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Burnette v. Veterans Healthcare System of Alabama

United States District Court, M.D. Alabama, Northern Division

June 7, 2018

WILLIAM RANDALL BURNETTE, Plaintiff,
v.
VETERANS HEALTHCARE SYSTEM OF ALABAMA, Defendant.

          REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

          TERRY F. MOORER, UNITED STATES MAGISTRATE JUDGE

         Pursuant 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.

         I. Background

         This 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 VA”).[1]

         After filing his complaint, the Court granted his motion to proceed in forma pauperis. See Doc. 5.

         Plaintiff 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.

         On 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.

         On 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 stated:

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 the Court.

         II. Jurisdiction

         Burnette 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.

         III. Standard of Review

         All 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.”).

         Additionally, 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 ...


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