Petition for Writ of Certiorari — Dawn M. White, et vir, Petitioners v. United States

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

No. 22-13736

Non-Argument Calendar

DAWN M. WHITE, PATRICK J. WHITE,

Plaintiffs-Appellants,

versus

UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court for the

Middle District of Alabama

D.C. Docket No. 2:21-cv-00667-RAH-CWB

App. 1

2

Opinion of the Court

22-13736

Before WILLIAM PRYOR, Chief Judge, and WILSON

and LUCK, Circuit Judges.

PER CURIAM:

Patrick White, as purported pro se “representative” of

his wife, Dawn, appeals the dismissal of her amended

complaint alleging medical malpractice under the

Federal Tort Claims Act committed at the Maxwell Air

Force Base. The district court ruled that Patrick could

not represent Dawn without being admitted to

practice law. And the district court dismissed Dawn’s

complaint because, even though she appeared to have

signed it, her complaint was untimely. Because

Patrick also cannot represent his wife on appeal, we

dismiss this appeal.

Patrick, who is not an attorney, purported to sue on

behalf of his wife and to represent her legal interests.

Federal law allows parties in federal cases to “plead

and conduct their own cases personally or by counsel.”

28 U.S.C. § 1654. But the right to appear pro se

extends to parties conducting “their own cases,” not to

persons representing the interests of others. See

Devine v. Indian River Cnty. Sch. Bd., 121 F.3d 576,

581 (11th Cir. 1997) (determining that, while Fed. R.

Civ. P. 17(c) allows a parent to sue on behalf of their

minor child, the rule does not allow a non-attorney

parent to function as legal counsel for the child),

overruled in part on other grounds by Winkelman ex

App. 2

rel. Winkelman v. Parma City Sch. Dist., 550 U.S. 516,

535 (2007).

App. 3

22-13736

Opinion of the Court

3

We cannot entertain this appeal. Because Patrick was

not permitted to represent Dawn’s legal interests and

disclaimed any intent to sue on his own behalf, he

could not participate in the action. See 28 U.S.C. §

1654; Devine, 121 F.3d at 581. Although Dawn and

Patrick both signed the notice of appeal, see Fed. R.

App. P. 3(c)(1)(A), (c)(2), the unsigned opening brief

states that it was sub-mitted only by Patrick as

Dawn’s “Pro Se Representative” and reiterates that he

“has no right to a claim nor is it his intent to be

recognized” as a party. So we cannot consider the legal

arguments he seeks to raise on her behalf.

We DISMISS this appeal.

(Entered June 8, 2023)

App. 4

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

DAWN M. WHITE, et al.,)

)

Plaintiffs,

)

)

) CASE NO. 2:21-cv-667RAH

v.

)

UNITED STATES OF AMERICA)

)

Defendant.

)

ORDER

On October 4, 2022, the Magistrate Judge

recommended that this case be dismissed as (1)

Patrick J. White cannot proceed pro se to assert a

claim on behalf of Dawn M. White, and (2) Mrs.

White’s claims are time barred under Ala. Code § 6-5482. (Doc. 30.) On October 13, 2022, the Plaintiffs filed

Objections (Doc. 31) to the Recommendation of the

Magistrate Judge (Doc. 30). The Court has conducted

an independent and de novo review of those portions

of the Recommendation to which objection is made.

See 28 U.S.C. § 636(b). Upon this Court’s review and

consideration of the arguments set forth in the

Objections, the Court agrees with the Magistrate

Judge’s findings and analysis.

Accordingly, it is ORDERED as follows:

1. The Objections (Doc. 31) are OVERRULED.

App. 5

2. The Recommendation (Doc. 30) is ADOPTED.

3. The Government’s Motion to Dismiss (Doc. 25) is

GRANTED as to all claims asserted by the Plaintiffs.

4. The case is DISMISSED with prejudice.

DONE, this 20th day of October, 2022.

/s/ R. Austin Huffaker, Jr.

