Opinion
C/A: 4:17-cv-00018-RBH-TER
01-09-2019
United States of America, Ex rel. Erica Poston Plaintiff, v. Lower Florence County Hospital District, d/b/a Lake City Community Hospital, and Global Healthcare and Rehab, Inc., Defendants.
Report and Recommendation
This is a qui tam action under the False Claims Act, 31 U.S.C. § 3729, et seq. The United States declined to intervene in this case and filed a notice of such on July 5, 2018. (ECF No. 30). The attorney for Relator, Erica Poston, filed a Motion to Withdraw, which was granted on August 27, 2018. (ECF No. 36). On August 27, 2018, the court gave Relator 45 days to obtain new counsel. (ECF No. 36). Relator did not procure counsel. Again, on December 10, 2018, the court gave Relator 21 days from the order date to procure counsel, as she could not proceed pro se in the qui tam action. Relator has not procured counsel and thus the qui tam portion of her claim is subject to summary dismissal. In the prior order, Relator was put on notice that her action was subject to partial dismissal if pursued pro se. See United States ex rel. Brooks v. Lockheed Martin Corp., 237 Fed. Appx. 802 (4th Cir. 2007). (ECF No. 49).
Neither the general pro se grant, 28 U.S.C. § 1654, nor the FCA itself authorizes pro se prosecution of qui tam claims. Qui tam relators are not entitled to proceed pro se. U.S. ex re. Brooks v. Lockheed Martin, Corp., 237 Fed. Appx. 802 (4th Cir. Feb. 23, 2007). The United States is the real party in interest and such dictates against pro se suits. See U.S. ex rel. Milam v. Univ. Tex., 961 F.2d 46, 50 (4th Cir. 1992). It is recommended that the qui tam portion of Relator's claim be summarily dismissed.
It appears that Relator asserts a claim for retaliatory discharge under 31 U.S.C. § 3730(h), in addition to the qui tam claim. Relator is not prohibited from pursuing the retaliatory discharge claim pro se, and this same date an order requesting service documents from pro se Relator so that service of only the retaliatory discharge claim may be authorized in the future.
This court in U.S. ex rel. Abou-Hussein v. Science Applications Int'l Corp., 2012 WL 6892716 (D.S.C. May 3, 2012), aff'd, 475 Fed. Appx. 851 (4th Cir. 2012) is instructive: "Once Plaintiff became pro se, he was not permitted to continue the two traditional False Claims Act counts against the Defendants. See, United States ex rel. Mergent Services v. Flaherty, 540 F.3d 89, 93-94 (2d Cir.2008). The dismissal of those claims was proper. However, Plaintiff's retaliation claim under § 3730(h) should not have been dismissed on the ground that he was acting pro se. See, United States ex rel. Brooks v. Lockheed Martin Corp., 237 Fed. Appx. 802 (4th Cir., 2007). Instead, the Court should have then addressed the motions to dismiss the retaliation count which were pending at the time of the dismissal." Id.
RECOMMENDATION
Accordingly, it is recommended that the district court partially dismiss the complaint in this case without prejudice, as to the qui tam portion of Relator's claims, as she cannot proceed pro se in such claims. As noted above, it is recommended that Relator's claim for retaliatory discharge under 31 U.S.C. § 3730(h) continue, as it can be pursued pro se.
s/ Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge January 9, 2019
Florence, South Carolina
Relator's attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 2317
Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).