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Patrick Ransom v. United States of America

July 15, 2011

PATRICK RANSOM, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On November 13, 2009, plaintiff pro se brought this action pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., alleging medical malpractice by the Veterans Administration, VA West Haven Healthcare System ("VA"). See Dkt. No. 1. Currently before the Court is defendant's motion for summary judgment and to dismiss for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.

II. BACKGROUND*fn1

Plaintiff commenced this action alleging negligent medical care and treatment received at the VA. See Dkt. No. 1 at ¶ 4. The complaint alleges that, after a parotidectomy*fn2 in February of 2006 to remove a tumor, plaintiff developed a salivary fistula*fn3 and now has a drain hole behind his left ear that leaks. See Dkt. No. 18-3 at ¶ 2; Dkt. No. 1 at ¶ 4. Plaintiff alleges that this complication resulted from malpractice and has caused him pain and suffering. See Dkt. No. 1 at ¶ 4.

In his Administrative Claim, plaintiff alleged the following:

I am writing this letter to describe my claim. In December of 2005 I was told I had a tumor in my salivary gland on my right side. I was evaaulated [sic] at West Haven EMT Clinic. They decided to do surgury [sic] in February of 2006. I came home after surgury [sic] and noticed that my cheek was swelling. When I went to go have the drain tube taken out, I tol [sic] them about this an [sic] they said there was nothing to worry about. A few days later I went back to have the stisches [sic] taken out. During then did they realize I had a problem. They filled a syringe with about 120cc of salivia [sic] out of my cheek. They pressure dressed it and sent me home to see if that would help. It did not do any good my cheek would still well up. They then put a drain tube in and repressured [sic] dressed to see if this would help. It did not help at all. They then said lets go back in and correct the problem. This was 2 weeks after first surgery. Everything was fine until the stiches [sic] came out. The saliva started leaking from a stich [sic] hole. They tried everything they knew to try. To this day I have a constant leak behind my ear. It gets worse with eating and smelling food. I went back on February 23rd 2007. At which time i [sic] was told there is nothing more they can do and i [sic] would live with this the rest of my life. It has effected [sic] my eating habits and it is very hard to go out or over to peoples [sic] houses to eat. When you feel embarrassed of it leaking. All my records are at West Haven.

See Dkt. No. 18-6.

On August 23, 2010, a Rule 16 initial pretrial conference was held before Magistrate Judge Treece. In that conference, several deadlines were set, including, but not limited to, plaintiff's expert disclosure deadline. See Dkt. No. 14. Thereafter, defendant forwarded interrogatories and a notice to produce to plaintiff by Certified Mail on September 27, 2010, which plaintiff signed for on September 29, 2010. See Dkt. No. 18-7 at 2. Plaintiff never responded to these discovery demands.

On November 30, 2010, defendant forwarded a letter to plaintiff by Certified Mail, Return Receipt Requested, asking him to comply with the discovery demands as well as the compulsory Rule 26 disclosures. Plaintiff signed for this letter on December 2, 2010. See Dkt. No. 18-8. Again, plaintiff failed to respond to defendant's November 30, 2010 letter.

On March 17, 2011, pursuant to the Court's directive at the Rule 16 conference, defendant filed a status report outlining the discovery demands sent to plaintiff and his lack of response to those demands. See Dkt. No. 16. In that status report, defendant made clear that if plaintiff was not going to respond to discovery and/or hire an expert to support his claims, it was going to file a motion to dismiss the complaint. See id. Defendant forwarded a copy of this report to plaintiff by Certified Mail, Return Receipt Requested, which plaintiff signed for on March 22, 2011. See Dkt. No. 18-9. Plaintiff never responded to defendant's status report.

Pursuant to the Uniform Pretrial Scheduling Order, plaintiff's expert disclosure deadline was May 2, 2011. See Dkt. No. 15. Plaintiff has not provided defendant with any expert disclosure, nor has he requested an extension of time to do so. Defendant asserts that plaintiff has not communicated in any manner whatsoever with defendant since the Rule 16 conference on August 23, 2010.

Plaintiff has not responded to defendant's motion, which was due by June 20, 2011. On June 23, 2011, the Court issued a text notice setting a telephone status conference for July 11, 2011.Plaintiff was directed to contact the Court immediately with a telephone number where he could be reached for the conference and to contact the Court by July 8, 2011, if he would not be available at the set date and time. A copy of the text notice was mailed to plaintiff on June 29, 2011, by Certified Mail, Return Receipt Requested, which plaintiff signed for on July 6, 2011. See Dkt. No. 19.*fn4 Plaintiff never contacted the Court with a telephone number at which he could be reached for the ordered conference.

III. DISCUSSION

A. Defendant's motion for summary judgment

1. Standard of review

A court may grant a motion for summary judgment only if it determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion, the court "'cannot try issues of fact; it can only determine whether there are issues to be tried.'" Id. at 36-37 (quotation and other citation omitted). Moreover, it is well-settled that a party opposing a motion for summary ...


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