United States District Court, S.D. West Virginia, Beckley Division
MEMORANDUM OPINION AND ORDER
C. BERGER UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.) 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.”
Objections to PF&R
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).
Motion to Dismiss - 12(b)(6)
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,
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).
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).
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.
Motion to ...