LORENZO M. PLEDGER, SR., Plaintiff - Appellant, v. LORETTA LYNCH; CHARLES SAMUELS, JR; J.F. CARAWAY; UNITED STATES OF AMERICA; MR. WEAVER; MRS. GROVE; E. ANDERSON; NURSE JOSHUA HALL; ALICIA WILSON; ANDREA HALL; ST. JOSEPH‘S HOSPITAL, Defendants - Appellees, and CHARLES WILLIAMS; DR. TODD SAVIDGE; JOHANNA LEHMANN; ANDREA SMITH-POSEY; MS. RUTHIE CARSON; SABRINA HUDNALL; SALVATORE LANASA, Defendants.
No. 18-2213
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
July 21, 2021
PUBLISHED. Argued: May 6, 2021. Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. John Preston Bailey, District Judge. (2:16-cv-00083-JPB)
Before GREGORY, Chief Judge, and HARRIS and QUATTLEBAUM, Circuit Judges.
Reversed in part, vacated in part, and remanded by published opinion. Judge Harris wrote the opinion, in which Chief Judge Gregory joined. Judge Quattlebaum wrote a separate opinion, concurring in part and dissenting in part.
ARGUED: David Kendall Roberts, O‘MELVENY & MYERS LLP, Washington, D.C., for Appellant. Maximillian Fitzsimmons Nogay, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia; Christine Sayre Vaglienti, WEST VIRGINIA UNIVERSITY HOSPITALS, INC., Morgantown, West Virginia, for Appellees. ON BRIEF: Shannon Barrett, Ally Scher, O‘MELVENY & MYERS LLP, Washington, D.C., for Appellant. William J. Powell, United States Attorney, Tara N. Tighe, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for Federal Appellees.
Lorenzo Pledger, incarcerated in federal prison, alleges that prison officials ignored his repeated medical complaints and denied him meaningful treatment, leading to his collapse and major surgery. Pledger sued for damages in federal court in West Virginia, raising two claims relevant on appeal: a Federal Tort Claims Act (“FTCA“) claim against the United States, alleging medical negligence; and a Bivens claim against certain individuals involved in his care, alleging deliberate indifference in violation of the Eighth Amendment.
The district court dismissed the FTCA claim because Pledger did not secure a certification from a medical expert before
The district court also granted summary judgment to the individual defendants on Pledger‘s Bivens claims, reasoning that Pledger could not establish deliberate indifference as a matter of law. But the district court did not first provide Pledger, a pro se plaintiff, with proper notice of his obligation to support his claims or an opportunity to seek discovery. For that reason, we vacate this portion of the district court‘s judgment and remand for further proceedings on the Bivens claims.
I.
A.
Lorenzo Pledger was incarcerated at FCI Gilmer, a federal prison in West Virginia, from April 2014 to February 2016.1 Before his arrival, Pledger was diagnosed with Crohn‘s disease, a chronic inflammatory bowel disease characterized by inflammation of the digestive tract. See Crohn‘s Disease, Nat‘l Inst. of Diabetes & Digestive & Kidney Diseases, https://www.niddk.nih.gov/health-information/digestive-diseases/crohns-disease/all-content (last visited June 29, 2021) (hereinafter “NIDDK“); see also Pledger v. Lynch (Pledger I), No. 2:16-cv-83, 2018 WL 5905893, at *3 n.2, *39 n.69 (N.D. W. Va. Aug. 16, 2018). Symptoms include diarrhea, abdominal cramping and pain, and weight loss. See NIDDK, supra. If left untreated, Crohn‘s disease can cause serious complications, such as intestinal obstructions and life-threatening bleeding. Id. Crohn‘s disease is episodic, characterized by periods of remission and periods of “flare-ups.” Id. Although there is no cure, medication can treat symptoms, reduce inflammation, and prevent flare-ups. Id.
Upon arrival at FCI Gilmer, Pledger informed Dr. Eddie Anderson, a staff physician, that he had Crohn‘s disease but was not taking any medication to control it. Just a few months later, in June 2014, Pledger began to experience a flare-up of his Crohn‘s symptoms. As he reported his distress to providers at FCI Gilmer over the next several months, they prescribed a variety of medications. When he reported continuing abdominal pain in March 2015, Pledger agreed to be scheduled for a colonoscopy and gastroscopy, which were conducted in May at St. Joseph‘s Hospital. No sign of active Crohn‘s disease was detected in the colon, but the procedure did reveal several ulcers in Pledger‘s stomach and small intestines.
