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Johnson v. United States

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

September 24, 2019

Duane Joseph Johnson, Plaintiff,
United States of America, et al., Defendants.


         In these consolidated lawsuits, Duane Joseph Johnson, a federal inmate proceeding pro se, brings claims under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680, and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Johnson alleges that the United States and medical staff at Federal Correctional Institution Petersburg Medium (FCI Petersburg) treated his spinal disorder in a manner that violates Virginia tort law and the Eighth Amendment. The United States and individual defendants move to dismiss and for summary judgment. [Dkt. Nos. 54-55]. Johnson received the notice required by Local Rule 7(K) and Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975). [Dkt. No. 56]. Johnson opposes the defendants' motion and also moves for appointment of counsel and an expert.[1] [Dkt. Nos. 62-64]. For the reasons that follow, the FTCA claims will be dismissed, summary judgment will be granted to the individual defendants, and Johnson's motions for appointment of counsel and an expert will be denied.

         I. Background

         Johnson complains of spine-related nerve pain, for which he has sought medical treatment during his tenure at FCI Petersburg. In these lawsuits, he brings four claims under the FTCA: two for medical malpractice, one for negligence, and one for intentional infliction of emotional distress. He also claims that numerous members (or former members) of FCI Petersburg medical staff are liable under Bivens for acting with deliberate indifference to his serious medical need. He filed these lawsuits on July 19, 2016 (Bivens and FTCA claims) and January 14, 2017 (FTCA claim), and he challenges conduct dating back to 2005. The following facts are undisputed, except where noted, and outline Johnson's medical care at FCI Petersburg as it pertains to his FTCA and Bivens claims. The Court views the facts in the light most favorable to Johnson as the nonmoving party, and it draws all reasonable inferences in his favor. See Bennett v. Garner, 913 F.3d 436, 438 (4th Cir. 2019).

         Johnson says that since his arrival at FCI Petersburg in November 2005, he consistently complained to medical staff about his spine-related pain, either in person or through written sick-call requests. [Dkt. No. 1, Pl.'s Verified Compl. ¶¶ 21-23; Dkt. No. 64-2, Johnson Decl. ¶ 8]. In particular, Johnson attests that "over the years" he would complain to Dr. Benjamin Rice, Physician Assistant (PA-C) Ignatius Hall, and Mid-level Practitioner (MLP) Bhagya Katta about his spine pain, but the physicians would tell him only to stretch and drink water. [Dkt. No. 64-2, Johnson Decl. ¶¶ 23, 28-29]. He further declares that, at some point, he asked Dr. Suhasini Shah for a cane, walker, or wheelchair because the pain shooting into his hands and feet made walking difficult. [Id. ¶ 27].

         The defendants dispute Johnson's contention that he was ignored for years, pointing to medical records from 2008 through 2016, which, in their view, demonstrate that Johnson "visited with a virtually uncountable number of health care professionals ... on nearly seventy (70) occasions in order to receive treatment" for his spinal disorders. [Doc. No. 55, Defs.' Mem. of Law ¶ 2]. First, they point to medical records from May 11, 2009, showing that Johnson complained to PA-C Hall about left shoulder pain stemming from a 2002 exercise injury. [Dkt. No. 55-4, Def. Ex. D at 13]. Hall ordered a shoulder x-ray, which was taken and reviewed by August 6, 2009. [Id- at 7, 14]. The reviewing physician, MLP Andarge Yirga (not named as a defendant), saw no abnormality in the x-ray, noted that Johnson reported chronic left shoulder pain radiating from his neck down into his upper left arm, and instructed Johnson to take over-the-counter pain medication. [Id. at 7-8]. By the end of September, as Johnson continued to experience pain, MLP Katta ordered cervical spine x-rays. [Id. at 3-4]. These x-rays revealed mild degenerative disc disease at the C4-C5 vertebrae. [Id. at 37].

         Johnson continued to report pain, and in July 2010 MLP Yirga recommended that Johnson see an outside orthopedist. [Dkt. No. 55-5, Def. Ex. E at 20, 27-28]. Johnson was taken to see Dr. Karanvir Prakash, who recommended that an MRI be taken of Johnson's cervical spine. [Id. at 62]. An MRI was approved and then performed on August 26, 2010. [Id. at 61-62, 64]. The MRI revealed disc degeneration from the C2-C7 vertebrae, C-spine stenosis, and mild disc herniation to the left side of the C5-C6 vertebrae. [Id. at 59; Dkt. No. 55-6, Def. Ex. F at 147]. After a follow-up visit, Dr. Prakash recommended that Johnson see another specialist, Dr. Kalluri. [Dkt. No. 55-5, Def. Ex. E at 59].

         Johnson was permitted to see Dr. Kalluri, who, after examining Johnson on November 15, 2010, recommended that Johnson receive cervical facet injections and take over-the-counter anti-inflammatory medication. [Id. at 50-51; Dkt. No. 55-6, Def. Ex. F at 147-49]. The prison approved the procedure. [Dkt. No. 55-5, Def. Ex. E at 47]. Dr. Nadeem Khan performed the injections on February 10, 2011, and further recommended that Johnson take three medications: Neurontin (gabapentin), Lyrica (pregabalin), and naproxen (an over-the-counter anti-inflammatory).[2] [Dkt No. 55-6, Def. Ex. F at 142-45]. The prison gave Johnson gabapentin and naproxen, not pregabalin, which is a non-formulary medication requiring approval to receive. [Id. at 40; Dkt. No. 55-15, Def. Ex. O at 5, 13].

