United States District Court, E.D. Virginia, Alexandria Division
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.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
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.
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.
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.
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.
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
• L5-S1 level: minor bulge and mild facet arthrosis
without significant central canal compromise or neural
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.
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.