United States District Court, E.D. North Carolina, Western Division
JAMES C. DEVER, III, Chief District Judge.
Wayne Pederson ("Pederson" or "plaintiff"), a federal inmate, brings this action seeking relief pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680. Compl. [D.E. 1]. On November 21, 2013, the United States filed a motion to dismiss for failure to effect service pursuant to Federal Ru1e of Civil Procedure 12(b)(5) [D.E. 4]. On November 27 and December 3, 2013, Pederson filed motions for extension of time to respond to the motion to dismiss [D.E. 7, 9]. As explained below, the court dismisses the complaint without prejudice for failure to state a claim upon which relief can be granted and denies the pending motions as moot.
This court first must conduct frivolity review under 28 U.S.C. § 1915A. In reviewing a case, "the court shall identify cognizable claims or dismiss the complaint... if the complaint... is frivolous, malicious, or fails to state a claim upon which relief may be granted, " or if the complaint "seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A(b)(1)-(2).
Pederson is incarcerated at the Federal Medical Center in Butner, North Carolina. Compl. ¶ 1. Pederson has "a 34-year history of category 3 diabetes, a 12-year history of cardiac disease (with seven myocardial infarctions) and Parkinson's disease. He also suffered from osteomyelitis and had Charcot's deformity of one of his left toes." Id . ¶ 7. "Some time prior to October 24, 2011, Plaintiff was engaged in cleaning his cell when he suffered a contusion to his right great toe (hereinafter Toe Wound')." Id . ¶ 15. On October 24, 2011, during a medical appointment, Pederson "complained to [a physician] that the Toe Wound was inflamed and painful" but the physician "did not examine the Toe Wound or prescribe any treatment for it." Id . "[C]ontinuing through November 9, 2011, the Toe Wound became more swollen, more discolored and much more painful. By November 9, 2011, Plaintiff was suffering from infection, edema and erythema in the right lower leg and foot, as well as fever and unexplained weight loss of more than 15 lbs." Id . ¶ 16. On November 9, 2011, Pederson "collapsed in the shower stall in his... cell." Id . ¶ 17.
On November 11, 2011, a physician examined Pederson and transferred him to a local hospital, where Pederson
was found to be suffering from a right diabetic foot infection due to methicillin-resistant Staphylococcus aure[us] septicemia (hereinafter "MRSA"). Plaintiff was treated with antibiotics, and the Toe Wound was drained by incision. Nevertheless, the MRSA infection was too advanced, requiring that Plaintiff's right great toe be surgically removed on November 22, 2011. Said removal did not halt the worsening inflammation or infection, and Plaintiff had his right leg amputated below the knee on November 23, 2011.
Compl. ¶ 18. Pederson asserts that the Butner medical staff's "failure to diagnose or treat" his toe wound "breached the... applicable standard of care" and resulted in the amputation. Id . ¶¶ 27-29. Pederson seeks $10 million in damages. Id . ¶ 35.
The United States waives sovereign immunity for "the negligent or wrongful act or omission of any employee of the Government [committed while the employee acts] within the scope of his office or employment." 28 U.S.C. § 2675(a). A prisoner "can sue under the [FTCA] to recover damages from the United States Government for personal injuries sustained during confinement in a federal prison, by reason of the negligence of a government employee." United States v. Muniz , 374 U.S. 150, 150 (1963). Because the statute "requires the law of the place where the act or omission occurred to be applied, " North Carolina substantive law controls Pederson's claim. Cibula v. United States , 551 F.3d 316, 319 (4th Cir. 2009)(quotation omitted); see 28 U.S.C. § 1346(b)(1). In North Carolina, a plaintiff asserting negligence must prove "the existence of a legal duty or standard of care owed to the plaintiff by the defendant, breach of that duty, ... a causal relationship between the breach of duty and" the plaintiff's alleged injuries, "and certain actual injury or loss sustained by the plaintiff." Blackwell v. Hatley , 202 N.C.App. 208, 212, 688 S.E.2d 742, 746 (2010); see Camalier v. Jeffries , 340 N.C. 699, 706, 460 S.E.2d 133, 136 (1995). In addition, a plaintiff alleging medical malpractice must comply with North Carolina Rule of Civil Procedure 90).
Rule 9(j) states:
Any complaint alleging medical malpractice by a health care provider as defined in [ N.C. Gen. Stat. §] 90-21.11 in failing to comply with the applicable standard of care under [ N.C. Gen. Stat.§] 90-21.12 shall be dismissed unless:
(1) The pleading specifically asserts that the medical care has been reviewed by a person who is reasonably expected to qualify as an expert witness under Rule 702 of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care;
(2) The pleading specifically asserts that the medical care has been reviewed by a person that the complainant will seek to have qualified as an expert witness by motion under Rule 702(e) of the Rules of Evidence and who is willing to testify that the medical care did not comply with the ...