1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________ ) RICHARD M. GABLE, ) ) Plaintiff, ) ) v. ) Civil Action N o. 12-1634 (RMC) ) UNITED STATES OF AMERICA, ) ) Defendant. )

_________________________________ ) MEMORANDUM OPINION Plaintiff Richard M. Gable, who proceeds pro se , brought an action against the United States of America (Defenda nt) under the Fe deral Tort Cla ims Act (FTCA), 28 U.S.C. §§ 1346, 2674, et seq . He alleges medical malpractice and other injuries suffered during his stay at a Department of Veterans Affairs Medical Cen ter (VA Hospital). Thereafter, the following briefing ensued:

 Defendant’s Motion for Summary Judgment [Dkt. 89];

 Defendant’s Amended Motion for S ummary Judgment [Dkt. 97];

 Plaintiff’s Motion for the Sta tute of Limitations [Dkt. 100];

 December 29, 2017 Report & Recommendation [Dkt. 108];

 Plaintiff’s Written Objection [Dkt. 111];

 Plaintiff’s Motion for Judgment [Dkt. 112];

 February 13, 2018 Report & Recommendation [Dkt. 113];

 Plaintiff’s Motion for Correcti on of Facts from the Letter of t he Court [Dkt. 114]. 1

1 The Court construes Mr. Gable’ s “Motion for the Statute of Lim itations for Plaintiff’s Original Filing Date of February 19 th 2008” as a cross-motion for sum mary judgment, in accord with2 This matter was referred to Mag istrate Judge Harvey, who review ed the briefing carefully and submitted a detailed Report and Recommendation (R &R) on December 29, 2017. See Dec. 29, 2017 Report and Recommendation (12/29/17 R&R) [Dkt. 1 08]. The Court construes Mr. Gable’s subsequent filings as objections to the 1 2/29/17 R&R, to which the government did not file a response. See Written Objection (Pl.’s Objections) [Dkt. 111]; Mot. for J. [Dkt. 112]; Mot. for Co rrection of Facts fr om the Letter of the Court (Mot. for Correction) [Dkt. 114]. Judge Harvey filed an additional R&R in response t o Mr. Gable’s additional briefing. See Feb. 13, 2018 Report & Recommenda tion (2/13/18 R&R) [Dkt. 113]

. Upon consideration of both Report & Recommendations, Mr. Gable’ s objections, and an independent review of the underlying evidence, the Court will accept in full Judge Harvey’s Report and Recommenda tions, and grant Defendant’s amen ded motion for summary judgment in part and deny it in part. The Court will deny Defe ndant’s initial motion for summary judgment as moot. The Cour t will deny Mr. Gable’s Moti ons for Statute of Limitations, Written Objections, Judgment, and Correction of Fa cts from the Letter of the Court as they relate to the issue of timeliness for all claims allege d to have occurred before September 16, 2006.

