United States District Court, D. South Carolina, Charleston Division
Ben W. Bane, #51157-018, Plaintiff,
United States of America, Defendant.
OPINION AND ORDER
CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE
brought this complaint pursuant to the Federal Tort Claims
Act, 28 U.S.C. § 1346, alleging negligent medical care
during his incarceration in the Bureau of Prisons
(“BOP”). ECF No. 1. This matter is before the
court on Defendant's Motion to Dismiss or, in the
alternative, for Summary Judgment. ECF No. 22. Because
Plaintiff is proceeding pro se, a Roseboro
Order was sent advising Plaintiff of the importance of a
dispositive motion and the need for Plaintiff to file an
adequate response. ECF No. 23. Plaintiff filed his response
in opposition and a supplement to his response. ECF Nos. 25,
accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02 (B)(2)(e), D.S.C., this matter was referred to United
States Magistrate Judge Mary Gordon Baker for pre-trial
proceedings and a Report and Recommendation
(“Report”) on dispositive issues. On September
10, 2018, the Magistrate Judge issued a Report recommending
Defendant's motion be granted and this matter be
dismissed without prejudice. ECF No. 31. The Magistrate Judge
advised the parties of the procedures and requirements for
filing objections to the Report and the serious consequences
if they failed to do so. Plaintiff filed objections to the
Report on September 28, 2018. ECF No. 34.
Magistrate Judge makes only a recommendation to this court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
court. See Mathews v. Weber, 423 U.S. 261 (1976).
The court is charged with making a de novo
determination of any portion of the Report of the Magistrate
Judge to which a specific objection is made. The court may
accept, reject, or modify, in whole or in part, the
recommendation made by the Magistrate Judge or recommit the
matter to the Magistrate Judge with instructions.
See 28 U.S.C. § 636(b).
has been housed at three institutions during his
incarceration: the Federal Holding Center in Citrus,
Florida; the Federal Correctional Complex in
Forrest City, Arkansas, and the Federal Correctional
Institution in Estill, South Carolina. Before he was
sentenced, Plaintiff was diagnosed with a “painful left
foot deformity” by Dr. Steven Blustein, who opined
“the nature of this deformity will require surgical
management in the future.” ECF No. 1-1 at 8. Plaintiff
was unable to have the surgery before he was incarcerated,
and alleges his feet remained painful.
pursued medical treatment many times regarding his feet. He
was placed on the waiting list for podiatry at Forrest City,
and saw the podiatrist on March 9, 2012. ECF No. 1-1 at 15.
That podiatrist, Dr. Khumato, noted bunions and a dislocated
joint in Plaintiff's left foot. Id. at 16.
Surgical correction was recommended to correct the hallux
valgus deformity. Id. However, on December 6, 2012,
the Utilization Review Committee (“URC”) denied
Plaintiff's “consult for
podiatry.” Id. at 21. Per a Health Services
Clinical Encounter note dated February 26, 2013, the
instructions from the URC were to “treat conservatively
with toe separators and pain management.” Id.
at 25. He was given toe separators and referred to commissary
for insoles. Id. at 26. Although Plaintiff filed an
administrative grievance charging lack of adequate medical
treatment, it was denied and Plaintiff was instructed to
follow up in sick call. Id. at 27. On April 25,
2013, the Warden responded to Plaintiff's continued
grievance, noting “the Clinical Director has the option
to treat your medical conditions with conservative
measures.” Id. at 32. Plaintiff appealed, but
the appeal was denied by J.A. Keller, Regional Director, on
July 1, 2013. Id. at 39.
consultation for podiatry was requested per a Health Services
Clinical Encounter note “Chronic Care encounter”
on May 1, 2013. Id. at 35. On May 2, 2013, the
Clinical Director sent a memorandum to Plaintiff noting the
request for Podiatry had been reviewed by the URC but did
“not meet the medical criteria as determined by the URC
and will be sent to the Regional Medical Director for
decision.” Id. at 37.
feet were x-rayed on May 22, 2013, and the results reviewed
by Health Services on June 21, 2013. Id. at 44, 45.
