William Embrey v. USA

Filing

Per Curiam OPINION filed : AFFIRMED the district court's judgment, decision not for publication. Boyce F. Martin , Jr., Circuit Judge; Ronald Lee Gilman, Circuit Judge and Raymond M. Kethledge, Circuit Judge.

Case: 12-6213

Document: 006111674370

Filed: 04/30/2013

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0441n.06
No. 12-6213

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
WILLIAM J.R. EMBREY,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.

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Apr 30, 2013
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF KENTUCKY

Before: MARTIN, GILMAN, and KETHLEDGE, Circuit Judges.

PER CURIAM. William J.R. Embrey appeals a district court judgment that dismissed his
complaint filed under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671–2680.
Embrey alleged that he was subjected to “negligent and wrongful acts and omissions” while
he was incarcerated by the Federal Bureau of Prisons in Ashland, Kentucky. He alleged that the
United States, through Bureau staff and officials, l) deprived him of food from the prison mess hall
for ten days in early 2010 and another sixteen days in June 2010, when he was bedridden because
of back pain; 2) refused to allow him a wheelchair so that he could go to the mess hall for food; 3)
forced him to walk up two sets of stairs to reach the medical department; and 4) failed to provide him
with proper medical care. The district court granted the defendant’s motion for summary judgment
and dismissed the case on September 12, 2012.
We review the grant of summary judgment de novo. Himes v. United States, 645 F.3d 771,
776 (6th Cir. 2011).

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-2The FTCA effectively waives sovereign immunity in limited contexts, and it “is the exclusive
remedy for suits against the United States or its agencies sounding in tort.” Himes, 645 F.3d at 776
(citing 28 U.S.C. § 2679(a)). The FTCA provides a right of action for the negligence of a federal
employee if a private person would be liable to the plaintiff under the law of the state where the
employee’s conduct occurred. 28 U.S.C. §§ 1346(b)(1), 2674; FDIC v. Meyer, 510 U.S. 471, 477
(1994). Thus, liability under the FTCA is determined by reference to the law of the state where the
alleged medical malpractice or negligence occurred. 28 U.S.C. § 1346(b)(1).
Embrey argues that the declarations in his verified complaint were sufficient to withstand the
defendant’s motion for summary judgment. However, the defendant submitted evidence showing
shows that Embrey’s back condition was evaluated and treated, albeit conservatively, during his
incarceration. In light of this evidence, an expert’s opinion was required to support Embrey’s claims
because a layman would not be able to recognize medical malpractice or negligence based on
common knowledge and experience. See Baylis v. Lourdes Hosp., Inc., 805 S.W.2d 122, 124 (Ky.
1991); Rogers v. Integrity Healthcare Servs., 358 S.W.3d 507, 511–12 (Ky. Ct. App. 2012).
Embrey argues that expert evidence is not necessary to support his claim in the federal courts.
This argument lacks merit because the federal courts are required to evaluate a substantive FTCA
claim under the law of the state where the alleged tort occurred. See 28 U.S.C. § 1346(b)(1); Himes,
645 F.3d at 776–77. The district court properly held that the Kentucky state courts would have
required expert evidence to support Embrey’s FTCA claim. See Baylis, 805 S.W.2d at 124. Embrey
did not present or allege the existence of expert evidence to establish that the medical treatment he
received was substandard. As a result, the district court properly dismissed Embrey’s claims under
the FTCA.
Embrey also argues that the district court should have allowed further discovery before it
ruled on the defendant’s motion for summary judgment. We review this argument for an abuse of
discretion. See Abercrombie & Fitch Stores, Inc. v. Am. Eagle Outfitters, Inc., 280 F.3d 619, 627

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No. 12-6213
-3(6th Cir. 2002). The district court acted within its discretion here because Embrey did not describe
the materials he hoped to obtain with further discovery or how those materials would help him in
opposing summary judgment. See Fed. R. Civ. P. 56(d); CareToLive v. Food & Drug Admin., 631
F.3d 336, 344–45 (6th Cir. 2011).
Finally, Embrey argues that the district court failed to rule on several motions in which he
argued that prison employees were inhibiting his access to the court by harassing him and retaliating
against him for filing this lawsuit. However, Embrey did not amend his complaint to add a civil
rights claim for retaliation. Moreover, that type of claim is not cognizable under the FTCA because
it involves intentional conduct. See 28 U.S.C. § 2680(h).
The district court’s judgment is affirmed.