Judge Harvey’s 12/19/2017 Report & Recommendation; Mr. Gable fi led this motion in addition to an opposition to Defendant’s m otion for summary judgment. See Mot. for Statute of Limitations for the Pl.’s Ori ginal Filing Date of February 19 th , 2008 (Pl.’s Cro ss-Mot.) [Dkt. 100]; 12/29/2017 Report & Recomm endation [Dkt. 108] at 1, n.2. The Court construes all timeliness arguments in Mr. Gable’s “Written Objection,” “Motio n for Judgment,” and “Motion for Correction of Facts from the L etter of the Court Received o n February 15 th 2008” as objections to the 12/29/17 R&R a nd analyzes them as such.3 I. FACTS Judge Harvey’s Report and Recomm endation contains detailed fact ual and procedural background sections, whi ch the Court adopts in full and will not recount in detail here. See 12/29/17 R&R at 2-6. The facts re levant at this juncture are as follows. Mr. Gable underwent total knee replacement surgery on January 1 9, 2006 at the VA Hospital. The surgical site became infected twice between t he replacement surgery and June 2006. After additional complicatio ns, health care providers id entified wet gangrene around the surgical site in August, and Mr. G able’s leg was amputated on A ugust 23, 2006. As a result of a fall Mr. Gable suffered after t he amputation, he had two subseq uent surgical repair procedures on September 12 and September 19, 2006. It also appears from medi cal records that, in April 2007, Mr. Gable underwent an operation at Georgetown University Hospi tal to revise the amputation and to correct three neuromata, w here nerves were not implanted into muscle tissue when the initial amputation was perf ormed. On August 22, 2007 he had a second revision procedure in Costa Rica at the Clínica Santa María. II. LEGAL STANDARD A. Report and Recommendation Rule 72(b) of the Federal Rules of Civil Procedure sets forth t he procedure for review of dispositive motions tha t have been referred to a magi strate judge for a Report and Recommendation. Following the sub mission of a Report and Recom mendation, any party may file objections to the proposed findings and recommendations an d the district judge “must determine de novo any part of the magistrate judg e’s disposition that has been p roperly objected to.” Fed. R. Civ. P. 72(b)(3). “The district judge may accept , reject, or modify the recommended disposition; receive further eviden ce; or return th e matter to the magistrate judge with instructions.” Id . However, “an objecting party is not permitted to present new initiatives4 to the district judge, as the di strict court may review only th ose issues that the parties have raised in their objections to the Mag istrate Judge’s report.” Taylor v. District of Columbia , 205 F. Supp. 3d 75, 79 (D.D.C. 2016) (internal citations omitted). A district court also has the discretion to consider evidence outside the summary judgment re cord before the magistrate judge. See Fed. R. Civ. P. 72(b)(3) (“The district judge may . . . receiv e further evidence.”). B. Motion for Summary Judgment Summary judgment shoul d be granted pursuant to Federal Rule of Civil Procedure 56 if “the movant s hows that there is no genuine disp ute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R . Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247 (1986). Summary j udgment is properly grant ed against a party who “after adequate tim e for discovery and upon motion . . . fails to make a showing sufficient to establish the exis tence of an element essential t o that party’s case, and on which that party will bear the burd en of proof at trial.” Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). In ruling on a motion for summar y judgment, a court must draw a ll justifiable inferences in the nonmoving party’s favor and accept the nonmoving party’s eviden ce as true. Anderson , 477 U.S. at 255. A nonmoving party, however, must establish more t han “[t]he mere existence of a scintilla of evidence” in support of its position. Id. at 252. III. ANALYSIS A. Mr. Gable’s Claims The Court has reviewed the R&R’s identification of Mr. Gable’s claims. As Mr. Gable does not object to the constr ual of his claims as set for th in the R&R, this Court adopts the finding that he has asserted c ounts based on the following alle ged occurrences, conditions, or conduct: 1. that Mr. Gable’s knee replacemen t was negligently performed;5 2. that improper hospital hygiene led to Mr. Gable’s methicillin-r esistant Staphylococcus aureus (MRSA) and vancomycin-resistant Enterococci (VRE) infections; 3. that Mr. Gable’s amputation was performed without proper consen t; 4. that Mr. Gable’s amputati on was performed unnecessarily; 5. that Mr. Gable’s amputati on was performed negligently; 6. that Mr. Gable’s post-amputation s urgical procedures were negli gently performed; and 7. that Mr. Gable’s non-surgical pos t-operative care was negligent ly performed. B. Timeliness of FTCA Claim The objections raised by Mr. Gable are somewhat convoluted. Ho wever, pleadings filed by pro se plaintiffs are held to a less stringent standard than those of plaintiffs represented by counsel. See Hughes v. Rowe , 449 U.S. 5, 9 (1980). The Court addresses Mr. Gable’s objections to the 12/29/17 R &R’s findings regarding the timeliness of claims accruing before September 16, 2006 and reviews de novo the R&R’s conclusion re garding the timeliness of Mr. Gable’s FTCA claims. 2 Mr. Gable’s relevant objections are variations on a single them e: that his Standard Form 95 (SF-95) claim should be deemed as received by the Department of Veterans Affairs (VA) on February 19, 2008, thus rendering his FTCA clai m timely filed within the twoyear statute of limitations. Pl.’s Objections at 1-5; see also 28 U.S.C. § 2401(b) (re quiring that a claim be “presented in writing t o the appropriate Federal agenc y” within two years of its

