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Hallums v. Department of Veterans Affairs

United States District Court, D. Connecticut

March 30, 2017

Larry Hallums, Plaintiff,
Department of Veterans Affairs, Defendant.



         Plaintiff, Larry Hallums, pro se, filed this action against the Department of Veterans Affairs (“Veteran Affairs” or “VA”), alleging medical malpractice. On March 30, 2016, Mr. Hallums amended his Complaint to add three counts: gross negligence, incompetence, and pain and suffering. The Veteran Affairs has moved to dismiss the Amended Complaint in its entirety under Federal Rules of Civil Procedure 12(b)(5) and 12(b)(6). For the reasons that follow, the motion is GRANTED.


         Mr. Hallums alleges that, on January 29, 2012, he went to the emergency room at the Veterans Affairs Hospital (“VA Hospital”) in West Haven, Connecticut, seeking treatment for a bug in his ear. Compl. ¶ 1. Mr. Hallums claims that, at this visit, a doctor informed him that he did not have a bug in his ear. Id. Medical records from this visit indicate that Mr. Hallums was discharged after a doctor concluded that he had a hole in his left tympanic membrane. See Medical Records (Jan. 29, 2012), Compl. at Attach. 4, p. 13. At oral argument, counsel for Defendant informed the Court that the medical professionals at the VA Hospital recommended that Mr. Hallums seek further treatment with an Ear, Nose and Throat specialist, which Mr. Hallums did not attend because he had a conflicting appointment. Mr. Hallums did not object to this contention.[1]

         Instead of visiting the specialist, Mr. Hallums went to an appointment that he had scheduled at the VA Hospital in Newington, Connecticut on February 24, 2012. Compl. ¶ 2. At this visit, Mr. Hallums alleges, a doctor looked in his ear and saw a bug. Id. Mr. Hallums claims that he had to return to the VA Hospital in West Haven to have the bug removed. Id. In records dated February 24, 2012, Mary Demetrius, M.D. stated that Mr. Hallums had a “bug in L[eft] ear for several weeks” due to a “bed bug infestation” in his apartment building. Medical Records (Feb. 24, 2012), Compl. at Attach. 5, p. 14-15.

         Mr. Hallums later filed an administrative tort claim against the VA concerning his experience, which was received by the VA's Office of Regional Counsel on January 22, 2014. See Letter of Jan. 27, 2014, Compl. at Attach. 3, p. 11. In this claim, he alleged two million dollars in damages due to the West Haven VA Hospital's mishandling of his concerns about the bug in his ear. Id. On March 11, 2014, Mr. Hallums spoke with Michael Potter, an attorney for the VA. See Letter of March 31, 2015, Compl. at Attach. 4, p. 12. Mr. Potter offered to resolve the matter by settlement but Mr. Hallums declined. Id.

         On June 17, 2014, the VA denied Mr. Hallums's administrative tort claim. See Letter of June 17, 2014, Compl. at Attach. 1, p. 8. In the denial letter, Defendant advised Mr. Hallums that if he was “dissatisfied with this decision, [he could] file a request for reconsideration.” Id. The letter specified that:

To be timely, VA must receive th[e] request within six months of the mailing of this final denial. The VA has six months to act on the reconsideration request. After that time, you have the option of filing suit.

Id. The letter added that Mr. Hallums could, “in the alternative, ” file suit “in accordance with the FTCA.” Id. The letter did not specifically state that Mr. Hallums needed to file suit within six months and did not specifically cite 28 U.S.C. § 2401(b).

         On April 27, 2015, ten months after it had denied Mr. Hallums's claim, the VA received Mr. Hallums's request for reconsideration. See Letter of May 6, 2015, Compl. at Attach. 2, p. 10. In a letter dated May 6, 2015, the VA denied Plaintiff's request for reconsideration, stating that the request was untimely because Mr. Hallums had not filed it within six months of the initial denial as required by 28 C.F.R. § 14.9. Id. Mr. Hallums subsequently filed this action on June 2, 2015.


         The VA seeks to dismiss Mr. Hallums's Complaint under Rule 12(b)(5) and Rule 12(b)(6), making two standards of review applicable.

         First, “[u]nder Rule 12(b)(5), a party may file a motion to dismiss due to insufficiency of service of process.” Rzayeva v. United States, 492 F.Supp.2d 60, 74 (D. Conn. 2007). “A motion to dismiss pursuant to Rule 12(b)(5) must be granted if the plaintiff fails to serve a copy of the summons and complaint on the defendants pursuant to Rule 4 of the Federal Rules [of Civil Procedure], which sets forth the federal requirements for service.” Id. (citing Cole v. Aetna Life & Cas., 70 F.Supp.2d 106, 110 (D. Conn. 1999)). “Once validity of service has been challenged, it becomes the plaintiff's burden to prove that service of process was adequate.” Id. (internal quotations omitted).

         Second, to survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a plaintiff must state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is facially plausible if “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 570. Although “detailed factual allegations” are not required, a complaint must offer more than “labels and conclusions, ” or “a formulaic recitation of the elements of a cause of action” or “naked assertion[s]” devoid of “further factual enhancement.” Id. at 557. When determining whether the plaintiff has stated a plausible claim for relief, the Court may consider only “the facts as asserted within the four corners of the complaint, the documents attached to the complaint as exhibits, and any documents incorporated in the complaint by reference.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). The Court must accept the allegations in the complaint as true and draw all reasonable inferences in the light most favorable to the non-moving party. In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir. 2007).

         Since Mr. Hallums is proceeding pro se, the Court must construe his Complaint and submissions liberally to protect him from the “inadvertent forfeiture of important rights [due to] lack of legal training.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006). “[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers and can only be dismissed for failure to state a claim if it appears beyond doubt that the plaintiff can prove no set of facts in ...

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