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Green v. United States

United States District Court, W.D. Tennessee, Western Division

January 3, 2017

TIMOTHY GREEN, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          S. THOMAS ANDERSON, UNITED STATES DISTRICT JUDGE

         Plaintiff Timothy Green filed this action against the United States pursuant to the Federal Tort Claims Act (“FTCA”), alleging that, while he was incarcerated at the Federal Correctional Institute (“FCI”) in Talladega, Alabama, he received negligent medical care for a knee injury.[1](ECF No. 1.) The United States has filed a motion for summary judgment (ECF No. 26), Plaintiff has filed a response to the motion (ECF No. 30), and the United States has filed a reply to the response. (ECF No. 33.) For the reasons set forth below, the motion for summary judgment is GRANTED.

         Standard of Review

         Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”[2]When deciding a motion for summary judgment, the court must review all the evidence and draw all reasonable inferences in favor of the non-movant.[3] In reviewing a motion for summary judgment, the Court views the evidence in the light most favorable to the nonmoving party, and it “may not make credibility determinations or weigh the evidence.”[4] When the motion is supported by documentary proof such as depositions and affidavits, the nonmoving party may not rest on his pleadings but, rather, must present some “specific facts showing that there is a genuine issue for trial.”[5] These facts must be more than a scintilla of evidence and must meet the standard of whether a reasonable juror could find by a preponderance of the evidence that the nonmoving party is entitled to a verdict.[6] When determining if summary judgment is appropriate, the Court should ask “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.”[7] The Court must enter summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial.”[8]

         As an initial matter, the United States contends that Plaintiff has not complied with Rule 56.1 of the Local Rules of this Court. Local Rule 56.1(a) requires that any motion for summary judgment be “accompanied by a separate, concise statement of the material facts as to which the moving party contends there is no genuine issue for trial.”[9] Any party opposing summary judgment must respond to each fact stated by the movant by agreeing that it is undisputed, agreeing that it is undisputed for purposes of ruling on the summary judgment motion only, or by demonstrating that the fact is disputed, with specific citations to the record.[10] “Failure to respond to a moving party's statement of material facts ... shall indicate that the asserted facts are not disputed for purposes of summary judgment.”[11] Rule 56(e) of the Federal Rules of Civil Procedure also provides that if a party “fails to properly address another party's assertion of fact ..., the court may consider the fact undisputed for purposes of the motion.”[12]

         In the present case, even after the United States pointed out in its reply that Plaintiff failed to respond to the statement of material facts, Plaintiff did not request leave to file a supplemental response. Thus, the Court will deem each of the United States' facts as undisputed for purposes of summary judgment.

         Statement of Material Facts[13]

         1. On July 7, 2014, Plaintiff filed an administrative tort claim with the Federal Bureau of Prisons (“BOP”), alleging that he injured his left knee on August 8, 2012, while incarcerated at FCI in Talladega, Alabama.

         2. In his administrative tort claim, Plaintiff complained that his August 8, 2012, injury was untreated for eight weeks and that, at the end of the eight week period, it was too late to surgically repair his “untreated fractured patella.” 3. While incarcerated, Plaintiff received medical care from BOP staff health care providers working at FCI. For medical specialty services beyond those provided by BOP staff -such as x-rays, MRIs, and examinations by an orthopedic surgeon - the BOP contracted with non-federal providers to furnish those services to Plaintiff. Specifically, during the relevant time period, Plaintiff received the following treatment:

