Vieux v. Federal Bureau Of Prisons et al

Filing 64

MEMORANDUM OPINION AND ORDER - For the reasons stated above, the Court finds that there are no genuine issues of material fact as to Mr. Vieuxs Bivens claims. The Court enters judgment as matter of law in favor of defendants Holbrook, Alley, and Burr ell with respect to Mr. Vieuxs Bivens claims. Therefore, the Court SETS a bench trial for 9:00 a.m. on August 29, 2016 in Courtroom 7B, 1729 Hugo L. Black United States Courthouse. The Court will provide the parties with pretrial instructions by separate order. Signed by Judge Madeline Hughes Haikala on 7/29/2016. (KEK)

FILED
2016 Jul-29 PM 04:47
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
RICHARD VIEUX,
Plaintiff,
v.
FEDERAL BUREAU OF
PRISONS, et al.,
Defendants.

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) Case No. 1:12-cv-00017-MHH-HGD
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MEMORANDUM OPINION AND ORDER
This case is before the Court on various objections to two reports and
recommendations regarding pro se plaintiff Richard Vieux’s Bivens and Federal
Tort Claims Act (FTCA) claims. Mr. Vieux’s claims concern alleged deficiencies
in the dental care that he received while he was incarcerated at Talladega Federal
Correctional Institution. All of the defendants asked the Court to enter judgment in
their favor on Mr. Vieux’s claims. On May 21, 2015 Magistrate Judge Harwell
Davis entered a report concerning defendants Holbrook, Alley, and Burrell’s
motion for summary judgment. (Doc. 53). In his May 21, 2015 report, Judge
Davis recommended that the Court grant the defendants’ motion and dismiss Mr.
Vieux’s Bivens claims with prejudice. (Doc. 53, p. 30). Defendant Holbrook filed

1

no objections; defendants Alley and Burrell filed objections; and Mr. Vieux filed
objections. (Docs. 54, 55).
On July 28, 2015, Magistrate Judge Davis entered a second report regarding
the United States’ motion for summary judgment. (Doc. 59). In his report, Judge
Davis recommended that the Court grant in part and deny in part the United States’
motion regarding Mr. Vieux’s FTCA claims. Mr. Vieux did not object to the July
28, 2015 report. (Doc. 60).

The United States filed objections to the report.

(Doc. 61).
This opinion resolves all of the objections to the reports.
I.

Standard of Review
When a party objects to a report and recommendation regarding a motion

for summary judgment, the district court must “make a de novo determination of
those portions of the report or specified proposed findings or recommendations to
which objection is made.” 28 U.S.C. § 636(b)(1)(B)-(C). The Court reviews de
novo legal conclusions in a report and reviews for clear error factual findings to
which no objection is made. Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir.
1993); see also LoConte v. Dugger, 847 F.2d 745, 749 (11th Cir. 1988); Macort v.
Prem, Inc., 208 Fed. Appx. 781, 784 (11th Cir. 2006). A district court “may
accept, reject, or modify, in whole or part, the findings or recommendations made
by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). When reviewing objections
2

that relate to motions for summary judgment, the Court views the evidence in the
light most favorable to the non-movant.
II.

Discussion
A.

Objections to the May 21, 2015 Report

Defendants Alley and Burrell do not object to the magistrate judge’s
recommendation that the Court dismiss Mr. Vieux’s Bivens individual capacity
claims for monetary damages, but these defendants contend that the magistrate
judge should not have addressed the official capacity Bivens claims for prospective
injunctive relief because the Court previously dismissed those claims on the basis
of sovereign immunity. (Doc. 54, pp. 2, 4, 9). These defendants argue that if the
Court reaches the issue, the Court should find that Bivens does not create a cause
of action against federal officials in their official capacities. (Doc. 54, pp. 6-9).
In making their argument, the defendants do not distinguish between claims
for monetary damages and claims for prospective injunctive relief. Judge Davis
clearly held that the former are not viable when a plaintiff asserts the claim against
federal actors in their official capacities. (Doc. 53, pp. 16-17).1 Judge Davis raises
an interesting question regarding the viability of Bivens claims for prospective
injunctive relief. Citing the well-recognized Ex parte Young rule that permits a
Judge Davis wrote: “Indeed, a Bivens suit against each of these defendants in their official
capacities is in essence a lawsuit against the federal government and its agencies, and it is well
settled that a Bivens claim for damages does not lie against the United States or its agencies.”
(Doc. 53, pp. 16-17) (citing F.D.I.C. v. Meyer, 510 U.S. 471, 477-80, 484-86 (1994), and Lewis
v. Charlotte Corr. Inst. Emps., 589 Fed. Appx. 950, 952 (11th Cir. 2014)).
1

