United States District Court, S.D. West Virginia, Beckley Division
MEMORANDUM OPINION AND ORDER
IRENE
C. BERGEF, UNITED STATES DISTRICT JUDGE.
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 (VA). 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. Following a previous
Memorandum Opinion and Order (Document 35) resolving
a motion to dismiss, the matter was again referred to
Magistrate Judge Aboulhosn on July 16, 2018 (Document 39).
The
United States filed Defendant United States of
America’s Motion to Dismiss for Lack of Subject Matter
Jurisdiction and/or Motion for Summary Judgment Against
Plaintiff’s Claims Relating to George Murphy, M.D.
(Document 58), the Memorandum in Support of Defendant
United States of America’s Motion to Dismiss for Lack
of Subject Matter Jurisdiction and/or Motion for Summary
Judgment Against Plaintiff’s Claims Relating to George
Murphy, M.D. (Document 59), the Defendant United
States of America’s Motion for Summary Judgment
(Document 60), and the Memorandum in Support of Defendant
United States of America’s Motion for Summary
Judgment (Document 61). Mr. Sumpter filed the
Plaintiff’s Motion for Summary Judgment
(Document 65), together with responses to the United
States’ motions. The United States moved to strike Mr.
Sumpter’s motion as untimely, and Mr. Sumpter moved to
strike the Defendant’s submissions as misleading and/or
fraudulent.
Judge
Aboulhosn submitted a Proposed Findings and
Recommendation (Document 87) on July 2, 2019. Therein,
he recommends that the United States’ motion to dismiss
for lack of subject matter jurisdiction as to Dr. Murphy be
granted, that its motion for summary judgment be denied, that
the Plaintiff’s motion for summary judgment be denied,
and that the parties’ respective motions to strike be
denied.
Objections
to the PF&R were due by July 19, 2019. The Objection
of the United States of America to Report and Recommendation
of the United States Magistrate Court Judge that Its Motion
for Summary Judgment be Denied (Document 88) was timely
filed. On August 1, 2019, Mr. Sumpter filed the
Plaintiff’s Response to Objection of the United
States of America to Report and Recommendation of the United
States Magistrate Court Judge That Its Motion for Summary
Judgment be Denied (Document 89), the Objection of
the Plaintiff to the Proposed Finding and Recommendation of
the United States Magistrate Court Judge Granting the United
States of America’s Motion to Dismiss for Lack of
Subject Matter Jurisdiction and/or for Summary Judgment
Against Plaintiff’s Claims Relating to George Murphy,
M.D. and Denial of Plaintiff’s Motion to Strike All of
Defendant’s Submissions to the Court Pertaining to Its
Interpretation of the FTCA and the Defining Terms Within
Based on Common Law Fraud (Document 90), and the
Memorandum of Law to Objection of the Plaintiff to the
Proposed Findings and Recommendation of the United
States Magistrate Court Judge Granting the United States of
America’s Motion to Dismiss for Lack of Subject Matter
Jurisdiction and/or for Summary Judgment Against
Plaintiff’s Claims Relating to George Murphy, M.D. and
Denial of Plaintiff’s Motion to Strike All of
Defendant’s Submissions to the Court Pertaining to Its
Interpretation of the FTCA and the Defining Terms Within
Based on Common Law Fraud (Document 91).
In
addition, Mr. Sumpter filed expert disclosures (Documents 92
& 93),[1] Plaintiff’s Motion for Summary
Judgment Based on Evidence That Unqualifiedly Brings a
Conclusion to the Legal Controversy That Defendant Deviated
from Its Standard of Care for Multiple Sclerosis and Caused
Plaintiff Personal Injury (Document 94), a
Memorandum of Law to Plaintiff’s Motion for Summary
Judgment Based on Evidence That Unqualifiedly Brings a
Conclusion to the Legal Controversy That Defendant Deviated
from Its Standard of Care for Multiple Sclerosis and Caused
Plaintiff Personal Injury (Document 95), and additional
documents related to the VA and Multiple Sclerosis (MS)
(Document 96).
The
Court has further reviewed the Defendant’s Motion
to Strike Plaintiff’s Objection (ECF No. 90) to the
Findings and Recommendation of the United States Magistrate
Judge (EC No. 87) (Document 99), the Memorandum in
Support of Defendant’s Motion to Strike
Plaintiff’s Objection (ECF No. 90) to the Findings and
Recommendation of the United States Magistrate Judge (ECF No.
87) (Document 100), the Defendant’s Motion to
Strike Plaintiff’s Motion for Summary Judgment (ECF No.
94) for Failure to Comply with the Court’s Scheduling
Order, the Federal Rules of Civil Procedure, and the Local
Rules of This Court (Document 101), and the
Memorandum in Support of Defendant’s Motion to
Strike Plaintiff’s Motion for Summary Judgment
(ECF No. 94) for Failure to Comply with the Court’s
Scheduling Order, the Federal Rules of Civil Procedure, and
the Local Rules of This Court (Document 102).
MOTIONS
TO STRIKE
The
Magistrate Judge recommended consideration of the
Plaintiff’s belated motion for summary judgment,
finding that the content overlapped with the
Plaintiff’s response to the Defendant’s motion,
and consideration would not prejudice the Defendant. The
Court will adopt the PF&R’s findings with regard to
the Plaintiff’s first motion for summary judgment
(Document 65). The Court further adopts the PF&R’s
findings and recommendation as to the denial of the
Plaintiff’s motion to strike the Defendant’s
filings and arguments, finding no grounds to support the
motion to strike.
Although
the Plaintiff’s objections to the PF&R were filed
late, without leave of the Court, the Court finds that
consideration of those objections will not prejudice the
United States and will not cause any delay. Therefore, the
motion to strike the Plaintiff’s objection will be
denied. However, the Plaintiff’s additional motion for
summary judgment, filed well after any applicable deadline,
after the briefing of previous dispositive motions, and after
the issuance of the PF&R, will be stricken as untimely.
FACTS
Neither
party objects to the summation of the facts contained in the
PF&R, although the United States objects to the
consideration of some of the evidence, and both parties
object to the legal conclusions based on those facts.
Therefore, the Court will adopt the Magistrate Judge’s
proposed factual findings and include only a brief summary
herein.
The
Plaintiff, Joshua Sumpter, left military service as a result
of a July 2006 diagnosis of MS. He sought treatment at the VA
and was treated primarily at the Beckley Veteran’s
Administration Medical Center (BVAMC). He did not receive
disease-modifying treatment for his MS until August 2011. He
submitted statements, letters, and affidavits from Enrico
Cappiello, M.D., Dr. Aaron Boster, and John Berryman,
M.D.[2], concluding that past MRIs indicate that
his condition progressed as a result of the failure to
provide early treatment. He also incurred expenses as a
result of travelling out of state to receive treatment
outside the VA system.
STANDARD
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