United States District Court, N.D. Mississippi, Oxford Division
Percy, United States Magistrate Judge
United States of America has moved to dismiss Plaintiff's
Complaint under Federal Rule of Civil Procedure 12(b)(6).
Docket 7. After due consideration, the Court is ready to
Roger Herman Sweatt (“Plaintiff”) filed his
Complaint against the United States of America on February
15, 2017. Docket 1. Plaintiff's Complaint seeks damages
for personal injury and medical malpractice that allegedly
occurred during cataract surgery on his right eye at the
Jamaica Plain campus of the Veterans Administration Boston
Healthcare System on March 13, 2012. Id. at 4.
Plaintiff states that on the day after the procedure the
physician who performed the surgery observed “a large
accumulation of blood in the back of [his] right eye”
and informed Plaintiff that “an instrument went into
the eye too far piercing the back of your eye.”
Id. at 5. According to Plaintiff, he was told that a
physician “on a learning fellowship rotation”
inserted a needle in his eye to administer the numbing agent
and “went too deep and at the wrong angle, ”
puncturing his retina and causing it to separate.
states that he underwent subsequent surgeries to remove the
bloody hemorrhage, re-attach his retina, and place a silicone
bubble in his eye to hold the retina in place. Id.
Plaintiff states that a few weeks after the surgery, another
procedure was performed to “repair holes in [his]
retina caused by the needle going in at the wrong angle and
too far.” Id.
to Plaintiff, he was later treated by a retina specialist at
the University of Tennessee who informed Plaintiff that he
was legally blind and referred him to a low vision clinic.
Id. at 6. A physician at the VA eye clinic in
Memphis, Tennessee allegedly told Plaintiff that his
“right eye was badly bruised with a sub-retinal
hemorrhage, and retina scar, corrodial [sic] fusion
with a medina” and that his vision could not be
alleges that as a result of these injuries and because his
vision is so poor, he was forced to close his family real
estate business and move from Vermont to Mississippi.
Id. at 6. He requires the use of a cane, cannot
drive, and can no longer assist with household duties.
Id. Plaintiff claims that he experiences severe
headaches around and above his eyes and is seeking $2.5
million in money damages as well as future medical care at no
cost from the VA Health Care System. Id. at 7.
submitted letter from the Office of General Counsel at the
U.S. Department of Veterans Affairs dated August 24, 2016, as
an exhibit to his Complaint. Docket 1-1. The letter explains
that Plaintiff's tort claim was initially denied on April
21, 2016, and again on reconsideration on August 24, 2016,
because his claims are time-barred. Id. The August
24, 2016 denial letter states in relevant part:
As you were previously advised, the FTCA provides that a
claim must be filed within two years of its accrual….
Our review found that your allegations were regarding matters
that arose two years or more prior to August 6, 2015, which
was the date you filed your tort claim. Thus your claim is
time-barred, and is denied on that basis.
12, 2017, the United States moved to dismiss Plaintiff's
Complaint under Federal Rule of Civil Procedure 12(b)(6)
alleging that Plaintiff's Complaint fails to state a
claim upon which relief can be granted. Docket 7. In its
accompanying memorandum, the United States asserts that
Plaintiff's claim is barred by the two-year statute of
limitations contained in the 28 U.S.C. §2401(b). Docket
8. Defendant states that under the Federal Tort Claims Act, a
claim must first be presented to the appropriate federal
agency within two years after the accrual of the claim and
that Plaintiff's failure to timely submit his claim to
the Department of Veterans Affairs warrants dismissal of this
action. Id. at 4 (citing 28 U.S.C. §2401(b)).
responded to the Motion to Dismiss with two submissions dated
June 26, 2017 and June 29, 2017. Docket 11, 12. The United
States filed its reply on July 6, 2017, and Plaintiff has
since submitted two letters to the Court, dated July 17, 2017
and August 2, 2017, setting forth his arguments in support of
equitable tolling of the two-year statute of limitations.
Docket 15, 16. Because pro se pleadings are to be judged with
a “liberality unnecessary for those drafted by skilled
counsel, ” the Court will consider all of
Plaintiff's submissions as all are relevant to the
allegations set forth in his Complaint and the grounds on
which the United States seeks dismissal. Campbell v.
Beto, 460 F.2d 765, 769 (5th Cir. 1972).
ruling on a motion to dismiss, “[t]he court accepts all
well-pleaded facts as true, viewing them in the light most
favorable to the plaintiff.” In re Katrina Canal
Breaches,495 F.3d 191, 205 (5th Cir.2007) (internal
quotations and citations omitted). In order to survive a Rule
12(b)(6) motion to dismiss, “the plaintiff must plead
‘enough facts to state a claim to relief that is
plausible on its face.'” Id. (quoting
Bell Atl. Corp. v. Twombly,550 U.S. 544, 127 S.Ct.
1955, 1974, 167 L.Ed.2d 929 (2007)). “‘Factual
allegations must be enough to raise a right to relief above