United States District Court, D. South Carolina, Florence Division
REPORT AND RECOMMENDATION
KAYMANI D. WEST UNITED STATES MAGISTRATE JUDGE.
matter is before the court on the Motion to Dismiss filed by
Defendant United States of America (“United
States” or “Defendant”), ECF No. 34, and
the Motion for Summary Judgment and Motion for Default filed
by Plaintiff Linda Nichols (“Nichols” or
“Plaintiff”), ECF No. 37. Plaintiff is
self-represented. This matter was referred to the undersigned
pursuant to 28 U.S.C. § 636(b) and Local Civil Rule
73.02(B)(2) (D.S.C.). Because the pending motions are
dispositive, this Report and Recommendation
(“R&R”) is entered for the district
judge's consideration. For the reasons that follow, it is
recommended that Plaintiff's Motion for Summary
Judgment/Default, ECF No. 37, be denied, and Defendant's
Motion to Dismiss, ECF No. 34, be granted in part and denied
originally filed an action in state magistrate court seeking
damages she allegedly sustained during a dental procedure.
That matter was removed to this court. Nichols v. United
States of America, Civ. Action No. 4:17-1621-RBH
(D.S.C.) (“Nichols I”). That matter was
dismissed without prejudice for failure to exhaust
administrative remedies. Nichols I, ECF No. 61. In
dismissing Nichols I, the court noted Plaintiff had
exhausted her administrative remedies subsequent to beginning
Nichols I and directed the Clerk of Court to open a
new action as of May 4, 2018, the date Plaintiff had
submitted a “Complaint for Damages” in
Nichols I. See Id. at 4-5; see
also ECF No. 44 in Nichols I (R&R adopted
by ECF No. 61) for further detail regarding Nichols
I. The Clerk of Court filed Plaintiff's Complaint
for Damages as ECF No. 1 in the instant action.
the requisite initial review by the undersigned, service of
Plaintiff's pro se Complaint on Defendant United States
was permitted. ECF No. 29. Plaintiff's Complaint includes
causes of action for dental malpractice, lack of informed
consent, dental battery, and negligence. ECF No. 1. The
United States was served on August 29, 2018, making October
29, 2018 the deadline by which the United States was required
to file a responsive pleading to the Complaint. See
ECF No. 33. On October 29, 2018, the United States filed the
Motion to Dismiss now under consideration. ECF No. 34. As
Plaintiff is proceeding pro se, on October 30, 2018, pursuant
to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.
1975), Plaintiff was advised of the dismissal procedure and
the possible consequences if she failed to adequately respond
to the Motion to Dismiss. ECF No. 35. Plaintiff filed her
response to the Motion to Dismiss, ECF No. 39, and Defendant
filed its reply, ECF No. 40. Several weeks prior to filing
her opposition to the Motion to Dismiss Plaintiff also filed
her own dispositive motion, styled Plaintiff's Motion for
Summary Judgement and Notice of Motion for Default Judgment.
ECF No. 37. Defendant responded to Plaintiff's Motion for
Summary Judgment/Default, ECF No. 38, and Plaintiff filed a
reply in support of her motion, ECF No. 41.
Complaint centers around an April 3, 2017 dental appointment
with Dr. Alena Sabzwari, who was employed by the Little River
Dental Center (the “Center”), an entity receiving
federal funds. Compl. ¶¶ 1, 5. Plaintiff alleges
she “sustained injury as a result of surgery of a tooth
that was extracted and broken off at the root during a dental
appointment.” Compl. ¶ 5. Plaintiff alleges the
Center misdiagnosed a dental condition, which resulted in the
needless extraction of teeth. Compl. ¶ 6. Defendant also
alleges Dr. Sabzwari wrongly administered pain relief;
performed a “contraindiciated surgical procedure”
for which Defendant did not receive appropriate informed
consent; mistreated an infection; and failed to provide a
timely referral, resulting in an unwarranted delay in
treatment. Compl. ¶¶ 7-12.
