United States District Court, D. South Carolina, Greenville Division
Kenneth B. Rosemond, Plaintiff,
Daniel C. Rattray and Kathryn Simpson, Defendant.
REPORT OF MAGISTRATE JUDGE
F. McDonald United States Magistrate Judge
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.
complaint, the plaintiff, who is proceeding pro se,
alleges that medical providers with the Department of Veterans
Affairs (“VA”) 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
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
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).
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).
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 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.).
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).
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
Risperdalto 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).
LAW AND ANALYSIS
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
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).
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
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 ...