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Pierce v. United States

United States District Court, N.D. West Virginia

June 5, 2018

SCOTT MATTHEW PIERCE, Plaintiff,
v.
UNITED STATES OF AMERICA Defendant.

          Bailey, Judge

          REPORT AND RECOMMENDATION

          JAMES E. SEIBERT, UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         On March 26, 2018, Plaintiff initiated this case by filing a pro se complaint pursuant to the Federal Tort Claim Act (“FTCA”).[1] Because the complaint was not on the court approved form, the Clerk of Court sent him a Notice of Deficient Pleading and enclosed the required form. On April 16, 2018, Plaintiff filed the court-approved form. This matter is before the undersigned for an initial review and report and recommendation pursuant to LR PL P 2, and 28 U.S.C. §' 1915(e) and 1915(A).

         II. THE COMPLAINT

         In his complaint, Plaintiff alleges that Dr. Vaslakis and his assistant, Romona Locko, both employed by Monongalia Hospital, caused a serious burn to his right arm with a bovie[2], when they failed to holster it, but instead laid it against his arm. In addition, Plaintiff alleges that the burn was not properly or continuously treated which caused an infection and further pain and injuries. Plaintiff maintains that Vaslakis and Locko were acting as Bureau of Prison medical staff on behalf of the United States. For relief, he seeks damages in the amount of $50, 000.

         On or about July 28, 2016, Plaintiff filed his administrative tort claim indicating that he was injured on April 28, 2016, and seeking $50, 000 in damages. ECF No. 6-2 at 5. On September 12, 2016, the claim was denied. The denial letter notified Plaintiff that if he was dissatisfied, he could file suit in the appropriate U.S. District Court not later than six month after the date of the letter. ECF No. 6-2 at 4.

         II. Standard of Review

         Because Plaintiff is a prisoner seeking redress from a governmental entity or employee, the Court must review the complaint to determine whether it is frivolous or malicious. Pursuant to 28 U.S.C. § 1915A(b), the Court is required to perform a judicial review of certain suits brought by prisoners and must dismiss a case at any time if the Court determines that the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is immune from such relief.

         A complaint is frivolous if it is without arguable merit either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). However, the Court must read pro se allegations in a liberal fashion. Haines v. Kerner, 404 U.S. 519, 520 (1972). A complaint which fails to state a claim under Fed.R.Civ.P. 12(b)(6) is not automatically frivolous. See Neitzke, 490 U.S. at 328. Frivolity dismissals should only be ordered when the legal theories are “indisputably meritless, ”[3] or when the claims rely on factual allegations which are “clearly baseless.” Denton v. Hernandez, 504 U.S. 25, 32 (1992). This includes claims in which the plaintiff has little or no chance of success. See Estelle v. Gamble, 429 U.S. 97, 106 (1976).

         III. ANALYSIS

         It is well-established that the United States is immune from suit unless it consents to be sued. See United States v. Testan, 424 U.S. 392 (1976). However, the FTCA waives the federal government's traditional immunity from suit for claims based on the negligence of its employees. 28 U.S.C. § 1346(b)(1). Specifically, “[t]he statute permits the United States to be held liable in tort in the same respect as a private person would be liable under the law of the place where the act occurred.” Medina v. United States, 259 F.3d 220, 223 (4th Cir. 2001). Nonetheless, the FTCA only waives the government's sovereign immunity if certain terms and conditions are met. Honda v. Clark, 386 U.S. 484 (1967). One of those conditions is that an FTCA action be filed within two years of the incident or within six months of the final claim denial. 28 U.S.C. § 2401(b). Here, Plaintiff presented his claim to the appropriate agency within two years from the date of the event. Plaintiff's administrative claim was denied on September 12, 2016. In the letter of final denial, Plaintiff was correctly advised that he had six months from the date of the denial to bring suit in federal court.[4]Id. Six months from the date of final denial was March 13, 2017. Plaintiff did not initiate the instant action until March 26, 2018. Therefore, Plaintiff's claim is clearly time-barred.

         Because the FTCA waives the United States traditional grant of sovereign immunity, the statute must be strictly construed. United States v. Kubrick, 444 U.S. 111, 117B18 (1979). Put simply, because the United States may not be sued without its permission, the Court may not take it upon itself “to extend the waiver beyond that which Congress intended.” Id. Therefore, “[i]f an action is not filed as the statute requires, the six-month time period may not be extended” by the Court. Tuttle v. United States Postal Service, 585 F.Supp. 55 (M.D.Pa. 1983) (citing United States v. Kubrick 444 U.S. 111, 117B18)).

         The undersigned recognizes that the United States Supreme Court has held that the FTCA's statute of limitations is a procedural, not jurisdictional bar. United States v. Kwai Fun Wong, 135 S.Ct. 1625, 1627 (2015). Accordingly, equitable tolling is applicable to FTCA's statute of limitation. However, equitable tolling in suits against the United States is only available in exceptional circumstances. See Muth v. UnitedStates, 1 F.3d 246, 251 (4th Cir. 1993). More specifically, the Fourth Circuit has stated that equitable tolling principles are appropriate only Awhere the defendant has wrongfully deceived or mislead the plaintiff in order to conceal the existence ...


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