Matters came to a head in the summer of 2015, when Pledger visited Health Services more than a dozen times complaining of loss of appetite, weight loss, and severe abdominal pain. In early June, a physician on duty ordered an abdominal ultrasound to evaluate Pledger‘s “recurrent daily, worsening right sided abdominal pain.” J.A. 438–39. Over the next several months, other providers also recommended a CT scan of Pledger‘s abdomen, as well as a consultation with a gastroenterologist
By August, Pledger‘s pain had worsened. He visited Health Services half a dozen times that month, complaining of “[s]tabbing” pain and a feeling that “something is going to bust open.” J.A. 399, 410. During one visit, a Physician‘s Assistant found a “palpable & tender, firm . . . mass” in Pledger‘s abdomen and said she would “try to push up” his pending ultrasound and GI consultation. J.A. 560. A week later, Dr. Anderson likewise indicated that he would “inquire on priority” for an abdominal ultrasound. J.A. 411. But there is no evidence in the record that any follow-up appointments in fact were scheduled, on a priority basis or otherwise. Instead, each time Pledger went to Health Services, providers recommended only “[r]est and hydration,” J.A. 413, or told him to “[f]ollow-up . . . as needed,” J.A. 411. On August 28, after a nurse instructed Pledger to increase his fluid and fiber intake before a “follow up scheduled . . . in the near future,” he replied that he would “be dead before the tests are done.” J.A. 399.
Two weeks later, on September 8, 2015, Pledger collapsed from “extreme pain.” J.A. 82, 393. After he was transferred to a hospital, Pledger finally underwent a CT scan, which revealed inflammation in his abdomen necessitating surgery. That surgery revealed acute ulceration, stricture formation (abnormal narrowing), and abscesses in his colon. The surgeon removed just over a foot of Pledger‘s colon and small intestines, including a 4-centimeter section of obstructed colon. A hospital staff member told Pledger that had he “waited another month” for evaluation and treatment, “he would have likely died.” J.A. 83.
B.
After the Bureau of Prisons denied his timely administrative tort claim, Pledger filed suit against the United States, several individual officers involved in his medical care, and St. Joseph‘s Hospital, where his May 2015 colonoscopy was performed. Proceeding pro se in the Northern District of West Virginia,2 Pledger pled Federal Tort Claims Act (“FTCA“) claims against the United States and Bivens claims against the individual officers and the hospital. Our focus here is on the district court‘s disposition of the two claims that remain relevant on appeal: an FTCA claim for medical negligence against the United States, and a Bivens claim against three individual officers for deliberate indifference to Pledger‘s serious medical needs.3
1.
In the district court, the United States moved to dismiss Pledger‘s FTCA medical negligence claim. As the government noted, the FTCA effects a partial waiver of the sovereign immunity of the United States, allowing damages liability for certain acts of federal employees that violate state law. See
Because Pledger had not done so, the government concluded, his claim should be dismissed.
The magistrate judge reviewing Pledger‘s complaint agreed with the United States and recommended dismissal of the FTCA claim, finding that the MPLA‘s certificate requirement is “mandatory prior to filing suit in federal court.” See Pledger I, 2018 WL 5905893, at *27 (citing Stanley v. United States, 321 F. Supp. 2d 805, 806–07 (N.D. W. Va. 2004)). The district court accepted this portion of the magistrate‘s report and recommendation, overruling Pledger‘s objection to application of the MPLA‘s certificate requirement. See Pledger v. United States (Pledger II), No. 2:16-cv-83, 2018 WL 4627023, at *8–9 (N.D. W. Va. Sept. 27, 2018). The court did not address Pledger‘s contention that the MPLA‘s “specialized pleading[]” requirement “conflict[s]” with the Federal Rules of Civil Procedure. J.A. 112. Instead, the court focused on whether Pledger had adequate notice of the MPLA‘s requirements and, finding that he did, dismissed his FTCA medical negligence claim with prejudice. See Pledger II, 2018 WL 4627023, at *8–9.
2.
The individual defendants, too, asked the district court to dispose of the Bivens claims against them, either by dismissing Pledger‘s complaint for failure to state a claim or, in the alternative, by granting them summary judgment. As relevant here, three individuals involved in Pledger‘s treatment at FCI Gilmer – Dr. Eddie Anderson, Physician Assistant Alicia Wilson, and Nurse Andrea Hall – argued that Pledger could not satisfy the subjective prong of the deliberate indifference standard, showing that they knew of but disregarded an excessive risk to his health. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). Instead, in their view, Pledger‘s complaint alleged no more than a “disagreement over the appropriate course of treatment” – an allegation that falls short, as a matter of law, of deliberate indifference under the Eighth Amendment. J.A. 148; see, e.g., Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014). In support of their request, the defendants submitted a declaration from Dr. Anderson detailing Pledger‘s care and more than 600 pages of Pledger‘s medical records.