2 The Court declines to address Mr. Gable’s remaining objections at this time, as they fall outside the scope of the briefing ordere d by the Court on the issue of timeliness.6 accrual). A claim is “deemed presented” when it is received by the agency. See Bradley v. Nat’l Collegiate Athletic Ass’n , 249 F. Supp. 3d 149, 159 (D.D.C. 2017) (citation omitted). J udge Harvey found that Mr. Gable’s FTCA claim was received by VA’s O ffice of Regional Counsel on September 16, 2008, based on the SF-95 form stamped “receive d” on that date. See Ex. A, Notice of Filing Amended Statement of Undisputed Material Facts , Claim for Damage, Injury, or Death (SF-95 Form) [Dkt. 98-4] a t 2-3. The Court has independe ntly examined the evidence of Mr. Gable’s claim submissions to V A and finds that no rational trier of fact could conclude that Mr. Gable presented his claim in February 2008, or at any date prior to September 16, 2008. The SF-95 Form bears Mr. Gable’s si gnature and is hand-dated “Sept 8, 08.” See SF-95 Form at 2-3. The accompanying letter from Mr. Gable is dated “9/13/2008.” Id . at 4-9. The form was stamped “received” by VA on September 16, 2008. Id . As such, Mr. Gable’s claim was presented, for purposes of the FTCA, on September 16, 2008. The Court previously denied two of Defendant’s motions to dismi ss to the extent they were based on the statute of limitations, finding that fur ther factual clar ity was necessary. See 3/21/2013 Order [Dkt. 19]; 1/5/ 2015 Order [Dkt. 56]. After di scovery, the Court ordered briefing focused on the timeliness issue, which gave Mr. Gable the opportunity to present evidence that his claims accrued later than the date of the amp utation, or that equitable tolling should apply to those claims. Because Judge Harvey determined that his claim was presented after the two-year statute of limitatio ns period had run, he ex amined whether Mr. Gable’s claim could survive based on the discove ry rule or the continuous tor t doctrine, or whether the statute of limitations should be equitably tolled for some period of ti me to allow the claims to move forward. He decided that no exten sion of time applied. This C ourt agrees. 1. Discovery Rule7 The discovery rule is the leg al doctrine governing when the sta tute of limitations period begins to run on a claim. See McKinney v. U.S. Postal Serv. , No. 11-cv-631, 2013 WL 164283 (D.D.C. Jan. 16, 2013). The date on which the stopwatch starts is known a s “accrual,” and a claim accrues within the m eaning of the FTCA when a plain tiff knows of both the existence of his injury and its cause. See United States v. Kubrick , 444 U.S. 111, 120 (1979). The “discovery of the injury, not discovery of the other elemen ts of a claim, is what starts the clock.” Rotella v. Wood , 528 U.S. 549, 555 (2000). Therefore , as noted in the 12/29/1 7 R&R, most claims accrue at the time of the injury, unless “the injur y is not of the sort that can readily be discovered when it occurs.” Connors v. Hallmark & Son Coal Co. , 935 F.2d 336, 342 (D.C. Cir. 1991). As explained in detail in the 12/29 /17 R&R, Mr. Gable’s earlies t-in-time claim, the allegedly negligent knee repl acement, was performed in Janu ary 2006. The subsequent infections were diagnosed i n February and June 2006, and Mr. Ga ble sought a second opinion about his leg from Dr. Attinge r in July 2006, which is the last possible date Mr. Gable could claim to have “discovered” his injury from th at knee operation for the purposes of claim accrual under the discovery rule. As su ch, there is no g enuine issue o f material fact as to the latest date that Mr. Gable could be said to h ave discovered his injury, wit h respect to the knee replacement and related infections and his cl aim as to the knee replacement was not timely filed. The accrual of Mr. Gable’s knowledge concerning his amputation and subsequent post-surgical care requires separate analysis. Mr. Gable’s leg was amputated on August 23, 2006. The record indicates that by September 1, Mr. Gable was oriented as to person, place, and time. Def.’s Am. Statement of Undi sputed Material Facts (Def.’ s SOF) [Dkt. 98-2] at 57. Mr. Gable “appeared to have underst ood the decision to amputate” by September 5, 2006. Id . at 59.8 Mr. Gable’s stepson, Mr. Prather, stated that he knew that the VA Hospital had “harmed [his] father by illegally removing his leg without consent or permiss ion,” at some point before returning from his honeymoon on S eptember 5. Ex. 1, Mem. in Op p’n to Am. Mot. for Summ. J., Affidavit of James M. Prather [Dkt. 101] ¶¶ 6-7. Finding n o basis for delaying accrual based on the discovery doctrine, the Cour t finds Mr. Gable was, or sh ould have been, aware of the injury, i.e. , the allegedly botched am putation, before September 16, 2006 a nd therefore was required to present his FTCA cl aims based on the amputation pri or to September 16, 2008. 