United States District Court, N.D. Alabama, Northeastern Division
N. JOHNSON, JR. UNITED STATES MAGISTRATE JUDGE.
medical malpractice action, filed pursuant to the Federal
Tort Claims Act, proceeds before the court on Defendant's
Motion to Dismiss. (Doc. 10). The court notified the parties
it will treat Defendant's motion to dismiss as a motion
for summary judgment and allowed the parties an opportunity
to submit any additional evidence they deemed pertinent to
Defendant's motion. Plaintiff Ray Anthony Fuqua,
proceeding pro se, asserts the need to conduct limited
discovery before filing any further response to
Defendant's motion. Nevertheless, Fuqua responded that he
timely filed this action due to a reconsideration request he
lodged with the Defendant, which, if construed in his favor,
tolled the time for filing this action. (Doc. 23).
upon review of the applicable precedent, authorities, and
facts underlying this dispute, Fuqua prevails in his
contention he timely filed this action due to the
reconsideration request he ostensibly filed with the
Defendant. Therefore, the court DENIES
Defendant's Motion to Dismiss.
party files a motion to dismiss for failure to state a claim
pursuant to Federal Rule of Civil Procedure 12(b)(6) and
relies upon material outside of the pleadings in support
thereof, the court may accept resort to such material, and
therewith, must treat the entreaty as a summary judgment
motion. Fed.R.Civ.P. 12(d).
to the Federal Rules of Civil Procedure, “[t]he court
shall grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. Rule 56(a). Defendant, as the party seeking
summary judgment, bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, which it believes demonstrate
the absence of a genuine issue of material fact. Clark v.
Coats & Clark, Inc., 929 F.2d 604, 608
(11th Cir. 1991) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)).
“mandates the entry of summary judgment, after adequate
time for discovery and upon motion, against a party who fails
to make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden of proof at trial.”
Celotex, 477 U.S. at 322. “In such a
situation, there can be ‘no genuine issue as to any
material fact,' since a complete failure of proof
concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial.”
Id. at 322-23. In addition, a movant may prevail on
summary judgment by submitting evidence
“negating [an] opponent's claim, ”
that is, by producing materials disproving an essential
element of a non-movant's claim or defense. Id.
at 323 (emphasis in original).
non-moving party demonstrates a genuine issue of material
fact by producing evidence by which a reasonable fact-finder
could return a verdict in its favor. Greenberg v.
BellSouth Telecomms., Inc., 498 F.3d 1258, 1263
(11th Cir. 2007) (citation omitted). The
“court must draw all reasonable inferences in favor of
the nonmoving party, and it may not make credibility
determinations or weigh the evidence.” Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 150
(2000) (citations omitted). “‘Credibility
determinations, the weighing of the evidence, and the drawing
of legitimate inferences from the facts are jury functions,
not those of a judge.'” Id. (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986)). “Thus, although the court should review the
record as a whole, it must disregard all evidence favorable
to the moving party that the jury is not required to
believe.” Reeves, 530 U.S. at 151 (citation
omitted). “That is, the court should give credence to
the evidence favoring the nonmovant as well as that
‘evidence supporting the moving party that is
uncontradicted and unimpeached, at least to the extent that
that evidence comes from disinterested witnesses.'”
Id. (citation omitted).
Ray Anthony Fuqua filed a claim with the United States
Department of Veterans' Affairs (“VA”)
regarding complications from a knee replacement surgery at
the Veterans Hospital in Birmingham, Alabama. Defendant
issued a notice of final denial regarding Fuqua's claim
on March 9, 2017, which was mailed on March 13, 2017. (Docs.
10-1 at 2; 10-2 at 2). The notice informed Fuqua that he may
file an action in court pursuing his claim “within six
months after the date of mailing of [the] notice of final
denial as shown by the date of [the] letter . . . .”
(Doc. 10-1 at 2).
addition, the denial notice also informed Fuqua that he may
file a request for reconsideration with the VA by: “(1)
mail to Office of General Counsel (021B), 810 Vermont Avenue,
N.W., Washington, DC 20420; (2) fax to 202-273-6385; or (3)
email to OGC.firstname.lastname@example.org.”
(Id.). The VA also advised Fuqua that it must
receive any reconsideration request “within six months
of the date of mailing” the final denial notice as
shown by the date of the letter. (Id.). A
properly-filed reconsideration request gave the VA “six
months from receipt of that request” to reconsider the
claim, “during which the option to file suit in an
appropriate federal court . . . [was] suspended.”
the period the VA reviewed Fuqua's FTCA claim, it also
assessed a claim for disability benefits tendered by Fuqua.
On October 5, 2016, Fuqua applied for disability compensation
and benefits seeking “[r]e-establishment of 100%
convalescent rate of pay for left knee; right knee
arthroplasty [replacement] secondary to left knee
condition.” (Doc. 17-1 at 7 & 8-9). On January 25,
2017, a Regional Office of the Department's Veterans
Benefits Administration issued a rating decision concerning
his October 5, 2016, application, assigning
service-connection ratings for his left and ...