Wallace v. USA

MOTION to Dismiss for Lack of Jurisdiction and Failure to State Claim

W.D.N.C.May 22, 2017

1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION CIVIL NO. 3:17-cv-138-RJC-DSC DON BRADLEY WALLACE, ) ) Plaintiff, ) ) DEFENDANT’S MOTION v. ) TO DISMISS ) UNITED STATES OF AMERICA, ) ) Defendant. ) ____________________________________) COMES NOW the United States of America, by and through Jill Westmoreland Rose, United States Attorney for the Western District of North Carolina, and makes this Motion to Dismiss Plaintiff’s Complaint pursuant to Fed. R. Civ. P. 12(b)(1) and (6) on the grounds that: (1) the claim is barred by North Carolina’s four-year statue of repose governing medical malpractice actions; (2) Mr. Wallace has failed to meet the mandatory pre-filing certification requirement for medical malpractice actions pursuant to N.C. Gen. Stat. § 1A-1, Rule 9; (3) the Complaint fails to state a claim upon which relief may be granted; and (4) there is no judicial review in the federal district courts of VA benefits-related decisions.1 In support of its Motion, the United States contemporaneously files its Memorandum of Law herewith, and incorporates the contents of the same by reference as if fully set out herein. In accordance with Local Rule 7.1(B), the undersigned has not conferred with or attempted to confer with pro se Plaintiff regarding this Motion. 1 The United States reserves its right to plead any/all affirmative defenses enumerated in Fed. R. Civ. P. 8 in response to Plaintiff’s Complaint, including statute of limitations, in the event its Motion to Dismiss is denied and as facts warrant. Case 3:17-cv-00138-RJC-DSC Document 6 Filed 05/22/17 Page 1 of 3 2 This the 22nd day of May, 2017. Respectfully, JILL WESTMORELAND ROSE United States Attorney s/ Katherine T. Armstrong Assistant United States Attorney N.C. Bar No. 36305 227 West Trade Street, Suite 1650 Charlotte, NC 28202 Tel: 704-344-6222 Fax: 704-344-6629 E-Mail: Katherine.Armstrong@usdoj.gov Case 3:17-cv-00138-RJC-DSC Document 6 Filed 05/22/17 Page 2 of 3 3 CERTIFICATE OF SERVICE I CERTIFY that on the 22nd day of May, 2017, the foregoing Defendant’s Motion to Dismiss was electronically filed with the Clerk of the Court using the CM/ECF system and served on the Plaintiff, pro se, by mailing a copy thereof, first class mail, postage prepaid, and properly addressed to: Don Bradley Wallace 1130 Gretna Green Dr. Charlotte, NC 28217 Plaintiff, pro se JILL WESTMORELAND ROSE United States Attorney s/ Katherine T. Armstrong Assistant United States Attorney N.C. Bar No. 36305 227 West Trade Street, Suite 1650 Charlotte, NC 28202 Tel: 704-344-6222 Fax: 704-344-6629 E-Mail: Katherine.Armstrong@usdoj.gov Case 3:17-cv-00138-RJC-DSC Document 6 Filed 05/22/17 Page 3 of 3 1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF N.C. CHARLOTTE DIVISION CIVIL NO. 3:17-cv-138-RJC-DSC DON BRADLEY WALLACE, ) ) Plaintiff, ) ) MEMORANDUM OF LAW IN v. ) SUPPORT OF DEFENDANT’S ) MOTION TO DISMISS UNITED STATES OF AMERICA, ) ) Defendant. ) ____________________________________) Plaintiff brings this medical malpractice action pursuant to the Federal Tort Claims Act1 (which provides a limited waiver of the United States’ sovereign immunity to be sued for certain state law torts) claiming entitlement to damages as a result of negligent psychiatric care at a VA clinic. The Complaint should be dismissed because: (1) the claim is barred by N.C.’s four- year statue of repose governing medical malpractice actions; (2) there is no pre-filing certification as required by N.C.G.S. § 1A-1, Rule 9; (3) the Complaint fails to state a claim upon which relief may be granted; and (4) there is no judicial review in the federal district courts of VA benefits-related decisions. I. STATEMENT OF THE CASE Following his military service, Wallace sought mental health care at a VA outpatient clinic in Charlotte, N.C., and alleges that “[t]his claim arises out of negligent psychiatric appointment on 8 March 2012” (Doc. No. 1 p. 1 at ¶6) or a “routine intake psychiatric appointment with Dr. 1 28 U.S.C. § 1346(b), §§2671-2680. Case 3:17-cv-00138-RJC-DSC Document 6-1 Filed 05/22/17 Page 1 of 20 2 Villanueva” that occurred on March 8 of 2013 (Doc. No. 1 p. 2 ¶11; p. 3 ¶15; p. 4 ¶22). The extent of Wallace’s contact with Dr. Villanueva was “one short intake visit” (Doc. No. 1 p. 3 ¶20).2 Wallace alleges that the weekend following his appointment with Dr. Villanueva, he was engaged an altercation of with a roommate and as a result moved out of the residence and ultimately became homeless (Doc. No. 1 p. 4 ¶22). Wallace further alleges that “[t]his negligent appointment and negligent actions following it on Dr. Villanueva’s behalf” also caused him to be homeless, and subsequently to hike the Appalachian Trail, which resulted in “injury on a previous and unknown service connected condition in his lumbar spine” and “further aggravation of his Mental health and P.T.S.D. issues” (Doc. No. 1 pp. 1-2 ¶7). Wallace does not identify or describe what, if any, “negligent actions” were taken by Dr. Villanueva after the March appointment, with the exception of allegations