Rockey v. USA et al

Filing 25

RECOMMENDED DISPOSITION recommending 19 Defendants' motion for summary judgment be granted. Objections to R&R due no later than 14 days from the date the Recommended Disposition is received. Signed by Magistrate Judge Beth Deere on 2/10/10. (hph)

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IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS EASTERN DIVISION W I L L I A M E. ROCKEY R e g . #04307-063 V. C A S E NO.: 2:09CV00050 WRW/BD DEFENDANTS P L A IN T IF F U N I T E D STATES OF AMERICA, et al. R E C O M M E N D E D DISPOSITION I. P r o c e d u r e for Filing Objections: T h e following Recommended Disposition has been sent to United States District C o u rt Judge William R. Wilson, Jr. Any party may serve and file written objections to th is recommendation. Objections should be specific and should include the factual or le g a l basis for the objection. If the objection is to a factual finding, specifically identify th a t finding and the evidence that supports your objection. An original and one copy of yo u r objections must be received in the office of the United States District Court Clerk no la te r than fourteen (14) days from the date you receive the Recommended Disposition. A c o p y will be furnished to the opposing party. Failure to file timely objections may result in waiver of the right to appeal questions of fact. M a il your objections and "Statement of Necessity" to: C le rk , United States District Court E a s te rn District of Arkansas 6 0 0 West Capitol Avenue, Suite A149 L ittle Rock, AR 72201-3325 II. B ackground: P la in tif f , a Federal Correctional Institution inmate housed in Forrest City, A rk a n sa s ("FCI-FC"), brought this action pro se under the Federal Tort Claims Act (" F C T A " ), 28 U.S.C. 2671, et seq. In the Complaint (docket entry #2), Plaintiff a lle g e s that employees of the FCI-FC negligently failed to diagnose and treat acute g a s tro in te s tin a l bleeding caused by excessive prescriptions of Naproxen. Now pending is Defendants' Motion to Dismiss or, in the Alternative, Motion for S u m m a ry Judgment (#19). On December 14, 2009, this Court informed Plaintiff that it w o u ld consider Defendants' motion as a motion for summary judgment (#22). Plaintiff w a s given twenty-one days to respond to Defendants' motion. Plaintiff has failed to re s p o n d , and the time to do so has passed. For the following reasons, the Court re c o m m e n d s that Defendants' motion (#19) be GRANTED, and this action be D IS M IS S E D WITH PREJUDICE. III. A. D is c u s s io n : S u m m a r y Judgment Standard S u m m a ry judgment is appropriate when the evidence, viewed in the light most f a v o ra b le to the nonmoving party, presents no genuine issue of material fact. FED. R. C IV. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty L o b b y , Inc., 477 U.S. 242, 246 (1986). Once the moving party has successfully carried its b u rd e n under Rule 56(c), the nonmoving party has an affirmative burden to go beyond the 2 pleadings and by depositions, affidavits, or otherwise, designate "specific facts showing th a t there is a genuine issue for trial." FED. R. CIV. P. 56(e); Mosley v. City of N o r th w o o d s , 415 F.3d 908, 910-11 (8th Cir. 2005) ("The nonmoving party may not rest o n mere allegations or denials, but must demonstrate on the record the existence of s p e c if ic facts which create a genuine issue for trial."). If the opposing party fails to carry th a t burden or fails to establish the existence of an essential element of its case on which th a t party will bear the burden of proof at trial, summary judgment should be granted. See Celotex, 477 U.S. at 322. "Although it is to be construed liberally, a pro se complaint m u s t contain specific facts supporting its conclusions." Martin v. Sargent, 780 F.2d 1 3 3 4 , 1337 (8th Cir. 1985). B. T h e United States is the only Proper Party Defendant in this Matter P la in tif f brought this FTCA medical negligence claim against the United States of A m e ric a ("USA"), the Department of Justice, the medical department at the FCI-FC, and D r. Hipolito D. Matos (#2). Absent circumstances not present in this matter, the USA is th e only proper party defendant to an action based on the negligent acts of federal e m p lo ye e s . McCloskey v. Mueller, 446 F.3d 262, 266 (1st Cir. 2006). The remedy a g a in s t the USA provided by the FTCA is "exclusive of any other civil action or p ro c e e d in g for money damages by reason of the same subject matter against the employee w h o s e act or omission gave rise to the claim." 28 U.S.C. 2679(b)(1). This exclusionary ru le extends to federal agencies. 28 U.S.C. 2679(a). Accordingly, the Department of 3 Justice, the medical department at the FCI-FC, and Dr. Hipolito D. Matos should be d is m is s e d as party defendants. C. M e d ic a l Negligence under the Federal Tort Claims Act In FTCA actions, the law of the state where the alleged tort occurred controls. Glorvigen v. Cirrus Design Corp., 581 F.3d 737, 743 (8th Cir. 2009). Plaintiff states that th e alleged medical negligence in this case occurred in Forrest City, Arkansas (#2). When a medical negligence claim involves a medical provider's failure to properly d ia g n o s e , assess, and manage care and treatment, the claim falls under Arkansas's M e d ic a l Malpractice Act. Dodd v. Sparks Regional Medical Center, 90 Ark.App. 191, 1 9 8 , 204 S.W.3d 579, 583 (2005). Plaintiff alleges that employees of the FCI-FC failed d ia g n o s e and treat acute gastrointestinal bleeding caused by excessive prescriptions of N a p roxe n. "In order to sustain a claim for medical malpractice, one must prove the applicable s ta n d a rd of care, the defendant's breach thereof, and that the defendant's breach p ro x im a te ly caused injury." Jones v. McGraw, 374 Ark. 483, 486, 288 S.W.3d 623, 626 (2 0 0 8 ) (citations omitted). Generally, a plaintiff has the burden of proving these three p ro p o s itio n s by expert testimony. Lee v. Martindale, 103 Ark.App. 36, 40, 286 S.W.3d 1 6 9 , 172 (2008). A plaintiff must present expert testimony when the asserted negligence d o e s not lie within the jury's comprehension as a matter of common knowledge. Id. 4 In their motion, Defendants provided the declaration of Dr. Hipolito Matos (#202 ). In Dr. Matos's medical opinion, Plaintiff's use of Naproxen did not cause his g a s tro in te s tin a l bleeding. Dr. Matos states that the "dosage of Naproxen prescribed was n e ith e r excessive nor `over-dosage' as [Plaintiff] alleges. Medical staff at [FCI-FC] did n o t violate the standard of care in their treatment of [Plaintiff]." (#20-2, 8) Plaintiff has n o t responded to these assertions. "In malpractice cases, a defendant is entitled to s u m m a ry judgment when it is shown that the plaintiff has no qualified expert to testify as to the applicable standard of care." Dodd, 90 Ark.App. at 198, 204 S.W.3d at 584. A lth o u g h there is little context and no medical evidence provided to support Dr. M a to s 's opinion, Plaintiff has failed to rebut Dr. Matos's conclusion that a bacterial in f e c tio n caused Plaintiff's gastrointestinal ulcer. See Neal v. Farris, 101 Ark.App. 375, 3 8 1 , 278 S.W.3d 129, 134 (2008) (grant of summary judgment appropriate where P la in tif f failed to timely meet her burden of proof by providing necessary medical e v id e n c e ). Accordingly, Defendants are entitled to summary judgment. IV . C o n c lu s io n : T h e Court recommends Defendants' motion for summary judgment (#19) be G RA N TED . DATED this 10th day of February, 2010. ____________________________________ U N IT E D STATES MAGISTRATE JUDGE 5

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