3

plaintiff to pursue an official capacity claim against a state official for prospective
injunctive relief, Judge Davis considered whether Mr. Vieux may assert a Bivens
claim based on his request for “an injunction or declaratory judgment . . . to force
FCI Talladega Staff and/or FBOP to transport [him] to the O[utside] S[urgeon] to
have him/her determine the proper diagnoses and course of action for the bone
fragment left in [tooth] #17.” (Doc. 10, p. 18; see also Doc. 53, p. 18).2
In his discussion of the issue, Judge Davis relied on opinions that involve
§1983 claims against state actors, not federal actors. (Doc. 53, p. 17). Judge
Davis’s analysis is consistent with the principle that “courts generally apply § 1983
law to Bivens caes.” Abella v. Rubino, 63 F.3d 1063, 1065 (11th Cir. 1995); see
also Butz v. Economou, 438 U.S. 478, 500-01 (1978) (“There is no basis for
according to federal officials a higher degree of immunity from liability when sued
for a constitutional infringement as authorized by Bivens than is accorded state
officials when sued for the identical violation under § 1983. The constitutional
injuries made actionable by § 1983 are of no greater magnitude than those for
which federal officials may be responsible . . . Surely, federal officials should
enjoy no greater zone of protection when they violate federal constitutional rules
than do state officers.”) (emphasis in Butz); Antoine v. Byers & Anderson, 508 U.S.
429, 433 n.5 (1993) (reiterating the principle expressed in Butz).

2

An identical request for injunctive relief appears at Doc. 46, p. 15, ¶ 41.
4

The Court has located no binding authority that expressly applies Ex parte
Young in the Bivens context, but the Eleventh Circuit Court of Appeals has
implicitly recognized that a Bivens plaintiff may pursue a claim for prospective
injunctive relief. See Bolin v. Story, 225 F.3d 1234 (11th Cir. 2000). In Bolin, the
plaintiffs brought an action for declaratory and injunctive relief against a number
of federal officials.

Id. at 1236-37.

The Eleventh Circuit held that certain

defendants were entitled to absolute immunity and that the plaintiffs were unable
to “show the absence of an adequate remedy at law for their claims and therefore
[were] not entitled to the declaratory or injunctive relief sought in their complaint.”
Id. at 1243.
In like fashion, the Butz case began as an action for prospective injunctive
relief, but the plaintiff eventually eliminated his request for injunctive relief and
sought damages instead. The Supreme Court explained:
While the administrative complaint was pending before the Judicial
Officer, respondent filed this lawsuit in Federal District Court.
Respondent sought initially to enjoin the progress of the
administrative proceeding, but he was unsuccessful in that regard. On
March 31, 1975, respondent filed a second amended complaint
seeking damages. Named as defendants were the individuals who had
served as Secretary and Assistant Secretary of Agriculture during the
relevant events; the Judicial Officer and Chief Hearing Examiner;
several officials in the Commodity Exchange Authority; the
Agriculture Department attorney who had prosecuted the enforcement
proceeding; and several of the auditors who had investigated
respondent or were witnesses against respondent.

5

Butz, 438 U.S. at 481-82. Quoting Bivens, the Supreme Court observed that,
“‘[h]istorically, damages have been regarded as the ordinary remedy for an
invasion of personal interests in liberty.’” Id. at 485 (quoting Bivens v. Six
Unknown Fed. Narcotics Agents, 403 U.S. 388, 395 (1971)). The Court explained
the reason for this general rule:
the decision in Bivens established that a citizen suffering a
compensable injury to a constitutionally protected interest could
invoke the general federal-question jurisdiction of the district courts to
obtain an award of monetary damages against the responsible federal
official . . . Injunctive or declaratory relief is useless to a person who
has already been injured.
Butz, 438 U.S. at 504. In Butz, the Supreme Court did not consider the potential
plaintiff who seeks injunctive relief to put a stop to an alleged ongoing injury to a
constitutionally protected interest; the Supreme Court was silent with respect to the
propriety of the plaintiff’s initial federal claim for prospective injunctive relief.
Bivens does not preclude a federal claim for prospective injunctive relief. In
Bivens, the Supreme Court was tasked with determining whether a plaintiff who
sought a remedy for a federal constitutional violation could recover damages in a
federal action.

