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Marshall v. United States

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

March 20, 2019

John T. Marshall, Plaintiff,
v.
United States of America, et al, Defendants.

          MEMORANDUM OPINION

          ANTHONY J. TRENGA UNITED STATES DISTRICT JUDGE

         John T. Marshall, a federal inmate proceeding pro se, has filed a civil rights action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. 403 U.S. 388 (1971), and the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671 et seg. Defendants United States of America, Dr. Mark DiCocco, and Commander Deborah Winbush have filed a Motion for Summary Judgment as well as a memorandum of law with exhibits in support thereof.[1] Dkt. Nos. 19-20. Plaintiff received the Notice required by Local Rule 7(K) and the opportunity to file responsive materials pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975). Dkt. No. 19-1. He has submitted a verified declaration with exhibits and a Response to the Motion for Summary Judgment. Dkt. Nos. 31-32. Defendants thereafter submitted a Reply to Plaintiffs Response, and plaintiff, having received leave to do so, filed a Surreply in Opposition to Defendants' Motion for Summary Judgment. Dkt. Nos. 36, 44. Defendants' Motion for Summary Judgment is now ripe for adjudication. For the reasons stated below, the motion will be granted, and plaintiffs claims against these defendants will be dismissed.

         I. Background [2]

         The record on summary judgment establishes the following. Plaintiff is a federal inmate incarcerated at FCC Petersburg. Compl. ¶ 5. A May 21, 2015, MRI of plaintiff s left knee revealed that plaintiff had a torn meniscus and possible damage to his anterior cruciate ligament ("ACL"). Pl.'s Decl. ¶¶ 26, 28; Defs\ MSJ, DEX 1 ¶ 14. Plaintiffs injuries were classified as "routine." Defs, MSJ, DEX 1 ¶ 15.

         On June 16, 2015, medical staff at FCC Petersburg submitted a consultation request for an onsite evaluation by an outside orthopedic surgeon regarding plaintiffs condition. Pl.'s Decl. ¶ 29; Defs\ MSJ, DEX 1 ¶ 15. The orthopedic surgeon saw plaintiff on October 10, 2015, and recommended surgery, although he did not specify a timeframe for the surgery. Pl.'s Decl. ¶ 31; Defs, MSJ, DEX 1 ¶ 16. Employees at Petersburg filed an administrative request for approval of plaintiff s surgery on October 20, 2015, and the request was approved by BOP on November 13, 2015. Defs' MSJ, DEX 1 ¶ 17.

         On January 8, 2016, plaintiff underwent surgery on his left knee. Pl.'s Decl. ¶ 40; Defs' MSJ, DEX 1 ¶ 19. The orthopedic surgeon stated that plaintiff should be evaluated 10 to 14 days post-surgery, however, he did not specify who should perform the evaluation. Pl.'s Decl. ¶ 41; Defs, MSJ, DEX 1 ¶ 25, Art. 17. Upon return to Petersburg that day, medical staff evaluated plaintiff, prescribed him oxycodone/acetaminophen for a period of three days, and instructed him to return three days later, but he did not. Defs, MS J, DEX 1 ¶ 19. Plaintiff was not evaluated for physical therapy. Pl.'s Decl. ¶ 66. Neither DiCocco nor the orthopedic surgeon recommended physical therapy because the surgery was a "routine procedure." Defs' MS J, DEXl ¶ 29.

         Plaintiff received the oxycodone/acetaminophen three times on January 9 and 10, 2016, and twice on January 11, 2016, because he did not show up for his third dose that day. Defs' Reply, DEX 11. Despite receiving the medication, plaintiff filed a triage form on January 10, 2016, stating that he was in pain and not receiving medication. Pl.'s Decl., Att. 4. On January 11, 2016, medical staff placed plaintiff on four weeks of medical convalescence, during which time he was not allowed to work. Defs\ MS J, DEX 1 ¶ 20. On January 21, 2016, plaintiff was seen by medical staff for an unrelated medical issue, but he did not complain of knee pain.[3] Id. ¶ 22, Att. 12. Thus, although plaintiff was seen by medical staff 13 days after his surgery, it appears as though his knee was not evaluated. Id.

         On January 29, 2016, medical staff granted plaintiffs request for a first-floor cell assignment. Id. ¶ 22. Plaintiff returned to his regular work responsibilities on February 9, 2016. Id. ¶ 23. On February 10, 2016, plaintiff submitted a triage form complaining of knee pain. Pl.'s Decl., Att. 4.

         Plaintiff was scheduled to see medical staff on March 18, 2016, but left before being seen. Id. ¶ 46; Defs, MSJ, DEX 1 ¶ 24. Plaintiff returned on March 23, 2016, complaining of knee pain. Pl.'s Decl. ¶ 47; Defs, MSJ, DEX 1 ¶ 25. That day, Winbush[4] noted that plaintiffs discharge instructions called for a post-surgical follow-up 10-14 days after the procedure, prescribed plaintiff ibuprofen, provided plaintiff with a knee brace, and requested an outside consultation with an orthopedic surgeon. Pl.'s Decl. ¶¶ 50-52; Defs, MSJ, DEX 1 ¶ 25.

