United States District Court, E.D. North Carolina, Western Division
MICHAEL L. KREMBEL, Plaintiff,
UNITED STATES OF AMERICA, Defendants.
C. FOX Senior United States District
matter is before the court upon Defendant's motion to
dismiss for lack of subj ect matter jurisdiction, pursuant to
Fed.R.Civ.P. 12(b)(1), failure to state a claim upon which
relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6), or
alternatively, motion for judgment on the pleadings,
pursuantto Fed.R.Civ.P. 12(c) ("motion to dismiss")
[DE-15]. Also before the court is Defendant's motion to
stay discovery pending the resolution of its motion to
dismiss [DE-21 ]. For the following reasons, these motions
a federal inmate represented by counsel, has filed a
complaint pursuant to the Federal Tort Claims Act
("FTCA"), 28 U.S.C. §§ 2671-2680. In his
complaint, Plaintiff contends that, on or about June
6, 2013, he was transferred from the Federal Correctional
Institution at Fort Dix, New Jersey ("FCI Fort
Dix") to the Federal Medical Center in Butner, North
Carolina ("FMC Butner"). Compl. [DE-1] ¶ 6.
Plaintiff has been diagnosed with squamous cell carcinoma,
and received treatment for that condition, including surgery,
while he was incarcerated at FCI Fort Dix. Id.
his transfer to FMC Burner, Plaintiff had a consultation at
the Duke University Medical Center ("DUMC") in
Durham, North Carolina on July 8, 2013. Id. ¶
9. The examining physician, Dr. Stanley Katz, indicated
"[i]t is my strong opinion that the patient is a
candidate for Mohs micrographic surgery... This would be
the true standard of care, and frankly due to the
patient's good health and ability to tolerate such a
procedure, I know nothing else that would be adequate other
than this treatment." Id. ¶ 10. Dr. Katz
"strongly recommended" that Mohs surgery be
performed "as soon as possible." Id.
Similarly, on July 9, 2013, Plaintiff consulted with several
other health care providers, including a radiation
oncologist. Id. ¶ 12. These providers also
recommended Plaintiff for Mohs surgery. Id. ¶
12. These recommendations were provided to Federal Bureau
of-Prisons ("BOP") officials. Id.
¶¶ 11, 13. On July 10, 2013 the FMC Butner Review
Board approved the recommendation for MOHS surgery at Duke.
Id. ¶ 14. However, despite Dr. Katz
recommendation that the procedure be performed as soon as
possible, the BOP did not schedule a consultation with the
primary Mohs surgeon at DUMC, Dr. Jonathan Lambert Cook,
until October 15, 2013. Id. ¶ 15. Following the
October 15, 2013 consultation, Dr. Cook also agreed that Mohs
surgery was necessary. Id. ¶ 16');">16. He also opined
that, given the size of the probable wound, plastic surgery
would also be required. Id. As before, BOP officials
were provided with Dr. Cook's treatment notes.
Id. ¶ 17. On October 23, 2013, the review board
at FMC Butner approved Plaintiff s plastic surgery
reconstruction. Id. ¶ 18.
Plaintiff contends, despite the urgent recommendations of
several physicians and the approval of the FMC Burner review
board, BOP officials failed to make arrangements to have Mohs
surgery performed on Plaintiff. Id. ¶ 19. By
the time Plaintiff received treatment, Mohs surgery was no
longer considered feasible. Id. ¶ 20.
Specifically, a DUMC radiation oncologist, Dr. Daniel Cuscela
noted "the mass has ... [grown] quite rapidly,
exophytically and ulceratively with a crater and signs of an
infectious process and drainage as well as necrosis [...]
clinically he ... is not a surgical candidate at this
point." Id. As a result of this delay in
treatment, Plaintiff asserts that he suffered permanent and
severe injuries, including, inter alia, allowing his
cancer to spread and negatively affecting his prognosis.
