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Sumpter v. United States

United States District Court, S.D. West Virginia, Beckley Division

May 10, 2018




         The Plaintiff, Joshua Ronald Sumpter, filed a pro-se Complaint (Document 2), pursuant to the Federal Tort Claims Act (FTCA), asserting medical negligence claims against the Department of Veterans Affairs. By Standing Order (Document 3) entered on September 16, 2016, this matter was referred to the Honorable Omar J. Aboulhosn, United States Magistrate Judge, for findings of fact and recommendation for disposition. The United States moved to dismiss on February 28, 2017. In a Proposed Findings and Recommendation (PF&R) (Document 22) entered on July 31, 2017, Judge Aboulhosn recommend that the United States' motion to dismiss be granted and this matter be dismissed. The Court granted the Plaintiff an extension of time to file objections, and his objections to the PF&R (Document 32) were filed on November 13, 2017. The Plaintiff filed additional submissions supplementing his objections on November 30, 2017 and December 11, 2017 (Documents 33 & 34.) The Court has reviewed the PF&R, the objections, and the underlying briefing. For the reasons stated herein, the Court finds that the objections should be sustained in part, and the United States' motion to dismiss should be granted in part and denied in part.


         Mr. Sumpter was medically retired from the military in July 2006, with service related multiple sclerosis (MS). He received a diagnosis before leaving the military, but asserts that the VA failed to provide treatment in accordance with the diagnosis. He established a medical relationship with the Beckley Veterans' Affairs Medical Center (VA) in October 2006. His treatment providers insisted on redundant examinations, failed to provide treatment within the standard of care, treated his MS as non-service connected, and refused to refer him to an external neurologist for treatment. He alleges that Dr. George Murphy, who reviewed his MRI in 2006, was negligent in failing to identify the brain lesions and white matter indicative of MS.

         On several occasions, VA providers failed to connect Mr. Sumpter's symptoms, including cognitive decline, vision problems, and neuropathy, with his MS diagnosis. His primary care provider failed to adjust his treatment based on notes and records from emergency and specialist visits. Mr. Sumpter asserts that he did not begin receiving disease-modifying treatment, which can slow or alter the progression of MS, until August 2011. Because of the delay in appropriate treatment, he progressed to clinically definitive MS and was unable to return to active military service. He now receives care at outside facilities, some at his own expense, and reports some improvement. He also reports difficulty obtaining his prescriptions and occasional confusion regarding the appropriate prescriptions. In particular, he cites an instance on or about March 6, 2015, when the VA failed to fill a prescription despite three attempts. Mr. Sumpter's complaint alleges negligence, malpractice, delayed medical care, and delay of benefits.

         Mr. Sumpter filed an administrative claim with then Congressman Nick Rahall's office on August 8, 2014. The claim was finally denied on March 16, 2016, based on asserted untimeliness, Dr. Murphy's asserted status as an independent contractor and review by a neurologist finding that his condition was not worsened as a result of his VA care. Mr. Sumpter's complaint includes an attached letter from Dr. Enrico Cappiello, director of radiology at Beckley VAMC, concluding that Mr. Sumpter “had undiagnosed (MS) white matter disease from 2006 until 9/19/2012, ” evidenced by MRIs taken in 2006, 2007, and 2012. (Document 2 at 16.) Another attached letter from Dr. John Berryman, chief of staff at Beckley VAMC, recommended that Mr. Sumpter be provided disability benefits and noted that his MS symptoms were “expressed but not treated until 2012.” (Document 2 at 17.)[2] Dr. Berryman further opines that “if treatment with appropriate medications had been instituted in a timely fashion, Mr. Sumpter would not have the more advanced form of MS he is experiencing at present.” (Id.)


         A. Objections to PF&R

         This Court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). However, the Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the findings or recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). In addition, this Court need not conduct a de novo review when a party “makes general and conclusory objections that do not direct the Court to a specific error in the magistrate's proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). When reviewing portions of the PF&R de novo, the Court will consider the fact that Petitioner is acting pro se, and his pleadings will be accorded liberal construction. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978).

         B. Motion to Dismiss - 12(b)(6)

         A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted tests the legal sufficiency of a complaint or pleading. Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). Federal Rule of Civil Procedure 8(a)(2) requires that a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Additionally, allegations “must be simple, concise, and direct.” Fed.R.Civ.P. 8(d)(1). “[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations, ' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp v. Twombly, 550 U.S. 544, 555 (2007)). In other words, “a complaint must contain “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Moreover, “a complaint [will not] suffice if it tenders naked assertions devoid of further factual enhancements.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557) (internal quotation marks omitted).

         The Court must “accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 93 (2007). The Court must also “draw[ ] all reasonable factual inferences from those facts in the plaintiff's favor.” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). However, statements of bare legal conclusions “are not entitled to the assumption of truth” and are insufficient to state a claim. Iqbal, 556 U.S. at 679. Furthermore, the court need not “accept as true unwarranted inferences, unreasonable conclusions, or arguments.” E. Shore Mkts., v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice . . . [because courts] ‘are not bound to accept as true a legal conclusion couched as a factual allegation.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

         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.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). In other words, this “plausibility standard requires a plaintiff to demonstrate more than ‘a sheer possibility that a defendant has acted unlawfully.'” Francis, 588 F.3d at 193 (quoting Twombly, 550 U.S. at 570). A plaintiff must, using the complaint, “articulate facts, when accepted as true, that ‘show' that the plaintiff has stated a claim entitling him to relief.” Francis, 588 F.3d at 193 (quoting Twombly, 550 U.S. at 557). “Determining whether a complaint states [on its face] a plausible claim for relief [which can survive a motion to dismiss] will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.

         C. Motion to ...

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