United States District Court, S.D. Indiana, Indianapolis Division
WAYNE K. BURT, Plaintiff,
U.S. DEPARTMENT OF VETERANS AFFAIRS - OFFICE OF GENERAL COUNSEL, Defendant.
Jane Magnus-Stinson, Chief Judge
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.
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.]
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
Claim(s) for Damages
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.
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).
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).
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.
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”). [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. ...