Because Pledger was proceeding pro se – that is, without the assistance of counsel – the magistrate judge sent him a special notice of the defendants’ dispositive motion, under the practice set out in Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975) (per curiam). Under Roseboro, as we have explained, before summary judgment may be granted against a pro se party for failure to substantiate his claims, he must be given notice of his right to file counter-affidavits and other relevant materials and informed that his failure to do so might result in dismissal of his case. See Carter v. Hutto, 781 F.2d 1028, 1033 (4th Cir. 1986). Here, the Roseboro notice informed Pledger that he must respond with
In response to the notice, Pledger reiterated his prior request for appointment of counsel, which he had argued was necessary given the “complex” issues in the case and the need for “significant research and investigation.” J.A. 106. The magistrate judge again denied the request, on the ground that Pledger had “failed to show a particular need or exceptional circumstances that would require the assistance of a trained practitioner.” J.A. 824. Still proceeding pro se, Pledger then opposed the Bivens defendants’ motion, arguing first that summary judgment was inappropriate at this stage because “[d]iscovery ha[d] not been allowed.” J.A. 830. He also contended that even the current and limited record would fairly support his claim of deliberate indifference, precluding an award of summary judgment to the defendants.
Here, the magistrate judge agreed with Pledger, recommending against granting the defendants’ motion because, viewed in the light most favorable to Pledger, the record would allow a reasonable jury to find that the defendants “were aware of Pledger‘s pain and symptoms of Crohn‘s but unreasonably delayed or withheld treatment anyway,” thus satisfying the deliberate indifference standard. Pledger I, 2018 WL 5905893, at *40. This time, the district court disagreed, rejecting this part of the magistrate‘s report and recommendation and entering judgment in favor of the Bivens defendants. Pledger II, 2018 WL 4627023, at *5–8. As the district court read the record, Pledger had received “continuous medical care,” with providers attempting to “alleviate [his] problems” through “numerous different treatments.” Id. at *6. It followed, the court reasoned, that Pledger had alleged at most mistakes in the provision of medical treatment, which might amount to “malpractice or negligence” but could not satisfy the more demanding deliberate indifference standard. Id.4
Pledger timely appealed and filed an informal opening brief. We appointed counsel and requested briefing on whether the district court erred in applying West Virginia‘s certificate of merit requirement to Pledger‘s federal-court FTCA claim or in its assessment of Pledger‘s Bivens claims for deliberate indifference.
II.
We turn first to the district court‘s dismissal of Pledger‘s FTCA claim for medical negligence. Because the court resolved this claim on a motion to dismiss, our review is de novo. See Lokhova v. Halper, 995 F.3d 134, 141 (4th Cir. 2021).
The district court concluded that Pledger‘s FTCA claim against the United States – premised, as per the FTCA, on a violation of West Virginia medical negligence law, see
West Virginia‘s MPLA, would-be medical malpractice plaintiffs must serve on each putative defendant, at least thirty days prior to filing suit, a notice of claim that includes a “screening certificate of merit” from a health care provider who qualifies as an expert under state law. See
West Virginia is not alone in imposing such a pre-suit certification requirement. About half of all states similarly demand that medical malpractice plaintiffs secure some sort of early support from a qualifying expert. See Benjamin Grossberg, Comment, Uniformity, Federalism, and Tort Reform: The Erie Implications of Medical Malpractice Certificate of Merit Statutes, 159 U. Pa. L. Rev. 217, 225 (2010). Predictably, questions have arisen as to whether and to what extent those state-law requirements apply to actions brought in federal court. See Jones v. Corr. Med. Servs., Inc., 845 F. Supp. 2d 824, 854 & n.11 (W.D. Mich. 2012) (gathering cases and discussing split in authority); Shields v. United States, 436 F. Supp. 3d 540, 549–50 (D. Conn. 2020) (same). But there is now a growing consensus that certificate requirements like West Virginia‘s do not govern actions in federal court, because they conflict with and are thus supplanted by the Federal Rules of Civil Procedure. See Gallivan v. United States, 943 F.3d 291, 294 (6th Cir. 2019); Young v. United States, 942 F.3d 349, 351 (7th Cir. 2019). We agree, and hold that failure to comply with West Virginia‘s MPLA is not grounds for dismissal of Pledger‘s federal-court FTCA action.
A.
We begin with the fundamental and uncontroversial point that the Federal Rules of Civil Procedure generally govern all civil actions in federal court. See
But that is not the end of the matter, because we have here another rule – West Virginia‘s MPLA – that also, by its terms, would appear to apply to Pledger‘s medical liability claim. Fortunately, the Supreme Court has provided us with a well-established, two-step framework for mediating any potential conflict. See Hanna v. Plumer, 380 U.S. 460 (1965); Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393 (2010). We first ask whether the Federal
In recent years, several federal courts have applied this Shady Grove framework and held that the Federal Rules displace state certificate requirements like West Virginia‘s. See, e.g., Gallivan, 943 F.3d at 293–94; Young, 942 F.3d at 351; Andes v. United States, No. 1:19CV00005, 2020 WL 3895780, at *4–5 (W.D. Va. July 10, 2020). Following their guidance, we conclude that the Federal Rules governing the sufficiency of pleadings likewise answer the “question in dispute” here, and thus supplant West Virginia‘s certificate requirement in this federal-court FTCA action.