The Supreme Court framed the broad issue this way:

“[t]he

question is merely whether petitioner, if he can demonstrate an injury consequent
upon the violation by federal agents of his Fourth Amendment rights, is entitled to
redress his injury through a particular remedial mechanism normally available in
the federal courts.” Bivens, 403 U.S. at 397. The Supreme Court answered that
6

question in the affirmative. Because prospective injunctive relief is a “remedial
mechanism normally available in the federal courts,” it would seem that the
Supreme Court would recognize a Bivens action against federal actors for
prospective injunctive relief.
The implicit recognition of a Bivens claim for prospective injunctive relief in
Bolin and the well-settled rule that “federal officials should enjoy no greater zone
of protection when they violate federal constitutional rules than do state officers”
lends substantial support to Judge Davis’s conclusion that Mr. Vieux should be
able to assert a Bivens claim against defendants Burrell and Alley for prospective
injunctive relief. The Court will leave for another day the question of whether
such a claim should be asserted against a federal actor as an official capacity claim
or as an individual capacity claim because Judge Davis properly found that Mr.
Vieux failed to establish genuine, disputed issues of material fact as to whether he
suffered from an objectively serious medical need with respect to tooth #17 and
whether the defendants were deliberately indifferent to that need.3 Therefore, the
3

The Bolin decision does not indicate whether the plaintiffs sought injunctive relief against the
federal defendants in the defendants’ official or individual capacities. In an unpublished decision
in a case in which the plaintiff sought damages, the Eleventh Circuit stated: “[t]he availability of
a cause of action for monetary damages or injunctive relief against federal officials in their
individual capacities for a violation of a federal constitutional right was established in Bivens.”
Daniel v. United States Marshals Serv., 188 Fed. Appx. 954, 961 (11th Cir. 2006). In another
unpublished opinion in which a prisoner asserted that he was seeking injunctive relief against
ICE, a panel of the Eleventh Circuit affirmed the district court’s dismissal without prejudice of
the pro se plaintiff’s Bivens claim because the plaintiff “did not sue any federal officials in their
individual capacity.” Gonzalez-Corrales v. I.C.E., 522 Fed. Appx. 619, 623 (11th Cir. 2013).
Through a series of amendments to his complaint, Mr. Vieux appears to pursue his claims for
7

Court will dismiss Mr. Vieux’s Bivens claims against defendants Holbrook, Alley,
and Burrell in their entirety.
B.

Objections to the July 28, 2015 Report

In the July 28, 2015 report, Judge Davis recommended that the Court grant
the United States’ motion for summary judgment with respect to Mr. Vieux’s claim
relating to his cavity in tooth #18 and deny the claim concerning the infected root
fragment that remained after Dr. Burrell removed tooth #17. The United States
objects to the July 28, 2015 report on three separate grounds. Procedurally, the
United States argues that the report could be construed as erroneously permitting a
plaintiff to assert a FTCA claim against a federal employee, rather than against the
United States. Substantively, the United States contends that the Judge Davis erred
in finding that Mr. Vieux’s FTCA claims are not barred by the statute of
limitations and in finding that expert testimony is not required to establish the
standard of care in this medical malpractice action. For the reasons that follow, the
Court overrules these objections.

injunctive relief against at least some of the defendants, including defendant Burrell, in their
individual capacities. (See Doc. 46, ¶¶ 7, 41, 42; see also Doc. 1, ¶¶ 14, 57; Doc. 10, ¶¶ 14, 57,
64). The Court construes Mr. Vieux’s pro se pleadings liberally. Bingham v. Thomas, 654 F.3d
1171, 1175 (11th Cir. 2011) (“‘Pro se pleadings are held to a less stringent standard than
pleadings drafted by attorneys’ and are liberally construed.”) (quoting Tannenbaum v. United
States, 148 F.3d 1262, 1263 (11th Cir. 1998)).
8

1.

Mr. Vieux asserts his FTCA claim against the United
States only.

The Court disagrees with the United States’ procedural argument. As Judge
Davis noted, the FTCA “provides a mechanism for individuals to recover damages
from the United States. . . .” (Doc. 59, p. 21). Although Judge Davis observed that
Mr. Vieux named Dr. Burrell as a defendant and that Dr. Burrell filed a special
report, the record is clear that the United States has been substituted as a defendant
with respect to Mr. Vieux’s FTCA claims. (Doc. 48). The record also is clear that
the United States, not Dr. Burrell, filed a special report regarding Mr. Vieux’s
FTCA claims. (Doc. 56). Federal employees are personally immune from claims
under the FTCA, see 28 U.S.C. § 2679(b)(1), and Mr. Vieux asserts FTCA claims
against the United States only.
2.

The statute of limitations does not bar Mr. Vieux’s medical
malpractice claim.

