United States District Court, D. Connecticut
LOUIS W. BERNDSTON, JR., Plaintiff,
UNITED STATES OF AMERICA, Defendant.
RULING ON MOTION TO DISMISS
W. Thompson United States District Judge
Louis W. Berndston, Jr. (“Berndston”), who
commenced this action proceeding pro se, brings claims
against the defendant for injuries sustained during and after
a surgery to implant a pacemaker, performed at the Department
of Veterans Affairs Medical Center (“VA”) in West
Haven, Connecticut, and for injuries resulting from the
administration of morphine to the plaintiff following the
surgery. The defendant has moved to dismiss the Complaint.
For the reasons set forth below, the motion to dismiss is
being granted in part.
complaint, which [the court] must accept as true for purposes
of testing its sufficiency, alleges the following
circumstances.” Monsky v. Moraghan, 127 F.3d
243, 244 (2d Cir. 1997). On May 14, 2013, during the course
of a surgery to implant a pacemaker device at the VA in West
Haven, Connecticut, the plaintiff suffered a perforation in
his heart. See Compl. Attach. 1 at 3 (Doc. No. 1-1). The
surgical team drained the effusion and hoped the perforation
would close on its own. After the surgery, however, the
perforation continued to bleed, and the plaintiff required
open-heart surgery to repair the tear. Upon discharge from
the VA, the plaintiff attended several follow-up appointments
and underwent several echocardiograms, at which point his
doctors determined he would need a second open-heart surgery
to repair additional damage resulting from the perforation.
During the second open-heart surgery, the plaintiff's
doctors also created a pericardial window, which is a
permanent hole in the pericardium to allow for future
in recovery at the VA from the initial pacemaker implantation
surgery, the plaintiff was administered morphine via
injection to relieve his pain, despite the fact that the
medical record noted he had a known allergy or adverse
reaction to that medication. After the morphine injection,
the plaintiff suffered vivid hallucinations lasting about one
week. Also, the plaintiff's breathing stopped, and he had
to be intubated.
defendant moves to dismiss this case for insufficient service
of process pursuant to Federal Rule of Civil Procedure
12(b)(5). In assessing a Rule 12(b)(5) motion, a court must
look to Rule 4, which governs the content, issuance, and
service of a summons. Under Federal Rule of Civil Procedure
If a defendant is not served within 90 days after the
complaint is filed, the court -- on motion or on its own
after notice to the plaintiff -- must dismiss the action
without prejudice against that defendant or order that
service be made within a specified time. But if the plaintiff
shows good cause for the failure, the court must extend the
time for service for an appropriate period.
Id. “[W]hen a defendant moves to dismiss under
Rule 12(b)(5), the plaintiff bears the burden of proving
adequate service.” Dickerson v. Napolitano,
604 F.3d 732, 752 (2d Cir. 2010) (alteration in original)
(quoting Burda Media, Inc. v. Viertel, 417 F.3d 292,
298 (2d Cir. 2005)).
interpreting the allegations in a pro se complaint, the court
applies “less stringent standards than [those applied
to] formal pleadings drafted by lawyers.” Haines v.
Kerner, 404 U.S. 519, 520 (1972); see also Branham
v. Meachum, 77 F.3d 626, 628-29 (2d Cir. 1996).
Furthermore, the court should interpret the plaintiff's
complaint “to raise the strongest arguments [it]
suggest[s].” Burgos v. Hopkins, 14 F.3d 787,
790 (2d Cir. 1994).
plaintiff, although now represented by counsel, filed his
complaint pro se on December 29, 2015, under the Federal Tort
Claims Act, 28 U.S.C. § 1346 (“FTCA”).
“[T]he FTCA directs courts to consult state law to
determine whether the government is liable for the torts of
its employees.” Liranzo v. United States, 690
F.3d 78, 86 (2d Cir. 2012) (citing FDIC v. Meyer,
510 U.S. 471, 478 (1994) (“[The] law of the State [is]
the source of substantive liability under the FTCA.”
(alterations in original))).
Connecticut law, prior to filing a claim for medical
malpractice, a plaintiff must first conduct a
“reasonable inquiry . . . to determine that there are
grounds for a good faith belief that there has been
negligence in the care or treatment of the claimant.”
Conn. Gen. Stat. Ann. § 52-190a(a). Furthermore,
[t]he complaint, initial pleading or apportionment complaint
shall contain a certificate of the attorney or party filing
the action or apportionment complaint that such reasonable
inquiry gave rise to a good faith belief that grounds exist
for an action against each named defendant or for an