current medication, but that one of the side effects of risperidone is gynecomastia, or breast enlargement (id.). The letter states that this had been a concern of the plaintiff since 2009 and has been addressed by his primary care provider. Lastly, the letter states that the plaintiff's medications were necessary to allow him to function (id.).

         The plaintiff states in his complaint that he filed an administrative tort claim with the VA, and he received a “denial letter” back from the VA (doc. 1 at 3). The plaintiff attached to his complaint a copy of the letter from the VA's Office of Regional Counsel that is dated June 1, 2015, and was mailed to the plaintiff that same day via certified mail (doc. 1-2 at 4). The letter states that the VA had investigated the administrative tort claim filed by the plaintiff under the Federal Tort Claims Act (“FTCA”) and concluded there was no negligent or wrongful act on the part of an employee of the VA acting within the scope of his or her employment (id.). Accordingly, the claim was denied (id.). The letter also notifies the plaintiff that if he was dissatisfied with the decision he could file a request for consideration with the VA's Office of General Counsel and that “[t]o be timely, the VA must receive this request within six months of the mailing of this final denial” (id.) (emphasis in original). The VA further notes that the plaintiff had the alternative option of filing a suit directly in federal district court; however, again, the letter stressed that the plaintiff “must initiate the suit within six months of the mailing of this notice as shown by the date of this denial (28 U.S.C. § 2401(b))” (id. at 5).

         The plaintiff also attached to his complaint a letter dated December 4, 2015, that he sent to the VA's Office of General Counsel in Washington, D.C., “appealing” the denial of his claim (doc. 1-2 at 3, 6). Also included is a letter dated December 21, 2015, from the Deputy General Counsel, explaining that the plaintiff's request for reconsideration was not timely in that the letter dated December 4, 2015, had been received on December 14, 2015, more than six months after the denial of his claim (id. at 7, 10, 11, 12).

         The plaintiff also attached a letter dated December 30, 2015, to the VA's Office of General Counsel, requesting reconsideration of his appeal “in light of the fact that [he] did not send the documents as requested in the six months allotted due to [his] emotional and physical condition, and further by the fact that [he] was in the process of obtaining the necessary medical documentation requested to support [his] appeal” (doc. 1-2 at 8, 13). The final letter[3] attached to the complaint is addressed to the plaintiff from the Office of General Counsel and is date stamped February 25, 2016 (id. at 9). The letter notes that correspondence was received from the plaintiff on January 14, 2016, in which the plaintiff provided additional information regarding the request for reconsideration of his administrative tort claim (id.). The Office of General Counsel explained that it no longer had jurisdiction to take action on the claim as the plaintiff had failed to timely make a request for reconsideration (id.).

         The plaintiff filed the complaint in this case on March 10, 2016, naming as defendants Daniel C. Rattray, Office of the Regional Counsel of the VA, and Kathryn Simpson, Chief Counsel of the Office of the General Counsel of the VA (doc. 1). The defendants filed the instant motion on July 1, 2016 (doc. 26). On July 5, 2016, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the plaintiff was advised of the motion for summary judgment and motion to dismiss procedures and the possible consequences if he failed to respond adequately (doc. 27). He filed his response in opposition on July 29, 2016 (doc. 29). The defendants filed a reply on August 5, 2016 (doc. 31), and the plaintiff filed a sur-reply on August 9, 2016 (doc. 32).

         Along with his response to the defendants' motion, the plaintiff submitted several exhibits (docs. 29-1 through 29-4). Those exhibits consist of several letters that were attached to the complaint that have already been discussed above along with the following new exhibits: a letter from Dr. Joseph B. Beraho dated July 14, 2016, stating that the plaintiff has been on risperidone since 2008 and was on ziprasidone prior to that, and these medications likely contributed to his breast enlargement as a side effect (doc. 29-1 at 1); a letter from Dr. Rainey dated July 27, 2016, outlining the history of the plaintiff's treatment for schizophrenia and the medications he has taken and describing her conversations with the plaintiff regarding his concerns about breast pain and enlargement, her offers to try other medications, and the recent attempt to cross-taper from Risperdal[4]to Seroquel (id. at 3-4); a request from the plaintiff to Dr. Beraho and Dr. Rainey asking that they write letters in support of the plaintiff's VA appeal (id. at 5-6); a letter from defense counsel to the plaintiff explaining that she must communicate with pro se plaintiffs through writing (id. at 7); progress notes from the plaintiff's treatment at the Columbia VA Medical Center (“VAMC”) during November 2015 (doc. 29-2); progress notes from the plaintiff's treatment at the Columbia VAMC Mental Health Clinic during June 2016 (doc. 29-3); and copies of the Roseboro order and the defendants' motion to dismiss in this case (doc. 29-4).


         The defendants argue that the plaintiff's complaint fails to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). In the alternative, the defendants argue that summary judgment under Rule 56 is appropriate.

         Legal Standard

         “The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint.” Williams v. Preiss-Wal Pat III, LLC, 17 F.Supp.3d 528, 531 (D.S.C. 2014) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). “[T]he facts alleged ‘must be enough to raise a right to relief above the speculative level' and must provide ‘enough facts to state a claim to relief that is plausible on its face.'" Robinson v. American Honda Motor Co., Inc., 551 F.3d 218, 222 (4th Cir. 2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 569 (2007)). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). The court must liberally construe pro se complaints to allow the development of a potentially meritorious case, Hughes v. Rowe, 449 U.S. 5, 9 (1980), and such pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.1978).

         “In deciding whether a complaint will survive a motion to dismiss, a court evaluates the complaint in its entirety, as well as documents attached or incorporated into the complaint.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011). The court may consider such a document, even if it is not attached to the complaint, if the document “was integral to and explicitly relied on in the complaint, ” and there is no authenticity challenge. Id. at 448 (quoting Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir. 1999)). See also Int'l Ass'n of Machinists & Aerospace Workers v. Haley, 832 F.Supp.2d 612, 622 (D.S.C. 2011) (“In evaluating a motion to dismiss under Rule 12(b)(6), the Court . . . may also ‘consider documents attached to . . . the motion to dismiss, so long as they are integral to the complaint and authentic.'”) (quoting Sec'y of State for Def. v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007)). Rule 12(d) states: “If on a motion under Rule 12(b)(6) . . ., matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.”

         Here, in addition to the documents the plaintiff attached to his complaint as outlined above, the plaintiff has submitted additional documents as exhibits to his response in opposition to the defendants' motion (see docs. 29-1 through 29-4). In the Roseboro order issued on July 5, 2016, the plaintiff was specifically advised that if matters outside the pleadings were submitted and considered by the court, the motion to dismiss would be converted to a motion for summary judgment ...

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