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Brooks v. United States Va Administration

United States District Court, M.D. Tennessee, Nashville Division

March 24, 2015

WANDA E. BROOKS, for Jesse W. Brooks Estate, Plaintiff,
v.
UNITED STATES VA ADMINISTRATION, Defendant.

MEMORANDUM

KEVIN H. SHARP, Chief District Judge.

On December 4, 2014, the Magistrate Judge issued a Report and Recommendation (R&R) (Docket No. 31) on the defendant's motion to dismiss filed on August 29, 2014 (Docket No. 21), recommending that the motion be granted and that this action be dismissed with prejudice.

Pending before the court are Objections to the R&R timely filed by the plaintiff (Docket No. 40), a response filed by the defendant (Docket No. 42), and the plaintiff's reply to that response (Docket No. 43). For the reasons discussed below, the court finds that the plaintiff's Objections lack merit and should be overruled.

I. Introduction

Plaintiff Wanda E. Brooks brought this pro se action pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671-2680 ("FTCA"), alleging that medical providers with the Department of Veteran's Affairs ("VA") failed to diagnose her husband's cancer, resulting in his wrongful death. (Docket No. 1). By order entered on January 29, 2014, this case was referred to the Magistrate Judge to recommend ruling on any dispositive motion. (Docket No. 7).

On August 29, 2014, the defendant filed a motion to dismiss (Docket No. 21) and a memorandum in support thereof (Docket No. 22). The defendant contends that this action should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) because the plaintiff has failed to state a claim upon which relief can be granted. In addition, the defendant contends that the United States is entitled to dismissal because the plaintiff failed to file the certificate of good faith required by Tennessee Code Annotated § 29-26-122.

In response, the plaintiff urges the court not to dismiss her case, alleging that she is entitled to leniency as a pro se plaintiff, that a certificate of good faith is not required under the circumstances of this case, and that she has medical proof that the defendant did not diagnose and treat her late husband's cancer properly. (Docket No. 30 at pp. 1-2).

II. Report and Recommendation

In the R&R (Docket No. 31), the Magistrate Judge first recommends that the court terminate the "United States VA Administration" as a defendant and insert the United States as the proper defendant to this action. ( Id. at p. 1). Next, the Magistrate Judge recommends that the defendant's motion to dismiss be granted because the plaintiff is required to file a certificate of good faith under Tennessee Code Annotated § 29-26-122 and that the plaintiff has failed to file such a certificate. ( Id. at p. 3). The Magistrate Judge notes that the plaintiff has not alleged that her failure to provide such a certificate is due to being unable to obtain copies of the records or any other "extraordinary cause." ( Id. at p. 8). Because the plaintiff has failed to meet the statutory requirements pursuant to Tennessee Code Annotated § 29-26-122 and has not provided an excuse for failing to provide the certificate of good faith required by Tennessee law, the Magistrate Judge recommends that this action be dismissed with prejudice. ( Id. )

III. Standard of Review

Here, the Magistrate Judge's R&R concerns a dispositive pretrial matter. Under Federal Rule of Civil Procedure 72(b), the district court must review any portion of the R&R to which a specific objection is made under the de novo standard. Id.; 28 U.S.C. § 636(b)(1)(C); United States v. Curtis, 237 F.3d 598, 603 (6th Cir. 2001).

IV. Plaintiff's Objections to the R&R

The plaintiff has filed Objections to the Magistrate Judge's recommendation to dismiss this action. (Docket Nos. 40, 43).[1]

The plaintiff's first Objection is that she should not be required to file a certificate of good faith in this case. It is undisputed that the plaintiff did not file a ...


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