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Farr v. United States

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

December 3, 2018

STEVEN FARR, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.[1]

          OPINION AND ORDER ON MOTION TO DISMISS OR FOR SUMMARY JUDGMENT (ECF NO. 7)

          CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE

         Through 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.[2] 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.

         STANDARD

         Because 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.[3] 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).

         BACKGROUND

         Verified 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.

         Anticipating 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 of records).

         Most 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.

         The 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.

         Motion 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:

         “A 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.

         Defendant 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.[4] 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 ...


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