United States District Court, W.D. Tennessee, Western Division
REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION
TO DISMISS AND PLAINTIFF'S “MOTION FOR FAILING TO
RESPOND WITHIN THE ALLOCATED TIME”
CHARMIANE G. CLAXTON UNITED STATES MAGISTRATE JUDGE.
the Court are Defendant's Motion to Dismiss (Docket Entry
“D.E.” #12) and Plaintiff's “Motion for
Failing to Respond within the Allocated Time” (D.E.
#14). The instant motions are referred to the United States
Magistrate Judge for Report and Recommendation.For the reasons
set forth herein, it is RECOMMENDED that Defendant's
Motion to Dismiss be GRANTED and that Plaintiff's
“Motion for Failing to Respond within the Allocated
Time” be DISMISSED AS MOOT.
14, 2017, Plaintiff Larry Craigmyle filed a Complaint with
this Court alleging violations of the Federal Tort Claim Act
(“FTCA”), 28 U.S.C. § 1346(b), §§
2671-2672. (Compl. ¶ 5). Specifically, Plaintiff alleges
that his treating physicians at the Veterans Administration
(“VA”) failed to prescribe a sleep remedy for his
chronic insomnia from February 2, 1997 until April 18, 1999
when he “left the VA . . . for good.” (Compl. at
3). Plaintiff alleges that, because his medical provider at
the VA did not provide any sleeping medication, he was
required to go to a private psychiatrist, Dr. Melvin L.
Goldin, who prescribed him Ambien and Restoril for sleep from
September 5, 1998 until April 13, 1999. (Compl. at 3-4 &
Exh. 1). Plaintiff alleges that, “[i]n late summer,
early fall of 2015” he was reviewing his VA and
Wal-Mart prescription records when he
“discovered” an issue that he had “never
noticed before concerning the VA Pharmacy prescriptions and
the prescriptions Dr. Goldin had written for [his] sleep
problems” ─ namely, that “a sleep
medication was medically necessary to treat [his] chronic
insomnia” and that he had to go to Dr. Goldin to get
the prescriptions. (Compl. at 3).
alleges that he incurred both the “substantial cost of
the office visit” and had to pay the “retail
price of the sleep medication” as a result of the
VA's failure to prescribe him these medications.
(Id.) Defendant further alleges that, because the VA
failed to prescribe Restoril to treat his chronic insomnia,
he lost a lucrative job with American Express earning $300
per hour as a Site Manager and Lead Technical Programmer.
(Compl. at 4). Accordingly, Defendant seeks damages in the
amount of $27, 612, 223 as compensatory damages for his lost
September 18, 2017, Defendant filed its Motion to Dismiss
alleging that Plaintiff has not properly included a
certificate of good faith for his medical malpractice claims,
has filed his Complaint well outside the applicable statute
of repose, and failed to bring the administrative complaint
underlying this action to the VA within the FTCA's
limitations period. (Mot. to Dismiss at 1). On October 12,
2017, Plaintiff filed a Response in Opposition to
Defendant's Motion to Dismiss. (D.E. #13).
Plaintiff's Response asserts that he properly included a
certificate of good faith for his medical malpractice claims
in the form of a letter from Dr. Goldin (Compl. at Exh. 1),
that he is not required to provide a certificate of good
faith because his case falls within the common knowledge
exception to that requirement, that this Court has not
complied with Tennessee Code Annotated § 29-26-122 in
developing a certificate of good faith form to effectuate the
purposes of that section, and that his claim was not filed
beyond the statute of repose because he only discovered it in
the late summer or early fall of 2015. (Pl.'s Resp. at
October 12, 2017, Plaintiff filed a “Motion for Failing
to Respond within the Allocated Time, ” which requests
that the Court enter a default judgment for the alleged
failure of Defendant to timely respond to his Complaint.
(D.E. #14). On October 13, 2017, Defendant responded that its
Motion to Dismiss was filed within the sixty days required
Rule 12(b)(2) of the Federal Rules of Civil Procedure and
that Plaintiff's request for a default judgment should be
January 9, 2018, Plaintiff filed a “Notice of
Conversions of the Complaint with Attachments filed on
January 14, 2017 and the Reply in Opposition to
Defendant's Motion for Dismissal filed on October 12,
2017 to a Motion for Summary Judgment.” (D.E. #16).
This Notice asserts that this Court must grant summary
judgment on his claims because the “State and
Local Courts . . . failed to provide the Certificate of Good
Faith required by [Tennessee Code Annotated] §
29-26-122(5)” and because the Tennessee Court of
Appeals “granted an exception to the Statute of
Reponse” in Crespo v. McCullough, No.