The United States’ statute of limitations argument begins with 28 U.S.C. §
2401(b). That statute provides:
A tort claim against the United States shall be forever barred unless it
is presented in writing to the appropriate Federal Agency within two
years after such claim accrues or unless action is begun within six
months after the date of mailing, by certified or registered mail, of
notice of final denial of the claim by the agency to which it was
presented.
28 U.S.C. § 2401(b). See Phillips v. United States, 260 F.3d 1316, 1317 (11th Cir.
2001) (“It is undisputed that under section 2401(b), a tort claim must be presented
9

to the appropriate federal agency within two years after the claim accrues.”).
Judge Davis recognized the two year statute of limitations but found that Mr.
Vieux alleged a continuing injury, and therefore, Mr. Vieux’s FTCA claim with
respect to tooth #17 has not accrued because the tooth root fragment has not been
removed, and Mr. Vieux’s FTCA claim with respect to tooth #18 accrued on
December 3, 2010, when the tooth was extracted. (Doc. 59, pp. 13- 14).
Under the FTCA, the general rule is that a claim “accrues at the time of
injury.” Diaz v. United States, 165 F.3d 1337, 1339 (11th Cir. 1999) (citing United
States v. Kubrick, 444 U.S. 111, 120 (1979)). But the general accrual rule does not
apply to medical malpractice claims like Mr. Vieux’s claims.

For medical

malpractice actions, the discovery rule and the continuing tort rule apply. 4 Judge
4

The discovery rule provides that medical malpractice claims “accrue when the plaintiff knows
of both the injury and its cause.” Diaz, 165 F.3d at 1339 (citing Kubrick, 444 U.S. at 122); see
also Price v. United States, 775 F.2d 1491, 1493 (11th Cir. 1985) (“Thus, a medical malpractice
claim under the FTCA accrues when the plaintiff is, or in the exercise of reasonable diligence
should be, aware of both her injury and its connection with some act of the defendant.”). This
rule applies even if the plaintiff does not yet know that “the acts inflicting the injury may
constitute medical malpractice.” Kubrick, 444 U.S. at 113.
The FTCA medical malpractice discovery rule “protect[s] plaintiffs who are blamelessly
unaware of their claim because the injury has not yet manifested itself or because the facts
establishing a causal link between the injury and the medical malpractice are in the control of the
tortfeasor or are otherwise not evident.” Diaz, 165 F.3d at1339. Under this rule,
the plaintiff need not know that []he has a legally cognizable claim for the claim
to accrue, and may not bury h[is] head in the sand once []he is put on notice that
the government may have caused an injury. [H]e will not automatically lose h[is]
claim, however, merely because the circumstances surrounding the injury make
its existence or governmental cause not reasonably knowable.
Id.
10

Davis concluded that Mr. Vieux’s medical malpractice claims regarding the root
fragment from tooth #17 and the cavity in tooth # 18 are timely because of the
continuing nature of Mr. Vieux’s alleged injuries. (Doc. 59, pp. 13-14). The Court
agrees.
“[A]n ‘allegation of a failure to provide needed and requested medical
attention constitutes a continuing tort, which does not accrue until the date medical
attention is provided.’” Baker v. Sanford, 484 Fed. Appx. 291, 293 (11th Cir.
2012) (per curiam) (quoting Lavellee v. Listi, 611 F.2d 1129, 1132 (5th Cir.
1980)).5 “The critical distinction in the continuing violation analysis is whether the
prisoner complains ‘of the present consequence of a one time violation, which does
not extend the limitations period, or the continuation of that violation into the
present, which does.’” Id. (quoting Lovett v. Ray, 327 F.3d 1181, 1183 (11th Cir.
2003)); see also Donaldson v. O'Connor, 493 F.2d 507, 529 (5th Cir. 1974)
(“When a tort involves continuing injury, the cause of action accrues, and the
limitation period begins to run, at the time the tortious conduct ceases.”), vacated
on other grounds, 422 U.S. 563 (1975)).
The evidence viewed in the light most favorable to Mr. Vieux indicates that
he repeatedly requested treatment for the root fragment at tooth #17 and the cavity

5

Lavellee is binding authority. See Bonner v. Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981)
(adopting as binding precedent in the Eleventh Circuit Court of Appeals decisions that the Fifth
Circuit Court of Appeals rendered before October 1, 1981).
11

at tooth #18.

On August 18, 2009, Dr. Burrell extracted tooth #17. (Doc. 46, ¶

12). Dr. Burrell removed a “small bone sliver” about one week later, but Mr.
Vieux states that “this had nothing to do with the unknown tooth (root) left in
#17.” (Doc. 46, ¶ 13). Dr. Atwell, an outside oral surgeon, took x-rays of Mr.
Vieux’s mouth on September 15, 2009.