         Plaintiff was evaluated by DiCocco on April 14, 2016, for his hypertension, however, after plaintiff complained of knee pain, DiCocco performed a "Lachman's test" on plaintiffs knee, which indicated potential injury to plaintiffs ACL. Defs, MSJ, DEX 1 ¶ 26. However, because "the results were weak at best," DiCocco recommended plaintiff undergo another MRI. Id. The next day, plaintiff was seen by the outside orthopedic surgeon, who conducted x-rays and recommended a follow-up evaluation one month later, but not surgery. Pl.'s Decl. ¶ 53; Defs., MSJ, DEX l ¶ 27.

         On April 17, 2016, plaintiff submitted a triage form complaining of knee pain. Pl.'s Decl, Att. 4. Plaintiff was seen by Winbush on April 21, 2016, and she submitted a consultation request for an MRI and a follow-up appointment with the orthopedic surgeon, provided plaintiff with a compression garment, informed plaintiff of knee exercises, confirmed that plaintiff was taking anti-inflammatory drugs which are used to treat pain, and renewed plaintiffs first-floor cell assignment for six months. Id. ¶ 54; Defs, MSJ, DEX 1 ¶ 28. Plaintiffs injuries were classified as non-emergent. Defs. MSJ, DEX 1 ¶ 28.

         On July 14, 2016, plaintiff received an MRI on his left knee, the results of which indicated the presence of a routine, non-emergent injury. Pl.'s Decl. ¶ 56; Defs\ MS J, DEX 1 ¶ 31. On July 22, 2016, plaintiff was once again seen by the outside orthopedic surgeon who, based on the results of the MRI, recommended plaintiff undergo a second surgery, although he did not indicate a timeframe for the surgery. Pl.'s Decl. ¶ 57; Defs, MSJ, DEX 1 ¶ 32.

         In response to a July 31, 2016 triage form, plaintiff was scheduled for an appointment on August 3, 2016, but he did not appear because he was not informed of the appointment. Pl.'s Decl. ¶ 58; Defs\ MSJ, DEX 1 ¶ 33. After receiving another triage form filed by plaintiff on August 5, 2016, plaintiff was seen on August 19, 2016, and prescribed a seven-day course of naproxen, a pain reliever. Pl.'s Decl. ¶¶ 59-60; Defs\ MSJ, DEX 1 ¶ 34. On September 7, 2016, plaintiff was approved for a second knee surgery that was classified as routine. Defs\ MSJ DEX l¶35.

         In response to a triage form complaining of continued knee pain, plaintiff was seen on September 9, 2016, at which time Winbush prescribed a 60-day supply of indomethacin, a pain reliever, and renewed plaintiffs "lower bunk pass" through April 2017. Pl.'s Decl. ¶¶ 62-63; Defs\ MSJ, DEX 1 ¶ 36. Plaintiff was also advised that his surgery was pending. Defs\ MSJ, DEX l ¶ 36.

         On October 19, 2016, in response to a work-related knee injury, Winbush renewed plaintiffs prescription for pain medication for 90 days, issued plaintiff crutches, placed him on "work idle," and instructed him on recovering from his injury. Pl.'s Decl. ¶ 64; Defs' MSJ, DEX 1 ¶ 37. Two days later, plaintiff sent an electronic request to DiCocco to expedite his surgery. Pl.'s Decl. ¶ 65. On December 14, 2016, plaintiff was prescribed a new pain relief medication, meloxicam, for a period of 180 days. Defs' MSJ, DEX 1 ¶ 38. On December 15, 2016, January 23, 2017, January 26, 2017, January 27, 2017, February 16, 2017, and February 25, 2017, plaintiff submitted triage forms and electronic requests to be seen to the medical staff, complaining of knee pain and inquiring about his second knee surgery. Pl.'s DecL, Atts. 4-6.

         On March 2, 2017, the medical staff submitted a request for plaintiff to be seen by an orthopedic surgeon. Defs\ MS J, DEX 1 ¶ 39. The surgeon saw plaintiff the following day, conducted x-rays, and once more concluded that plaintiff should have knee surgery but did not specify a time frame for the surgery. Id. DiCocco evaluated plaintiff at the chronic care clinic on March 7, 2017. Defs' Reply, DEX 10 ¶ 3. He examined plaintiffs knee and renewed plaintiffs prescriptions, including one for aspirin. Id.

         On March 14, 2017, March 31, 2017, April 14, 2017, April 19, 2017, and May 5, 2017, plaintiff submitted triage forms and electronic requests to be seen to the medical staff, complaining of knee pain and inquiring about his second knee surgery. Pl.'s Decl., Atts. 4-6. On May 8, 2017, plaintiff was prescribed indomethacin and his lower bunk pass was once more renewed. Defs' MS J, DEX 1 ¶ 40. On May 15, 2017, plaintiff underwent his second knee surgery.[5] Pl.'s Decl. ¶ 72; Defs' MSJ, DEX 1 ¶ 42.

         II. Standard of Review

         "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "A dispute is genuine if a reasonable jury could return a verdict for the nonmoving party," and "[a] fact is material if it might affect the outcome of the suit under the governing law." Variety Stores v. Wal-Mart Stores. Inc.. 888 F.3d 651, 659 (4th Cir. 2018). Once the moving party has met its burden to show that it is entitled to judgment as a matter of law, the nonmoving party "must show that there is a genuine dispute of material fact for trial... by offering sufficient proof in the form of admissible evidence." Id. (quoting Guessous v. Fairview Prop. Invs.. LLC.828 F.3d 208, 216 (4th Cir. 2016)). In evaluating a motion for summary judgment, a district court should consider ...


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