Sumpter v. United States

          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 ...