R. AUSTIN HUFFAKER, JR.

UNITED STATES DISTRICT JUDGE

App. 6

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

DAWN M. WHITE and )

PATRICK J. WHITE,

)

)

Plaintiffs,

)

)

) Case No. 2:21-cv-667RHA-CWB

v.

)

UNITED STATES OF AMERICA,)

)

Defendant.

)

RECOMMENDATION OF THE MAGISTRATE

JUDGE

Plaintiffs Dawn M. White and Patrick J. White

brought this action under the Federal Tort Claims Act,

28 U.S.C. § 2671 et seq., to recover damages for alleged

medical malpractice. (Docs. 1 & 23). Pursuant to 28

U.S.C. § 636, the action was referred to the Magistrate

Judge “for further proceedings and determination or

recommendation as may be appropriate.” (Doc. 6).

Having considered the pleadings and annexed

evidentiary materials, the undersigned hereby

recommends that the government’s motion to dismiss

(Doc. 25) be granted.

App. 7

1. Background

Mrs. White at all relevant times received

primary health care through a government operated

medical clinic at Maxwell Air Force Base in

Montgomery, Alabama. (Doc. 23 at p. 3). As part of her

treatment for migraine headaches, Mrs. White was

prescribed the medication Maxalt. (Id. at p. 4). After

having taken Maxalt periodically for several years,

Mrs. White suffered a severe cardiac event on January

2, 2014 that allegedly led to anoxic encephalopathy

and numerous associated disabilities. (Doc. 23 at pp.

4-5; Doc. 23-2).

On or about October 4, 2017, an administrative

claim was submitted on behalf of Mrs. White by her

husband. (Doc. 19-1). The claim specifically sought to

recover for “Non-ischemic Cardio Myopathy, and

Anoxic Encephalopathy resulting in permanent and

100% disability requiring 24-hour supervision.” (Id.).

The claim additionally included a letter asserting that

in the immediate aftermath of her January 2, 2014

medical emergency, Mrs. White’s treating providers at

Baptist Hospital had disclosed a potential connection

with the medication Maxalt. (Id. at pp. 3-4). The letter

went on to explain that an administrative claim had

not been filed earlier “due to the possibility of

continued improvement in [Mrs. White’s] condition.”

(Id. at p. 4).

The administrative claim was formally denied

by the Department of the Air Force on June 30, 2021.

(Doc. 23-5). Plaintiffs then filed a Statement of Claim

in this court on October 7, 2021 to assert a single count

for medical malpractice. (Doc. 1). In response to

App. 8

Plaintiffs’ request to supplement the record with

additional supporting materials, the court afforded an

opportunity to file an amended complaint (Doc. 20),

and Plaintiffs thereafter submitted an amended

Statement of Claim on April 22, 2022 (Doc. 23). The

amendment likewise contained a single count for

medical malpractice on grounds that Mrs. White had

been negligently prescribed Maxalt without proper

assessment of her medical history and without proper

disclosure of potential adverse effects. (Id. at p. 5). The

amended Statement of Claim also attached and

referenced numerous evidentiary exhibits. (Doc. 23;

Docs. 23-1 to 23-14).

Citing Rule 12(b)(6) of the Federal Rules of Civil

Procedure, the government has moved for a dismissal

of this action in its entirety. (Doc. 25). First, the

government contends that dismissal is required

because the action was commenced on behalf of Mrs.

White by a nonattorney. (Id. at pp. 5-6). Second, the

government contends that the action should be

dismissed due to noncompliance with the two-year

limitations period for submitting an administrative

claim under the Federal Tort Claims Act. (Id. at pp. 78). Finally, the government contends that the action is

barred by the four-year rule of repose found in the

Alabama Medical Liability Act. (Id. at pp. 9-10).

Alternatively, the government contends that Patrick

J. White at a minimum should be dismissed as a

plaintiff in his individual capacity. (Id. at p. 10-11).

II. Legal Standard

To survive a motion to dismiss under Rule 12(b)(6), a

App. 9

complaint “must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is

plausible on its face.”’ Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007)). “A claim has facial plausibility

when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id.

When deciding a motion under Rule 12(b)(6), “[t]he

court accepts the plaintiffs allegations as true” and

“construes them most favorably to the plaintiff.” Id.

