542 F. App'x 461
6th Cir.2013Background
- Burns, a prisoner at FCI Memphis, reported severe groin pain on Sept 22, 2008; Dr. Naimey diagnosed a severe inguinal hernia requiring immediate attention.
- Months passed without treatment; Burns’s condition deteriorated; he repeatedly sought care by requests and grievances without timely surgery.
- Administrative denial dated Oct 27, 2011 claimed timely, appropriate care and attributed delay to Burns’s non-compliance; Burns furnished the denial as exhaustion evidence.
- Burns filed a 2012 FTCA action alleging negligent infliction of distress/pain, medical malpractice, and medical battery against federal defendants.
- Defendants moved to dismiss under Rule 12(b)(6) arguing Tennessee good-faith certificate under § 29-26-122 was required; TMMA governs health care actions.
- District court granted dismissal, treating the sole alleged act as a medically necessary delay in surgery, and refused to consider Burns’s supplemental materials.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Should the 12(b)(6) dismissal have been converted to summary judgment? | Burns’s exhibit on exhaustion creates factual disputes; motion should be summary judgment with Burns’s response. | Exhibit relies on medical judgment; no conversion, only dismissal under TMMA requirements. | Yes; district court erred by not converting and allowing evidentiary response. |
| Was the district court barred from relying on the exhibit's factual statements as truth? | Exhibit is not part of Burns’s factual allegations and should not be treated as true facts. | Exhibit attached to complaint informs the merits and supports dismissal. | District court erred by treating exhibit statements as undisputed facts. |
| Whether the delay in surgery constitutes a medical decision requiring expert testimony under TMMA? | Laypersons can assess the conduct and its consequences without experts. | Delay was a medical decision tied to hypertension, needing expert testimony. | Remand required to determine with proper procedure; issue to be resolved with amendment and discovery. |
| Whether Burns should be allowed a sur-reply or amend the complaint on remand? | Sur-reply and amendment would clarify disputed issues. | Sur-reply not essential; focus on merits. | Court favored permitting amendment and further proceedings on remand. |
Key Cases Cited
- Passa v. City of Columbus, 123 F. App’x 694 (6th Cir. 2005) (district court may convert or take notice depending on disputed facts)
- Commercial Money Center, Inc. v. Illinois Union Ins. Co., 508 F.3d 327 (6th Cir. 2007) (attachments integral to complaint may be considered without converting motion)
- Ouwinga v. Benistar 419 Plan Serv. Inc., 694 F.3d 783 (6th Cir. 2012) (disputed issues cannot be used to decide dismissals without conversion)
- Bowman v. Henard, 547 S.W.2d 527 (Tenn. 1977) (elements of TMMA may not require expert testimony in certain lay-perception cases)
- Daniels v. United States, No. 11-5009 (6th Cir. Oct. 7, 2011) (TMMA and §29-26-122 applicability in FTCA actions)