Afterwards, the oral surgeon

recommended “a bone (root) fragment removal in #17 tooth.” (Doc. 46, ¶ 14).
When he returned to the institution, Mr. Vieux “confronted” Dr. Burrell about the
outside oral surgeon’s recommendation. Mr. Vieux contends that Dr. Burrell “got
sassy and stated [Mr. Vieux] should have gotten Dr. Atwell to finish [his] dental
problems. [Mr. Vieux] snapped back that [Dr. Atwell] took her orders. She then
got sarcastic and stated that she would deal with [Mr. Vieux’s] dental issues later.”
(Doc. 46, ¶ 14).
Sometime between September 2009 and March 2010, Mr. Vieux returned to
Dr. Burrell and “indicated” that he “wanted whatever was in my mouth, #17, to be
removed.” (Doc. 46, ¶ 15). According to Mr. Vieux, Dr. Burrell “looked at her
computer and informed [him] that she would have to break [his jaw] to remove
what was there . . . .” (Doc. 46, ¶ 15). In December 2010, Mr. Vieux asked a
dental hygienist about the removal of the “tooth (root) left in #17.” (Doc. 46, ¶
20). Mr. Vieux states that Dr. Burrell told him that “she would deal with [the root
fragment] later or that she would have to break my jaw or flat out refused to
12

[remove] it.”

(Doc. 46, ¶ 36).

Mr. Vieux asserts that he continues to feel

“discomfort” and “constant irritation” in the area where Dr. Burrell extracted the
tooth. (Doc. 32, p. 8, ¶ 10; Doc. 44, p. 6).
With respect to tooth #18, Mr. Vieux states that Dr. Burrell carved out tooth
#18 on August 18, 2009, the same day she extracted tooth #17. Dr. Burrell told
Mr. Vieux that “she would fill it in later because [Mr. Vieux] had, based upon Xrays she viewed, more dental issues” that needed attention. (Doc. 46, ¶ 12). Mr.
Vieux explained that one week later when Dr. Burrell removed the bone sliver near
tooth #17, “#18 still was not filled in by [Dr. Burrell].” (Doc. 46, ¶ 13). On
September 15, 2009, oral surgeon Dr. Atwell recommended the “filling of the
carved out #18.” (Doc. 46, ¶ 14). Mr. Vieux asked Dr. Burrell about Dr. Atwell’s
recommendation. According to Mr. Vieux, Dr. Burrell stated that “she would deal
with [his] dental issues later.” (Doc. 46, ¶ 15). Sometime between September
2009 and March 2010, Mr. Vieux saw Dr. Burrell again and told her that he
wanted tooth #18 filled. (Doc. 46, ¶ 15). On March 23, 2010, Mr. Vieux “inquired
about the filling of #18.” (Doc. 46, ¶ 16). Dr. Burrell stated that she would not do
the work “because it was too close to her lunch” and advised Mr. Vieux to come
back when he was in more pain. (Doc. 46, ¶ 16).
In April 2010, Mr. Vieux returned to Dr. Burrell “complaining about pain in
[his] mouth and the need to . . . fill in #18.” (Doc. 46, ¶ 17). Mr. Vieux alleges
13

that Dr. Burrell disregarded his request and stated that his discomfort was caused
by gingiva. (Doc. 46, ¶ 17). On November 10, 2010, Mr. Vieux filed a written
request for dental attention in which he explained “the situation of the carved out
#18, that a piece of it broke off, pain [he] was having, and the extreme need for
filling.” (Doc. 46, ¶ 18). On November 20, 2010, a dental hygienist informed Mr.
Vieux that he was placed on routine care. (Doc. 46, ¶ 18).
On November 24, 2010, Mr. Burrell saw a physician’s assistant. (Doc. 46, ¶
19). The physician’s assistant “determined that [Mr. Burrell] had an infection and
#18 tooth was rotted.” (Doc. 46, ¶ 19). On December 1, 2010, a dental hygienist
concluded that the “#18 [tooth] was indeed rotted and extraction was the only
option immediately.” (Doc. 46, ¶ 20). On December 3, 2010, a temporary dentist
extracted tooth #18 fourteen months after Dr. Burrell carved out the tooth. (Doc.
26-3, p. 6; Doc. 46, ¶ 21).
These facts viewed in the light most favorable to Mr. Vieux, demonstrate
that Mr. Vieux’s FTCA medical malpractice claims are based upon a continuous
injury. “When the violation alleged involves continuing injury, the cause of action
accrues, and the limitation period beings to run, at the time the unlawful conduct
ceases.” Robinson v. United States, 327 Fed. Appx. 816, 818 (11th Cir. 2007).
Mr. Vieux’s claim regarding the root fragment at tooth #17 has not accrued
because the alleged unlawful conduct has not ceased; neither Dr. Burrell nor
14

another dentist has removed the root fragment. Mr. Vieux’s claim regarding tooth
#18 accrued on December 3, 2010 when the temporary dentist extracted tooth #18.
Therefore, Mr. Vieux timely filed an administrative claim on November 7, 2011,
within the two year statute of limitations. See Robinson, 327 Fed. Appx. at 818-19
(“The facts, as alleged in the complaint, however, support an inference of
continued disregard of Robinson’s need of medical treatment for his hernia until
October 3, 2003, when Robinson’s hernia surgery was performed.

