United States District Court, D. Connecticut
RULING ON DEFENDANT'S MOTION TO DISMISS
A. BOLDEN UNITED STATES DISTRICT JUDGE
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.
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
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.
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.
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
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.
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.
STANDARD OF REVIEW
seeks to dismiss Mr. Hallums's Complaint under Rule
12(b)(5) and Rule 12(b)(6), making two standards of review
“[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).
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).
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 ...