(a) August 9, 2012. Plaintiff reported to the FCI Health Services Clinic (“the Clinic”) for morning sick call and reported that “[w]hile I was walking on the steps towards the recreation yard I was out of balance and twisted my left knee.” BOP medical staff conducted a full examination of body systems, diagnosed knee sprain, provided prescription-strength pain reliever, wrapped Plaintiff's knee, offered crutches (declined), and prescribed five days of convalescence. They also told Plaintiff to “Follow-up at Sick Call as Needed.”
(b) August 28, 2012. Plaintiff did not “follow-up at sick call” until nineteen days later after his initial visit. On that date, he complained of continued pain and other symptoms of his knee injury. Clinic staff examined him, continued the prescription for pain relief, wrapped the knee, offered crutches (declined), and ordered convalescence. They also ordered an x-ray and an MRI.
(c) October 4, 2012. Plaintiff missed his appointment for an x-ray of his knee.
(d) October 11, 2012. The Clinic had an outside contractor, DIAN Associates, perform an x-ray of Plaintiff's knee. Based on the radiology report, the Clinic continued the previous course of treatment, offered a knee brace, continued with the planned MRI, and ordered a consultation with an outside orthopedic specialist.
(e) October 19, 2012. Plaintiff had an MRI. The BOP sent him to a contractor, Coosa Valley Medical Center, for the procedure.
(f) October 25, 2012. The BOP sent Plaintiff to an outside orthopedic surgeon, Dr. Anthony Tropeano, for consultation. Dr. Tropeano reviewed the x-ray report and the MRI reports, and he examined Plaintiff. He recommended continuing the course of treatment the Clinic had already begun and recommended a follow-up examination.
(g) December 18, 2012. A Clinic physician reviewed Plaintiff's chart, including the report from Dr. Tropeano's consultative examination.
(h) January 8, 2013. Plaintiff reported to the Clinic with a complaint of continued soreness and decreased range of motion. The Clinic staff renewed the prescription pain reliever, issued a lower bunk permit, and told Plaintiff to “Follow-up at Sick Call as Needed.
(i) March 1, 2013. Plaintiff reported to the Clinic's Chronic Care sick call for follow-up examination and prescription renewal.
(j) March 21, 2013. Plaintiff reported to the Clinic's Chronic Care sick call for follow-up examination and prescription renewal. The Clinic ordered chest x-rays for conditions unrelated to the knee.
(k) April 4, 2013. Plaintiff missed the appointment for his chest x-ray.
(1) April 11, 2013. Plaintiff missed the appointment for his chest x-ray.
(m) April 18, 2013. Plaintiff missed the appointment for his chest x-ray.
(n) May 22, 2013. A Clinic physician ordered blood laboratory test for condition unrelated to the knee.
(o) June 10, 2013. Dr. Tropeano, the contracting orthopedic surgeon, saw Plaintiff again. Dr. Tropeano noted “no worsening of his symptomology” and administered injections of Lidocaine, Marcaine, and Depo-Medrol. He also recommended a follow-up examination in a few weeks.
(p) August 14, 2013. Plaintiff missed his appointment for a follow-up examination by Dr. Tropeano.
(q) August 26, 2013. Plaintiff reported to the Clinic sick call, complaining of conjunctivitis and continued knee pain.
(r) October 23, 2013. Plaintiff missed his appointment for a follow-up examination by Dr. Tropeano.
(s) October 25, 2013. Plaintiff reported to the Clinic sick call complaining of itchy swollen eyes.
(t) October 29, 2013. Plaintiff reported to the Clinic sick call complaining of itchy swollen eyes.
(u) October 31, 2013. Plaintiff was seen in the Clinic's Chronic Care for treatment of high blood pressure.
(v) December 18, 2013. After missing two prior appointments to see Dr. Tropeano, Plaintiff was seen on this date. Dr. Tropeano made a hand-written note to the chart, signed “AT.” He noted that the “inj[ection] helped for 3 weeks” but the pain had returned. He recommended a bottom bunk and continued pain prescription. Dr. Tropeano also recommended a new MRI.
(w) May 5, 2014. Coosa Valley Medical Center did another MRI of Plaintiff's knee.
(x) May 13, 2014. A Clinic physician reviewed the MRI report and ordered another consultation with the orthopedist.

         4. Plaintiff was released from custody on July 1, 2014.

         5. Dr. Anthony Tropeano was not a federal employee. He saw BOP inmates, including Plaintiff, pursuant to his federal contract for those services. Similarly, DIAN Associates and Coosa Valley Medical Center (the x-ray and MRI providers) were non-federal entities.

         6. After his release, Plaintiff went to Campbell Clinic for treatment by Dr. James W. Harkess. Dr. Harkess saw Plaintiff three times: August 1, 2014, September 12, 2014, and October 30, 2014. Dr. Harkess diagnosed chronic osteoarthritis and an ACL tear. The chronic degeneration from osteoarthritis had been seen in the two MRIs that the BOP received. The ACL tear that Dr. Harness found was a new problem not present when Plaintiff had his two previous MRIs.

         7. Dr. Harkess' final chart note reads as follows:

HISTORY OF PRESENT ILLNESS: Timothy Green returns for a recheck of the ACL tear of the left knee with some early osteoarthritic changes. He does have some mild instability symptoms in the knee. No definite locking. He is working on the exercises on his own. He is able to work. He overall seems to be doing reasonably well with it. It swells intermittently. He really does not have to take medication for it. His gait looks normal walking without support. There is no effusion present today. He does have a positive Lachman with pivot shift. Negative McMurray, both medial and lateral. He retains full motion. Minimal crepitation with active motion.
TREATMENT: We discussed options and I do not think he should consider any surgical intervention for this just yet, although certainly may require total knee replacement in the future. He is going to live with it as is for now. I will be happy to see him back if he is having more in the way of mechanical symptoms or flare-up of pain with his arthritic changes.

         8. The Clinic at FCI Talladega had open sick call, and Plaintiff could report to sick call as he saw fit. This is confirmed by BOP medical record notations to ...


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