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Balter v. United States

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

March 27, 2019

Richard Baiter, Plaintiff,
v.
United States of America, Defendant.

          MEMORANDUM OPINION

         Richard Baiter, a federal inmate proceeding pro se, has filed a complaint pursuant to the Federal Torts Claim Act ("FTCA"), 28 U.S.C. §§2671 et seq.[1]Defendant has filed a Motion for Partial Dismissal and Partial Summary Judgment, along with a memorandum of law and exhibits in support thereof. Dkt. Nos. 36-38. Plaintiff has filed an opposition, as well as an affidavit and Statement of Disputed Facts. Dkt Nos. 42-44. Defendant filed a reply. Dkt. No. 45. This matter is now ripe for adjudication. For the reasons stated below, defendant's motion will be granted, and this matter will be dismissed.

         I. Background

         Plaintiff is an inmate incarcerated at FCC Petersburg. Amend. Comp. ¶ 5. On March 24, 2015, plaintiff fell in the shower because another inmate left soap on the shower floor and plaintiff, who is blind, did not know the soap was there. Id. ¶ 8, Ex. 1. As a result, plaintiff twisted his ankle. Id. ¶ 8. In June and July of 2015, he went to see the medical staff every day regarding severe pain in his lower back and right leg, as well as numbness in his right foot. Id. ¶ 9. Plaintiff was evaluated by Physician Assistant Hall on July 20 and 23, 2015, and prescribed plaintiff 800 milligrams of Ibuprofen three times a day for 180 days. Id. ¶ 11, Exs. 2-3.

         A radiology report of a lumbar spine and pelvic x-ray dated July 27, 2015, states that the findings are "negative except for moderate degenerative disc disease" and "mild osteoarthritis of . the hips." Id. ¶ 14, Exs. 6-7. That same day, plaintiff was evaluated by Physician Assistant Hall. Id. at Ex. 8. On July 28, 2015, Dr. DiCocco prescribed acetaminophen with codeine, to be taken twice a day, and gabapentin, also to be taken two times a day, each for fourteen days. Id. ¶ 13. During a period of four to six weeks, plaintiff was prescribed "Ibuprofen 700 mg., Tylenol Acetaminophen/Codine [sic] 300/30 mg., Prednisone 5 mg., Percocet, Oxoxodone [sic] 5 mg., Codine [sic], Gabapentin 600 mg., Indomethocin 50 mg., Morphine Sulfate 20 mg., Ketorolac Tromethamine Injection 30 mg., Naproxen 250 mg., [and] Baclofen 10 mg." Id. ¶ 60, Exs. 9-10.

         On August 5, 2015, Dr. DiCocco noted that plaintiffs pain and numbness "raise[] the question of spinal cord/lumbosacral compromise" and ordered that plaintiff be scheduled for a lumbar and sacral MRI on "an urgent basis if not emergent basis." Id. ¶ 14, Ex. 4. This MRI was ordered to look for evidence of "HNP or neoplastic process or trauma." Id. ¶ 14. The MRI was never scheduled. Id. ¶ 19. On August 6, 2015, plaintiffs morphine was increased to 40 milligrams daily. Id. "A few days prior to August 9, 2015," plaintiff was in severe pain, however, an unnamed lieutenant "made a diagnosis causing" plaintiff to not be seen by the medical staff. Id. ¶¶ 55-57.

         On August 9, 2015, plaintiff was in severe pain, vomiting, incontinent, confused, and unresponsive to verbal stimuli. Id. ¶¶ 63, 67. The medical staff ordered that plaintiff be taken to the John Randolph Medical Center because of a suspected drug overdose. Id. ¶¶ 58, 68, 70, Ex. 19.

         While plaintiff was at the hospital, an August 10, 2015 MRI of his lower spine revealed the following:

• L2-3 level: minor bulge and mild facet arthrosis without central canal comprise or neural foraminal narrowing.
• L3-4 level: minor bulge and mild facet arthrosis and mild to moderate central canal stenosis.
• L4-5 level: right paracentral protrusion with large disc protrusion with inferior migration that results in severe central canal stenosis with moderate bilateral neural foraminal narrowing.
• L5-S1 level: minor bulge and mild facet arthrosis without significant central canal compromise or neural foraminal narrowing.

Id at Ex. 11. The findings were that plaintiff had a herniated disc and compression fracture of the LS spine. Id. ¶ 30, Ex. 13. Finally, plaintiff was found to be in acute renal failure. Id. ¶ 29, Ex. 12.

         On August 14, 2015, plaintiff underwent spinal surgery. Id. ¶ 31, Ex. 14. A few days after the surgery, plaintiff informed the surgeon that his right leg and foot were numb. Id. ¶ 42. On September 28, 2015, Dr. Winbush noted that plaintiff had changes to the vertebroplasty at ¶ 5 and degenerative changes of the spine. Id. ¶ 32, Ex. 15. Several months after the surgery, plaintiff informed Dr. Prakash that his right leg and foot were numb, and an MRI was approved on December 3, 2015, however, the MRI did not occur until thirteen months later. Id. 143-45, Ex. 16. The MRI revealed a pinched nerve; however, plaintiff has been told that nothing can be done until he is evaluated by the orthopedic surgeon. Id. ¶ 47. As of March 15, 2017, plaintiff had not seen the orthopedic surgeon. Id. ¶ 48. Regarding his spinal injury, the staff at Petersburg were negligent in (1) assuming it could be resolved with pain medication and (2) failing to order the emergent MRI. Id. ¶¶ 33-34.

         II. ...


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