United States District Court, D. Massachusetts
ORDER AND MEMORANDUM ON DEFENDANTS' MOTION TO
DISMISS (DOCKET NO. 10)
TIMOTHY S. HILLMAN, DISTRICT JUDGE
Duke (“Plaintiff”) brought a negligence claim
against the United States of America
(“Defendant”) under the Federal Torts Claims Act
(“FTCA”) claiming that Dr. Terry F. Osborne, II
(“Dr. Osborne”) negligently prescribed him
amphetamines, causing injury and damage after he relapsed
into addiction. Defendant moves to dismiss Plaintiff's
claim because he failed to timely file an administrative
claims pursuant to the FTCA (Docket No. 10). For the reasons
stated below, Defendant's motion is
following facts are taken from Plaintiff's complaint
(Docket No. 1) and assumed to be true at this stage of the
in late 2010 or early 2011, Plaintiff sought treatment for
amphetamine dependency, with Adderall as his drug of choice.
On or about January 24, 2012, Plaintiff was admitted to
Emerson Hospital for detox and treatment for withdrawal. On
or about February 2, 2014, Plaintiff was transferred to
McLean Hospital's Ambulatory Treatment Center at Naukeag
to continue his treatment in an inpatient program. Plaintiff
remained at McClean until March 5, 2012, when he successfully
completed the inpatient program.
March 2012, Plaintiff became a patient of GGHC. In May 2012,
Casie Short, P.A., prescribed Plaintiff Clonidine to ease his
withdrawal symptoms. In July 2012, Plaintiff began treatment
with Dr. Osborne and continued to see him until March 2014.
August 2012, Dr. Osborne prescribed Plaintiff
amphetamine-based medication. Dr. Osborne had access to
Plaintiff's medical records which indicated he was a
recovering amphetamine addict. Further, Plaintiff's
mother told Dr. Osborne that Plaintiff was a recovering
amphetamine addict. Nonetheless, Dr. Osborne prescribed, and
Plaintiff accordingly took, several amphetamine-based
medications such as Selegiline, Vyvanse, and Adderall. By
September 2013, Plaintiff began to show signs of relapse.
time, Dr. Osborne increased the dosages of Plaintiff's
amphetamine-based medications. By January 2014, Dr. Osborne
was prescribing dangerous and potentially lethal amounts of
amphetamine-based medications, including 100 mg daily of
Adderall alone. By January 2014, Plaintiff had fully
relapsed. Consequently, in May 2014, Plaintiff lost his job.
Further, he suffered from paranoia, delusions, and sometimes
could not sleep for days.
September and November of 2014, Plaintiff was arrested in
Rhode Island for illegally obtaining Adderall. At one of
Plaintiff's court appearances, Dr. Osborne falsely
informed the prosecutor in Rhode Island Drug Court that
Plaintiff was not drug dependent and that he did not struggle
with addiction. Consequently, Plaintiff's case was
removed from Drug Court.
has been hospitalized or otherwise treated multiple times for
his addiction since being prescribed amphetamines by Dr.
Osborne and continues to exhibit symptoms of neurotoxicity.
Not until October 2015 did Plaintiff overcome his relapse
into addiction triggered by Dr. Osborne's treatment.
August 26, 2016, Plaintiff presented his claim to the U.S.
Department of Health and Human Services pursuant to the
Federal Tort Claims Act. On February 15, 2017, his claim was
denied. On March 1, 2017, Plaintiff requested reconsideration
by the U.S. Department of Health and Human Services, which
was denied on September 15, 2017. The September 15, 2017
denial letter informed Plaintiff that, pursuant to 28 U.S.C.
§ 2401(b), he had six months within which to file suit
in U.S. district court. Plaintiff then filed his claim with
this Court on February 16, 2018.
12(b)(1) Motions and the FTCA
the United States brings a 12(b)(1) motion to dismiss, the
Supreme Court has held that “the FTCA's time bars
are nonjurisdictional and subject to equitable
tolling.” United States v. Kwai Fun Wong, 135
S.Ct. 1625, 1638 (2015). Therefore, “dismissal cannot
be determined under Rule 12(b)(1) but rather must be decided
under Fed.R.Civ.P. 12(b)(6) or Fed.R.Civ.P. 56.”
Holloway v. United States, No. 15-CV-30016-MGM, 2015
WL 13229224, at *1 (D. Mass. Oct. 30, 2015), report and
recommendation adopted, No. CV 15-30016-MGM, 2016 WL
1060835 (D. Mass. Mar. 17, 2016), aff'd, 845
F.3d 487 (1st Cir. 2017); see also Morales-Melecio v.
United States, 890 F.3d 361, 367 (1st Cir. 2018) (noting