         Dr. Kahn performed another round of facet injections on August 5, 2011. [Dkt. No. 55-6, Def. Ex. F at 113-15]. The doctor's treatment records show that he recommended that Johnson discontinue taking gabapentin because it was causing him to gain weight. [Id. at 115]. Johnson attests that he also told Dr. Khan that the gabapentin caused him "extreme illness." [Dkt. No. 64-2, Johnson Decl. ¶ 16]. After this visit with Dr. Khan, MLP Yirga requested permission to prescribe pregabalin. [Dkt. No. 55-7, Def. Ex. G]. The Central Office Physician denied the request on the ground that Johnson had been only 50% compliant with taking gabapentin. [Id.]. Johnson admits that he was often noncompliant with taking his prescribed gabapentin, explaining that pain made it difficult to walk to, and wait in, the pill line three times a day and, when he did, the medication caused him to gain weight and feel ill. [Dkt. No. 64, Pl.'s Mem. of Law ¶¶ 12-13; Doc. 64-2, Johnson Decl. ¶ 15; Dkt. No. 55-6, Def. Ex. F at 3].

         Johnson continued to seek treatment for his spine-related pain at FCI Petersburg, all the while maintaining admittedly poor compliance with his prescribed gabapentin regime. [Dkt. No. 54, Pl.'s Mem. of Law ¶¶ 13, 16; Dkt. No. 55-6, Def. Ex. F at 3; Dkt. No. 55-9, Def. Ex. I at 4-5]. From 2011 through 2015, he visited MLP Yirga and a contract physician, Dr. Salman Akbar, numerous times. [Dkt. No. 55-6, Def. Ex. F at 9-10; Dkt. No. 55-8, Def. Ex. H at 2-3, 6-8, 10- 13; Dkt. No. 55-9, Def. Ex. I at 9-15, 18-19; Dkt. No. 55-10, Def. Ex. J at 4-9, 11-12; Dkt. No. 55-11, Def. Ex. K at 1-6]. Johnson attests that he continuously complained to the physicians about pain from his spine condition, but the defendants have submitted medical records indicating that he occasionally reported being less symptomatic. [Compare Dkt. No. 64-2, Johnson Decl. ¶ 19, with Dkt. No. 55-6, Def. Ex. F at 9-10, and Dkt. No. 55-9, Def. Ex. I at 9-12]. Additionally, in early 2014, based on Johnson's recurring complaints of tingling and numbness in his fingers and decreased range of motion, MLP Yirga recommended that Johnson see another outside specialist; Dr. Katherine Laybourn approved the request, and the exam took place on September 26, 2014. [Dkt. No. 55-10, Def. Ex. J at 7-9, 36, 44]. The specialist, Dr. Dawen Bu, recommended that Johnson take gabapentin or pregabalin [Id. at 40].

         In 2016, the prison's Clinical Director, Dr. Mark DiCocco, examined Johnson. [Dkt. No. 55-12, Def. Ex. L at 46-51]. He ordered that Johnson receive an updated MRI of his cervical spine and also submitted a new non-formulary prescription request for pregabalin. [Id. at 50; Dkt. No. 55-13, Def. Ex. M]. This time the Central Office Physician approved the request, overruling the recommendation of the Institutional Chief Pharmacist, who had proposed that Johnson try another formulary medication. [Dkt. No. 55-13, Def. Ex. M], Johnson was transported to Federal Medical Center (FMC) Butner in North Carolina twice for an MRI, in June and July 2016. [Dkt. No. 55-12, Def. Ex. L at 102-03, Dkt. No. 55-14, Chatman Decl. ¶ 8; Dkt. No. 64-2, Johnson Decl. ¶ 30]. The MRI revealed spinal canal stenosis from vertebrae C5-C6 to C7-Tl, which the radiologist described as "slightly worsened" since the last imaging. [Id. at 103].

         Before the rides to and from North Carolina, Johnson attests that he asked Health Services Administrator (HSA) Allison Chatman to ensure that he would receive his medication and walker before departing. [Dkt. No. 64-2, Johnson Decl. ¶ 30]. He says that she agreed to make arrangements for them, but he ultimately received neither. [Id. ¶ 32]. Wearing shackles inside the transport bus, without the benefit of pain medication, caused him great pain. [Id. ¶ 33]. After the first trip, Johnson filed the first of these two lawsuits on July 19, 2016.

         II. Motion to Dismiss

         A. FTCA Claims

         Johnson's FTCA claims fault the government for delaying treatment, declining to prescribe medication recommended by a specialist, denying his requests for movement-assistance accessories (e.g., walker, wheelchair, cane), and, by withholding his medication and walker, needlessly inflicting pain during the vehicular transport to FMC Butner. The United States has moved to dismiss these claims.

         B. Standard of Review

         The United States moves to dismiss the FTCA claims for failing to state a claim for relief under Federal Rule of Civil Procedure 12(b)(6). However, because the viability of Johnson's FTCA claims invoke the Court's jurisdiction, this Court has an independent obligation to consider whether the FTCA claims should be dismissed for lack of subject matter jurisdiction under Rule 12(b)(1). See Fed.R.Civ.P. 12(h)(3); Brickwood Contractors. Inc. v. Datanet Ene'g. Inc., 369 F.3d 385, 390 (4th Cir. 2004) (en banc).

         "A court's determination of subject matter jurisdiction addresses whether the court has the authority to entertain a particular kind of case." Upstate Forever v. Kinder Morgan EnergyPartners,887 F.3d 637, 646 (4th Cir. 2018). The ...

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