Willingham v. United States of America, No. 1:2015cv00025 - Document 42 (S.D. Ga. 2016)
Court Description: ORDER denying Defendant's converted 18 Motion for Summary Judgment; and directing the Clerk to remove the stay of discovery. Signed by Judge J. Randal Hall on 021/19/2016. (jah)
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Willingham v. United States of America Doc. 42 IN THE UNITED FOR THE STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION LOUIS WILLINGHAM, SR., * Plaintiff, * v. * CV 115-025 * UNITED STATES OF AMERICA, * * Defendant. ORDER Currently before the Court is Defendant's converted motion for summary judgment. below, (Doc. 18.) For the reasons discussed Defendant's motion is DENIED. I. A. On Background Procedural Background February 17, proceeding pro se, 2015, Plaintiff Louis Willingham, filed a complaint in this Court, Sr., alleging medical malpractice against the Veteran Affairs Medical Center ("VA") in Augusta, Eventually, Georgia Defendant in November moved to 2011. dismiss the (See case Doc. 1.) because Plaintiff did not timely and adequately present his claims to the appropriate agency. (Doc. 18.) Specifically, Defendant argued that the letter Plaintiff sent the agency did not contain Dockets.Justia.com his signature or a sum certain, making the Defendant also produced a Standard Form 95 his signature the SF-95 and that a sum certain. Plaintiff ("SF-95") Moreover, submitted in request invalid. that lacked Defendant February 2014 argued, was not timely because it was not within the two-year limit provided for in 28 U.S.C. § 2401(b). Plaintiff responded and essentially argued that someone from the VA' s office assisted him with his complaint and that the person assisting him erroneously prepared the deficient complaint. was not timely sent He also because he argued that the did not receive second SF-95 notice of the problems with his claim until after the two-year period had run. Plaintiff, evidence although by he Defendant, challenged failed to the present SF-95 his presented own as evidence. Thus, there was no evidence before the Court upon which it could equitably toll Plaintiff's claims. evidence outside the pleadings, to dismiss into a motion Because Defendant presented the Court converted the motion for summary judgment and allowed the parties to submit additional arguments and evidence. Plaintiff, now represented additional brief and an by counsel, affidavit. (Doc. has (Doc. 33.) an Defendant 40.) submitted has not presented any additional arguments or evidence. B. Plaintiff's Affidavit Plaintiff equitable has tolling submitted his own affidavit is appropriate in this as evidence case. affidavit presents the following factual assertions. that Plaintiff's In spring 2013, help Plaintiff, him patient with after his claim, advocate, responsibility met who to claim . . . ." learning with a the informed assist (Doc. about him [Plaintiff] 40, Ex. 1 VA employee employee, that with ("PI. who could known "it as was his a tort preparing Decl.") II 1-3.) Plaintiff met with the patient advocate several more times, in July 2013, the patient advocate informed would draft the appropriate letter on I 7.) a Plaintiff and that Plaintiff's behalf. he (Id. And the patient advocate indicated to Plaintiff that the letter would contain all necessary information to bring a claim. (Id. I instructed Counsel, The 9.) Plaintiff which patient to advocate mail Plaintiff it prepared the (Id. did. to I VA 8.) a Office After letter of and Regional not hearing anything about his claim, in January 2014, Plaintiff visited the patient advocate again and was informed that he would need to speak with Roosevelt Childs at the Office of Regional Counsel. (Id. I 14.) Plaintiff did so, had a a sent November.1 letter (Id. I 15.) the wrong address-an (Id. 117.) Childs to and Childs informed Plaintiff he Plaintiff regarding the sent Plaintiff a new promptly completed and mailed in. seen before. SF-95, which he (I 20-21.) 1 The letter to which Plaintiff refers was cited by Defendant in its motion to dismiss. (Doc. 18, in Childs, however, had sent the letter to address Plaintiff had never then claim Ex. 2.) II. Summary genuine dispute entitled 56(a). the judgment to under the party, in appropriate any as the Inc., facts in Matsushita 574, 587 [its] 1428, to judgment Liberty Lobby, U.S. is material a matter only fact of if "there and law." Fed. no movant the is is R. Civ. P. Facts are "material" if they could affect the outcome of suit view as Legal Standard 477 242, light the (1986), substantive U.S. most Elec. favor." 1437 governing Indus. 248 law. (1986). favorable Co. Anderson v. The Court must the to Zenith v. non-moving Radio Corp., 475 and must draw "all justifiable inferences U.S. v. (11th Cir. Four 1991) Parcels (en banc) of Real Prop., 941 F.2d (internal punctuation and citations omitted). In notice the this of action, the summary motion 34.) Wainwright, satisfied. The rules, the F.2d 822, time of the Court summary judgment the in opposition, Therefore, 772 Clerk for judgment other materials (Doc. the for to file requirements (11th Cir. filing 1985) materials Plaintiff informed him of affidavits and the consequences of notice 825 right and gave of default. Griffith (per curiam), in opposition expired, and the motion is now ripe for consideration. or v. are has Ill. As noted above, Discussion because Plaintiff's claim is brought under the Federal Tort Claims Act, Plaintiff was his claim to agency within accrued. 28 States, certain. to F.3d 840, VA Here, timely. of However, the it Equitable agency was ex A.M. after v. 2013). required 460 years rel. Cir. United States, Counsel undisputed that because agency 1638 (11th Regional is is equitable tolling. 1625, 843 Motta two to it United Further, include F.3d 1318, a 1324 sum (11th it is undisputed that Plaintiff's first claim Office and Ct. the Dalrymple v. certain, with § 2401(b); claim to 2006). the appropriate U.S.C. 717 Plaintiff's Cir. the required to present not the failed his to include second two-year period to jurisdictional, United States v. it Wong, file is sum was claim a not a claim subject U.S. to , 135 S. (2015). tolling is sparingly used by courts, and it is typically only appropriate "when a movant untimely files because of extraordinary circumstances that are both beyond his and unavoidable even with diligence." And although it does Motta, 717 not apply to mere negligence, control F.3d at 846. courts will apply equitable tolling "where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period 498 U.S. 89, 96 . . . ." (1990). Irwin v. Dep't The circumstances of Veteran Affairs, in Plaintiff's case go beyond mere negligence, and equitable tolling is appropriate. Plaintiff diligently pursued his claim. patient advocate as meeting with advocate advocate Then, the told him was as spring until an he adequate 2013, and received he what complaint the VA continued the for after not hearing anything about his claim, his own accord, that early He began meeting with a patient his claim. Plaintiff, on again visited the patient advocate only to learn Office of Regional Counsel had sent a letter concerning his complaint's insufficiencies to the wrong address. Plaintiff then promptly filed a sufficient SF-95, time. The Court finds that Plaintiff's albeit out of diligence viewed alongside his reliance on the patient advocate warrants tolling. Accordingly, Defendant's motion is DENIED. IV. For the reasons 18) is DENIED. case pending Because the discussed Additionally, resolution Court Conclusion has of denied above, Defendant's motion (doc. the Court stayed discovery in this Defendant's motion. Defendant's (Doc. motion, the 24.) Clerk is directed to REMOVE the stay. ORDER ENTERED February, 2016. at Augusta, Georgia this A/ HONORABLE J J. / /^day of /7^2l RANDAL HALL UNITE!? STATES DISTRICT JUDGE IERN DISTRICT OF GEORGIA
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