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Sweatt v. United States

United States District Court, N.D. Mississippi, Oxford Division

August 7, 2017

ROGER HERMAN SWEATT PLAINTIFF
v.
UNITED STATES DEFENDANT

          MEMORANDUM OPINION

          Roy Percy, United States Magistrate Judge

         Defendant 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 rule.

         Facts

         Plaintiff 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. Id.

         Plaintiff 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.

         According 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 improved. Id.

         Plaintiff 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.

         Plaintiff 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.

Id.[1]

         Procedural History

         On May 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.[2] 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)).

         Plaintiff 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).

         Standard of Review

         In 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 the ...


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