Id. ¶ 31.
exhausting his administrative .remedies, Plaintiff filed the
instant complaint on January 27, 2016');">16, alleging that BOP
officials negligently breached their duty to ensure he
received adequate medical care. On August 15, 2016');">16, Defendant
filed the instant motion to dismiss [DE-15]. Plaintiff has
responded to the motion [DE-24], and Defendant has filed a
reply [DE-25]. Accordingly, these matters are ripe for
first moves to dismiss Plaintiffs claims pursuant to Rule
12(b)(1) of the Federal Rules of Civil Procedure. Under Rule
12(b)(1), Plaintiff bears the burden of establishing federal
jurisdiction. See Fed.R.Civ.P. 12(b)(1): Kerns v. United
States. 585 F.3d 187, 192 (4th Cir. 2009); Adams v.
Bain. 697 F.2d 1213, 1219 (4th Cir. 1982). When a Rule
12(b)(1) motion attacks the complaint as failing to state
facts upon. which subject-matter jurisdiction may be based,
the facts in the complaint are assumed to be true.
Kerns, 585 F.3d at 192. Where the Rule 12(b)(1)
motion attacks the existence of subject-matter jurisdiction,
apart from the complaint, the court may weigh the evidence to
determine the existence of jurisdiction. Id.
asserts that the court lacks subj ect-matter jurisdiction
over Plaintiff s FTC A claim because he was injured by the
act of an independent contractor. Specifically, Defendant
argues that "[a]t all times relevant to the instant
claim, the Federal Correctional Complex in Butner, North
Carolina ("FCC Butner"), contracted with the
University of Massachusetts Medical School
("UMASS") to provide comprehensive medical care to
inmates housed at FCC Butner." Def. Mem. [DE-16');">16], p. 2.
The crux of Defendant's argument is that UMASS, rather
than the BOP, is the party whose negligence injured
Plaintiff. Id. at 14.
the FTCA, the United States waives sovereign immunity for
"the negligent or wrongful act or omission of any
employee of the Government while acting 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)
(footnote omitted). The waiver is limited, however, to acts
of governmental employees, and does not extend to acts of
independent contractors. See Logue v. United States.
412 U.S. 521, 526-30 (1973); Williams v. United
States. 50 F.3d 299, 305-06 (4th Cir. 1995); Wood v.
Standard Prods. Co.. 671 F.2d 825, 829 (4th Cir. 1982).
argues that because UMASS was responsible for scheduling
Plaintiffs treatment. Def. Mem. [DE-16');">16], p. 14. Because UMASS
is an independent contractor, Defendant contends it cannot be
held liable for Plaintiffs medical treatment. The court
disagrees, and in fact has rejected similar arguments. See
Knowles No. 5:12-CT-3212-F (E.D. N.C. March 20, 2014)
(denying motion to dismiss where a FTCA plaintiff alleged
that the BOP "had taken too long to accept a [medical]
consultation request", regardless of whether the medical
care was ultimately provided by an independent contractor).
Here, the fact that Plaintiffs care was ultimately provided
by independent contractors, or that independent contractors
were responsible for scheduling appointments for the BOP is
inapposite. The crux of Plaintiffs claim is that BOP
employees failed to exercise the requisite care to sure that
medically urgent procedures were promptly scheduled.
Plaintiff has plausibly alleged facts concerning the alleged
negligence of BOP employees to withstand the motion to
dismiss. See Baker v. United States. 5:11-CT-3070-D,
2013 WL 211254, at * 4 (E.D. N.C. Jan. 18, 2013). Although a
more fully developed record may reveal that UMASS was
negligent and Defendant 'was not, the court is unwilling
to reach that conclusion at this stage of the proceedings.
Thus, Defendant's motion to dismiss Plaintiffs complaint
pursuant to pursuant to Rule 12(b)(1) is DENIED.
also argues that Plaintiffs complaint should be dismissed
pursuant to Rules 12(b)(6) and 12(c) of the Federal Rules of
Civil Procedure. When subjected to a Rule 12(b)(6) motion, a
"complaint must be dismissed if it does not allege
'enough facts to state a claim to relief that is
plausible on its face.'" Giarratano v.