that Dr. Villanueva did not respond quickly to Wallace’s telephone calls (Doc. No. 1 p. 3 ¶¶ 15-16). Wallace claims that as a result of the purported medical negligence that he is entitled to compensation for pain and suffering for: …the aggravation of a previously unknown service related condition of multiple injuries in his lumber spine including three bulging disc, one degenerative disc, osteoarthritis, a disc bulge at the t-11 vertebra and aggravation of his P.T.S.D. and other service related conditions… (Doc. No. 1 p. 8 ¶39). He also seeks compensation for property damage (e.g. hiking gear) and “lost V.A. disability money” (Id. at ¶40). The instant matter is Wallace’s third FTCA action against the VA arising out of the same set of facts and circumstances. In his first suit, 3:17-cv-73-FDW-DCK (filed Feb. 17, 2017, 2 See also Doc. No. 1 p. 3 ¶20 (“Dr. Villanueva had only spoken with plaintiff for one short intake visit.”). Case 3:17-cv-00138-RJC-DSC Document 6-1 Filed 05/22/17 Page 2 of 20 3 W.D.N.C.), Wallace similarly alleged that he was injured as a result of negligent psychiatric care (Doc. No. 1 p. 3). That case was dismissed following the frivolity review pursuant to 28 U.S.C. § 1915(e) because: (1) the allegations were “rambling and confusing,” and the pleading did not comport with Rule 8 of the Federal Rules of Civil Procedure; (2) the complaint referred to “wholly unrelated events and purported claims”; and (3) the majority of Plaintiff’s allegations were “fantastic and delusional” (Doc. No. 5 pp. 3). The Court dismissed the original complaint without prejudice, instructing that “if Plaintiff wishes to file a subsequent action against the United States under the Federal Torts Claims Act based on alleged negligent medical care, his Complaint must comply with Rule 8 of the Federal Rules of Civil Procedure” (Id. at pp. 3-4). A second FTCA action against the United States, seeking damages arising out of the VA’s purported loss of medical records, is currently pending in the Western District. See 3:17-cv-117-FDW-DCK (filed March 8, 2017, W.D.N.C.). Wallace initiated the above-captioned matter by filing a Complaint on March 17, 2017 (Doc. No. 1). He cites the FTCA as the jurisdictional basis of his claims (Doc. No. 1 p. 1), and further alleges that he followed its administrative procedures, notifying the VA of his claim on August 4, 2016 (Doc. No. 1 p. 2 ¶8), and that his claim was subsequently denied on September 27, 2016 (Id.). II. ARGUMENT A. LEGAL STANDARD FOR 12(B)(1) AND 12(B)(6) MOTIONS Federal district courts are courts of limited jurisdiction. United States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347 (4th Cir. 2009). “They possess only that power authorized by Constitution and statute.” Randall v. United States, 95 F.3d 339, 344 (4th Cir. 1996). “Thus, when a district court lacks subject matter jurisdiction over an action, the action must be dismissed.” Case 3:17-cv-00138-RJC-DSC Document 6-1 Filed 05/22/17 Page 3 of 20 4 Vuyyuru, 555 F.3d at 347; see, e.g., Sumwalt v. U.S. Dept. of Veterans Affairs, No. 3:13-cv-00367- MOC-DCK, 2013 WL 6056602 (W.D.N.C. Nov. 15, 2013). The existence of federal subject matter jurisdiction is a threshold issue, Jones v. Am. Postal Workers Union, 192 F.3d 417, 422 (4th Cir.1999), and a challenge to the court’s subject matter jurisdiction is properly considered on a motion under Federal Rule of Civil Procedure 12(b)(1). See Clinton v. Brown, No. 3:15-cv-0048-FDW-DSC, 2015 WL 4941799 (W.D.N.C. Aug. 19, 2015). The burden of establishing federal subject matter jurisdiction rests on the plaintiff. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982). The moving party should prevail on a motion to dismiss pursuant to a lack of federal jurisdiction if material jurisdictional facts are not in dispute, and the moving party is entitled to prevail as a matter of law. Richmond, Fredericksburg & Potomac R.R. Co. v. U.S., 945 F.2d 765 (4th Cir.1991). A complaint attacked by a Rule 12(b)(6) motion to dismiss will survive if it contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) quoting Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1974 (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.” Iqbal, 129 S. Ct. at 1949. And “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to state a claim for relief. Id. While “[a] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers,” Estelle v. Gamble, 97 S. Ct. 285, 292 (1976), the courts are not required to rewrite deficient pleadings. Chubirko v. Better Bus. Bureau of Southern Piedmont, Inc., 763 F. Supp. 2d 759 (W.D.N.C. 2011) (unpublished) (citations omitted). Case 3:17-cv-00138-RJC-DSC Document 6-1 Filed 05/22/17 Page 4 of 20 5 And courts cannot act as the pro se plaintiff’s advocate or develop claims which the plaintiff failed to raise clearly on the face of his complaint. Gordon v. Leeke, 574 F.2d 1147, 1152 (4th Cir. 1978) (recognizing that district courts are not expected to assume the role of advocate for the pro se plaintiff). As a result, even a pro se plaintiff’s claim for relief “requires more than labels and conclusions....” Twombly, 127 S. Ct. at 1965. Like plaintiffs who are represented by counsel, a pro se plaintiff must still “allege facts sufficient to state all the elements of [the] claim.” Bass v. E.I. Dupont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003). Conclusory statements with insufficient factual allegations, even when asserted by pro se plaintiffs, will not survive a motion to dismiss under Rule 12(b)(6), and the mere possibility that a defendant acted unlawfully is not sufficient for a claim to survive a motion to dismiss. Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 256 (4th Cir. 2009). B. PLAINTIFF’S CLAIMS ARE NOT COGNIZABLE UNDER THE FTCA. The FTCA is a limited waiver of the United States’ sovereign immunity, permitting persons injured by federal-employee tortfeasors to sue the United States for damages in federal district court; i.e., federal agencies and their employees may not be sued for tort claims, except as permitted by the FTCA. Smith v. Medda, No. 3:08-CV-427-MR-DCK, 2009 WL 102504, at *1 (W.D.N.C. Jan. 13, 2009) citing 28 U.S.C. §§ 1346(b), 1402(b), 2401(b), 2671-2680; Williams v. United States, 50 F.3d 299, 305 (4th Cir. 1995). The FTCA is not a cause of action, rather, it “constitutes consent to suit and is fundamentally limited to cases in which a private individual would be liable under like circumstances.” Premo v. United States, 599 F.3d 540, 544 (6th Cir. 2010). Case 3:17-cv-00138-RJC-DSC Document 6-1 Filed 05/22/17 Page 5 of 20 6 The “plaintiff bears the burden of persuading the court that it has subject matter jursidiciton under the FTCA’s general waiver of immunity …” Autery v. United States, 992 F.2d 1512, 1526 n.6 (11th Cir. 1993) (citations omitted). And “[b]eing a waiver of sovereign immunity, the FTCA is strictly construed, and all ambiguities are resolved in favor of the United States.” Williams, 50 F.3d at 305. Moreover, sovereign immunity is jurisdictional in nature. F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). “Indeed, the ‘terms of [the United States’] consent to be sued in any court define that court’s jurisdiction to entertain the suit’” Id. quoting United States v. Sherwood, 312 U.S. 584, 586, (1941); see also United States v. Mitchell, 463 U.S. 206, 212, (1983) (“It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction”); Hornbeck Offshore Transp., LLC v. United States, 569 F.3d 506, 512 (D.C. Cir. 2009) (“The extent of the waiver of sovereign immunity under the FTCA is coextensive with the district court’s subject-matter jurisdiction to hear the case.”). Finally, the FTCA only authorizes suit for claims which are cognizable under 28 U.S.C. § 1346(b), Meyer, 510 U.S. at 476, meaning that § 1346(b) grants the district courts jurisdiction over a certain category of claims, specifically, state torts, for which the United States has waived its sovereign immunity and “render[ed]” itself liable. Meyer, 510 U.S. at 477 citing Richards v. United States, 369 U.S. 1, 6 (1962). In order for a claim to be cognizable under the FTCA, it must be a claim: “[1] against the United States, [2] for money damages, ... [3] for injury or loss of property, or personal injury or death [4] caused by the negligent or wrongful act or omission of any employee of the Government [5] while acting within the scope of his office or employment, [6] 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.” Case 3:17-cv-00138-RJC-DSC Document 6-1 Filed 05/22/17 Page 6 of 20 7 28 U.S.C. § 1346(b); see also Anderson v. United States, 669 F.3d 161, 164 (4th Cir. 2011). The substantive laws of the state where the cause of action arises apply, and “a claimant has a FTCA cause of action against the government only if she would also have a cause of action under state law against a private person in like circumstances.” Anderson, 669 F.3d at 164 (emphasis added) (quotations and citations omitted). 1. This suit is time-barred by N.C.’s four-year statute of repose for medical malpractice actions. A statute of limitations provides a procedural defense to a claim, however, a statute of repose creates a substantive right to be free from liability: a statute of repose creates an additional element of the claim itself, which must be satisfied in order for the claim to be maintained. Hargett v. Holland, 337 N.C. 651, 654, 447 S.E.2d 784, 787 (N.C. 1994). Unlike the statute of limitations, which runs from the time a cause of action accrues, statutes of repose: ... create time limitations which are not measured from the date of injury. These time limitations often run from defendant’s last act giving rise to the claim or from substantial completion of some service rendered by defendant. Id. (quotations omitted). In Anderson, the Fourth Circuit acknowledged that: [s]tate law may nevertheless speak to the timeliness of a claim brought under the FTCA, because a state’s enactment of a statute of repose “creates a substantive right in those protected to be free from liability after a legislatively-determined period of time.” Anderson, 669 F.3d at 164-65 quoting First United Methodist Church of Hyattsville v. U.S. Gypsum Co., 882 F.2d 862, 866 (4th Cir. 1989), certified question answered, 427 Md. 99, 46 A.3d 426 (2012). Other appellate and district courts have addressed this question - whether or not a state statute of repose can bar a tort claim brought pursuant to the FTCA - and have answered in Case 3:17-cv-00138-RJC-DSC Document 6-1 Filed 05/22/17 Page 7 of 20 8 the affirmative. See, e.g., Augutis v. United States, 732 F.3d 749 (7th Cir. 2013) (four-year statute of repose for bringing medical malpractice action served as a substantive limit on liability for purposes of the FTCA); Huddleston v. United States, No. 11-5873, 485 Fed. Appx. 744 (6th Cir. 2012) (unpublished) three-year statute of repose barred medical malpractice complaint filed in 2010 arising out of 2006 colonoscopy); Smith v. United States, No. 10-41085, 430 Fed. Appx. 246 (5th Cir. 2011) (unpublished) (ten-year statute of repose for health care liability claims applied, precluding FTCA claim); Allen v. United States, No. 4:16-cv-607, 2017 WL 1355492 (E.D.Mo. April 13, 2017) (granting government’s motion to dismiss where plaintiff did not bring his action until more than ten years after the alleged malpractice); Natale v. United States, No. 13-2339, 2014 WL 1281224 (E.D.Pa. March 28, 2014) (dismissing complaint with prejudice where claim for medical malpractice barred by seven-year statute of repose); Spann v. United States, No. 11-cv- 23178, 2012 WL 3776684 (S.D.Fl. Aug. 30, 2012) (plaintiff who did not bring medical malpractice claim within four years of their colonoscopy barred under statute of repose). Section 1-15(c) of the N.C. General Statutes contains a statute of repose applicable to medical malpractice actions and provides in pertinent part that “in no event shall an action be commenced more than four years from the last act of the defendant giving rise to the cause of action.” N.C.G.S. § 1-15(c). N.C. courts consistently construe this provision as a substantive statute of repose, and interpret it to mean: [i]f the action is not brought within the specified period, the plaintiff literally has no cause of action. The harm that has been done is damnum absque injuria-a wrong for which the law affords no redress. Carle v. Wyrick, Robbins, Yates & Ponton, LLP, 738 S.E.2d 766, 770 (N.C. Ct. App. 2013) (quotations omitted); Udzinski v. Lovin, 597 S.E.2d 703 (N.C. 2004) (four-year statute of repose for medical malpractice claim began to run with physician’s failure to diagnose when interpreting Case 3:17-cv-00138-RJC-DSC Document 6-1 Filed 05/22/17 Page 8 of 20 9 chest x-ray, where physician did not render any further medical care to patient after that reading); Black v. Littlejohn, 325 S.E.2d 469, 475 (N.C. 1985) (“The legislature’s adoption of an outer limit or repose of four years from the last act of the defendant giving rise to the cause of action for non- apparent injuries … clearly [has] the effect of granting the defendant an immunity to actions for malpractice after the applicable period of time has elapsed.”) (citations omitted); see also Jones v. United States, No. 7:09-cv-106-BO, 751 F. Supp. 2d 835, 836 (E.D.N.C. 2010) (a state’s statute of repose is considered substantive law, and would apply in an action under the FTCA). According to Wallace, the alleged negligence occurred on either March 8, 2012 (Doc. No. 1 p. 1 ¶6) or March 8, 2013 (Doc. No. 1 p. 3 ¶15, p. 4 ¶22). Assuming the negligence occurred on the later date, March 8, 2013, suit must have been instituted on or before March 8, 2017. Here, the instant action was filed on March 17, 2017 and is subject to dismissal because it is barred by N.C.’s four-year statute of repose. 2. Plaintiff has failed to satisfy the mandatory pre-filing certification requirement of Rule 9(j) and his Complaint must be dismissed. “One of the essential elements of a claim for medical negligence is that the defendant breached the applicable standard of medical care owed to the plaintiff.” Goins v. Puleo, 512 S.E.2d 748, 751 (N.C. 1999). To meet their burden of proving the applicable standard of care, plaintiffs must satisfy the requirements of N.C.G.S. § 90-21.12, which states: …in any medical malpractice action as defined in G.S. 90- 21.11(2)(a),3 the defendant health care provider shall not be liable for the payment of damages unless the trier of fact finds by the greater weight of the evidence that the care of such health care provider was not in accordance with the standards of practice among members of the same health care profession with similar training 3 This section of the General Statutes defines a medical malpractice action as a “civil action for damages for personal injury or death arising out of the furnishing or failure to furnish professional services in the performance of medical, dental, or other health care by a health care provider. N.C. Gen. Stat. § 90-21.11(2)(a). Case 3:17-cv-00138-RJC-DSC Document 6-1 Filed 05/22/17 Page 9 of 20 10 and experience situated in the same or similar communities under the same or similar circumstances at the time of the alleged act giving rise to the cause of action… N.C.G.S. § 90-21.12; Crocker v. Roethling, 675 S.E.2d 625, 628 (N.C. 2009). Plaintiffs must establish the relevant standard of care through expert testimony, Ballance v. Wentz, 210 S.E.2d 390, 395 (N.C. 1974), Smith v. Whitmer, 582 S.E.2d 669, 671-72 (N.C. Ct. App. 2003), and expert testimony is also necessary to establish breach and proximate causation of the injury, Cousart v. Charlotte-Mecklenburg Hosp. Authority, 704 S.E.2d 540, 543 (N.C. 2011). Additionally, Rule 9(j) requires that any complaint alleging medical malpractice contain the pre-filing certification of a medical expert. The Rule states that: j) Medical malpractice.