Because

Robinson’s claim regarding his hernia accrued on October 3, 2003, and Robinson
filed his administrative claim on September 23, 2005, within the two years statute
of limitations, his FTCA claim is timely as to the denial of adequate health care for
his hernia. Likewise, continuing to expose Robinson to the source of his scabies
after he was diagnosed was a continuing violation of Robinson’s rights.
[Therefore], Robinson’s claim is timely as to his continued exposure to scabies.”).6
The Court is not persuaded by the United States’ argument that the Court
should not apply the continuing tort or continuing violation theory in the context of
FTCA claims. The United States argues that “Robinson is bad law” and is “the
lone FTCA case in the Eleventh Circuit to hold that a medical malpractice cause of
action does not accrue until an injury is remedied.” (Doc. 61, p. 22). The United

6

Because Mr. Vieux’s FTCA claims involve a continuing injury, the Court need not address the
United States’ arguments concerning other equitable tolling doctrines. (See Doc. 61, pp. 24-29).
15

States may ask the Eleventh Circuit to re-visit Robinson; this Court will follow and
apply the Robinson decision. Although Robinson is only persuasive authority, it is
directly on point, and it is consistent with the statement quoted in Baker and found
in Lavellee (which is binding authority) that “an ‘allegation of a failure to provide
needed and requested medical attention constitutes a continuing tort, which does
not accrue until the date medical attention is provided.’” Baker, supra.7
The United States’ alternative argument challenging application of the
continuing tort doctrine to FTCA claims fairs no better.

The United States

provides no authority to support its assertion that the continuing violation doctrine
“is generally not applicable in medical malpractice actions where the conduct is
injurious rather than proscribed.” (Doc. 61, p. 24). Because “courts generally
apply § 1983 law to Bivens cases,” Abella, supra, the Eleventh Circuit’s reliance
on cases that arose under § 1983 to support the continuing violation analysis is not
unusual and does not undermine the Court’s recognition of the doctrine in the
context of an FTCA claim. Indeed, the Eleventh Circuit’s application of the
continuing violation doctrine in an FTCA action is not unique among the circuit
courts of appeals. See Hoery v. United States, 324 F.3d 1220, 1222 (10th Cir.
2003) (“For continuing torts, however, the claim continues to accrue as long as
7

See Bonilla v. Baker Concrete Const., Inc., 487 F.3d 1340, 1345 n.7 (11th Cir. 2007)
(“Unpublished opinions are not controlling authority and are persuasive only insofar as their
legal analysis warrants.”) (citing United States v. Rodriquez-Lopez, 363 F.3d 1134, 1138 n. 4
(11th Cir. 2004)).
16

tortious conduct continues, although the plaintiff’s recovery is limited by the
statute of limitations to the two-year period dating back from when the plaintiff’s
complaint was filed.”); Page v. United States, 729 F.2d, 818, 821-22 (D.C. Cir.
1984) (“Since usually no single incident in a continuous chain of tortious activity
can fairly or realistically be identified as the cause of significant harm, it seems
proper to regard the cumulative effect of the conduct as actionable. Moreover,
since one should not be allowed to acquire a right to continue the tortious conduct,
it follows logically that statutes of limitation should not run prior to its cessation.”)
(internal quotation marks and citations omitted). Therefore, the Court overrules
the United States’ objection to Judge Davis’s statute of limitations analysis.
3.

Mr. Vieux does not have to produce expert testimony to
proceed with his claim regarding tooth #18.

