United States District Court, D. South Carolina, Columbia Division
OPINION AND ORDER ON MOTION TO DISMISS OR FOR SUMMARY
JUDGMENT (ECF NO. 7)
CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE
this action, Plaintiff seeks recovery under the Federal Tort
Claims Act, 28 U.S.C. § 1346(b) (“FTCA”),
for injuries arising from medical treatment he received while
a military dependent. The matter is before the court on motion
of the United States of America (Defendant) to dismiss the
action or, in the alternative, for summary judgment. ECF No.
7. The motion turns on whether (1) this action was filed
within the six-month limitation period established by 28
U.S.C. § 2401(b); or, alternatively, (2) equitable
tolling applies to excuse any delay beyond six months.
Because uncontroverted evidence establishes the action was
filed beyond the limitations period and Plaintiff has failed
to establish any basis for equitable tolling, the court
grants the motion for summary judgment and dismisses the
action with prejudice.
the parties rely on materials outside the pleadings, both in
advancing and opposing the motion, the court applies the
standard applicable to motions for summary
judgment. Summary judgment should be granted if
“the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment
as a matter of law.” Fed.R.Civ.P. 56(a). It is well
established that summary judgment should be granted
“only when it is clear that there is no dispute
concerning either the facts of the controversy or the
inferences to be drawn from those facts.” Pulliam
Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th
Cir. 1987). The party moving for summary judgment has the
burden of showing the absence of a genuine issue of material
fact, and the court must view the evidence before it and the
inferences to be drawn therefrom in the light most favorable
to the nonmoving party. United States v. Diebold,
Inc., 369 U.S. 654, 655 (1962).
Complaint. Plaintiff filed his verified Complaint on July 26,
2018. ECF Nos. 1, 1-5 (verification). The Complaint alleges
Plaintiff suffered injuries as a result of medical treatments
he received at Shaw Air Force Base when he was a dependent of
a military member. See ECF No. 1 ¶¶ 1, 2. The
treatments consisted of a series of injections administered
in 1989 and 1990. Id. ¶¶ 14-18. Plaintiff
alleges he “now suffers violent permanent hand and arm
tremors bilaterally” as a result of these injections,
which is a known side effect of the medication used.
Id. ¶¶ 19, 20.
various defenses, the Complaint alleges the United States Air
Force (“USAF”) has asserted Plaintiff's
parents made a related claim that was denied in July 1999.
Id. ¶ 22. The Complaint further alleges
Plaintiff has not been provided records of any such claim.
Id. It also alleges Plaintiff sought his medical
records beginning in 2013, but had received only a partial
medical record as of March 2016. Id. ¶¶
23, 24 (citing and attaching National Archives letter dated
November 17, 2017, which addresses search for and production
critically for purposes of the present motion, the Complaint
addresses denial of a claim Plaintiff filed in June 2016,
which was denied by the USAF on June 28, 2017:
25. On or about June 28, 2017[, ] Defendant USAF sent a
letter denying Plaintiff's claim for injuries claiming
that Plaintiff's claim: (1) was originally asserted by
his parent in 1997 and was denied in 1999; (2) was not timely
asserted based on the prior denial; (3) was not meritorious
as the USAF had obtained medical opinion[s] in two areas that
the appropriate standard of care was met . . . . Said letter
extended to the Plaintiff a period of six (6) months to seek
additional review in the United States District Court.
Id. ¶ 25. The referenced June 28, 2017 denial
letter is attached to the Complaint. ECF No. 1-3.
Complaint also attaches an expert affidavit in support of
Plaintiff's malpractice claim, as required by South
Carolina law. ECF No. 1 ¶ 26, ECF No. 1-4.
to Dismiss or for Summary Judgment. Defendant moved to
dismiss or, in the alternative, for summary judgment, arguing
Plaintiff's claim is barred by the limitations period
specified in 28 U.S.C. § 2401(b). ECF No. 7, 7-1. This
section reads, in relevant part, as follows:
tort claim against the United States shall be forever barred
. . . unless action is begun within six months after the date
of mailing by certified or registered mail, of notice of a
final denial of the claim by the agency to which it was
presented.” 28 U.S.C. § 2401(b). Defendant argues
the claim is barred by this provision because
“Plaintiff did not file suit until almost a year after
the mailing of the letter denying his tort claim.” ECF
No. 7-1 at 5.
attaches two documents in support of this motion,
Plaintiff's administrative claim form and a certified
mail receipt. ECF Nos. 7-2, 7-3. The claim form seeks
recovery for several alleged wrongs including injection of a
medication by a “Dr. Bragger” in 1996 that caused
Plaintiff to “shake, ” which symptom has become
worse over the years. The certified mail receipt indicates
“A.Thompson” accepted a letter from “HQ
AFLOA/JACC” directed to Plaintiff's former
attorney, James J. Corbett (“Corbett”) on July 3,
2017. Defendant argues the matter may be resolved under Rule
12(b)(6) of the Federal Rules of Civil Procedure, despite its
reliance on documents outside the pleadings, because those
documents are authentic and integral to the Complaint. ECF
No. 7-1 at 2. Defendant asserts the attached documents are
integral because Plaintiff was required to exhaust
administrative remedies before filing his Complaint.
Plaintiff's Response. Plaintiff filed a response that
does not contest the authenticity of the documents attached
to Defendant's motion. ECF No. 11. He, nonetheless,
argues the court should treat the motion as a motion for
summary judgment because the parties rely on documents
outside the pleadings that are not integral to the Complaint.
Id. at 1-2 (arguing certified mail receipt is not
integral). Plaintiff advances two substantive arguments.
First, he argues delivery of the denial letter by certified
mail to Corbett did not trigger the limitations period
because Corbett terminated representation that same day and