Johnson, 521 F.3d 298, 302 (4th Cir.2008) (emphasis . in
original) (quoting Bell Atl. Corp. v. Twombly. 550
U.S. 544, 570 (2007)). The Supreme Court in Twombly
upheld a Rule 12(b)(6) dismissal because the complaint failed
to allege facts sufficient to show a claim was plausible
rather than merely conceivable. See Monroe v. City of
Charlottesville, Va.. 579 F.3d 380, 386 (4th Cir.2009),
cert, denied. 559 U.S. 992 (2010). Accordingly,
while a reviewing court must "accept as true all
well-pleaded allegations and view the complaint in the light
most favorable to the plaintiff, Philips v. Pitt County
Memorial Hosp.. 572 F.3d 176, 180 (4th Cir. 2009), the
court still "must determine whether it is plausible that
the factual allegations in the complaint are enough to raise
a right to relief above the speculative level."
Simmons v. United Mortg. & Loan Inv.. LLC. 634
F.3d 754, . 768 (4th Cir.2011) (internal quotations and
citations omitted). In doing so, "the court need not
accept the legal conclusions drawn from the facts, and need
not accept as true unwarranted inferences, unreasonable
conclusions, or arguments." Monroe. 579 F.3d at
385-86 (quotation marks and alteration marks omitted). Rule
12(c) allows a party to move for judgment on the pleadings,
"after the pleadings are closed-but early enough not to
delay trial." Fed.R.Civ.P. 12(c). In reviewing a motion
for judgment on the pleadings, the court applies "the
same standard" as for motions made pursuant to Rule
12(b)(6). Burbach Broad Co. v. Elkins Radio Corp..
278 F.3d 401, 406 (4th Cir. 2002). When a party moves for
judgment on the pleadings pursuant to Rule 12(c), the factual
allegations of the complaint are taken as true, whereas those
of the answer are taken as true only to the extent that they
have not been denied or do not conflict with those in the
complaint. Pledger v. North Carolina Dep't of Health
and Human Services. 7 F.Supp.2d 705, 707 (E.D. N.C.
substantive law of the place where the act or omission
occurred is to be applied in a FTCA action, which in this
case is North Carolina. Cibula v. United States. 551
F.3d 316');">16, 319 (4th Cir. 2009) (citing 28 U.S.C. §
1346(b)(1)). Although this action involves Plaintiffs medical
treatment, ultimately, this case sounds in ordinary
negligence, not medical malpractice. Simply put, Plaintiffs
claim is not that BOP physicians failed to provide adequate
medical treatment. Rather, Plaintiff contends that BOP
employees failed to timely schedule a surgery that had
already been approved, and that the resulting delay caused
his cancer to spread. See Knowles. No.
5:12-CT-3212-F (E.D. N.C. March 20, 2014) (holding that claim
sounded in ordinary negligence where Plaintiff was not
scheduled for eye surgery in a timely fashion); Daniel v.
United States. No. 5:11-CT-3067-BO, 2013 WL 393337, at
*2 (E.D. N.C. Jan. 31, 2013) (holding that claim sounded in
ordinary negligence where "Plaintiff never complained of
the treatment he received from the medical specialist. . .
[but rather] concerned the fact that the administration
failed to follow the medical decisions concerning the need
for treatment to prevent further and present damage to his
eyes."); Baker. 2013 WL 211254, at *4 (E.D.
N.C. Jan. 18, 2013) (noting that the Fourth Circuit has not
expressly addressed whether the independent contractor
doctrine bars "mixed" cases, in which some of the
plaintiffs allegations concern alleged negligent actions of
government employees and that other courts have permitted
mixed actions to proceed based on the alleged negligent acts
of government ...