The United States argues that Mr. Vieux cannot pursue his medical
malpractice action without expert testimony. Judge Davis concluded that Mr.
Vieux does not have to produce an expert opinion to proceed with his claim as to
tooth #18. The Court agrees. Judge Davis found that Mr. Vieux must submit
expert testimony with respect to his FTCA claim concerning toot #17. (Doc. 59, p.
25). Neither party objected to this portion of Judge Davis’s report and
recommendation. The Court finds no clear error in the factual findings on which
the recommendation is based. Therefore, the Court will enter judgment in favor of

17

the United States on Mr. Burrell’s FTCA claim related to tooth #17. Mr. Burrell’s
FTCA claim related to tooth #18 is a different matter.
When Dr. Burrell treated Mr. Vieux, he was housed at the Talladega Federal
Correctional Institution in Talladega, Alabama. Therefore, Alabama law governs
Mr. Vieux’s FTCA medical malpractice claim. See Rushing v. United States, 288
Fed. Appx. 616, 620 (11th Cir. 2008) (“Liability under the FTCA for ‘personal
injury caused by the negligent or wrongful act or omission of any employee of the
Government,’ should be determined ‘in accordance with the law of the place where
the act or omission occurred.’”) (quoting 28 U.S.C. § 1346(b)(1)).
Under the Alabama Medical Liability Act, “a dentist’s duty to the patient
shall be to exercise such reasonable care, diligence, and skill as . . . dentists in the
same general neighborhood, and in the same general line of practice, ordinarily
have and exercise in a like case.” Ala Code § 6-5-484(a). “To prevail on a
medical-malpractice claim, a plaintiff must prove 1) the appropriate standard of
care, 2) the doctor’s deviation from that standard, and 3) a proximate causal
connection between the doctor’s act or omission constituting the breach and the
injury sustained by the plaintiff.” Breland ex rel. Breland v. Rich, 69 So. 3d 803,
814 (Ala. 2011) (internal quotation marks and citations omitted). Generally, “the
plaintiff is required to produce expert medical testimony to establish the applicable
standard of care and a breach of that standard of care, in order to satisfy the
18

plaintiff’s burden of proof.” Anderson v. Ala. Reference Labs., 778 So. 2d 806,
811 (Ala. 2000). Alabama law recognizes an exception to the general rule “where
want of skill or lack of care is so apparent . . . as to be understood by a layman, and
requires only common knowledge and experience to understand it.” Ex parte
HealthSouth Corp., 851 So. 2d 33, 38 (Ala. 2002).
In Anderson , the Alabama Supreme Court provided four examples that fall
under this exception:
1) where a foreign instrumentality is found in the plaintiff’s body
following surgery; 2) where the injury complained of is in no way
connected to the condition for which the plaintiff sought treatment; 3)
where the plaintiff employs a recognized standard or authoritative
medical text or treatise to prove what is or is not proper practice; and
4) where the plaintiff is himself or herself a medical expert qualified
to evaluate the doctor’s allegedly negligent conduct.
Anderson, 778 So. 2d at 811.
In Ex Parte HealthSouth, the Alabama Supreme Court explained that
“examples three and four have nothing to do with an exception for general matters
within the common knowledge of a layperson.” 851 So. 2d at 38. Therefore, the
Alabama Supreme Court reformulated the exception, stating:
to recognize first, a class of cases where want of skill or lack of care is
so apparent . . . as to be understood by a layman, and requires only
common knowledge and experience to understand it, . . ., such as
when a sponge is left in, where, for example, the wrong leg is
operated on, or, as here, where a call for assistance is completely
ignored for an unreasonable period of time. A second exception to the
rule requiring expert testimony applies when a plaintiff relies on a

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recognized standard or authoritative medical text or treatise, . . . , or is
himself or herself a qualified medical expert.
Ex parte HealthSouth Corp., 851 So. 2d at 39. Recognizing that the Anderson list
is not exhaustive, the Alabama Supreme Court held that it “would [] offend
common sense to require the [the plaintiffs] to use an expert to aid the jury in
determining whether the nurses breached the standard of care by completely
ignoring for 30 minutes to an hour a call for assistance by a patient who has just
returned from the surgical ward following back surgery and who was under orders
not to get out of bed.” Id. at 38; see also Morgan v. Publix Super Markets, Inc.,
138 So. 3d 982, 989 (Ala. 2013) (“[A] pharmacy’s negligence in dispensing the
wrong medication is so apparent that a layperson can understand it without the
assistance of expert testimony.”); McGathey v. Brookwood Health Servs., Inc., 143
So. 3d 95, 103 (Ala. 2013) (holding that expert testimony not required for the
plaintiff to avoid summary judgment where the plaintiff asserted that a hospital
“employee violated the standard of care by failing to ensure that a hot medical
device was sufficiently cool before it was attached to the patient’s arm and hand”).
Mr. Vieux’s claim regarding tooth #18 falls within the class of cases in
which the medical error, if proven, is so obvious that expert testimony is not
necessary.

Viewing the record in the light most favorable to Mr. Vieux, Dr.