--Any complaint alleging medical malpractice by a health care provider pursuant to G.S. 90-21.11(2)a. in failing to comply with the applicable standard of care under G.S. 90-21.12 shall be dismissed unless: (1) The pleading specifically asserts that the medical care and all medical records pertaining to the alleged negligence that are available to the plaintiff after reasonable inquiry have been reviewed by a person who is reasonably expected to qualify as an expert witness under Rule 702 of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care; (2) The pleading specifically asserts that the medical care and all medical records pertaining to the alleged negligence that are available to the plaintiff after reasonable inquiry have been reviewed by a person that the complainant will seek to have qualified as an expert witness by motion under Rule 702(e) of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care, and the motion is filed with the complaint; or Case 3:17-cv-00138-RJC-DSC Document 6-1 Filed 05/22/17 Page 10 of 20 11 (3) The pleading alleges facts establishing negligence under the existing common-law doctrine of res ipsa loquitur.4 N.C.G.S. § 1A-1, Rule 9 (emphasis added). N.C. courts recognize that compliance with Rule 9(j) is a substantive element of a medical malpractice claim because the plaintiff must prove, among other elements, the standard of care owed by the defendant and a breach thereof, and N.C. courts have specifically rejected the argument that Rule 9(j) is a procedural rule. Rowell v. Bowling, 197 N.C. App. 691, 695 (N.C. Ct. App. 2009) (affirming summary judgment where pleading lacked Rule 9(j) certification). Rule 9(j) unambiguously requires a trial court to dismiss a complaint [upon motion] if the complaint’s allegations do not facially comply with the rule’s heightened pleading requirements. Additionally, this Court has determined that even when a complaint facially complies with Rule 9(j) by including a statement pursuant to [the] Rule, if discovery subsequently establishes that the statement is not supported by the facts, then dismissal is likewise appropriate. In considering whether a plaintiff's Rule 9(j) statement is supported by the facts, a court must consider the facts relevant to Rule 9(j) and apply the law to them.5 Barringer v. Forsyth Co. Wake Forest University Baptist Medical Center, 677 S.E.2d 465, 477 (N.C. Ct. App. 2009); Estate of Wooden ex rel. Jones v. Hillcrest Convalescent Center, Inc., 731 S.E.2d 500, 506-7 (2012) (Rule 9(j) does not provide a procedural mechanism for dismissing a noncomplying complaint; that mechanism must be found in pari materi with other Rules of Civil Procedure); Moore v. Proper, 726 S.E.2d 812, 817 (N.C. Ct. App. 2012) (Rule 9(j) “operates as a 4 Res ipsa loquitur applies when: (1) direct proof of the cause of an injury is not available, (2) the instrumentality involved in the accident is under the defendant’s control, and (3) the injury is of a type that does not ordinarily occur in the absence of some negligent act or omission. Alston v. Granville Health System, 727 S.E.2d 877, 880 (N.C. Ct. App. 2012). The classic example of a res ipsa loquitor case is that of the missing surgical sponge. Tice v. Hall, 313 S.E.2d 565, 567 (N.C. 1984). The facts as alleged by Mr. Wallace in this action do not warrant the application of res ipsa loquitor. 5 “[R]eview of Rule 9(j) compliance is de novo, because such compliance clearly presents a question of law.” Barringer, 677 S.E.2d at 477. Case 3:17-cv-00138-RJC-DSC Document 6-1 Filed 05/22/17 Page 11 of 20 12 preliminary qualifier” to show the elements of a medical malpractice claim); Brown v. Kindred Nursing Centers East, L.L.C., 692 S.E.2d 87 (N.C. 2010) (Rule 9(j) ensures access to courts to resolve medical malpractice claims while protecting health care providers from frivolous suits); Thigpen v. Ngo, 58 S.E.2d 162 (N.C. 2002) (“medical malpractice complaints have a distinct requirement of expert certification.”). There is no similar certification requirement under the FTCA, but that statute waives sovereign immunity only if the claim could be brought under the substantive law of N.C. 28 U.S.C. § 1346(b)(1); Erie Railroad Co. v. Thompkins, 304 U.S. 64 (1938). Importantly, the FTCA provides a limited waiver of the United States’ sovereign immunity “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.” 