1.
We first consider whether the Federal Rules of Civil Procedure answer the same question as the MPLA: “[D]oes someone need a[] [certificate] of merit to state a claim for medical negligence?” Gallivan, 943 F.3d at 293. For these purposes, the Federal Rules may “answer” a question without speaking to it expressly; if the scope of a Rule (or Rules) is “sufficiently broad” either to “cause a direct collision” with West Virginia‘s MPLA or “implicitly, to control the issue,” then the Federal Rules govern notwithstanding state law. Burlington N. R.R. Co. v. Woods, 480 U.S. 1, 4–5 (1987) (internal quotation marks omitted); see also Shady Grove, 559 U.S. at 399 (finding that Federal Rule providing “one-size-fits-all formula” displaces more specific state rule addressing same question). Here, we conclude that the Federal Rules indeed “answer[] the question in dispute,” Shady Grove, 559 U.S. at 398, and that several of them provide an answer different than West Virginia‘s.
We begin with the pleading standards for complaints in federal court.
Finally, we agree with Pledger that West Virginia‘s MPLA is inconsistent with
In short, like courts before us, we find that it is “impossible to reconcile” certificate requirements like West Virginia‘s with the “requirements of the Federal Rules of Civil Procedure.” Shields, 436 F. Supp. 3d at 548. And contrary to the suggestion of the United States, it is no answer that it would be possible for a claimant to “comply with both” the Federal Rules and West Virginia law, satisfying the more generous standards of the Federal Rules and then adding something extra for the MPLA. Under Shady Grove, what matters is whether the “one-size-fits-all formula” for filing and maintaining a complaint set out by the Federal Rules is enough to “provide[] an answer” to the question at issue: whether a plaintiff must obtain an expert certificate of merit before he may file and maintain a medical malpractice suit. See 559 U.S. at 398–99. Because the Federal Rules answer that question in the negative, West Virginia‘s MPLA cannot apply to Pledger‘s federal-court action under step one of the Shady Grove framework. Id.
2.
That leaves the step-two question: whether the MPLA nevertheless governs
B.
The United States addresses none of this straightforward analysis in its brief on appeal. It does not discuss the Shady Grove framework nor even refer to Shady Grove, notwithstanding that case‘s centrality to Pledger‘s arguments and to the other circuits that have considered similar state certificate requirements. As a result, it has no occasion to argue the finer points of whether West Virginia‘s MPLA and the Federal Rules of Civil Procedure answer the “same question” under Shady Grove.
Instead, the United States appears to apply the choice-of-law framework set out in Erie, arguing that the MPLA should govern because it is “substantive,” in that “the nature of litigation would be drastically different if prospective plaintiffs had to produce a certificate of merit before they could file a lawsuit in state court but not in federal court.” Appellees’ Br. 8–9. But that misunderstands the order of operations here. Whether a state law is “technically one of substance or procedure” and “whether it ‘significantly affect[s] the result of a litigation‘” are questions we ask when evaluating “the constitutional power of federal courts to supplant state law with judge-made rules” under Erie. Shady Grove, 559 U.S. at 406 (Scalia, J.) (plurality opinion) (quoting Guaranty Trust Co. v. York, 326 U.S. 99, 109 (1945)) (emphasis added). But as we have explained, if a valid Federal Rule answers the question at issue, then the “relatively unguided” Erie analysis is beside the point, Hanna, 380 U.S. at 471; the Federal Rule governs, without more. See Shady Grove, 559 U.S. at 398. Only if we first find, that is, that the Federal Rules are either “inapplicable or invalid” will we go on to explore the nuances of Erie. Id.; see also Gallivan, 943 F.3d at 295 (“[T]he government‘s argument that [the state certificate requirement] is substantive under Erie makes no difference.“).
At oral argument, however, the government focused for the first time on Shady Grove, suggesting that the MPLA – unlike the certificate requirements reviewed by the cases we discuss above – does not in fact “answer a question” already addressed by the Federal Rules. That is because, the government urges, the MPLA‘s certificate must be served before filing suit, rather than included with a court filing, and so does not set a pleading standard or even speak to court procedures at all. Compare
The Supreme Court rejected precisely this kind of hair-splitting in Shady Grove. The Court already had made clear that the step-one inquiry is a functional one, asking whether the scope of the Federal Rules, fairly construed, is broad enough either to “implicitly . . . control” the same issue addressed by state law or to cause a direct conflict with that law. See Burlington N. R. R. Co., 480 U.S. at 4–5 (internal quotation marks omitted). In Shady Grove, the Court considered whether Federal Rule 23‘s “one-size-fits-all” criteria for the maintenance of class actions left room for the operation of a state law that would impose additional requirements. See 559 U.S. at 398–99. And it had no difficulty rejecting the state‘s proposed distinction between its rule, which purportedly addressed the “antecedent question” of class-action eligibility, and Rule 23, which the state viewed as addressing only class-action certification: “[T]he line between eligibility and certifiability is entirely artificial.” Id. at 399. So too, here. The line between requiring attachment of a certificate to a complaint and service of a certificate on a defendant is equally artificial; either way, West Virginia‘s certificate requirement amounts to a “precondition[] for maintaining” a medical malpractice suit. Id.