Burrell carved a cavity out of his tooth in August 2009, and for fourteen months,
she and other prison dental officials refused repeated requests from Mr. Vieux to
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fill the cavity. (Doc. 46, ¶¶ 12, 13, 14, 16, 17, 18, 19, 20). On December 3, 2010,
a dentist extracted tooth #18. (Doc. 46, ¶ 21). A dentist’s failure to fill an open
cavity in a tooth for fourteen months “is so is so apparent that a layperson can
understand it without the assistance of expert testimony.” See Morgan, 138 So. 3d
at 989.
Citing Mr. Vieux’s dental records, the United States argues that Mr. Vieux
did not complain about pain in tooth #18 from August 2009 until November 2010.
(Doc. 61, p. 32; see also Doc. 29-1, pp. 236, 238; Doc. 29-2, p. 52). Mr. Vieux’s
sworn allegations create a question of fact on this point. According to Mr. Vieux,
after an outside oral surgeon recommended the “filling of carved out #18” in
September 2009, he asked Dr. Burrell about the recommendation. (Doc. 46, ¶¶ 14,
15). Mr. Vieux asserts that Dr. Burrell stated that “she would deal with [his] dental
issues later.” (Doc. 46, ¶ 15). Sometime between September 2009 and March
2010, Mr. Vieux told Dr. Burrell that he wanted tooth #18 filled. (Doc. 46, ¶ 15).
On March 23, 2010, Mr. Vieux “inquired about the filling of #18.” (Doc. 46, ¶
16). On April 5, 2010, Mr. Vieux returned to Dr. Burrell “complaining about pain
in [his] mouth and the need to . . . fill in #18.” (Doc. 46, ¶ 17).8

8

The Court must “credit the ‘specific facts’ plead in [Mr. Vieux’s] sworn complaint when
considering his opposition to summary judgment.” See Caldwell v. Warden, FCI Talladega, 748
F.3d 1090, 1098 (11th Cir. 2014) (citing Perry v. Thompson, 786 F.2d 1093, 1095 (11th Cir.
1986)).
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The United States also relies on Dr. Burrell’s declarations in which she
explained that she did not extract or fill the cavity at tooth #18 in August 2009
because Mr. Vieux “did not identify that tooth as a problem.” (Doc. 26-3, ¶ 8).
Dr. Burell disputes Mr. Vieux’s allegations that she refused to treat him for pain in
tooth #18. (Doc. 26-3, ¶ 14). Based in part on these facts, Dr. Burrell states that
“[i]t is her opinion that the dental care she provided for [Mr. Vieux] while he was
housed at FCI Talladega met the standard of care and was in accordance with
community standards.” (Doc. 56-1, ¶ 5). Mr. Vieux’s sworn statements contradict
the factual assertions in Dr. Burrell’s declarations.

See supra pp. 13-14, 21.

Therefore, a jury must resolve those factual disputes and determine whether Dr.
Burrell breached the standard of care.
III.

Conclusion
For the reasons stated above, the Court finds that there are no genuine issues

of material fact as to Mr. Vieux’s Bivens claims. The Court enters judgment as
matter of law in favor of defendants Holbrook, Alley, and Burrell with respect to
Mr. Vieux’s Bivens claims.
The Court finds that there are no genuine issues of material fact as to Mr.
Vieux’s FTCA claim concerning Dr. Burrell’s treatment of the #17 root fragment.
The Court enters judgment as a matter of law in favor of the United States with
respect to Mr.Vieux’s FTCA claim regarding the root fragment in tooth #17.
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The Court accepts Judge Davis’s recommendation and finds that there are
genuine issues of material fact as to Mr. Vieux’s FTCA claim concerning Dr.
Burrell’s treatment of tooth #18. Therefore, the Court denies the United States’
motion for summary judgment on Mr. Vieux’s FTCA claim concerning tooth #18.
The Court will set a trial date for Mr. Vieux’s remaining FTCA claim.
Although Mr. Vieux’s complaint requests “[a] jury trial on all issues triable by
jury” (Doc. 46, p. 15), Mr. Vieux does not have a right to a jury trial on his
remaining FTCA claim against the United States. “With the exception of [28
U.S.C.] § 1346(a)(1), a tax provision, ‘any action against the United States under
section 1346 shall be tried by the court without a jury.’” Daniel, 188 Fed. Appx. at
957-58 (quoting 28 U.S.C. § 2402)); see also Carlson v. Green, 446 U.S. 14, 22
(1980) (“[A] plaintiff cannot opt for a jury in an FTCA action.”). Therefore, the
Court SETS a bench trial for 9:00 a.m. on August 29, 2016 in Courtroom 7B,
1729 Hugo L. Black United States Courthouse. The Court will provide the parties
with pretrial instructions by separate order.
DONE and ORDERED this July 29, 2016.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

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