28 U.S.C. § 1346(b)(1). Section 2674 “makes clear, in conjunction with the jurisdictional grant over FTCA cases in 28 U.S.C. § 1346(b), the extent of the United States’ liability under the FTCA is generally determined by reference to state law.” … “a claimant has an FTCA cause of action against the government only if [ ]he would also have a cause of action under state law against a private person in like circumstances. Thus, the substantive law of each state establishes the cause of action.” Lauer v. United States, No. 1:12-cv-41-MR-DLH, 2013 WL 566124, at *3 (W.D.N.C. Feb. 13, 2013) (quotations omitted). As such, Rule 9 applies to cases brought pursuant to the FTCA, and notably, “[t]he district courts in this circuit are also unanimous that a Rule 9(j) certification is required to sustain a medical malpractice action under the FTCA in N.C..” Littlepaige v. United States, No. 12-1367, 528 Fed. Appx. 289, 292 (4th Cir. 2013) (unpublished); Gryder v. Holder, No. 1:14-cv-112-DLH, 2014 WL 5475035, at *3 (W.D.N.C. Sept. 26, 2014) (“Federal Courts in N.C. have routinely required Rule 9(j) certification in medical malpractice claims asserted pursuant to the Federal Tort Claims Act.”); Case 3:17-cv-00138-RJC-DSC Document 6-1 Filed 05/22/17 Page 12 of 20 13 Lauer, 2013 WL 566124, at *2; Frazier v. Angel Med. Ctr., 308 F. Supp. 2d 671, 676-77 (W.D.N.C. 2004) (failure to include Rule 9 certification in the complaint will result in dismissal unless the complaint states a cause of action for negligence pursuant to the doctrine of res ipsa loquitur); Hall v. United States, No. 5:10-CT-3220-BO, 2013 WL 163639, at *2 (E.D.N.C. Jan. 15, 2013) (dismissal of FTCA action for failure to satisfy the criteria of Rule 9(j)); Howell v. Physicians & Staff, VAMC-Salisbury, No. 1:12-CV-1233, 2012 WL 5879748, at *3 (M.D.N.C. Nov. 21, 2012) (“Plaintiff may not proceed with a medical malpractice claim under the FTCA for conduct occurring in N.C. without an expert certification required by N.C. Gen.Stat. § 1A-1, Rule 9(j) or factual allegations establishing negligence under the doctrine of res ipsa loquitur.”); Williams v. Haigwood, No. 5:08-CT-3138-BO, 2012 WL 4483883, at *7 (E.D.N.C. Sept. 27, 2012) (“Failure to comply with Rule 9(j) is ground for dismissal of a state medical-malpractice claim filed in federal court.”). The Complaint is subject to dismissal for failure to comply with the pre-filing certification requirement of Rule 9. 3. Plaintiff’s allegations are insufficient to state a claim upon which relief may be granted. Failure to state a claim is a state-law defense available to the United States. If the elements required to state a tort claim under state law are not present, then the case is not cognizable under the FTCA. The elements of a claim for N.C. state tort claim of medical negligence are: (1) the existence of a standard of care; (2) breach of the standard of care; (3) proximate causation; and (4) damages. Turner v. Duke University, 381 S.E.2d 706, 712 (N.C. 1989). Proximate cause exists if the causal relationship between the breach of the state-law standard of care and the claimant’s injury satisfies certain criteria. N.C. courts define proximate cause as: Case 3:17-cv-00138-RJC-DSC Document 6-1 Filed 05/22/17 Page 13 of 20 14 … a cause which in natural and continuous sequence, unbroken by any new and independent cause, produced the plaintiff's injuries, and without which the injuries would not have occurred, and one from which a person of ordinary prudence could have reasonably foreseen that such a result, or consequences of a generally injurious nature, was probable under all the facts as they existed. Cousart v. Charlotte-Mecklenburg Hosp. Auth., 209 N.C. App. 299, 303, 704 S.E.2d 540, 543 (2011) (quotations omitted) citing Hairston v. Alexander Tank & Equipment Co., 311 S.E.2d 559, 565 (N.C. 1984). Foreseeability is a necessary element of proximate cause. Id.; Taylor v. Interim Healthcare of Raleigh-Durham, Inc., 574 S.E.2d 11, 15 (N.C. Ct. App. 2002). To prove that an action is foreseeable, a plaintiff is required to prove that: … ‘in “the exercise of reasonable care, the defendant might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might have been expected.” ’ Taylor, supra, quoting Williamson v. Liptzin, 539 S.E.2d 313, 319 (N.C. Ct. App. 2000) (in addition to being unforeseeable, plaintiff’s injuries were too remote in time, and the chain of events which lead to plaintiff’s injuries was too attenuated for defendant’s actions to be the proximate cause of plaintiff’s injuries) (quotations omitted). In addition to forseeability, factors relevant to the proximate cause inquiry include: (1) whether the cause was likely to produce the result; (2) whether the relationship of cause and effect is too attenuated; (3) the existence of intervening causes; (4) whether the cause was a substantial factor in the result, and (5) whether there existed a continuous sequence between cause and result. Taylor, 574 S.E.2d at 15 (citation omitted). Based on the allegations, it is difficult to ascertain the nature of the negligence charged against Dr. Villanueva, or how Dr. Villanueva’s treatment of Wallace during one mental health visit, or his 10-day delay in returning Wallace’s calls, were a proximate cause of Wallace’s Case 3:17-cv-00138-RJC-DSC Document 6-1 Filed 05/22/17 Page 14 of 20 15 injuries: it is alleged that the “negligent appointment” with Dr. Villanueva: …caused [Wallace] to become homeless