Moreover, even if we were to credit the formalistic line drawn by the government and treat the MPLA solely as a rule of service, we would end up in the same place. A service rule might be seen as addressing a different question, for Shady Grove purposes, than Federal Rule 8, which governs only the complaint that must be filed with a court. But there remains Federal Rule 12 – which lays out the grounds on which a suit may be dismissed – and that rule‘s conflict with the MPLA, which adds an additional ground for dismissal. See PrimeCare, 835 S.E.2d at 589 (failure to serve certificate on defendant is grounds for dismissal of complaint). And to the extent the MPLA is viewed as a service rule, it generates yet another conflict – “this time with Rule 4, which provides in detail the means by which one may effectuate service for cases in federal court.” Shields, 436 F. Supp. 3d at 549 (rejecting similar argument that state certificate requirement is “not really
a pleading rule so much as it is a rule about service of process“); see
The United States also makes what we understand to be an alternative argument: Even if the Federal Rules of Civil Procedure generally would supplant the MPLA in federal court under Shady Grove, the government contends, the result is different here because Pledger is suing under the FTCA and the FTCA itself incorporates state certificate requirements like West Virginia‘s. Like other courts to consider this issue, see Gallivan, 943 F.3d at 294-95; Shields, 436 F. Supp. 3d at 545-47, we again disagree.
It is true, as noted above, that the FTCA permits the United States to be held liable in tort only to the extent that a private party defendant would be liable under state law. See
It is equally clear, we think, that the MPLA qualifies as “procedural” for these purposes, so that it is not incorporated by the FTCA‘s reference to state-law liability standards. West Virginia‘s certificate requirement appears in a statutory section governing “prerequisites” and “procedures” for filing suit, not the section outlining the elements of proof for a claim. Compare
Finally, to the extent the United States suggests that Fourth Circuit precedent requires a ruling in its favor, we are unpersuaded. In Davison v. Sinai Hosp. of Balt., Inc., 617 F.2d 361, 362 (4th Cir. 1980) (per curiam), we affirmed the application of a Maryland pre-dispute arbitration requirement in federal court. But we did so without discussion, simply adopting a district court ruling that had analyzed the question under the “outcome determinative test” of Erie instead of considering whether a Federal Rule of Civil Procedure controlled under Hanna. See Davison v. Sinai Hosp. of Balt., Inc., 462 F. Supp. 778, 780 (D. Md. 1978). We need not decide here whether, evaluated under Hanna and Shady Grove, the arbitration statute at issue in Davison would apply in federal court. Rather, we note only that we find the district court‘s reasoning in that case unconvincing, as it predates Shady Grove and offers no “satisfactory response to the clear conflict between the federal pleading rules” and state law under that standard. Gallivan, 943 F.3d at 296-97 (rejecting defendant‘s reliance on past cases that did not engage in the Shady Grove analysis).
***
In sum, we hold that the MPLA‘s pre-dispute certificate requirement,
III.
We turn next to the district court‘s grant of summary judgment to three individual Bivens defendants on Pledger‘s deliberate indifference claim. We generally review a grant of summary judgment de novo, viewing “the facts and inferences reasonably drawn therefrom in the light most favorable to the nonmoving party.” Gordon v. Schilling, 937 F.3d 348, 356 (4th Cir. 2019) (internal quotation marks omitted). “[T]he relevant inquiry is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. (internal quotation marks omitted). But when a district court - as here - grants summary judgment without discovery, we review that procedural decision for abuse of discretion. See Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir. 2002).
Before turning to the district court‘s decision to grant summary judgment in the posture presented here, we briefly describe Pledger‘s claims and the arguments of the parties. Pledger alleges that the three Bivens defendants, all of whom had some involvement in his medical care, were deliberately indifferent to his serious medical needs, violating the
The defendants maintain, and the district court agreed, that Pledger‘s complaints amount to no more than a dispute over the proper course of treatment, insufficient to show deliberate indifference. See Jackson, 775 F.3d at 178. For support, they point to undisputed record evidence - hundreds of pages of Pledger‘s medical records from FCI Gilmer - establishing that Pledger was seen multiple times by health providers who prescribed medication, monitored his symptoms, and otherwise attempted to treat his disease. That “continuous medical care,” Pledger II, 2018 WL 4627023, at *6, the district court concluded, was fundamentally inconsistent with a showing that the defendants knowingly “disregard[ed] an excessive risk to inmate health or safety,” id. at *5 (quoting Farmer, 511 U.S. at 837).
