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Bane v. United States

United States District Court, D. South Carolina, Charleston Division

September 10, 2018

Ben W. Bane, # 51157-018, Plaintiff,
v.
United States of America, Defendant.

          REPORT AND RECOMMENDATION

          MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, proceeding pro se and in forma pauperis, brought this action pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq., alleging negligent medical care. (Dkt. No. 1; see 28 U.S.C. § 1346.) This matter is before the Court upon a Motion to Dismiss, or in the alternative, Motion for Summary Judgment filed by the United States. (Dkt. No. 22.) For the reasons set forth herein, the undersigned recommends granting Defendant's motion.

         Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) and Local Rule 73.02(B)(2)(e), D.S.C., all pretrial matters in cases involving pro se litigants are referred to a United States Magistrate Judge for consideration.

         BACKGROUND

         In the instant action, Plaintiff complains about events that occurred while he was in federal custody from December of 2010 to April of 2017. Specifically, Plaintiff alleges that his medical needs have been “delayed to the point that they were denied” while housed at: (1) the Federal Holding Center (“FHC”) in Citrus, Florida; (2) the Federal Correctional Complex (“FCC”) in Forrest City, Arkansas; and (3) the Federal Correctional Institution in Estill, South Carolina (“FCI Estill”). (Dkt. No. 1 at 1-3.) Plaintiff expressly files this claim under the FTCA, alleging that he was “neglected by denying proper medical attention to [his] foot for a prolonged period of time.” (Id. at 2-3.) Specifically, Plaintiff alleges that from December 10, 2010, to October 13, 2011, while he was housed at the FHC in Florida, he was denied proper medical care “for [his] extremely painful foot.” (Dkt. No. 1 at 2, 13, 17-18.) Plaintiff further alleges he did not receive proper medical care for his feet while he was at the FCC in Arkansas, from October 14, 2011 to March 10, 2014. (Id. at 2, 18-32.) Plaintiff alleges that his care did not improve once he arrived at FCI Estill on March 11, 2014, and that the negligent medical care continued through April of 2017. (Id. at 33-61.)

         Plaintiff cites to his medical record, including records from FCI Estill, to support his allegations. (Dkt. Nos. 1; 1-1.) Plaintiff was seen by FCI Estill Health Services (“Health Services”) on May 1, 2015, complaining that his “toe has been dislocated for four years.” (Dkt. No. 1-2 at 2.) A “Sick Call Note encounter” dated May 7, 2015, references an “orthopedic consult dated 4/25/2014” that “suggest[ed] surgery if symptoms continue after having shoes.” (Id. at 3.) On September 17, 2015, Plaintiff reported to Health Services, complaining of “left knee pain for over 2 months.” (Id. at 5.) The examination notes from this date state, inter alia, “Full ROM to all extremities noted. No. swelling or deformity, muscle with normal bulk and tone. Left knee w/o effusion, no crepitus, full ROM with hyperextension and forward extension. . . . Left knee xray will be ordered.” (Id. at 6.) On October 13, 2015, Plaintiff reported to Health Services a “throbbing pain” in his left foot that he had experienced for more than five years. (Id. at 7.) Under, “Assessment, ” Health Services noted, inter alia: “Ankle, foot - Pain in joint, . . . He has a bunion, hammer toes of his 2nd-4th toes and a dislocation at the 2nd MP joint area of his left foot. He has custom orthotic but he has had no relief with these orthotics. I will refer him back to podiatry.” (Id. at 8.) Health Services entered a consultation request for a podiatrist, with a target date of December 1, 2015. (Id. at 9.) Health Services also scheduled chronic care visits for April 5, 2016 and September 29, 2016. (Id. at 10.) Plaintiff received counseling for “plan of care” on October 17, 2015. (Id.) The FCI Estill Utilization Review Committee denied the podiatry medical consult request on December 2, 2015, and indicated that they had placed Plaintiff on a waiting list for the “in-house orthotics clinic.” (Id. at 11.)

