United States District Court, D. South Carolina, Charleston Division
KAREN M. RICE, individually and as the personal representative of the estate of Brian E. Rice, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
C. NORTON UNITED STATES DISTRICT JUDGE
following matter is before the court on defendant United
States of America's (“the government”) motion
to dismiss, ECF No. 26. For the reasons set forth below, the
court grants the motion.
case arises out of the death of Brian Rice (“Mr.
Rice”), plaintiff Karen Rice's (“Mrs.
Rice”) husband. Mr. Rice served in the military and
received medical care from the Ralph H. Johnson VA Medical
Center (“the VA Medical Center”) in Charleston,
South Carolina. During early summer of 2014, Mr. Rice sought
treatment from the VA Medical Center for depression. He had
also been undergoing treatment for thyroid and prostate
cancer, which contributed to his depression. In July 2014,
doctors at the VA Medical Center prescribed Celexa to treat
Mr. Rice's depression. On August 13, 2014, Mr. Rice was
still suffering from depression and returned to the VA
Medical Center, where his Celexa dosage was increased. Then
on September 1, 2014, Mr. Rice admitted himself to the VA
Medical Center because he was suicidal. He told his
physicians that he was hallucinating, he could not sleep, and
he wanted to shoot himself. A PHQ-9 screen was performed on
Mr. Rice, and he scored a “20, ” which suggested
September 2, 2014, Mr. Rice had a psychiatric consult with
Dr. Paul Everman, Jr. and Dr. Eric Brueckner. During this
consult, Mr. Rice told the physicians that the Celexa was not
helping with his depression, he worked in law enforcement and
owned guns, and he wanted to shoot himself with one of his
guns. Later that day, Mr. Rice was admitted for in-patient
psychiatric hospitalization. He was diagnosed with
“mood disorder unspecified, ” and the physicians
believed that the Celexa may be the cause of Mr. Rice's
suicidal thoughts. On September 3, 2014, Mr. Rice saw Drs.
Everman and Brueckner again. Mrs. Rice alleges that on this
day, Mr. Rice's treatment plan indicated that Mr.
Rice's depression was “unstable, ” and his
suicide risk was “severe.” Mr. Rice told
medical personnel that he wanted to go home. The doctors
deemed Mr. Rice “not commitable, ” and Mr. Rice
left the VA Medical Center against medical advice. He was
advised to follow up with a counselor.
September 18, 2014, Mr. Rice sent an email to a nurse at the
VA Medical Center indicating that he was still depressed and
was only sleeping 3 to 4 hours a night. Then, on the evening
of September 23, 2014, Mr. Rice was at home when Mrs. Rice
and their daughter came home. Soon after they arrived,
“for the first time in his life and completely out of
the blue, ” Mr. Rice threatened Mrs. Rice with a gun.
Compl. ¶ 59. Mrs. Rice ran outside and called the
police. When the police arrived, Mrs. Rice explained the
situation, and police tried to convince Mr. Rice to come out
of the house. Mr. Rice came outside at one point with his gun
and started to shoot at police, but the police did not fire
back. Instead, they tried to convince Mr. Rice to surrender.
At some point, Mr. Rice escaped the house and fled. When the
police realized Mr. Rice had fled, they began looking for
him. One of the officers found Mr. Rice and began talking to
him, not realizing it was Mr. Rice. One he realized it was
Mr. Rice, the police officer took cover. Police tried again
to convince Mr. Rice to surrender, but Mr. Rice started
shooting at the officer who found him. Despite the
police's efforts to end the situation, Mr. Rice kept
firing at the officers. Around midnight, a SWAT marksman shot
and killed Mr. Rice, which Mrs. Rice characterizes as
“suicide by cop.” Id. ¶ 72.
Rice brought this case pursuant to the Federal Tort Claims
Act (“FTCA”) on July 27, 2017, alleging medical
negligence for wrongful death, medical negligence as a
survivorship action, and loss of consortium. Mrs. Rice also
filed an affidavit by Dr. Stephen Price opining on the
government's negligence, as required by South Carolina
law in actions alleging professional negligence, SC Code.