Pledger, of course, sees it differently. That he received some medical treatment, he urges, does not necessarily preclude a finding of deliberate indifference if his doctors nevertheless “ignored and failed to treat many of his symptoms.” See Jehovah v. Clarke, 798 F.3d 169, 181 (4th Cir. 2015). Pledger points to record evidence showing that his providers themselves agreed that certain tests and consultations were necessary but failed to provide them until it was too late - circumstances that we have held may support a deliberate indifference claim. See Jackson, 775 F.3d at 179 (holding that plaintiff states claim for deliberate
Given these arguments, Pledger argues that the current record presents “sufficient disagreement,” in the form of disputes of fact material to the deliberate indifference standard, to preclude judgment as a matter of law and require submission to a jury. See Gordon, 937 F.3d at 356 (internal quotation marks omitted). We need not resolve that issue, because we agree with Pledger‘s alternative argument: that the district court erred procedurally when it granted summary judgment without first providing Pledger with the required notice or an opportunity to engage in discovery. For that reason, we vacate the district court‘s award of summary judgment and remand for further proceedings on Pledger‘s claims against the Bivens defendants.
For nearly fifty years, our decision in Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) (per curiam), has required that district courts, before awarding summary judgment to a defendant, notify a pro se plaintiff like Pledger of his obligations at the summary judgment stage and his right to file counter-affidavits or other responsive material. See Roseboro, 528 F.2d at 310; Carter, 781 F.2d at 1033 (explaining Roseboro obligation). Here, after the defendants filed their motion to dismiss or, in the alternative, for summary judgment, the magistrate judge did issue a Roseboro notice. But that notice fell short of Roseboro‘s requirements. To be sure, it informed Pledger that that motion might be treated as one for summary judgment - outlining the summary judgment standard as well as the dismissal standard - and advised that Pledger “must set forth specific facts showing that there is a genuine issue for trial” to survive a motion for summary judgment under
Here, Pledger was neither notified of his right to file additional material in opposition to the defendant‘s motion nor given an opportunity to obtain such material through discovery. Instead, Pledger‘s Roseboro notice implied that additional materials were unnecessary: In instructing Pledger to file an opposition “explaining why his case should not be dismissed,” J.A. 818, the notice suggested that an explanation by itself would be sufficient, when in fact Pledger would have to do more - submit an affidavit and other evidence - to defeat a summary judgment motion. And while the magistrate judge was prepared to treat the sworn allegations in Pledger‘s Bivens complaint as the equivalent of an affidavit for summary judgment purposes, we cannot know what additional information Pledger could have added to bolster
Indeed, the grant of summary judgment on this incomplete record deprived Pledger not only of adequate Roseboro notice but also of
It is true that Pledger, never informed of his right to seek discovery under
Given the shortcomings in Pledger‘s Roseboro notice and the failure to provide him with an opportunity for discovery, the district court abused its discretion in granting summary judgment in this posture.
IV.
For the foregoing reasons, we reverse the district court‘s dismissal of Pledger‘s FTCA medical negligence claim, vacate the grant of summary judgment on his Bivens claim for deliberate indifference, and remand for further proceedings consistent with this opinion.
REVERSED IN PART,
VACATED IN PART,
AND REMANDED
QUATTLEBAUM, Circuit Judge, concurring in part1 and dissenting in part:
The West Virginia certificate of merit portion of this appeal involves the interplay of federal and state law, the Erie2 doctrine and whether laws are substantive or procedural. Admittedly, discussion of these issues may conjure up nightmares from law school. And if not that, it most certainly will cause a reader‘s eyes to glaze over. Any way you slice it, this is wonky stuff. But as esoteric as these concepts can be, underneath them are important principles of federalism. What is the proper balance of power between the federal government and the states? How do the Supremacy Clause and the Tenth Amendment interact? The gravity of these concepts should wake us from our Erie-induced slumber.3
The interplay of laws here arises in the context of the Federal Tort Claims Act (“FTCA“), which directs federal courts, the exclusive forum for such an action, to look to state substantive law to determine liability. See
jurisdiction in a defined category of cases involving negligence committed by federal employees in the course of their employment.” Dolan v. United States Postal Serv., 546 U.S. 481, 484 (2006). Liability under the FTCA flows “in accordance with the law of the place where the act or omission occurred.”
Pledger brought an FTCA suit alleging violations of the West Virginia medical professional liability statute. West Virginia, in establishing its contours of medical professional liability, passed a comprehensive statutory scheme.
to both how the standard of care was breached and causation.
