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Burt v. U.S. Department of Veterans Affairs-Office of General Counsel

United States District Court, S.D. Indiana, Indianapolis Division

November 16, 2018

WAYNE K. BURT, Plaintiff,
v.
U.S. DEPARTMENT OF VETERANS AFFAIRS - OFFICE OF GENERAL COUNSEL, Defendant.

          ORDER

          Hon. Jane Magnus-Stinson, Chief Judge

         This case arises out of a dispute regarding medical care that plaintiff Wayne Burt received at a Department of Veteran's Affairs hospital (the “VA”). Mr. Burt, proceeding pro se, alleges generally that he may have received deficient care and that he has been unable to obtain the information he seeks from the VA. Presently pending before the Court is the Government's Motion for Summary Judgment or, in the alternative, its Motion to Dismiss. For the reasons set forth herein, the Court GRANTS the Government's Motion.

         I.

         Background

          Mr. Burt underwent hernia surgery at a VA hospital in Indianapolis on April 10, 2013. [Filing No. 15-1 at 1.] On December 19, 2017, Mr. Burt submitted an administrative complaint to the VA using Standard Form 95. [Filing No. 15-1 at 1.] On that form, Mr. Burt stated that his surgery was incomplete, that incisions were made during the surgery that were unrelated to his hernia, and that he developed a post-surgical cardiac arrhythmia. [Filing No. 15-1 at 1.] Mr. Burt also states that he was unable to locate the doctor who performed the surgery. [Filing No. 15-1 at 1.]

         On May 18, 2018, Mr. Burt filed the instant suit against the “United States Department of Veteran's Affairs-Office of General Counsel, ” raising allegations similar to those alleged in his administrative complaint. [Filing No. 1.] Presently pending before the Court is the Government's Motion for Summary Judgment or, in the alternative, Motion to Dismiss, which was filed on August 24, 2018. [Filing No. 14.] On September 24, 2018, Mr. Burt filed a document styled as a “Brief in Support of Plaintiff's Motion to be Able to Converse with the Operating Doctor...” [Filing No. 22.] On October 3, 2018, the Government filed a reply in support of their Motion. [Filing No. 23.] And on October 26, 2018, Mr. Burt filed a document styled as a “Reply in Further Support of Plaintiff's Motion to be Able to Converse with the Doctor…” [Filing No. 24.] The Government's Motion is ripe for the Court's review.

         II. Claim(s) for Damages

         A. Legal Standard

         A motion for summary judgment asks the Court to find that a trial is unnecessary because there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment as a matter of law. SeeFed. R. Civ. P. 56(a). As the current version of Rule 56 makes clear, whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed.R.Civ.P. 56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1)(B). Affidavits or declarations must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed.R.Civ.P. 56(c)(4). Failure to properly support a fact in opposition to a movant's factual assertion can result in the movant's fact being considered undisputed, and potentially in the grant of summary judgment. Fed.R.Civ.P. 56(e).

         In deciding a motion for summary judgment, the Court need only consider disputed facts that are material to the decision. A disputed fact is material if it might affect the outcome of the suit under the governing law. Williams v. Brooks, 809 F.3d 936, 941-42 (7th Cir. 2016). In other words, while there may be facts that are in dispute, summary judgment is appropriate if those facts are not outcome-determinative. Montgomery v. American Airlines Inc., 626 F.3d 382, 389 (7th Cir. 2010). Fact disputes that are irrelevant to the legal question will not be considered. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         On summary judgment, a party must show the Court what evidence it has that would convince a trier of fact to accept its version of the events. Gekas v. Vasilades, 814 F.3d 890, 896 (7th Cir. 2016). The moving party is entitled to summary judgment if no reasonable fact-finder could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th Cir. 2009). The Court views the record in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. Skiba v. Illinois Cent. R.R. Co., 884 F.3d 708, 717 (7th Cir. 2018). It cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder. Miller v. Gonzalez, 761 F.3d 822, 827 (7th Cir. 2014). The Court need only consider the cited materials, Fed.R.Civ.P. 56(c)(3), and the Seventh Circuit Court of Appeals has repeatedly assured the district courts that they are not required to “scour every inch of the record” for evidence that is potentially relevant to the summary judgment motion before them. Grant v. Trustees of Indiana University, 870 F.3d 562, 573-74 (7th Cir. 2017). Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir. 2010).

         The Court construes pro se complaints liberally and holds them to a less stringent standard than formal pleadings drafted by lawyers. See, e.g., Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1027-28 (7th Cir. 2013).

         B. Discussion

         In support of its Motion for Summary Judgment, the Government argues that Mr. Burt's claims for monetary damages, to the extent that he raises any, are barred by the statute of limitations imposed by the Federal Tort Claims Act (“FTCA”).[1] [Filing No. 15 at 3.] The Government contends that Mr. Burt was required to present his claim to the appropriate federal agency within two years after the claim accrued, but he did not do so until nearly four years after accrual. [Filing No. 15 at 3-4.] In response, Mr. Burt argues that any delay on his part in presenting his claim was caused by the agency's actions or was otherwise excusable. [Filing No. 22 at 2-3.] In reply, the United States argues that Mr. ...


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