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Bane v. United States

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

October 25, 2018

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



         Plaintiff 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, 26.

         In 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.

         1. Standard

         The 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).

         2. Facts

         Plaintiff has been housed at three institutions during his incarceration: the Federal Holding Center in Citrus, Florida[1]; 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.

         Plaintiff 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.”[2] 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.

         A new 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.

         Plaintiff's 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.

         On 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.

         A BOP 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[3] 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.[4] ECF No. 1 at 58.

         3. Discussion

         The 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 ...

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