         On February 9, 2016, Plaintiff sought relief from Health Services for a skin abscess “just above his left knee” that was drained by a physician. (Id. at 12.) Exam comments from this date note that Plaintiff's problems with his left foot were “unchanged.” (Id. at 14.) On April 7, 2016, Plaintiff sought relief from Health Services for, inter alia, “chronic left foot pain.” (Id. at 16.) Exam notes on this date report a “normal exam” for Plaintiff's ankle, foot, and toes, with a “full range of motion, non-tender on palpation, normal bony landmarks, symmetric.” (Id. at 17.) Administrative notes on this date report that “He has custom foot orthotic but has no relief with these orthotics. I will refer him back to podiatry.” (Id. at 18.) On October 4, 2016, Plaintiff sought relief from Health Services for, inter alia, his “chronic left foot pain.” (Id. at 22.) Under “Assessment, ” Health Services noted “Ankle, foot - Pain in joint, . . . Presents bilateral vagus, bunions, worse at left foot. Also left 2nd MP joint dislocation with pain at walking and swelling. Had been evaluated by 2 podiatrist who recommended surgery.” (Id. at 24.) Health Services prescribed multiple pain medications for his foot, and requested a consultation with a podiatrist with a target date of October 24, 2016. (Id. at 25.) Administrative Notes dated October 26, 2016 state “His consult for podiatry was denied disapproved. The consult needs written [sic] for orthotics to see him in house for casting and custom orthotics to alleviate the load to the painful area of his left foot and for extra wide 4E shoes.” (Id. at 26.) A new consultation request was entered on October 26, 2016, for “prosthetics/orthotics” at the in-house clinic with a target date of November 1, 2016. (Id.)

         On January 17, 2017, Plaintiff sought relief from Health Services for swelling in his leg, and he was prescribed an antibiotic. (Id. at 27-32.) Exam notes state “[b]oth feet with well deformities noted, with extensive areas of dry scaling skin, both heels and plantar aspect.” (Id. at 31.) On January 23, 2017, Plaintiff reported to Health Services that: he “is doing much better, denied leg redness or swelling, also stated his callus like lesions on both feet are much better. Also still c/o bilateral hammertoe and bunion deformities, stated this condition has not improve[d] with wider shoes and claim[s] is doing worse.” (Id. at 35.) Health Services entered a consultation request for a podiatrist, with a target date of March 22, 2017. (Id. at 36.) On February 2, 2017, Plaintiff reported to Health Services, complaining of “deformities in both [his] feet. . . . I know the MLP saw the left foot last time but I want him to see the right foot now.” (Id. at 37.) The Assessment notes that “Ortho will see inmate today.” (Id. at 38.) Treatment notes from “Licensed Prosthetist/Orthotist” David M. Puckett, with Positive Image Prosthetics and Orthotics, Inc., dated March 16, 2017, note: “[Plaintiff] presents with need for orthopedic shoes and inserts. Inmate requires some soft soled shoes and custom inserts. He has bunions and hammer toes and has gotten inserts and shoes in the past and has need for new shoes. Seen last visit for mmt for new shoes . . . custom tennis shoes and custom inserts x 1 pr and delivered today. We will f/u with inmate now prn.” (Id. at 55.)

         The Complaint alleges that four expert medical specialists have recommended Plaintiff have surgery on both of his feet, but the Bureau of Prisons (“BOP”) has ignored these recommendations. (Dkt. No. 1 at 15-16.) Plaintiff alleges that as a result of the neglect and lack of medical care, he has equilibrium problems and suffers “deteriorating and irreversible harm.” (Id. at 6.) He seeks compensation for $ 43, 000, 000.00 against the United States. (Id. at 63.) In his Proper Form Complaint (Dkt. No. 1-4) attached as an exhibit to his Complaint (Dkt. No. 1), Plaintiff plainly states that he is only bringing a negligence claim under the FTCA and emphasizes that his “claim is not a Bivens claim, nor a claim for a constitutional violation.” (Dkt. No. 1-4 at 21; see Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).)

         Plaintiff brought the instant action on or about December 13, 2017. (Dkt. No. 1.) On May 22, 2018, Defendant filed a Motion to Dismiss, or in the alternative, Motion for Summary Judgment. (Dkt. No. 22.) By Order filed May 23, 2018, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Plaintiff was advised of the dismissal procedure and the possible consequences if he failed to adequately respond to the motion. (Dkt. No. 23.) Plaintiff filed a Response in Opposition to Defendant's motion and a supplement to his response on June 11, 2018 and August 8, 2018, respectively. (Dkt. Nos. 25; 26.)

         STANDARDS

         A. Liberal Construction of Pro Se Complaint

         Plaintiff brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, a pro se complaint is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means that only if the court can reasonably read the pleadings to state a valid claim on which the complainant could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the complainant's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

         B. Rule 12(b)(6) ...


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