(citations omitted). Nonetheless, “[djismissal under

Rule 12(b)(6) on statute of limitations grounds is

appropriate if it is apparent from the face of the

complaint that the claim is time-barred.” Berman v.

Blount Parrish & Co., Inc., 523 F.Supp. 2d 1298, 1300

(M.D. Ala. 2007).

The Federal Tort Claims Act provides a limited

waiver of sovereign immunity and generally permits

tort liability to attach against a governmental entity

“in the same manner and to the same extent as a

private individual under like circumstances ... .” 28

U.S.C. § 2674; Dalrymple v. United States, 460 F.3d

1318, 1324 (11th Cir. 2006). That waiver of sovereign

immunity, however, is expressly conditioned upon

exhaustion of administrative review, which in turn

requires an administrative claim to be submitted

“within two years after such claim accrues.” 28 U.S.C.

§§ 2401(b) & 2675(a). Medical malpractice claims

against the government also must satisfy the

substantive requirements of the Alabama Medical

Liability Act. Ala. Code § 6-5-482.

App. 10

III. Discussion

A. Claims asserted by Patrick J. White

The Statement of Claim, as amended, contains

no request for relief by Mr. White in his individual

capacity. (Doc. 23). Moreover, in response to the

government’s motion to dismiss, Mr. White expressly

confirmed that he “does not now, nor has he ever,

intended to be considered a plaintiff in this action.”

(Doc. 28 at p. 6). By his own admission, Mr. White

instead is attempting to assert a claim only in a

representative capacity on behalf of Mrs. White. (Id.).

Although parties are permitted to represent

themselves, see 28 U.S.C. § 1654, “[t]he right to

appear pro se ... is limited to parties conducting ‘their

own cases,’ and does not extend to nonattorney parties

representing the interests of others.” Fuqua v.

Massey, 615 F.App’x 611, 612 (11th Cir. 2015)

(citation omitted); Martino v. Campbell, No. 8:21-CV1636, 2021 WL 5923047, at *5 (M.D. Fla. Sept. 17,

2021), report and recommendation adopted, No. 8:21CV-1636, 2021 WL 5049928 (M.D. Fla. Nov. 1, 2021)

(“Insofar as Petitioner seeks to proceed pro se to assert

claims on behalf of her [incapacitated] father, Mr.

Martino, Petitioner is unable to do so. The law of this

circuit prohibits non-attorneys from proceeding pro se

in an action brought on behalf of another.”); Binns v.

Comm’r of Soc. Sec., No. 1:11-CV-1984, 2011 WL

13319166, at *3 (N.D. Ga. June 29, 2011), report and

recommendation adopted, No. 1:11-CV-1984, 2011 WL

13319176 (N.D. Ga. Aug. 1, 2011) (“[A] guardian may

not appear pro se in a case in federal court involving

her ward.”). When a non-attorney attempts to

represent a party, the pleadings typically are deemed

a nullity and subject to dismissal. See Wint by &

App. 11

through Wint v. Fla. Palm Beach Sheriff, 842 F.App’x

468, 471 (11th Cir. 2021), cert, denied sub nom. Wint

By & Through Wint v. Bradshaw, 141 S. Ct. 2578

(2021) (“Ordinarily, if a party is represented by a non­

attorney, a court may dismiss without prejudice.”).

The court observes, however, that the

Statement of Claim, both in its original form and as

amended, was executed jointly by Mr. White and Mrs.

White. (Docs. 1 & 23). The court therefore concludes

that Mrs. White is authorized to proceed on a pro se

basis but states that any future filings should be made

exclusively by Mrs. White on her own behalf or

through a duly licensed attorney. To the extent Mr.

White has appeared in these proceedings “on behalf of’

Mrs. White, the court finds that his participation has

been a nullity and that the government’s motion to

dismiss is due to be granted in that regard.

B. Claims asserted by Dawn M. White

The underlying claim of medical malpractice

stems from Mrs. White’s allegedly being prescribed

Maxalt without a proper assessment of her past

medical history and a recognition of contraindications.

