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Baxter v. United States

United States District Court, E.D. Virginia, Alexandria Division

July 6, 2016

JAMES O. BAXTER II, Plaintiff,



         Pro se Plaintiff James O. Baxter II brought this Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671, et seq., action to remedy the allegedly negligent and constitutionally deficient medical care he received while in custody at a federal correctional facility. The matter is currently before the Court on intiff’s constitutional tort claims. The Court will dismiss Plaintiff’s negligence claim without prejudice, with leave to file an amethe United States’[1] motion to dismiss and motion for summary judgment. For the following reasons, the Court will dismiss Planded complaint within fourteen (14) days of entry of the accompanying Order.

         I. Background[2]

         Plaintiff James O. Baxter II (“Baxter” or “Plaintiff”) was incarcerated at Federal Correctional Complex Petersburg (“FCC Petersburg”) from August 2006 through November 2014. During the term of his confinement, Baxter was a chronic care patient who received regular medical treatments for hypertension, genital herpes, and other afflictions. (See Pl.’s Ex. D [Dkt. 1-4] at 1.[3]) Around December 2009, Baxter complained to the FCC Petersburg medical staff that he was experiencing pain in his genital region. (Compl. ¶ 10.) When the pain did not subside, Baxter persistently requested to see an urologist. (Compl. ¶ 11.)

         During a consultation with an FCC Petersburg mid-level practitioner (“MLP”)[4] in March 2010, Baxter expressed concern that he might have Peyronie’s Disease. (Compl. ¶ 12.) Peyronie’s Disease is associated with a build-up of plaque or calcium deposits in the penile shaft, causing various degrees of curvature in the penis, accompanied by pain and discomfort. (Pl.’s Ex. B [Dkt. 1-2] at 28.) Without conducting a physical examination, the MLP concluded that Baxter did not have Peyronie’s Disease and that an urologist examination was not required. (Compl. ¶ 12.)

         Baxter’s complaints of pain and requests for examination by a specialist continued through 2010 and into 2011. In August 2011, an MLP examined Baxter’s genital region and concluded there was no “penile deformities” or other physical indicators of Peyronie’s Disease. (Pl.’s Ex. D [Dkt. 1-4] at 1.) Nonetheless, the MLP submitted a request for Baxter to see a specialist. (Pl.’s Ex. D at 1.) A month later, an urologist named Dr. Bigley examined and diagnosed Baxter as suffering from Peyronie’s Disease. (Compl. ¶ 13; Bigley Report [Dkt. 1-1] at 15.) The specialist recommended that Baxter begin taking Vitamin E and return for a check-up a month later. (Bigley Report.)

         After Dr. Bigley’s initial diagnosis, Baxter repeatedly requested attention from a specialist to treat his Peyronie’s Disease. (Compl. ¶¶ 14-18.) Dr. Bigley, however, was no longer under contract with FCC Petersburg and Medical Director Dr. Laybourn allegedly refused to allow Baxter to receive treatment from an “outside” urologist. (Compl. ¶ 15.) Eventually FCC Petersburg obtained a new contract urologist, Dr. Duck, whom Baxter visited in April 2012-eight months after Dr. Bigley’s initial diagnosis. (Pl.’s Ex. A [Dkt. 1-1] at 3.) Dr. Duck confirmed the presence of Peyronie’s Disease and requested that Baxter contact him if the symptoms worsened. (Id.)

         Baxter persistently requested follow-up treatment for two months until FCC Petersburg allowed Baxter to again see Dr. Duck in June 2012. (Compl. ¶¶ 16-18; Pl.’S Ex. B at 2, 24.) During that consultation, Dr. Duck requested various radiological imaging of Baxter’s genitals. (Pl.’s Ex. B at 2, 24.) The Utilization Review Committee (“URC”) granted that request about two months later, permitting Baxter to travel to an off-site facility to undergo the radiological imaging. (Compl. ¶ 19; Pl.’s Ex. B at 2, 5, 24.) Dr. Duck’s review of the imaging in November 2012 revealed that no ultrasound of the penile region was taken as initially requested. (Compl. ¶¶ 19-20; Pl.’s Ex. A at 43.) Dr. Duck ordered that imaging, which occurred five months later in April 2013. (Compl. ¶ 25.)

         In the interim, Baxter continued to request treatment for pain, anxiety, and sleeplessness caused by his Peyronie’s Disease. In April 2013, Dr. Duck consulted Baxter and advised that a new treatment involving injections of “Collagenase” would be available in November 2013. (Compl. ¶ 25.) Baxter and Dr. Duck discussed the new treatment option again in August 2013. (Pl.’s Ex. B at 20.) At that time, Dr.

         Duck informed Baxter that the Collagenase injections were expensive and posed the risk of “possible penile fracture.” (Id.) Dr. Duck’s report from the August 2013 consultation shows that Baxter was “planning on Collagenase injections to start in Nov.” and “also wants to try Vit. E. or Fish Oil.” (Id.) Baxter then made several requests to Dr. Laybourn and an MLP to begin Collagenase treatment. (Compl. ¶¶ 27-32.) Dr. Laybourn, however, did not submit the URC request for the injections until February 2014, three months after Baxter desired to begin the treatment. (Compl. ¶ 32.) The URC denied the request about a week later after concluding that the Collagenase injections were “considered as elective or not medically necessary at this time.” (Compl. ¶ 34; Pl.’s Ex. B at 18.) Baxter alleges that the URC reached this result because Dr. Laybourn misrepresented Dr. Duck’s findings. (Compl. ¶ 33.)

         Baxter continued to request medical examination and treatment for his Peyronie’s Disease from April 2014 onward. (Compl. ¶¶ 36-46.) Baxter received consultations from an MLP and Dr. Laybourn, but was not permitted to see an urologist again. During an examination with an MLP in October 2014, Baxter learned that medication he was prescribed for an unrelated condition had a possible side-effect of contributing to Peyronie’s Disease. (Compl. ¶ 48.) By that time, Baxter had been taking the medication for three years without knowing of the potential adverse side-effect. (Compl. ¶ 48.)

         Baxter was released from custody in November 2014. (Compl. ¶ 47.) He filed this lawsuit six months later, alleging claims of medical malpractice/negligence, “deliberate indifference, ” and “equal protection, ” all pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq.

         On April 12, 2016, the United States moved to be substituted as the proper party defendant, to dismiss the constitutional tort claims for lack of subject matter jurisdiction, and to grant summary judgment with regards to the claim of medical malpractice.[5] (See Mem. in Supp. [Dkt. 16].) Plaintiff responded to the motions on June 1, 2016, after receiving an extension of time. (See Mem. in Opp’n [Dkt. 28].) Parties argued the motions before the Court on June 9, 2016. The motions are now ripe for disposition.

         II. ...

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