Fifer v. United States of America

Filing 184

FINDINGS OF FACT AND CONCLUSIONS OF LAW (DAMAGES) AND ORDER - IT IS THEREFORE ORDERED that the Clerk of the Court enter judgment in favor of Plaintiff Oray Fifer against Defendant the United States of America in the amount of $80,000.00. The Clerk shall terminate this case. (See document for further details). Signed by Senior Judge Neil V Wake on 1/26/18. (LAD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA

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No. CV-12-01753-PHX-NVW

Oray Fifer,

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Plaintiff,

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v.
United States of America,

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Defendants.

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On July 28, 2017, following a three-day bench trial on liability, the Court found the
United States liable to Plaintiff Fifer for battery under the Federal Tort Claims Act
(“FTCA”) and Arizona law. (Doc. 154.) Following a bench trial on damages, the Court
makes the following findings of fact and states the following conclusions of law pursuant
to Rule 52(a)(1).
I.

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FINDINGS OF FACT
1.

On December 1, 2011, and August 30, 2012, Fifer filed an administrative

claim for personal injury in the amount of $500,000.00.

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FINDINGS OF FACT AND
CONCLUSIONS OF LAW
(DAMAGES)
AND ORDER

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Prior to Plaintiff’s arrival at FCI Phoenix, Plaintiff was blind in his right

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Plaintiff is currently serving a 25-year sentence for distributing of a

eye.

controlled substance, conspiring to distribute a controlled substance, and carrying a
firearm in furtherance of a drug trafficking offense.
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On September 3, 2010, during a riot, Plaintiff was struck in the left eye with

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a rubber projectile, causing permanent injury. Fifer was struck multiple times in the head

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and face with rubber projectiles. (Doc. 154 at 3, 6.) One hit him in the neck, one on his

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head, and another in his left eye. The force of the blow knocked Fifer temporarily

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unconscious. (Id. at 6.) When Fifer woke up, his left eye was filled with blood. Because

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of a previous injury to his right eye, the new injuries left Fifer unable to see out of either

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eye. Fifer was examined by medical staff and transported to an outside hospital, where a

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medical evaluation revealed that he had suffered a detached retina, contusion, and

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permanent scarring in his left eye resulting in partial blindness. (Id. at 7.)

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5.

Fifer had five surgeries to his eyes—three to his left eye and two to his right

eye—to restore sight to both eyes.
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The surgeries restored sight to Plaintiff’s right eye. The surgeries partially

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restored sight to Plaintiff’s left eye, with the vision in that eye obscured with a “dot” in the

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center of his field of vision, due to the scarring. Glasses do not diminish this effect in the

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left eye.

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7.

From the date of the injury up until his last surgery in 2012, he experienced

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blurred and foggy vision, light sensitivity, partial blindness, and headaches of varying

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intensity. He was prescribed pain medication following the incident and after each surgery.

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8.

The Federal Bureau of Prisons (“BOP”) paid for Fifer’s surgeries. As long

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as Fifer remains in custody, the prison will also pay for Fifer’s other medical care needs,

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namely, his visits to the ophthalmologist and contact lenses, which he requires to see.

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Fifer is scheduled to be released from custody in December 2020, at which time he will be

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50 years old.

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9.

These injuries were the proximate cause of physical pain and mental

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anguish. The initial phase of Fifer’s injury (from September 2010 to approximately April

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2012) was particularly painful. Because Fifer remains partially blind in his left eye, it is

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reasonably likely that Fifer will suffer future pain and suffering as a result of the injury.

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Fifer is entitled to receive compensation for non-economic damages, including past and

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future pain and suffering and loss of past and future enjoyment of life.
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10.

It is reasonably likely that Fifer will need contact lenses indefinitely. But it

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is not shown that other future substantial medical care, such as surgery, is reasonably

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likely.
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pants.

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II.

Plaintiff is currently employed in the prison sewing shop, sewing flaps on

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CONCLUSIONS OF LAW
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There are three “basic steps” for calculating pecuniary damages under the

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FTCA: “(1) compute the value of the plaintiff’s loss according to state law; (2) deduct

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federal and state taxes from the portion for lost earnings; and (3) discount the total award

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to present value.” Shaw v. United States, 741 F.2d 1202, 1205 (9th Cir. 1984). “Arizona

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allows unlimited recovery for actual damages, expenses for past and prospective medical

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care, past and prospective pain and suffering, lost earnings, and diminished earning

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capacity.” Wendelken v. Superior Court, 671 P.2d 896 (Ariz. 1983).

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13.

Fifer does not seek economic damages. Therefore, any such damages are

waived. In any event, Plaintiff has not persuasively proven loss of future earning capacity.
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Award for pain and suffering is based on the record as a whole. See Jacobs v.

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United States, 2013 WL 9639663 (D. Ariz. June 18, 2013). The total monetary value of

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Fifer’s pain and suffering and loss of enjoyment of life resulting from this incident is

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$75,000.00, which is a fair and just award.

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15.

An award for future medical expenses requires persuasive evidence that “the

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need for future care [is] reasonably probable and there [is] some evidence of the probable

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nature and cost of the future treatment.” Saide v. Stanton, 135 Ariz. 76, 77, 659 P.2d 35,

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36 (1983). “[T]he amount of damages may be established with proof of a lesser degree of

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certainty than required to establish the fact of damages.” Rancho Pescado, Inc. v. Nw. Mut.

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Life Ins. Co., 140 Ariz. 174, 184, 680 P.2d 1235, 1245 (App. 1984).

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future surgery to correct his vision is only speculative.

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16.

The prospect of

The value of Plaintiff’s reasonably likely future medical care for contact

lenses is not greater than $5,000.00.
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17.

Plaintiff Fifer is entitled to judgment against the United States in the amount

of $80,000.00.

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IT IS THEREFORE ORDERED that the Clerk of the Court enter judgment in

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favor of Plaintiff Oray Fifer against Defendant the United States of America in the amount

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of $80,000.00.

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The Clerk shall terminate this case.

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Dated: January 26, 2018.

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