(Doc. 1 at p. 4; Doc. 23 at pp. 4-5). It also is alleged that

Mrs. White was never warned of possible side effects

associated with Maxalt so as to have given informed

consent. (Id.). Because the prescribing clinic was

operated by the United States Air Force, Mrs. White

is seeking relief against the United States government

pursuant to the limited waiver of sovereign immunity

afforded under the Federal Tort Claims Act, 28 U.S.C.

§ 2671 et seq.

In order for a claimant to take advantage of that

limited wavier of sovereign immunity, an administraApp. 12

tive claim “must be presented in writing to the

appropriate Federal agency within two years after

such claim accrues ... .” See 28 U.S.C. § 2401(b). A

claim for medical malpractice “accrues ‘when the

plaintiff knows both the existence and the cause of his

injury.’” McCullough v. United States, 607 F.3d 1355,

1358-59 (11th Cir. 2010) (citation omitted). Here, the

materials

submitted by Mrs. White reflect that the potential

connection between Maxalt and her medical

emergency was disclosed by health care providers as

early as her immediate treatment in January 2014

(Doc. 23-2); yet an administrative claim was not

submitted until October 2017

(19-1).

The

administrative claim, and ipso facto this civil action,

therefore appear to violate the Federal Tort Claims

Act’s two-year limitations period for initiating

administrative review.

Mrs. White counters by asserting that the

doctrine of equitable tolling should be applied to

excuse any procedural untimeliness “due to her

mental incapacity.” (Doc. 28 at p. 5). Whether

equitable tolling can extend the limitations period

under the Federal Tort Claims Act was an issue long

debated among jurisdictions, with competing

conclusions, until the United States Supreme Court

settled the debate in favor of tolling. See United States

v. Wong, 575 U.S. 402, 412 (2008) (“The time limits in

the FTCA are just time limits, nothing more. Even

though they govern litigation against the

Government, a court can toll them on equitable

grounds.”). It is now clear that the doctrine of

equitable tolling is available to save an otherwise

untimely claim under the Federal Tort Claims Act

App. 13

“when a petitioner shows (1) that he pursued his

rights diligently, and (2) that some ‘extraordinary

circumstance’ prevented a timely filing.” Lowe v.

Florida Dept, of Corrections, 679 F.App’x 756, 758

(11th Cir. 2017).1

In support of her equitable tolling argument,

Mrs. White relies on an October 26, 2017 letter from

Dr. Ashish Vyas stating that “she will always have

significant cognitive impairments and somewhat

impairment of function, and I do not expect that she

will have any major improvement, that she can be able

to return to office work.” (Doc. 28 at p. 5; see also Doc.

23-4). Although the court finds such support

insufficient to demonstrate a right to equitable tolling,

the court cannot conclude from the current state of the

record that no set of circumstances exist under which

equitable tolling might be appropriate. Sufficient

information regarding the extent and duration of Mrs.

White’s mental deficits simply cannot be determined

from the face of the pleadings and annexed

evidentiary materials. No matter how high the burden

might be for a party to establish equitable tolling on

the basis of mental disability—and the burden is

indeed lofty—it would be inappropriate for the court

to make a conclusive determination at this

preliminary stage. Such a fact-dependent argument is

better suited for resolution upon a more fully

developed record.

Before allowing this case to proceed to

discovery, however, the court must be satisfied that all

1 It is equally recognized that “equitable tolling is an

‘extraordinary remedy’ that should be used ‘sparingly.’”

Echemendia v. United States, 710 F.App’x 823 (11th Cir. 2017)

(citing Arce v. Garcia, 434 F.3d 1254, 1261 (11th Cir. 2006)).

App. 14

other threshold hurdles have been cleared. It is

axiomatic that medical malpractice claims against the

government, even though brought under the

framework of the Federal Tort Claims Act, are

controlled by the substantive law of the state in which

the alleged malpractice occurred. See 28 U.S.C. §

1346(b)(1); Rushing v. United States, 288 F.App’x 616,

620 (11th Cir. 2008). Because the alleged medical

malpractice suffered by Mrs. White occurred in

Alabama, and because the Federal Tort Claims Act

only permits liability against the government to the

extent liability would exist against a private party, the

court must examine carefully the Alabama Medical

Liability Act, Ala. Code § 6-5-480 et seq.

