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Rice v. United States

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

March 25, 2019

KAREN M. RICE, individually and as the personal representative of the estate of Brian E. Rice, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDER

          DAVID C. NORTON UNITED STATES DISTRICT JUDGE

         The 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.

         I. BACKGROUND

         This 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 severe depression.

         On 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.”[1] 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.

         On 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.

         Mrs. 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.

         II. STANDARD

         A Rule 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.” Fed.R.Civ.P. 8(a)(2).

         A Rule 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.” Id.

         III. DISCUSSION

         The 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.

         The 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.

         As an 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 ...


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