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Nichols v. United States

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

April 2, 2019

Linda Nichols, Plaintiff,
v.
United States of America, Defendant.

          REPORT AND RECOMMENDATION

          KAYMANI D. WEST UNITED STATES MAGISTRATE JUDGE.

         This 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 in part.

         I. Background

         A. Nichols I

         Plaintiff 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.

         B. The instant action

         After 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.

         II. Relevant facts

         Plaintiff's 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.

         III. Applicable law

         A. The court has jurisdiction under the Federal Tort Claims Act (“FTCA”)

         Plaintiff 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.[1]

         B. Pro se pleadings

         Pro se 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)).

         C. Motion to Dismiss, Rule 12(b)(6)

         “A 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. Twombly:

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).

         D. What may be considered on a motion to dismiss; conversion to ...


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