Health Services requested a consultation with an orthopedist
based on these x-rays. Id. at 45. On July 16, 2013,
Plaintiff was seen by Dr. Sokoloff, an orthopedist at
OrthoNow. Id. at 46. Medical records reveal Dr.
Sokoloff noted “patient needs bilateral foot surgery.
Start with left, more severe foot. Recommend bunion surgery
and likely 2nd metatarsal phalange joint resection.
Alternative would be custom fitted, wide toe box, stiff sole,
cushioned shoes. . . . Please advise on how you would like to
proceed.” Id. at 50. On July 25, 2013, the URC
denied the request for Prosthetics/Orthotics at an outside
physician's office, and “referred for on-site
consultation” for shoes as recommended. Id. at
59. On September 5, 2013, Plaintiff was seen by BOP Health
Services, who had received Dr. Sokoloff's notes. At that
visit, the provider noted “will write consult”
and “please schedule surgery as recommended with
assistance from podiatry.” Id. at 63. However,
on September 12, 2013, the orthopedic request was denied by
the URC as it “did not meet the medical criteria as
determined by the URC and will be sent to the Regional
Director for decision.” Id. at 64. There is no
record of Regional Director action on this request.
March 11, 2014, Plaintiff saw Health Services at Estill for
his 14 day evaluation for admission. Id. at 66. The
Acting Clinical Director, Dr. Reed, performed this
evaluation. Medical records note Dr. Reed “will place
request for an orthotis [sic] consult for custom
shoes.” Id. at 68. On March 26, 2014, the URC
at Estill deferred the medical consult for surgery.
Id. at 69. Plaintiff was seen by Carolina Foot
Specialists, Dr. Brown, on April 24, 2014. Id. at
72. Dr. Brown requested Plaintiff “be allowed to return
for casting of custom orthotics to alleviate load to the
painful areas. He also needs to switch to a wider (4E) shoe
to avoid pressure to the area.” Dr. Brown noted
“if this fails to alleviate the symptoms then I am
recommending surgical correction of the bunion and hammertoe
deformity of the left foot.” Id. at 73. On
July 30, 2014, Plaintiff was seen by Positive Image
Prosthetics and Orthotics for soft soled shoes and custom
inserts. ECF No. 1-2 at 1.
Health Services Clinical Encounter note on May 7, 2015,
requested a podiatry referral. Id. at 4. On October
13, 2015, another Health Services note referred Plaintiff to
podiatry. Id. at 9. However, the URC denied the
podiatry consult on December 2, 2015, and instead Plaintiff
was “placed on waiting list for in-house orthotics
clinic.” Id. at 11. A Health Services note on
April 7, 2016, includes “chronic foot pain x 5 year . .
. [h]e has custom orthotic but has had no relief with these
orthotics I will refer him back to podiatry.”
Id. at 18. Another Health Services note from October
4, 2016 again states “[h]e need [sic] casting for
custom orthotic . . . orthotic has not provided this for him
I will refer him back to podiatry for this custom
fitting.” Id. at 22. However, the next Health
Services note on October 26, 2016, states the “consult
for podiatry was denied disapproved” and referred him
to the in-house orthotics clinic. Id. at 26. On
January 23, 2017, a Health Services provider referred
Plaintiff back to podiatry as his feet had not improved.
Id. at 36. A note on March 7, 2017, states
“Had been evaluated by 2 podiatrist who recommended
surgery. A repeat podiatry consult is pending his podiatry
consult was disapproved previously however he is still having
pain in his feet despite custom fitted orthotics.”
Id. at 51. On March 16, 2017, Plaintiff was seen by
Positive Image Prosthetics and Orthotics again, and received
comfort tennis shoes and custom inserts. Id. at 55.
Plaintiff was seen by Podiatrist Dr. Brown again on April 18,
2017, at which time he described Plaintiff as a new
patient and recommended flat, cushioned shoes and
reduced activity. Id. at 56-57. Plaintiff alleges
the shoes furnished did not alleviate his pain, and his body
continues to “deteriorate” due to his untreated
foot deformity. ECF No. 1 at 58.
Magistrate Judge recommended dismissal of any claims related
to pre-March 2015 conduct because Plaintiff failed to exhaust
his administrative remedies for that time period, and
post-March 2015 claims because Plaintiff failed to file an