United States District Court, E.D. North Carolina, Western Division
JAMES C. FOX, Senior District Judge.
This matter is before the court on the Motion to Dismiss [DE-11] filed by Defendant United States of America ("Government"). The pro se Plaintiff has filed a response to the motion, as well as an "Amended Complaint" [DE-14], which this court construes as a motion to amend the complaint. For the reasons more fully stated below, the motion to amend is DENIED and the motion to dismiss is ALLOWED in part and DENIED in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff, proceeding pro se, initiated this action on February 28, 2014, by filing a complaint [DE-1] in this court against the Government alleging (1) malpractice; (2) "refusal of follow up care;" (3) lack of proper care; and (4) "induced lack of post surgical care." Compl. [DE-1]. Plaintiff attached to the complaint two letters. The first is dated June 7, 2012, and is from the Office of Regional Counsel for the Department of Veterans Affairs. See Compl., Ex. A [DE-1-1]. In the letter, the Regional Counsel informs Plaintiff that his claim asserting damages "allegedly resulting from treatment by the U.S. Department of Veterans Affairs (VA) Asheville, NC VA Medical Center on or about February 4, 2010" has been denied. Id. at 1. The second letter is dated November 6, 2012, and is from an attorney who ostensibly previously-represented Plaintiff. See Compl., Ex. B [DE-1-2]. The letter appeals the denial of Plaintiff's tort claim, and argues that Plaintiff suffered right eye damage because he was refused treatment at the Asheville VA Medical Center and Durham VA Medical Center because of a "jurisdictional squabble" between the two centers. Id. at 1. He asserts that "the VA facilities involved did not just fail to recognize and treat the complications, they refused to treat [Plaintiff] at all." Id.
On June 24, 2014, Plaintiff filed an Amended Complaint naming the Government, the Acting Secretary of the Veterans Affairs, and several employees of the Veterans Administration Medical Center, as Defendants. See Amended Compl. [DE-3]. He alleged "malpractice, refusal of follow-up care[, ] lack of proper care[, ] induced lack of post surgical care, violation of patients[ ] right to services." He again attached the June 7, 2012 and November 6, 2012, letters.
After receiving an extension of time to file a response to the Amended Complaint, the Government filed a Certification of Scope of Employment and Substitution [DE-10], wherein R.A. Renfer, Jr. certified that the individually named defendants (James Crandell, Dennis McClaine, Lonnie Hatton, Joe Sovatos, E. Douglas Bradshaw, Jr., and Tisha Balknell) were acting within the official scope of their employment as United States Department of Veterans Affairs personnel at the time of the incidents alleged, and that the Government was substituted as party defendant in lieu of the individually named defendants. The Government also moved to dismiss this action for Plaintiff's failure to comply with the certification prerequisite in Rule 9(j) of the North Carolina Rules of Civil Procedure.
In response, Plaintiff filed another Amended Complaint, which included the following statements:
Malpractice refusal of follow-up care violation of patient[']s rights to services. Glaucoma specialist Robert Hunter 2201 Ewing St. Durham N.0 (Duke University Medical Facility). Duke Medical Team review case concluded no follow care was given. Additional surgery performed unsuccessfully.
Mot. to Amend [DE-14]. Plaintiff also filed two responses [DE-15; DE-16] to the motion to dismiss. In both, Plaintiff stated that Dr. Thomas Hunter, "a glaucoma specialist from the prestigious [D]uke [U]niversity concurred along with his colleagues that permanent scaring [sic] &damage to eye & vision had occurred due to no follow up care with specific eye drops i.e. negligence." He also asserts that the doctrine of res ipsa loquitur is applicable to this case.
Government filed response in opposition to Plaintiffs amended pleading, arguing that because he had already filed an amended complaint once as a matter of right, it would treat the amended pleading as a motion for leave to amend the complaint. The Government contended that the motion for leave to amend must be denied as a futile under Rule 15(a). The Government also filed a reply in support of its motion to dismiss, arguing that the doctrine of res ipsa loquitur is inapplicable to Plaintiffs claims, and also attaching the declaration of Dr. Thomas Hunter-Plaintiff s treating physician referenced in his opposition to the motion to dismiss-stating that he has not represented to Plaintiff that any permanent scarring and damage to his right eye and vision was due to negligence on behalf of any professional affiliated with the United States Veterans Administration Medical Centers in Durham or Asheville. Decl. of Thomas Hunter [DE-22-1] ¶6.
II. STANDARD OF REVIEW
Rule 12(b)(6) allows a court to dismiss an action which fails to state a claim on which relief may be granted. Fed.R.Civ.P. 12(b)(6). In considering a motion to dismiss, the court assumes the truth of all facts alleged in the complaint and the existence of any fact that can be proved, consistent with the complaint's allegations. Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, the [f]actual allegations must be enough to raise a right to relief above the speculative level' and have enough facts to state a claim to relief that is plausible on its face.'" Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 616 n.26 (4th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)); Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) ("While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations."). When considering a motion to dismiss, the court must keep in mind that "apro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson, 551 U.S. at 93 (internal citation omitted). Notwithstanding the court's obligation to liberally construe a pro se plaintiffs allegations, however, the court cannot ignore a clear failure to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990) ("The special judicial solicitude' with which a district court should view such pro se complaints does not transform the court into an advocate. Only those questions which are squarely presented to a court may properly be addressed.").
Additionally where, as here, a party no longer may amend a pleading once as a matter course, Federal Rule of Civil Procedure 15(a)(2) allows "a party [to] amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." Fed.R.Civ.P. 15(a)(2). District courts should liberally allow amendments:
If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason-such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.-the leave sought should, as the rules require, be "freely given." Foman v. Davis, 371 U.S. 178, 182 (1962). However, leave to amend is "not to be granted automatically, " Deasy v. Hill, 833 F.2d 38, 40 (4th Cir. 1987), and a district court has discretion to deny amendment so long as the ...