court has jurisdiction under the Federal Tort Claims Act
brings this action alleging negligence of federal employees
while acting within the scope of their office; therefore, the
FTCA is controlling. See 28 U.S.C. § 1314(b)
and 28 U.S.C. § 2671 et seq. In FTCA actions, a
remedy against the United States is exclusive of any other
civil action or proceeding for money damages against the
employee whose act or omission gave rise to the claim. 28
U.S.C. § 2679(b)(1). Pursuant to the FTCA, “[t]he
United States shall be liable . . . relating to tort claims,
in the same manner and to the same extent as a private
individual under like circumstances.” 28 U.S.C. §
2674. Defendant acknowledges the FTCA gives the court
jurisdiction over Plaintiff's Complaint.
complaints are held to a less stringent standard than those
drafted by attorneys, Gordon v. Leeke, 574 F.2d
1147, 1151 (4th Cir. 1978), and a federal district court is
charged with liberally construing a complaint filed by a pro
se litigant to allow the development of a potentially
meritorious case. Erickson v. Pardus, 551 U.S. 89,
94 (2007); Kerr v. Marshall Univ. Bd. of Governors,
824 F.3d 62, 72 (4th Cir. 2016). When a federal court is
evaluating a pro se complaint, the plaintiff's
allegations are assumed to be true. De'Lonta v.
Angelone, 330 F.3d 630, 630 n.1 (4th Cir. 2003).
Nevertheless, the requirement of liberal construction does
not mean that this court can ignore a clear failure in the
pleading to allege facts that set forth a claim currently
cognizable in a federal district court. Weller v.
Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir.
1990). Further, “a court may not act as [a pro se]
litigant's advocate and construct legal arguments that
the plaintiff has not made[.]” Warren v. Tri Tech
Labs., Inc., 993 F.Supp.2d 609, 613 (W.D. Va.),
aff'd, 580 Fed.Appx. 182 (4th Cir. 2014) (citing
Brock v. Carroll, 107 F.3d 241, 242-43 (4th Cir.
1997) (Luttig, J., concurring); Beaudett v. City of
Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985)).
Motion to Dismiss, Rule 12(b)(6)
motion filed under Rule 12(b)(6) challenges the legal
sufficiency of a complaint.” Francis v.
Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). The court
measures the legal sufficiency by determining whether the
complaint meets the Rule 8 standards for a pleading.
Id. The Supreme Court considered the issue of
well-pleaded allegations, explaining the interplay between
Rule 8(a) and Rule 12(b)(6) in Bell Atlantic Corp. v.
Federal Rule of Civil Procedure 8(a)(2) requires only
“a short and plain statement of the claim showing that
the pleader is entitled to relief, ” in order to
“give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.” While a
complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations, a plaintiff's
obligation to provide the “grounds” of his
“entitle[ment] to relief” requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do. Factual
allegations must be enough to raise a right to relief above
the speculative level . . . .
550 U.S. 544, 555 (2007) (internal citations omitted);
see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(“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.” (citing Twombly, 550 U.S.
at 556)). When considering a motion to dismiss, the court
must accept as true all of the factual allegations contained
in the complaint.” Erickson v. Pardus, 551
U.S. 89, 94 (2007). The court is also to “‘draw
all reasonable inferences in favor of the
plaintiff.'” E.I. du Pont de Nemours
& Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th
Cir. 2011) (quoting Nemet Chevrolet, Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir.
2009)). Although a court must accept all facts
alleged in the complaint as true, this is inapplicable to
legal conclusions, and “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Iqbal, 556 U.S.
at 678 (citation omitted). While legal conclusions can
provide the framework of a complaint, factual allegations
must support the complaint for it to survive a motion to
dismiss. Id. at 679. Therefore, a pleading that
provides only “labels and conclusions” or
“naked assertion[s]” lacking “some further
factual enhancement” will not satisfy the requisite
pleading standard. Twombly, 550 U.S. at 555, 557.
Further, the court “need not accept as true unwarranted
inferences, unreasonable conclusions, or arguments.”
E. Shore Mkts., Inc. v. J.D. Assocs., Ltd.
P'ship, 213 F.3d 175, 180 (4th Cir. 2000). At
bottom, the court is mindful that a complaint “need
only give the defendant fair notice of what the claim is and
the grounds upon which it rests.” Coleman v. Md.
Ct. of Apps., 626 F.3d 187, 190 (4th Cir. 2010)
(internal quotation marks omitted).
may be considered on a motion to dismiss; conversion to