United States District Court, M.D. Alabama, Northern Division
REPORT AND RECOMMENDATION OF THE MAGISTRATE
F. MOORER, UNITED STATES MAGISTRATE JUDGE
to 28 U.S.C. § 636(b)(1), this case was referred to the
undersigned United States Magistrate Judge for review and
submission of a report with recommended findings of fact and
conclusions of law (Doc. 3, entered 10/26/17). Pending before
the Court is Defendant's Motion to Dismiss and brief in
support (Docs. 11-12, filed 4/9/18). For the reasons
discussed below, the Magistrate Judge recommends the motion
to dismiss be granted, this case be dismissed with prejudice,
and any remaining motions be denied as moot.
complaint was filed by William Randall Burnette
(“Plaintiff” or “Burnette”) on
October 23, 2017. See Doc. 1. Plaintiff - who
proceeds pro se - asserts claims under the Federal
Tort Claims Act (“FTCA”), 28 U.S.C. §
1346(b), 2671-2680. Plaintiff asserts his claims against
Defendant Veterans Healthcare System of Alabama
(“Defendant” or “the
filing his complaint, the Court granted his motion to proceed
in forma pauperis. See Doc. 5.
asserts that on July 13, 2011, he was hit by a vehicle while
walking through the parking lot from his car to the VA
building which resulted in . See Doc. 1 at p. 4,
Section III. He alleges the VA was negligent by not providing
sidewalks or other safety measures (such as foot patrols,
reduced congestion of the parking lot, or cameras). to help
pedestrians safely move from the parking lot to the building.
Plaintiff further states this has been an un-safe condition
for the last 20 years. Id. He seeks compensatory and
punitive damages for his spinal cord injuries and its
resulting loss of mobility/confinement to a wheelchair. He
seeks $500, 000.00 in compensatory damages and $700, 000.00
in punitive damages. Id. at p. 6, Section IV.
April 9, 2018, Defendant filed its motion to dismiss pursuant
to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). See Docs.
11-12. Specifically, Defendant asserts the lawsuit should be
dismissed because he did not sue the right party or timely
file this lawsuit under the FTCA requirements. First,
Defendant asserts that pursuant to the FTCA, the only proper
party defendant in this lawsuit is the United States. Next,
Defendant also argues that the statute of limitations has
passed and Plaintiff's lawsuit here is untimely. Attached
to the motion to dismiss is a copy of the denial letter sent
to Plaintiff regarding his original administrative tort
claim. See Doc. 12, Exhibit A. The letter is dated
December 4, 2013. Id.
April 18, 201, the Court entered a show cause order requiring
Plaintiff to respond to the motion to dismiss on or before
May 9, 2018. See Doc. 14. No. response was filed.
Therefore, on May 21, 2018, the Court entered a second order
directing the plaintiff to show cause why he failed to timely
respond to the motion to dismiss. Additionally, the Court
explicitly warned the plaintiff of the potential consequences
of failure to respond to the Court's orders. The Court
The plaintiff is specifically cautioned that if he fails [to]
file a response as required by this order, the court may
treat that failure as a failure to obey the orders of the
court and/or an abandonment of the claims set forth in the
complaint and as a failure to prosecute this action and the
undersigned may recommend that this case be dismissed.
See Doc. 15. No. response was filed to the second
order and Plaintiff has filed no additional pleadings with
asserts claims pursuant to 28 U.S.C. § 1331 (federal
question jurisdiction) as he brings claims under FTCA. The
parties do not contest personal jurisdiction or venue and
there are adequate allegations to support both. The Defendant
does contest jurisdiction as being barred due to the statute
of limitations and failure to identify proper defendant.
Standard of Review
litigants, pro se or not, must comply with the
Federal Rules of Civil Procedure. Generally, complaints by
pro se plaintiffs are read more liberally than those
drafted by attorneys. Campbell v. Air Jam. Ltd., 760
F.3d 1165, 1168-69 (11th Cir. 2014); Osahar v. U.S.
Postal Serv., 297 Fed.Appx. 863, 864 (11th Cir. 2008).
Although the court is required to liberally construe a
pro se litigant's pleadings, the court does not
have “license to serve as de facto counsel for
a party. . .or to rewrite an otherwise deficient pleading in
order to sustain an action.” GJR Investments, Inc.
v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th
Cir. 1998) (citations omitted) (overruled on other grounds by
Randall v. Scott, 610 F.3d 701 (11th Cir. 2010));
see also Giles v. Wal-Mart Distrib. Ctr., 359
Fed.Appx. 91, 93 (11th Cir. 2009) (internal citations and
quotation omitted) (“Although pro se pleadings
are held to a less strict standard than pleadings filed by
lawyers and thus are construed liberally, this liberal
construction does not give a court license to serve as de
facto counsel for a party, or to rewrite an otherwise
deficient pleading in order to sustain an action.”).
because the Plaintiff proceeds in forma pauperis,
the Court has an ongoing requirement to conduct a review to
determine whether the claims are frivolous, malicious, or
fails to state a claim on which relief may be granted under
to 28 U.S.C. § 1915(e)(2)(B). The statute provides, in
pertinent part: “the court shall dismiss the case at
any time if the court determines that . . . the action or
appeal - (i) is frivolous or malicious, (ii) fails to state a
claim on which relief ...