Rueben v. Outlaw et al

Filing 72

ORDER adopting 66 Proposed Findings and Recommendations as modified and declining in part. Hammer's 44 Motion for Summary Judgment is granted. Defendants' 50 Motion for Summary Judgment is denied without prejudice as to the United Sta tes and otherwise granted. Rueben's claims against Outlaw, Heuett, Resto, Graham, Rios, Langley, Miller, Wingo, and Hammer are dismissed with prejudice. Rueben's medical-malpractice claim against the United States remains. Further recommendation requested. Signed by Judge D. P. Marshall Jr. on 7/8/2014. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
EASTERN DIVISION

MAURICIO RUEBEN,
Reg. #59216-079
v.

PLAINTIFF

No. 2:13-cv-33-DPM-JTK

T. C. OUTLAW, Warden, FCI-Forrest City;
D. W. HEUETT, Assistant Warden, FCIForrest City; WILLIAM RESTO, Clinical
Director, FCI-Forrest City; MARY E.
GRAHAM, Health Services Administrator,
FCI-Forrest City; JEFFREY HAMMER,
Physician Assistant, FCI-Forrest City;
MISTY RIOS, Registered Nurse, FCI-Forrest
City; RHONDA LANGLEY, Registered Nurse,
FCI-Forrest City; R. M. MILLER, Registered
Nurse, FCI-Forrest City; MICHELLE WINGO,
Physician Assistant, FCI-Forrest City; and
UNITED STATES OF AMERICA

DEFENDANTS

ORDER
Opposed recommendation, NQ 66, mostly adopted as modified and
declined in part. FED. R. Crv. P. 72(b)(3).
1. Rue ben's claims for damages against all individual defendants in
their official capacities are barred by sovereign immunity.
2. Rios and Resto are absolutely immune from suit under the Public
Health Service Act. 42 U.S.C. § 233(a).

3. Rue ben's claims against Outlaw, Heuett, and Graham fail as a matter
of law. Rueben doesn't allege that they were personally involved in his
medical treatment; and defendants can't be held liable in a Bivens action based
only on their supervisory positions. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).
4. Wingo and Hammer, Rue ben's treating physicians, are entitled to
qualified immunity. Wingo treated Rueben once before his hospitalization;
she reviewed his lab results with him and prescribed medication. Hammer
saw Rue ben at least five times across three months, both before and after he
was hospitalized. Hammer prescribed Rue ben medication, ordered tests, and
directed that he be transferred to an outside medical center for treatment.
Neither Wingo nor Hammer were deliberately indifferent to Rue ben's
medical needs. Estate of Rosenberg by Rosenberg v. Crandell, 56 F.3d 35,37 (8th
Cir. 1995).
5. Langley and Miller are entitled to qualified immunity. Rueben says
that they were deliberately indifferent to his medical needs because they
booked him a later appointment three times. The record shows that Rue ben
was treated for leg pain on multiple occasions in the spring of 2012. Langley
and Miller were following BOP's triage protocol. The record doesn't indicate
that Langley or Miller knew of, or disregarded, an excessive risk.

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6. As to the United States, the recommendation is this: grant summary
judgment based on Rue ben's failure to provide expert testimony, as required
by the Arkansas Medical Malpractice Act. Rueben objects, arguing that the
Court denied his motion to appoint an expert several months ago. NQ 71 at 7,
NQ 47, & NQ 56. This issue needs further development. E.g., Spann v. Roper,

453 F.3d 1007, 1009 (8th Cir. 2006) (per curiam). The Court returns this claim
to Judge Kearney, who is more familiar with the record. Is enough evidence
present to justify revisiting the motion for an expert, and granting it, at least
for an evaluation of Rue ben's allegations? The Court is not directing that this
be done, but only that it be reconsidered. If this case is different than Spann,
the differences need explaining. The Court would also benefit from Judge
Kearney's further analysis about when an expert should be appointed.

* * *
Hammer's motion for summary judgment, NQ 44, is granted.
Defendants' motion for summary judgment, NQ 50, is denied without
prejudice as to the United States and otherwise granted. Rue ben's claims
against Outlaw, Heuett, Resto, Graham, Rios, Langley, Miller, Wingo, and
Hammer are dismissed with prejudice. Rue ben's medical-malpractice claim
against the United States remains. Further recommendation requested.

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So Ordered.

D.P. Marshall Jr.
United States District Judge

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