As pertinent here, the Alabama Medical

Liability Act contains a four-year rule of repose that •

eliminates any need for the court or the parties to

further address Mrs. White’s mental state. Section 65-482(a), Ala. Code 1975, expressly provides that “in

no event may the action be commenced more than four

years after such act [of alleged malpractice].”

(Emphasis added). Unlike the general two-year

statute of limitations for asserting medical

malpractice claims, which can be tolled on various

statutory grounds including mental defect, § 6-5482(b) reiterates “that notwithstanding any provisions

of such sections, no action shall be commenced more

than four years after the act, omission, or failure

complained of... .” (Emphasis added); Ex parte Hodge,

153 So. 3d 734, 745 (Ala. 2014) (recognizing that the

four-year period in § 6-5-482 is a period of repose); see

also Thomas Jefferson Foundation, Inc. v. Jordan, 200

So. 3d 645, 653-54 (Ala. 2016) (explaining that rules of

repose are matters of substantive law and are not

App. 15

subject to tolling)2.

The Eleventh Circuit has recognized that state

law rules of repose are controlling in this context. See

Simmons v. United States, 421 F.3d 1199 (11th Cir.

2005) (affirming dismissal where medical malpractice

action was filed after expiration of the statutory period

of repose); see also Simmons v. Sonyika, 394 F.3d 1335

(11th Cir. 2004) (certifying question to Georgia

Supreme Court to ensure proper application of state

law rule of repose in medical malpractice action).3 The

court therefore is compelled to find this action time

barred notwithstanding any potential degree to which

Mrs. White might suffer from mental deficits. See Ex

parte Sonnier, 707 So. 2d 635, 640 (Ala. 1997) (holding

that circumstances “can toll the running of the

limitations period” under the Alabama Medical

Liability Act but “cannot operate to extend the date

beyond the four-year period of repose”).

2 Unlike statutes of limitation, where timeliness is measured

from the date a claim accrues, rules of repose are based solely

upon the passage of time from the date of the wrongful act. See,

e.g., Boshell v. Keith, 418 So. 2d 89, 91 (Ala. 1982) (“[T]he only

element of the rule of repose is time. It is not affected by the

circumstances of the situation, by personal disabilities, or by

whether prejudice has resulted or evidence obscured.”). The fouryear rule of repose under the Alabama Medical Liability Act

begins to run upon “the act, omission, or failure complained of.”

Ala. Code § 6-5-482(b). Perhaps it could be debated whether the

measuring date would be the first instance that Mrs. White was

prescribed Maxalt in February 2010 (Doc. 7-16 at p. 6) or whether

it would be the last such instance in December 2013 (Id. at p. 4).

It is unnecessary for the court to take up that debate, however,

as even the subsequent date of Mrs. White’s actual injury is well

outside the four-year repose period.

3 See also Spann v. United States, No. ll-cv-23178-KMM, 2012

WL 3776684, *5 (S.D. Fla. Aug. 30, 2012) (“Therefore, any

Plaintiff who did not bring their claim within four years of their

App. 16

colonoscopy is barred under Florida’s statute of repose.”). That

view appears consistent among numerous other circuits. See

Bennett v. United States, 44 F.4th 929 (9th Cir. 2022); Augutis

v. United States, 732 F.3d 749 (7th Cir. 2013); Huddleston v.

United States, 485 F.App’x 744 (6th Cir. 2012); Smith v. United

States, 430 F.App’x 246 (5th Cir. 2011); Anderson v. United

States, 669 F.3d 161 (4th Cir. 2011).

IV. Conclusion

Based upon the foregoing, the Magistrate Judge

hereby RECOMMENDS as follows:

•

that the government’s motion to dismiss (Doc.

