                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-2016


MICHAEL JAMES KEITZ,

                Plaintiff - Appellant,

          v.

UNNAMED SPONSORS OF COCAINE RESEARCH STUDY; COMMONWEALTH OF
VIRGINIA; UNIVERSITY OF VIRGINIA AND MEDICAL CENTER; UNNAMED
DIRECTOR OF UVA CENTER FOR ADDICTION RESEARCH; UVA CENTER
FOR ADDICTION RESEARCH; UNNAMED #1, MALE NURSE, UVA CARE;
UNNAMED #2 MALE DOCTOR, UVA CARE; UNNAMED #3 FEMALE RESEARCH
ASSISTANT, UVA CARE; UNNAMED #4, 5, 6 MALE E.R. DOCTORS, UVA
MEDICAL CENTER,

                Defendants - Appellees.



Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Glen E. Conrad, Chief
District Judge. (3:11-cv-00054-GEC)


Submitted:   February 29, 2012            Decided:   February 15, 2013


Before MOTZ, KING, and DUNCAN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Michael James Keitz, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            In    forma     pauperis   litigant,            Michael    James   Keitz,

brought this action on August 26, 2011, against Unnamed Sponsors

of Cocaine Research Study, the Commonwealth of Virginia, the

University of Virginia Medical Center, and several individuals,

alleging    state     law    claims    for       medical      negligence,      medical

malpractice and technical battery. 1              The district court dismissed

Keitz’s claims on September 1, 2011, after a 28 U.S.C. § 1915

(2006)    review.      After    reviewing        the    record    and    considering

Keitz’s arguments, we affirm in part and vacate in part and

remand to the district court. 2

            We discern no error in the district court’s decision

to dismiss Keitz’s technical battery claim as frivolous.                            See

Neitzke    v.    Williams,    490   U.S.       319,   328    (1989);    Nagy   v.   FMC

Butner,    376      F.3d     252,   254-55        &    n.*     (4th     Cir.   2004).



     1
       Because Keitz currently resides in New York State, all of
the defendants appear to be citizens of Virginia, and Keitz
sought $1,000,000 in damages, the district court had diversity
jurisdiction over Keitz’s claims.    See 28 U.S.C. § 1332 (2006)
(providing that diversity jurisdiction exists when there is
complete diversity and the amount in controversy exceeds
$75,000, exclusive of interest and costs).
     2
       During the pendency of this appeal, Keitz noted a separate
appeal (No. 12-1640) in the same district court action. Appeal
No. 12-1640 was subsequently dismissed for failure to prosecute,
and Keitz did not file a motion to reopen that appeal.
Accordingly, we now proceed with our disposition of the present
appeal.



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Accordingly,     we    affirm     that   portion      of       the    district     court’s

order.

            We    nonetheless      vacate      the   portion          of    the   district

court’s order sua sponte dismissing Kietz’s medical negligence

and medical malpractice claims for allegedly failing to comply

with Va. Code Ann. § 8.01-20.1 (2007).                Under § 8.01-20.1,

      Every motion for judgment, counter claim, or third
      party claim in a medical malpractice action, at the
      time the plaintiff requests service of process upon a
      defendant, or requests a defendant to accept service
      of process, shall be deemed a certification that the
      plaintiff has obtained from an expert witness . . . a
      written opinion signed by the expert witness that
      . . . the defendant for whom service of process has
      been requested deviated from the applicable standard
      of care and the deviation was a proximate cause of the
      injuries claimed.

Id.      Thus,    if    a   defendant      provides        a    written       request,    a

plaintiff   must,       within    ten    business     days       of    receiving        that

request, “provide the defendant with a certification form that

affirms that the plaintiff had obtained the necessary certifying

expert opinion at the time service was requested[.]”                              Id.     If

the   plaintiff    fails     to   obtain       a   necessary         certifying     expert

opinion at the time the plaintiff requested service of process

on the defendant, § 8.01-20.1 directs that the court “impose

sanctions . . . and may dismiss the case with prejudice.”                           Id.

            As    the       district     court       correctly             recognized,    a

plaintiff need not provide a § 8.01-20.1 certification if the

plaintiff “alleges a medical malpractice action that asserts a

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theory     of      liability          where     expert      testimony          is    unnecessary

because the alleged act of negligence clearly lies within the

range    of     the    jury’s         common    knowledge        and    experience.”              Id.

Virginia      courts        have       observed,      however,         that     only       in    rare

circumstances         will       expert      testimony      in    a    medical       malpractice

action be unnecessary.                 See Beverly Enter.-Va., Inc. v. Nichols,

441 S.E.2d 1, 3 (Va. 1994) (noting that only rarely do the

alleged acts of medical negligence fall within the range of a

factfinder’s common knowledge and experience).                                We conclude that

the     district       court          correctly       determined        that        whether       the

Defendants committed malpractice or were negligent during the

drug study requires expert testimony.

              We      nonetheless         conclude      that     it     was    error       for    the

district court to dismiss Keitz’s complaint based on § 8.01-

20.1,    because           the    record       reflects       that     Keitz        had    neither

requested service of process upon a defendant nor requested a

defendant to accept service of process.                          See Lents v. Vetter, 80

Va. Cir. 268, 2010 WL 7375603, at *2 (Va. Cir. Ct. (Fairfax)

2010)    (holding          that       defendant       was     not      entitled       to    demand

verification          of    expert      witness       certification           where       defendant

voluntarily filed answer without being served with complaint or

requested to formally waive service of process, and recognizing

that     because           § 8.01-20.1          “contemplates            dismissal           of     a

plaintiff’s        action        as    the     result    of      noncompliance            with    the

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certification — a harsh remedy — the statute is to be read

narrowly”); Bolte v. Williams, 2006 WL 2578371, at *3-*4 (Va.

Cir. Ct. (Fairfax) 2006) (denying motion to dismiss predicated

on   § 8.01-20.1     where      plaintiff       did   not   authorize      service    of

process,     and    acknowledging         that    “[t]he      statute     specifically

makes    a   distinction        as   to   the    time   service      of    process    is

requested      by   the   plaintiff”)        (internal        quotation     marks    and

citation omitted).

             Based on the foregoing, we affirm in part and vacate

in part and remand the matter to the district court for further

proceedings.        We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials

before   the    court     and    argument       would   not    aid   the   decisional

process.

                                                                  AFFIRMED IN PART,
                                                                   VACATED IN PART,
                                                                       AND REMANDED




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