Before filing his FTCA suit, Pledger did not serve a certificate of merit. Subsequent to filing suit, the district court granted him a sixty-day extension to comply with the requirement. Pledger still did not serve a certificate of merit. As a result, the district court then dismissed his suit for failure to comply with the requirement. But the majority now says the district court got it wrong because the Supreme Court‘s Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., 559 U.S. 393 (2010) decision dictates that he did not have to serve a certificate of merit. By the majority‘s view, while a West Virginia medical malpractice suit can be properly dismissed in state court for failure to serve a certificate of merit, when brought under the FTCA in federal court, that requirement vanishes. The result - a requirement imposed by a separate sovereign in its effort to fashion a state cause of action that strikes the right balance between insurance costs and affordable healthcare is ignored.
I see the West Virginia certificate of merit requirement quite differently than the majority. For one, under a Shady Grove analysis, the Federal Rules do not answer, as that case requires, the question of whether a West Virginia medical malpractice plaintiff must serve a certificate of merit prior to filing his FTCA suit. In my view, the majority stretches Shady Grove past its intended context in a way that unnecessarily impairs the ability of a state to perform a function the
Because Shady Grove does not resolve our question, Supreme Court precedent, while not addressing an FTCA suit, would
For those reasons and as more fully explained below, I would affirm the dismissal of Pledger‘s FTCA suit.
I.
According to the majority, the West Virginia certificate of merit requirement analyzed under Shady Grove is an easy inquiry. See Maj. Op. at 13-14. I respectfully disagree. Shady Grove merely starts us down a thorny path.5
To begin, let‘s review Shady Grove. There, the Supreme Court considered whether a state law could, in effect, provide for limitations in addition to the requirements for maintaining a class action laid out under
But even still, Shady Grove was not without criticism. Justice Ginsburg, in dissent, warned that “[o]ur decisions . . . caution us to ask, before undermining state legislation: Is this conflict really necessary? Had the Court engaged in that inquiry, it would not have read
Digging into a Shady Grove inquiry here, the Supreme Court has instructed how to determine whether we actually have a conflict between the Federal Rules and a state law. According to the Court, a conflict exists where, “when fairly construed, the scope of [a Rule] is ‘sufficiently broad’ to cause a ‘direct collision’ with the state law or, implicitly, to ‘control the issue’ before the court, thereby leaving no room for the operation of that law.” Burlington Northern R.R. Co. v. Woods, 480 U.S. 1, 4-5 (1987).
With that as our guide, we proceed to the first Shady Grove inquiry - does a Federal Rule of Civil Procedure address whether a West Virginia medical malpractice plaintiff must serve a certificate of merit prior to filing his FTCA suit? Pledger points to Federal Rules 3, 4, 8, 9, 11, 12, 26 and 37 as answering that question. But we should not miss the breadth of this argument. Pledger uses eight Rules, in effect taking eight bites at the apple. Shady Grove took one. The majority does not go that far but still identifies four Rules as answering the first step of the Shady Grove inquiry. Such broad expeditions in search of an answer are inconsistent with a precise wielding of Shady Grove. Moreover, this expedition is costly - all at the expense of the
Turning next to
Next,
Finally, the majority finds
In my view, none of the Federal Rules cited by the majority answer the question of whether an individual bringing an FTCA suit for West Virginia medical malpractice must provide a pre-suit certificate of merit. Illustrating this conclusion, West Virginia state court practice seems at odds with the majority‘s conclusion that it is “impossible to reconcile” the certificate of
In fact, the Federal Rules of Civil Procedure are entirely silent on the subject at hand - a certificate of merit requirement - and there is nothing to indicate they would ever answer such an inquiry. Instead, the Rules contain purely procedural requirements that apply generally to all civil actions. But today, the majority construes the Rules’ silence on a certificate of merit requirement as an affirmative mandate that the requirement does not apply in federal court. And on that alone, we can now avoid an Erie inquiry. Law students may very well rejoice, as the frequency of conducting an Erie analysis diminishes. Never mind that the paradoxical result is that the FTCA and Supreme Court precedent tell us to apply state substantive law, see
I fear the implications of the majority‘s decision are quite broad, potentially rendering inapplicable many state-law provisions, even those we consider to be substantive. To be clear, I take no issue with Shady Grove as a tool in times of precision, where we have a direct collision and no room for operation of the state law. See Burlington, 480 U.S. at 4-5 (holding a conflict exists where, “when fairly construed, the scope of [a Rule] is ‘sufficiently broad’ to cause a ‘direct collision’ with the state law or, implicitly, to ‘control the issue’ before the court, thereby leaving no room for the operation of that law“). But our Constitution demands we refrain from wielding Shady Grove imprecisely in situations where there is ample room for a state law.
II.
