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Miller v. Dorn Va Hospital

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

April 5, 2018

Harvest J. Miller, Plaintiff,
v.
Dorn VA Hospital, Defendant.

          ORDER REGARDING AMENDMENT OF COMPLAINT

          PAIGE J. OSSETT, UNITED STATES MAGISTRATE JUDGE

         The plaintiff, Harvest J. Miller, proceeding pro se, brings this civil action against the defendant. The Complaint has been filed pursuant to 28 U.S.C. § 1915. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.). Having reviewed the Complaint in accordance with applicable law, the court finds this action is subject to summary dismissal if Plaintiff does not amend the Complaint to cure the deficiencies identified herein.

         I. Factual and Procedural Background

         Plaintiff indicates that he received medical care at a United States Department of Veterans Affairs hospital in Columbia, South Carolina but instead of receiving proper treatment, the doctors sent him to hospice. (Compl., ECF No. 1 at 2-5.) He appears to indicate he ingested a tooth during surgery, some medicine caused him eye problems, and doctors failed to find his blood clots and failed to see his cancer until he went for a check-up. (Id. at 3.) He further appears to indicate that his cancer drugs gave him heart problems. (Id. at 5.) He seeks damages for his injuries and his children's school expenses that he believes should have been paid for by the department. (Id.)

         II. Discussion

         A. Standard of Review

         Under established local procedure in this judicial district, a careful review has been made of the pro se Complaint. The Complaint has been filed pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. This statute allows a district court to dismiss the case upon a finding that the action “is frivolous or malicious, ” “fails to state a claim on which relief may be granted, ” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

         This court is required to liberally construe pro se complaints, which are held to a less stringent standard than those drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). Nonetheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for “all civil actions”).

         B. Analysis

         Plaintiff does not expressly state a legal cause of action in the Complaint. In accordance with its duty to liberally construe pro se pleadings, the court construes the Complaint as seeking to raise a claim of negligence or medical malpractice pursuant to Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-2680, 1346(b). The FTCA provides for a limited waiver of the United States's sovereign immunity from suit by allowing a plaintiff to recover damages in a civil action for loss of property or personal injuries caused by the “negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1); see also Medina v. United States, 259 F.3d 220, 223 (4th Cir. 2001) (“The statute permits the United States to be held liable in tort in the same respect as a private person would be liable under the law of the place where the act occurred.”).[1]

         However, a plaintiff seeking to file a FTCA claim must first exhaust his administrative remedies. Under 28 U.S.C. § 2675,

[a]n action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail.

         Moreover, the exhaustion requirement is jurisdictional and may not be waived. See Plyler v. United States, 900 F.2d 41, 42 (4th Cir. 1990).

         Here, Plaintiff provides no indication in the Complaint that he filed an administrative claim with the proper agency. Therefore, the Complaint does not indicate ...


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