where he conducted the equivalent of a 2186 mile forced march up the Appalachian Trail. This road marched [sic] resulted in injury on a previous and unknown service connected condition in his lumbar spine. This negligent care also resulted in further aggravation of his Mental health and P.T.S.D. issues. (Doc. No. 1 pp.1- 2 ¶7). Wallace additionally states that his injury was a “previously unknown military service related condition that plaintiff was not aware of until after homelessness on the Appalachian Trail” (Doc. No. 1 p. 2 ¶10). It is not forseeable that any breach of a duty of care owed to Wallace by Dr. Villanueva would lead to an altercation between Wallace and his roommate, resulting in Wallace leaving his residence and embarking upon a self-initiated “forced march” on the Appalachian Trail, which ended in an exacerbation or aggravation of pre-existing service-related back and mental health conditions, i.e., the injury complained of is not an injury of a type that reasonably would be seen as a likely result of the allegedly negligent conduct. See also Harvey v. United States, 685 F.3d 939, 947 (10th Cir. 2012) citing 28 U.S.C. § 1346(b)(1) (explaining that a plaintiff claiming an injury under the FTCA must demonstrate that the injury arose “from the negligence or wrongful act or omission of a government employee, not solely from a condition that existed before the medical treatment at issue”). Alternately, Wallace has plead facts showing the existence of an intervening cause of injury, breaking the causal chain, and absolving Dr. Villanueva of liability. When an independent event intervenes in the chain of causation, producing harm of a kind and degree far beyond the risk the original tortfeasor should have foreseen, then the defendant is absolved of liability, and N.C. courts routinely find that “[t]he criminal acts of a third party are generally considered ‘unforseeable and independent, intervening cause[s] absolving the [defendant] of liability.’” Blackmon v. Tri- Case 3:17-cv-00138-RJC-DSC Document 6-1 Filed 05/22/17 Page 15 of 20 16 Arc Food Systems, Inc., 782 S.E.2d 741, 745 (N.C. Ct. App. 2016) quoting Bridges v. Parrish, 742 S.E.2d 794, 796-797 (N.C. 2013) quoting Stein v. Asheville City Bd. of Educ., 626 S.E.2d 263, 268 (N.C. 2006). Here, Wallace has indicated that the weekend after his “negligent appointment” with Dr. Villanueva, his roommate flew into a drunken rage, Wallace feared for his safety, called the police, and when charges were not forthcoming, moved out of his residence and into a hotel then an apartment of an acquaintance, ultimately ending up homeless, and hiking the Appalachian Trail. The roommate’s conduct,6 whether or not “criminal,” was an independent event that set in motion the events that followed, including the hike, which led to the exacerbation or aggravation of pre- existing injuries. The effects of the purported negligence of Dr. Villanueva, if any, were in essence “cut off” by the intervening or superseding acts of Wallace’s roommate. Finally, Wallace’s suit is barred by the doctrine of contributory negligence. Contributory negligence is “negligence on the part of the plaintiff which joins, simultaneously or successively, with the negligence of the defendant … to produce the injury of which the plaintiff complaints.” Cobo v. Raba, 481 S.E.2d 101, 104 (N.C. Ct. App. 1997) (quotation omitted). In the medical malpractice context: a patient’s negligence must have been an active and efficient contributing cause of the injury, must have cooperated with the negligence of the malpractitioner, must have entered into proximate causation of the injury, and must have been an element in the transaction on which the malpractice is based. Id. 6 The Complaint also includes allegations of wrongdoing, conspiracy and torts committed against him by the FBI, CIA, the Secret Service and Delta Force, among others. There is no allegation or rational connection between the conduct of these individuals or entities, and the purported negligence of Dr. Villanueva. Case 3:17-cv-00138-RJC-DSC Document 6-1 Filed 05/22/17 Page 16 of 20 17 Here, there is no indication that anyone other than Wallace was responsible for Wallace’s own decision to hike the Appalachian Trail, which he claims resulted in aggravation to pre-existing back or mental health conditions. His own conduct is certainly a proximate cause of his alleged injuries, and as a result, Wallace’s own negligence or conduct acts as a total bar to his claim. In short, Wallace has failed to state a claim upon which relief may be granted. The allegations of the Complaint are simply not plausible to support a claim for relief for injuries arising out of a psychiatrist’s medical negligence, and even when construed liberally, the factual allegations are insufficient to meet the pleading standards set forth in Iqbal and Twombly, and the Complaint is subject to dismissal. C. VETERANS DISABILITY OR BENEFITS DETERMINATIONS CANNOT BE LITIGATED UNDER THE FTCA. In the event Wallace’s Complaint is construed to state a claim seeking modification to and/or judicial review of a VA benefits-related decision, this Court lacks