M2007-02601-COA-R3-CV, 2008 WL 4767060 (Tenn. Ct. App. Oct.
12(b)(6) of the Federal Rules of Civil Procedure provides
that a claim may be dismissed for failure to state a claim
upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). In
addressing a motion to dismiss under Rule 12(b)(6), the court
must construe the complaint in the light most favorable to
plaintiff and accept all well-pled factual allegations as
true. League of United Latin Am. Citizens v.
Bredesen, 500 F.3d 523, 527 (6th Cir. 2007). A plaintiff
can support a claim “by showing any set of facts
consistent with the allegations in the complaint.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563
(2007). This standard requires more than bare assertions of
legal conclusions. Bovee v. Coopers & Lybrand
C.P.A., 272 F.3d 356, 361 (6th Cir. 2001). “[A]
formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555. Any
claim for relief must contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Erickson v. Pardus, 551 U.S. 89,
93 (2007) (quoting Fed.R.Civ.P. 8(a)(2)). “Specific
facts are not necessary; the statement need only ‘give
the defendant fair notice of what the . . . .claim is and the
grounds upon which it rests.” Id. (citing
Twombly, 550 U.S. at 555).
a complaint must contain sufficient facts “state a
claim to relief that is plausible on its face'” to
survive a motion to dismiss. Twombly, 550 U.S. at
570. “The plausibility standard is not akin to a
‘probability requirement, ' but it asks for more
than a sheer possibility that defendant has acted
unlawfully.” Ashcroft v. Iqbal, 556 US. 662,
678 (2009) (citing Twombly, 550 U.S. at 556).
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Id. (citing Twombly, 550
U.S. at 555). A plaintiff with no facts and “armed with
nothing more than conclusions” cannot “unlock the
doors of discovery.” Id. at 678-79.
and documents filed by pro se litigants are to be
“liberally construed, ” and a “pro se
complaint, however inartfully pleaded, must be held to a less
stringent standard than formal pleadings drafted by
lawyers.” Erickson, 551 U.S. at 94 (2007)
(quoting Estelle v. Gamble, 429 U.S. 97, 106
(1976)). However, “the lenient treatment generally
accorded to pro se litigants has limits.” Pilgrim
v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996) (citing
Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991)).
The basic pleading essentials are not abrogated in pro se
cases. Wells v. Brown, 891 F.2d 591, 594 (6th Cir.
1989) A pro se complaint must still “contain sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” Barnett v.
Luttrell, 414 Fed.Appx. 784, 786 (6th Cir. 2011)
(quoting Ashcroft, 556 U.S. at 678) (internal
quotations and emphasis omitted). District Courts “have
no obligation to act as counsel or paralegal” to pro se
litigants. Pliler v. Ford, 542 U.S. 225, 231 (2004).
District Courts are also not “required to create”
a pro se litigant's claim for him. Payne v. Secretary
of Treasury, 73 Fed.Appx. 836, 837 (6th Cir. 2003).
Court will first consider whether Plaintiff's claim is
permitted by the statute of repose, as the existence of
Plaintiff's cause of action is extinguished if his claim
is filed beyond the time limit set forth therein. Pursuant to
28 U.S.C. § 1346(b), federal courts have “shall
have exclusive jurisdiction of civil actions on claims
against the United States, for money damages, . . . for
injury or loss of property, or personal injury or death
caused by the negligent or wrongful act or omission of any
employee of the Government while acting within the scope of
his office or employment, under circumstances where the
United States, if a private person, would be liable to the
claimant in accordance with the law of the place where the
act or omission occurred.” Id. In Tennessee,
the three-year statute of repose set forth in Tennessee Code
Annotated § 29-26-116(a)(3) “is a substantive
requirement, not just a procedural hurdle, ” and
applies “to suits brought against the United States
under the FTCA.” Huddleston v. United States,
485 Fed. App'x 744, 745-46 (6th Cir. 2012). The
three-year statute of repose sets forth that, “[i]n no
event shall any [medical malpractice] action be brought more
than three (3) years after the date on which the negligent
act or omission occurred except where there is fraudulent
concealment on the part of the defendant . . . .” Tenn.
Code Ann. § 29-26-116(a)(3).
even construing the Complaint in the light most favorable to
Plaintiff, he alleges that the VA's treatment providers
failed to prescribe him appropriate medication from 1997
until 1999. His Complaint demonstrates that he was aware of
this failure because he sought treatment from a private
psychiatrist to obtain medication for his chronic insomnia
during 1998 and 1999. Thus, although Plaintiff contends that
he “discovered” his claim in 2015 when reviewing
pharmacy records, his Complaint makes plain ...