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Ward v. United States

United States District Court, E.D. North Carolina, Western Division

March 2, 2017

LARRY RAY WARD, Plaintiff,


          LOUISE W. FLANAGAN United States District Judge

         The matter comes before the court on defendants' motion to dismiss (DE 19). Plaintiff responded in opposition and also filed a motion to amend his complaint (DE 30). For the following reasons, the court denies plaintiff's motion to amend and allows defendants' motion to dismiss.


         On June 11, 2015, plaintiff, a federal inmate incarcerated at the Low Security Correctional Institution in Butner, North Carolina, brought this action pro se against the United States of America, Charles Samuels, C/O Barnes, C/O James, Warden Cruz, and Doctor Victor Loranth. Plaintiff alleged claims pursuant to both the Federal Torts Claim Act (“FTCA”), 28 U.S.C. § 2672, et seq. Plaintiff's claims related to defendants' alleged negligence while they transported plaintiff to a medical appointment. In addition, plaintiff asserted a medical malpractice claim, asserting that the injuries he sustained when he fell out of the van were improperly treated.

         On April 11, 2016, the court conducted a frivolity review of plaintiff's case pursuant to 28 U.S.C. § 1915(e)(2)(B). The court allowed plaintiff to proceed with his FTCA action against the United States only, and dismissed without prejudice the remaining defendants named in his FTCA action. The court also dismissed without prejudice plaintiff's medical malpractice claim based on plaintiff's failure to comply with Rule 9(j) of the North Carolina Rules of Civil Procedure. On July 12, 2016, defendant filed the instant motion to dismiss. Plaintiff has responded in opposition, and has also filed a motion to amend his complaint. Defendant responded in opposition to the motion to amend on October 24, 2016. In this posture, the issues raised are ripe for adjudication.


         Plaintiff contends that, while he was incarcerated at the Federal Correctional Institution in Williamsburg, South Carolina, Bureau of Prisons (“BOP”) officials transported him to a doctor's appointment in Lake City, South Carolina. (Compl. p. 3). He claims the correctional officers transporting him negligently decided to transport him “without [the] usage of [his] wheelchair.” (Id.). The two transporting employees assisted plaintiff out of the transportation van by holding him by his arms. (Id. at 3-4). Despite this assistance, while plaintiff was exiting the transportation van “he fell and hit his back and hip on the van and leg to the pavement causing severe damage and injury with great pain.” (Id. at 4). Plaintiff alleges that, had he been secured safely in his prescribed wheelchair, he would not have fallen. (Id. at 7).


         A. Motion to Amend Federal Rule of Civil Procedure 15 provides that a party may amend its pleading once as a matter of course within 21 days after service, or, if the pleading requires a response, within 21 days after service of the response or service of a motion under Rule 12(b), (e), or (f). See Fed.R.Civ.P. 15(a)(1). Otherwise, a party may amend its pleading only with the written consent of the opposing party or with leave of court. See Fed.R.Civ.P. 15(a)(2). A court should freely grant leave to amend a complaint or answer unless “the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would [be] futile.” Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006) (en banc) (quotation omitted); see Foman v. Davis, 371 U.S. 178, 182 (1962).

         In his motion to amend, plaintiff contends another inmate prepared his complaint for him. (Mot. (DE 30) at 1). Plaintiff essentially concedes that he did not read the complaint that was prepared for him prior to signing it and filing it with the court, a clear violation of Rule 11(b) of the Federal Rules of Civil Procedure. (Id.). Only after having the benefit of defendant's motion to dismiss did plaintiff review his complaint and seek to correct the alleged errors in his complaint. (Id. at 1-2). The court cannot encourage future Rule 11(b) violations by now permitting plaintiff to “correct” a complaint he failed to review before filing at this stage of the proceedings. Accordingly, plaintiff's motion to amend is denied based on plaintiff's bad faith.

         Out of an abundance of caution, the court also notes that none of the allegations contained in plaintiff's amended complaint would alter the court's analysis of defendant's motion to dismiss. For the reasons discussed below, even if plaintiff's proposed amendments were taken into consideration, plaintiff's claims would be barred by the discretionary function exception. Accordingly, in the alternative, plaintiff's motion to amend is denied as futile.

         B. Motion to Dismiss

         1. Standard of Review

         A Rule 12(b)(1) motion challenges the court's subject matter jurisdiction, and the plaintiff bears the burden of showing that federal jurisdiction is appropriate when challenged by the defendant. McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). Such a motion may either 1) assert the complaint fails to state facts upon which subject matter jurisdiction may be based, or 2) attack the existence of subject matter jurisdiction in fact, apart from the complaint. Bain, 697 F.2d at 1219. Under the former assertion, as here, the moving party contends that the complaint “simply fails to allege facts upon which subject matter jurisdiction can be based.” Id. In that case, “the plaintiff, in effect, is afforded the same procedural protection as he would receive under a Rule 12(b)(6) consideration.” Id. ...

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