subject matter jurisdiction to conduct a review and is otherwise prohibited from review by 38 U.S.C. § 511(a). As an initial matter, the United States has not waived its sovereign immunity for review of VA decisions or procedures by any court other than the Court of Appeals for Veterans Claims, the United States Court of Appeals for the Federal Circuit, and the United States Supreme Court. In re Russell, 155 F.3d 1012, 1013 (8th Cir. 1998). The Veterans’ Judicial Review Act provides a limited waiver of sovereign immunity for lawsuits seeking review of VA benefit decisions, by vesting exclusive jurisdiction in the Veterans Court to review such decisions, subject to certain stated limitations. See 38 U.S.C. ch. 72. An appeal from the Secretary’s decision concerning benefits lies with the Board of Veterans’ Appeals, which is the division within VA responsible for deciding appeals from decisions on claims for veterans’ benefits. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.101(a). The Board of Veterans’ Appeals’ decision may be appealed by the claimant to the Case 3:17-cv-00138-RJC-DSC Document 6-1 Filed 05/22/17 Page 17 of 20 18 Veterans Court, pursuant to 38 U.S.C. § 7252(a), and then, under certain circumstances, to the United States Court of Appeals for the Federal Circuit, pursuant to 38 U.S.C. §§ 7252(c), 7292, and, ultimately to the Supreme Court of the United States. Moreover, this Court’s review of Wallace’s claim is prohibited by 38 U.S.C. § 511(a), which provides that: The Secretary [of Veterans Affairs] shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans. Subject to subsection (b),[ ] the decision of the Secretary as to any question shall be final and conclusive and may not be reviewed by any other official or by any court, whether by an action in the nature of mandamus or otherwise. 38 U.S.C. § 511(a). Section 511 preclusion extends to “those decisions that may affect” veterans’ benefits cases, Veterans for Common Sense v. Shinseki, 678 F.3d 1013, 1025 (9th Cir. 2012) (en banc), and to challenges brought pursuant to the FTCA, Quarles v. United States, 731 F.Supp. 428 (D.Kan. Jan. 26, 1999), “cloaked in constitutional terms,” or based on the Privacy or Freedom of Information Act. See Sugrue v. Derwinski, 26 F.3d 8, 11 (2d Cir. 1994) cert. denied, 515 U.S. 1102 (1995); Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 818 (1988) (even in the interest of justice, courts may not extend their jurisdiction where none exists); see also King v. U.S. Dept. of Veterans Affairs, 728 F.3d 410 (5th Cir. Aug. 23, 2013) (veteran’s FTCA action relating to termination of disability benefits precluded by 38 U.S.C. § 511(a)); Menendez v. United States, 67 F.Supp.2d 42 (D.P.R. Sept. 3, 1999) (dismissing FTCA suit alleging VA negligently maintained medical records because “suit would force the Court to decide the issue of negligence only as precursor to a determination regarding the proprietary of the denial of benefits to plaintiff”). Here, Wallace seeks compensation for, among other things, “lost V.A. disability money” (Doc. No. 1 p. 8 ¶40). This Court’s determination of any amount of VA disability benefits due or Case 3:17-cv-00138-RJC-DSC Document 6-1 Filed 05/22/17 Page 18 of 20 19 owed to Wallace necessarily requires this Court to engage in an impermissible review of a VA benefits-related determination, and to substitute its judgment for that of the VA, circumventing the statutorily proscribed process for VA benefits determinations and appeals. This case should be dismissed. III. CONCLUSION The United States respectfully requests that the Complaint be dismissed with prejudice. IV. WORD COUNT CERTIFICATION The undersigned hereby certifies that this Memorandum of Law in Support of the Defendant’s Motion to Dismiss, excluding caption, signature block, this certification and the certificate of service, does not exceed 6,000 words and complies with the word limitation as set forth in Paragraph III(C)(2) of The Hon. David S. Cayer’s standard Pretrial Order and Case Management Plan. This the 22nd day of May, 2017. Respectfully, JILL WESTMORELAND ROSE United States Attorney s/ Katherine T. Armstrong Assistant United States Attorney N.C. Bar No. 36305 227 West Trade Street, Suite 1650 Charlotte, NC 28202 Tel: 704-344-6222 Fax: 704-344-6629 E-Mail: Katherine.Armstrong@usdoj.gov Case 3:17-cv-00138-RJC-DSC Document 6-1 Filed 05/22/17 Page 19 of 20 20 CERTIFICATE OF SERVICE I CERTIFY that on the 22nd day of May, 2017, the foregoing Memorandum of Law in Support of Defendant’s Motion to Dismiss was electronically filed with the Clerk of the Court using the CM/ECF system and served on the Plaintiff, pro se, by mailing a copy thereof, first class mail, postage prepaid, and properly addressed to: Don Bradley Wallace 1130 Gretna Green Dr. Charlotte, NC 28217 Plaintiff, pro se JILL WESTMORELAND ROSE United States Attorney s/ Katherine T. Armstrong Assistant United States Attorney N.C. Bar No. 36305 227 West Trade Street, Suite 1650 Charlotte, NC 28202 Tel: 704-344-6222 Fax: 704-344-6629 E-Mail: Katherine.Armstrong@usdoj.gov Case 3:17-cv-00138-RJC-DSC Document 6-1 Filed 05/22/17 Page 20 of 20