2. Continuing Tort Doctrine As set forth in the 12/29/17 R&R , it would be inappropriate to apply the continuing tort doctrine here. T he “hallmark” of such a tort i s that “its character as a violation did not become clear until it was repeated during the limitatio ns period.” Taylor v. FDIC , 132 F.3d 753, 765 (D.C. Cir. 1997). In contrast to cases where “no single incident in a continuous chain of tortious activity can f airly or realis tically be ident ified as the cause of significant harm,” Loumiet v. United States , 828 F.3d 935, 947-48 (D.C. Cir. 2016), Mr. Gable alleges seve ral distinct incidents as the cause s of his harm. The Court agrees with the 12/29/17 R&R’s finding that the individual torts a lleged by Mr. Gable do not constitut e a single course of action that would support application of the continuing tort doctrine. 3. Equitable Tolling The FTCA’s two-year statute of l imitations is subject to equita ble tolling. See United States v. Kwai Fun Wong , 135 S. Ct. 1625 (2015). To show tha t equitable tolling is warranted, a plaintiff must demons trate “(1) that he has been p ursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way.” Pace v. DiGuglielmo , 544 U.S. 408, 418 (2005). Neither mental inco mpetency nor assertions of the influence of medication, including morphine, are sufficien t bases for equitable tolling. See Casias v. United States , 5329 F.2d 1339, 1342 (10th Cir. 1976) (“Insanity, such as constitute s a legal disability in most states, does not toll the statute of lim itations under the Federal Tort Claims Act.”); Martin v. Red Lion Police Dep’t , 146 F. App’x 558, 561 (3d Cir. 2005) (ar gument that “morphine blurred [injured party’s] awareness” insufficien t to “justify tolling the statut e of limitations on equitable grounds”). Mr. Gable has not presen ted evidence sufficient to show that the combination of these factors prevented him fro m filing a timely FTCA claim wit h VA. The Court finds that equitable tolling is not available to Mr. Gable because he has not made the requisite showing that he pursued his rights diligentl y and that some extraordinary ci rcumstances stood in the way of that pursuit. IV. CONCLUSION Mr. Gable’s submission of the SF-95 form to VA on September 16, 2008 renders claims one through five time barre d. Those claims related to e vents occurring prior to September 16, 2006 are not subject to delayed a ccrual based on the discov ery rule, the continuous tort doctrine, or equitable tolling. T herefore, the Court will gran t the government’s motion as to Mr. Gable’s claims accruing prior to September 16, 2006. However, Mr. Gable also alleges negligence related to the post- amputation procedures and post-s urgical care that occurred on or after September 16, 2006. The Cour t agrees with Judge Harvey a nd finds that those claims are timely brought and will deny the gove rnment’s motion as it rela tes to claims six and seven. Accordingly, the Court will adopt the R&R and grant in part and deny in part Defendant’s Amended Motion for Sum mary Judgment. The Court wil l deny Defendant’s initial Motion for Summary Judgment as moot. The Court will deny Mr. G able’s Motions for Statute of Limitations, Written Objections, Judgment, and Correction of Facts from the Letter of the Court as they relate to the issu e of timeliness. Mr. Gable’s c laims related to events or conduct10 occurring on or after September 16, 2006 remain and will be add ressed in further briefing to be ordered by Judge Harvey. A memorializing Order accompan ies this Memorandum Opinion.

Date: June 20, 2018 /s/ ROSEMARY M. COLLYER United States District Judge