Kerns v. Bureau of Prisons et al

Filing 50

ORDER denying 42 motion to add recent medical exam and prescribed treatment; denying 44 motion for reconsideration Rule 59(e); denying 45 motion for reconsideration of Order of dismissal; and denying 47 motion for correction of Clerk mistake on docket correction filed on 9/27/2021. Signed by Judge Kristine G. Baker on 8/16/2022. (jbh)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
DELTA DIVISION
DONALD KERNS
Reg # 27082-45
v.

PLAINTIFF
Case No. 2:18-cv-00086-KGB-JTR

BUREAU OF PRISONS, et al.

DEFENDANTS
ORDER

Before the Court are plaintiff Donald Kerns’s motion to add recent medical exam and
prescribed treatment, motion for reconsideration Rule 59(e), motion for reconsideration of Order
of dismissal, and motion for correction of Clerk mistake on docket correction filed on September
27, 2021 (Dkt. Nos. 42, 44, 45, 46, 47). Because the Court adopted the Recommended Disposition
submitted by United States Magistrate Judge J. Thomas Ray, granted defendant United States’s
motion for summary judgment, and entered a judgment, the Court construes all of Mr. Kerns’s
pending motions as filed pursuant to Federal Rule of Civil Procedure 59(e) and as motions to alter
or amend the judgment. Auto Servs. Co. v. KPMG, LLP, 537 F.3d 853, 855 (8th Cir. 2008).
I.

Background

Mr. Kerns filed a pro se complaint against several defendants, pursuant to the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671, et seq., alleging that he received negligent
medical care while he was incarcerated in the Federal Correctional Institution located in Forrest
City, Arkansas (“FCC Forrest City”) (Dkt. No. 11, at 1-2). The Court adopted the Partial
Recommended Disposition of Judge Ray; dismissed defendants Bureau of Prisons, Warden Gene
Beasley, Nurse Practitioner Stiles, and Physician’s Assistant Wingo; and permitted Mr. Kerns to
proceed with his FTCA claim against the United States (Dkt. No. 17).

The United States filed a motion for summary judgment (Dkt. Nos. 19; 20; 21). In the
motion, the United States argued that it was entitled to summary judgment entered in its favor
because Mr. Kerns’s claims for negligent medical care arise under the FTCA; Mr. Kerns received
medical care and treatment; and Mr. Kerns had no expert testimony to support his claim for
medical negligence. The United States argued that, without expert testimony, Mr. Kerns could not
meet his burden to show that any medical care provider at FCC Forrest City breached the standard
of care or proximately caused any alleged injury (Dkt. No. 21, at 1, 9-12). Mr. Kerns responded
to the motion (Dkt. Nos. 27; 29; 30). Mr. Kerns questioned some of the facts the United States
asserted and argued in his response that expert testimony was not necessary because the “asserted
negligence lies within a jury’s comprehension as a matter of common, knowledge” (Dkt. Nos. 27;
30, ¶ 2). The United States replied to the response (Dkt. No. 28).
Judge Ray issued a Recommended Disposition recommending that this Court grant the
United States’s motion for summary judgment and dismiss with prejudice Mr. Kerns’s FTCA
claims (Dkt. No. 34, at 27).
Mr. Kerns objected to the Recommended Disposition asserting that, from March 2019 until
he was transferred from FCC Forrest City in January 2021, he did not receive care from an
orthopedic specialist (Dkt. Nos. 36, 37). In response to the United States’s argument that he had
not come forward with expert testimony to support his claims, he stated that “the truth is; I’ve had
5 broken ribs, 3 broken fingers, 2-bones in my foot, my wrist and now my clavicle, I know when
a bone is healing properly or not.” (Dkt. No. 36, ¶ 4). Mr. Kerns asserts that the medical delays at
FCC Forrest City have caused him “more damage,” and, even if he could not “afford a[n] expert
witness,” he believes “a jury will see ‘Forrest City Medical’ gave me poor treatment.” (Id., ¶ 6).

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Mr. Kerns also maintained that events and delays resulting from COVID-19 preventing him from
obtaining a medical expert (Dkt. No. 37).
In an Order dated August 16, 2021, the Court addressed Mr. Kerns’s objections but adopted
the Recommended Disposition of Judge Ray, granted the United States’s motion for summary
judgment, and dismissed with prejudice Mr. Kerns’s FTCA claims (Dkt. No. 39).
II.