Ann. § 15-36-100(B), and death as a result of medical
malpractice, id. § 15-79-125(A). The government
filed a motion to dismiss on June 22, 2018. ECF No. 26. Mrs.
Rice responded on July 20, 2018, ECF No. 29, and the
government replied on August 2, 2018, ECF No. 30. The court
held a hearing on the motion on February 13, 2019. The motion
is ripe for review.
12(b)(6) motion for failure to state a claim upon which
relief can be granted “challenges the legal sufficiency
of a complaint.” Francis v. Giacomelli, 588
F.3d 186, 192 (4th Cir. 2009) (citations omitted); see
also Republican Party of N.C. v. Martin, 980 F.2d 943,
952 (4th Cir. 1992) (“A motion to dismiss under Rule
12(b)(6)  does not resolve contests surrounding the facts,
the merits of a claim, or the applicability of
defenses.”). To be legally sufficient, a pleading must
contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
12(b)(6) motion should not be granted unless it appears
certain that the plaintiff can prove no set of facts that
would support his claim and would entitle him to relief.
Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th
Cir. 1993). When considering a Rule 12(b)(6) motion, the
court should accept as true all well-pleaded allegations and
should view the complaint in a light most favorable to the
plaintiff. Ostrzenski v. Seigel, 177 F.3d 245, 251
(4th Cir. 1999). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
government initially argued that Mrs. Rice's claims
should be dismissed because (1) the government's duty to
Mr. Rice ended when he left the custody and care of the VA
Medical Center, and (2) Mrs. Rice cannot show that the
government's alleged acts were the proximate cause of Mr.
Rice's death. However, at the hearing on the motion, the
government conceded that it owed a duty to Mr. Rice;
therefore, the only issue before the court is whether Mrs.
Rice has sufficiently pleaded proximate cause. The court
finds that she has not.
FTCA provides “for ‘a limited waiver of sovereign
immunity, making the Federal Government liable to the same
extent as a private party for certain torts of federal
employees acting within the scope of their
employment.'” Wood v. Standard Prods. Co.,
Inc., 671 F.2d 825, 829 (4th Cir. 1982) (quoting
United States v. Orleans, 425 U.S. 807, 813 (1976)).
Since Mrs. Rice brought this action under the FTCA, she must
establish the government's liability “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.”
Cantrell v. United States, 735 F.Supp. 670, 672
(E.D. N.C. 1988). The FTCA does not create new causes of
action, and “only serves to convey jurisdiction when
the alleged breach of duty is tortious under state law, or
when the Government has breached a duty under federal law
that is analogous to a duty of care recognized by state
law.” Goldstar (Panama) SA. v. United States,
967 F.2d 965, 969 (4th Cir. 1992). Therefore, the issue
before the court is whether a private person could be held
liable under South Carolina law if he committed the acts that
were allegedly committed by the government.
initial matter, Mrs. Rice characterizes Mr. Rice's death
as a “suicide by cop.” Compl. ¶ 72. However,
Mr. Rice was shot and killed by law enforcement, meaning that
Mr. Rice did not technically kill himself. The government
initially seemed to accept that Mr. Rice's death was a
suicide, and both parties cited to case law related to
suicide. Yet in its reply brief, the government changed
positions and asserted that the death was not a suicide but a
“justifiable homicide by law enforcement to protect
their lives.” ECF No. 30 at 2. The government goes on
to argue that “suicide by cop” is a legal
conclusion drawn from facts that the court need not accept.
Id. at 5. South Carolina courts have not addressed
whether “suicide by cop” is a fact that the court
must accept as true for the purposes of a 12(b)(6) motion or
a legal conclusion that the court may question. However, the
court need not consider this issue because even when
characterizing Mr. Rice's death as a “suicide,
” which is the characterization that ...