Given Shady Grove does not answer our inquiry, we must then determine whether the West Virginia certificate of merit requirement is substantive or procedural. To do that, we instinctively proceed into Erie. Shady Grove in fact, points us there. See Shady Grove, 559 U.S. at 398 (stating we “wade into Erie‘s murky waters” only if a Federal Rule is inapplicable or invalid). But both Erie and Shady Grove specifically considered what law to apply when sitting in diversity jurisdiction under
Erie made clear that with regards to substantive law in state-law causes of action, “the law to be applied in any case is the law of the state.” Erie, 304 U.S. at 78. Subsequently, the Supreme Court gave us three considerations to assist in determining whether a state law is substantive or procedural. First, the Court provided the “outcome-determination test” laid out in Guaranty Trust Co. v. York, 326 U.S. 99 (1945). And later, the Court told us to consider also “the twin aims of the Erie rule: discouragement of forum-shopping and avoidance of inequitable administration of the laws.” Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 428 (1996) (quoting Hanna v. Plumer, 380 U.S. 460, 468 (1965)).
These considerations make sense in a diversity action where there is a contest over which sovereign‘s law should apply and there is a choice of forums.7 They even make sense in federal question jurisdiction when there is concurrent state court jurisdiction,
hence a choice of forums.8 But respectfully, applying the three factors identified by Erie‘s progeny to an FTCA suit is not at all helpful because there is exclusive federal jurisdiction.
To illustrate, regarding the outcome-determinative test, we ask whether “it significantly affect[s] the result of a litigation for a federal court to disregard a law of a State that would be controlling in an action upon the same claim by the same parties in a State court?” Guar. Tr. Co., 326 U.S. at 109. This metric tells us nothing about an FTCA suit. Because when we consider whether the result of Pledger‘s litigation would differ in an action upon the same claim by the same parties in a State court, the scenario proposed is impossible. Pledger could never bring the same claim against the same party - an FTCA action for medical malpractice against the United States - in a state court. See
Similarly, the twin aims of Erie are not helpful. Forum-shopping is irrelevant to our inquiry for the same reason above. Through the FTCA, Congress has ousted state courts of jurisdiction - leaving federal courts the only forum Pledger may “choose.” How can this twin-aim of Erie guide us if the FTCA contemplates no choice?
Finally, inequitable administration of the laws similarly provides no insight into whether the West Virginia certificate of merit requirement is substantive or procedural. As in forum-shopping, there is only one place where Pledger‘s FTCA suit can be litigated. Inequity would require some alternate outcome be possible somewhere else - and we simply have no such potential here. Flat out - the requirement either applies in all FTCA suits in West Virginia federal court or does not apply in all FTCA suits in West Virginia federal court. There is no inequity possible where the requirement applies uniformly by way of the FTCA.
In sum, the Erie factors identified by the Supreme Court seem meaningless in the face of an FTCA suit. As if we are using the rules of football to determine how to conduct a jump ball in basketball, these factors do not tell us anything that helps us determine whether the West Virginia certificate of merit requirement is substantive or procedural.
But even if the outcome-determination, forum-shopping and inequitable administration of the laws considerations do not help us with our inquiry, we still must find the line between substantive and procedural law here. Erie, 304 U.S. at 78 (“Congress has no power to declare substantive rules of common law applicable in a state . . . . And no clause in the Constitution purports to confer such a power upon the federal courts.“); Meyer, 510 U.S. at 478 (“[T]he ‘law of the place’ means law of the State - the source of substantive liability under the FTCA.“). For several reasons, I conclude the certificate of merit requirement falls on the substantive side of that line.
First, substantive liability only flows from compliance with the state-law certificate of merit requirement. If this were a medical malpractice claim against a private party in state court, Pledger‘s claim would have been properly dismissed for failure to comply with the requirement and no liability could attach.
But that is not all. The text of the MPLA and the function of the certificate of merit requirement also point to a substantive determination. Remember the express purpose of the MPLA, to balance two competing interests - “the increase in the cost of liability insurance and . . . [the] access to affordable health care services for [its] citizens.”
Further, receipt of a certificate of merit triggers rights of health care providers. The MPLA provides healthcare providers with the right to demand pre-suit mediation on receipt of a certificate of merit. See
To be sure, this question is not clear cut. The West Virginia certificate of merit requirement‘s placement in the procedural section of the MPLA, and the fact that it is a document that must be served, reflect procedural characteristics. But, in my view, this statutory placement and titling, at best, is offset by the fact this requirement does not appear in the West Virginia Rules of Civil Procedure. Instead, the requirement is located in a statute outlining a state-law cause of action and the boundaries of liability. And regardless of these formalistic matters, any statutory location is outweighed by the substantive characteristics outlined above.
To conclude, without this component of a medical malpractice claim, no plaintiff could prevail and no defendant could be liable. The West Virginia legislature enacted this requirement as a means of establishing a balance between the interests of its citizens and healthcare providers - a quintessential substantive determination. As such, I find this is a substantive law of the state of West Virginia.
III.
Because no Federal Rule conflicts with the West Virginia certificate of merit requirement and the West Virginia certificate of merit requirement is a substantive law of liability, the district court correctly applied it to Pledger‘s medical malpractice claim brought under the FTCA. Because Pledger did not comply with that requirement, his claim was appropriately dismissed. For these reasons, I dissent.