United States District Court, E.D. North Carolina, Eastern Division
HOWARD C. MODLIN, JR., Plaintiff,
U.S. DEPARTMENT OF VETERANS AFFAIRS, Defendant.
TERRENCE W. BOYLE, CHIEF UNITED STATES DISTRICT JUDGE
cause comes before the Court on defendant's motion to
dismiss pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure and plaintiffs motion requesting an attorney.
The appropriate responses or replies have been filed, or the
time for doing so has expired, and the motions are ripe for
ruling. For the reasons that follow, this action is
who proceeds in this matter pro se, filed a
complaint against the United States Department of
Veteran's Affairs, in which he references defendant's
July 25, 2014, Institutional Disclosure letter to plaintiff,
which concerns defendant's failure to notify plaintiff of
his elevated PSA levels in a timely manner. Plaintiff seeks
damages in the amount of sixteen million dollars.
attachments to plaintiffs complaint and defendant's
motion to dismiss show that in the spring of 2013 a test by
the Veteran's Affairs (VA) hospital revealed that
plaintiff had elevated PSA levels. Plaintiff was referred to
a private physician in October 2013, where he was diagnosed
with prostate cancer. Plaintiff underwent treatment, and as
of February 2, 2017, was free of active disease.
28, 2014, the Chief of Staff at the Durham VA Medical Center
sent plaintiff a memorandum in which he notified plaintiff
that on July 25, 2014, an institutional disclosure to
plaintiff was conducted to apologize because plaintiff did
not get treatment for his elevated PSA in a timely manner and
plaintiff was not informed of his elevated PSA results. The
memorandum further advised plaintiff of his right to file an
administrative tort claim and a 1151 disability claim.
proceeded to file disability claim pursuant to 38 U.S.C.
§ 1151 on June 21, 2016. His § 1151 claim was
granted on June 12, 2018. On June 21, 2018, the VA received a
document purporting to institute a tort claim, which was
returned to plaintiff for completion. Plaintiff was notified
that the document he submitted was insufficient to institute
a tort claim as it did not constitute a perfected claim. The
VA received plaintiffs completed form on July 31, 2018.
Plaintiffs tort claim was denied by defendant on August 30,
2018, because the administrative claim was presented more
than two years after the claim accrued. Plaintiffs request
for reconsideration was denied by defendant on November 20,
2018. Plaintiff instituted this action by filing a motion to
proceed in forma pauper is on May 13, 2019.
12(b)(6) motion tests the legal sufficiency of the complaint.
Papasan v. Allain, 478 U.S. 265, 283 (1986). When
acting on a motion to dismiss under Rule 12(b)(6), "the
court should accept as true all well-pleaded allegations and
should view the complaint in a light most favorable to the
plaintiff." Mylan Labs., Inc. v. Matkari, 7
F.3d 1130, 1134 (4th Cir.1993). A complaint must allege
enough facts to state a claim for relief that is facially
plausible. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007). Facial plausibility means that the facts
pled "allow the court to draw the reasonable inference
that the defendant is liable for the misconduct
alleged," and mere recitals of the elements of a cause
of action supported by conclusory statements do not suffice.
Ashcroft v. Iqbal, 556U.S. 662, 678 (2009). A
complaint must be dismissed if the factual allegations do not
nudge the plaintiffs claims "across the line from
conceivable to plausible." Twombly, 550 U.S. at
570. A court may consider any documents attached to or
integral to the complaint without converting the motion to
one for summary judgment. Philips v. Pitt Cnty. Mem'l
Hosp., 572 F.3d 176, 180 (4th Cir. 2009); see also
Am. Chiropractic Assoc. v. Trigon Healthcare, Inc., 367
F.3d 212, 234 (4th Cir. 2004).
Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671
et seq., represents a limited waiver of the United
States' sovereign immunity for "torts committed by
its employees while acting within the scope of their official
duties" Gould v. U.S. Dep 't of Health &
Human Servs., 905 F.2d 73 8, 741 (4th Cir. 1990). The
FTCA's statute of limitations provides that "[a]
tort claim shall be forever barred unless it is presented in
writing to the appropriate Federal agency within two years
after such claim accrues...." 28 U.S.C. § 2401(b).
claim accrues for purposes of the FTCA statute of limitations
when the plaintiff possesses "the critical facts that he
has been hurt and who has inflicted the injury."
United States v. Kubrick, 444 U.S. Ill. 122 (1979).
The plaintiff needed not be aware, however, that his injury
was inflicted negligently in order for his claim to accrue.
Id. at 123. Moreover, "[t]he statute of
limitations under the FTCA commences to run from the date of
accrual and does not wait until a plaintiff is aware that an
alleged tort-feasor is a federal employee."
Gould, 905 F.2d at 745. Finally, the FTCA statute of
limitations is not jurisdictional and is subject to equitable
tolling. United States v. Kwai Fun Wong, 135 S.Ct.
1625, 1638 (2015).
latest, plaintiff s claim accrued on July 31, 2014, three
days after defendant notified plaintiff of its apology for
failing to timely inform plaintiff of his elevated PSA test.
By that date plaintiff was well aware that he had been
diagnosed with prostate cancer and that defendant's
action or inaction may have contributed to his injury.
Plaintiff did not present his administrative tort claim to
defendant until July 31, 2018, four years after his claim
accrued. Plaintiffs submission of a letter from his treating
urologist, which shows that plaintiff was treated for
prostate cancer from 2013 through 2015 [DE 13], does not
demonstrate that his claim accrued on a date after July 31,
2014. Additionally, plaintiff s filing of a § 1151
disability claim did not toll the time for filing his FTCA
administrative claim. See Butler v. United States,
702 F.3d 749, 754 (4th Cir. 2012).
plaintiff has not demonstrated that he is entitled to
equitable tolling of the two-year limitations period. In his
agency filings, plaintiff argued that an attorney was at
fault for failing to timely present his administrative claim.
Equitable tolling of a statute of limitations is generally
appropriate only when circumstances beyond the plaintiffs
control prevented him from filing within the limitations
periods. Rouse v. Lee, 339 F.3d 238, 246 (4th Cir.
2003). Plaintiff has identified no extraordinary
circumstances which prevented him from filing within the
limitations period. Moreover, attorney error, alone, is not a
ground for equitable tolling. Id. at 248.
plaintiffs claim is plainly barred by the limitations period,
his complaint is properly dismissed. Plaintiffs request for