25) be GRANTED as to all claims asserted by

Patrick J. White and that Patrick J. White be

DISMISSED as a party plaintiff;

•

that the government’s motion to dismiss (Doc.

25) be GRANTED as to all claims asserted by

Dawn M. White and that all claims asserted by

Dawn M. White be DISMISSED as barred by

the four-year rule of repose under Ala. Code § 65-482.

It is further ORDERED that, by October 18, 2022, the

parties may file written objections to this

Recommendation. An objecting party must identify

the specific portion of the factual findings or legal

conclusions to which the objection is made and must

describe in detail the basis for the objection. Frivolous,

conclusive, or general objections will not be

considered.

App. 17

Failure to file a written objection to this

Recommendation shall bar a party from a de novo

determination by the District Court of any factual

findings or legal conclusions contained herein and

shall waive the right of the party to challenge on

appeal any subsequent order that is based on factual

findings and legal conclusions accepted or adopted by

the District Court, except upon grounds of plain error

or manifest injustice. 11th Cir. R. 3-1; see Resolution

Trust Co. v. Hallmark Builders, Inc., 996 F.2d 1144,

1149 (11th Cir. 1993); Henley v. Johnson, 885 F.2d

790, 794 (11th Cir. 1989).

DONE this the 4th day of October 2022.

CHAD W. BRYAN

UNITED STATES MAGISTRATE JUDGE

App. 18

In the

United States Court of Appeals

For the Eleventh Circuit

No. 22-13736

DAWN M. WHITE,

PATRICK J. WHITE,

Plaintiffs-Appellants,

Versus

UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court

for the Middle District of Alabama

D.C. Docket No. 2:21-cv-00667-RAH-CWB

App. 19

2

Order of the Court

22-13736

ON PETITION(S) FOR REHEARING AND

PETITION(S) FOR REHEARING EN BANC

Before WILLIAM PRYOR, CHIEF JUDGE, and

WILSON AND LUCK, Circuit Judges.

PER CURIAM:

The Petition for Rehearing En Banc is DENIED, no

judge in regular active service on the Court having

requested that the Court be polled on rehearing en

banc. FRAP 35. The Petition for Rehearing En Banc is

also treated as a Petition for Rehearing before the

panel and is DENIED. FRAP 35, IOP 2.

(Entered August 1, 2023)

App. 20

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

DAWN M. WHITE, et al„ )

)

Plaintiff,

)

V

Civil Action No.:

) 2:21-cv-667-RAH-SRW

)

)

UNITED STATES OF

AMERICA,

)

)

)

)

UNOPPOSED MOTION TO EXTEND TIME

IN WHICH TO FILE A RESPONSIVE

PLEADING

The United States respectfully submits the following

Unopposed Motion to Extend Time To Which to File a

Responsive Pleading. The responsive pleading is

currently due March 6, 2022. Doc. 14. The United

States respectfully requests a thirty-day extension of

this deadline through and including April 5, 2022. The

United States needs this time to analyze the claims

against it, communicate with the relevant agency, and

prepare a defense. Mr. White does not oppose this

extension.

Wherefore, the United States respectfully requests

and extension of time through and including April 5,

2022, in which to file a responsive pleading.

App. 21

Respectfully submitted this 2d day of March 2022.

SANDRA J. STEWART

United States Attorney

By: /s/ Stephen D. Wadswmih

STEPHEND. WADSWORTH

Assistant United States Attorney

Bar Number: ASB 9808 E4 7W

United States Attorney's Office

Middle District of Alabama

P.O. Box 197

Montgomery, AL 36101-0197

Telephone: 334-223-7280

Facsimile: 334-223-7201

Email:

Stephen.Wadsworth@usdoj.gov

App. 22

CERTIFICATE OF SERVICE

I hereby certify that on March 2, 2022,1 electronically

filed the foregoing with the Clerk of the Court using

the CM/ECF system, and I hereby certify that I have

mailed, by United States Postal Service, a copy of

same to the following non-CM/ECF participant:

Patrick J. and Dawn M. White

Prattville, AL 36066

/s/Stephen D. Wadsworth

Assistant United States Attorney

App. 23