Timeliness Of The Motions To Alter Or Amend The Judgment

A motion to alter or amend the judgment must be served no later than 28 days after the
entry of the judgment. Fed. R. Civ. P. 59(e). The Court entered its judgment in this case on August
16, 2021 (Dkt. No. 40). The Clerk of the Court filed Mr. Kerns’s motion to add recent medical
exam and prescribed treatment on August 30, 2021, his motion for reconsideration Rule 59(e) on
September 7, 2021, and his motion for reconsideration of Order of dismissal on September 13,
2021, all within the 28 day time limit after the entry of the judgment.
The Clerk of the Court filed Mr. Kerns’s motion for correction of Clerk mistake on docket
correction filed on September 27, 2021, outside of the 28 day time limit for filing a motion to alter
or amend the judgment. Accordingly, the Court denies Mr. Kerns’s motion for correction of Clerk
mistake on docket correction filed on September 27, 2021, as untimely.
III.

Analysis

Rule 59(e) motions serve the limited function of correcting “‘manifest errors of law or fact
or to present newly discovered evidence.’” United States v. Metro. St. Louis Sewer Dist., 440 F.3d
930, 933 (8th Cir. 2006) (quoting Hagerman v. Yukon Energy Corp., 839 F.2d 407, 414 (8th Cir.
1988)). “Such motions cannot be used to introduce new evidence, tender new legal theories, or
raise arguments which could have been offered or raised prior to entry of judgment.” Id. The rule
permitting a court to alter or amend a judgment may not be used to relitigate old matters, and the

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rule may not be used to raise arguments or present evidence that could have been raised prior to
the entry of judgment. Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008) (citing Fed. R. Civ. P.
59(e)).
In his motion to add new evidence, Mr. Kerns asserts that he was taken to an orthopedist
on August 2, 2021, in Austin, Texas, Matthew T. Burrus, M.D., who diagnosed a “left midshaft
nonunion fracture” and “recommended a midshaft clavicle ORIF [with] nonunion take down and
bone marrow aspiration from the proximal humerus.” (Dkt. No. 42, at 1). Mr. Kerns states that
“[s]urgery is required if I want pain relief and full motion of my left arm.” (Id., at 2).
In his motion for reconsideration Rule 59(e), Mr. Kerns asks the Court to reconsider its
ruling granting defendant’s motion for summary judgment due to three motions filed at the same
time the Court ruled (Dkt. No. 44, at 1). Mr. Kerns does not state what are the three motions he
would like for the Court to consider.
In his motion for reconsideration of Order of dismissal, Mr. Kerns states that Dr. Burrus
did not offer an opinion regarding whether Mr. Kerns received proper medical care but argues that
“his unequivocal recommendation of a surgical solution to Petitioner’s problem certainly, in realworld terms, and given the economic and institutional restrictions faced by Petitioner as a confined
prisoner, essentially fulfills the same purpose.” (Dkt. No. 45, at 2). Even if the Court considers
Mr. Kerns’s new medical evidence, it does not cure the defect identified by Judge Ray in the
Recommended Disposition. Mr. Kerns has not come forward with expert testimony as required
under Arkansas law to prove the standard of care, breach of the standard of care, and proximate
causation. Dr. Burrus’s diagnosis and treatment plan for Mr. Kerns do not equate to an opinion
about the standard of care, whether there was a breach of the standard of care by those who treated

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Mr. Kerns while he was an inmate at FCC Forrest City, or whether any treatment Mr. Kerns
received while an inmate at FCC Forrest City caused Mr. Kerns an injury.
Additionally, Mr. Kerns asserts a new legal argument. Mr. Kerns argues, for the first time,
that there is a conflict between Arkansas law’s requirement that a plaintiff use “expert testimony”
to prove the standard of care, a breach of the standard of care, and proximate causation and the
Federal Rules of Civil Procedure (Dkt. No. 45, at 2-3). Mr. Kerns maintains that, after the matter
was briefed in this Court, the Fourth Circuit Court of Appeals issued its opinion in Pledger v.
Lynch in which it found that West Virginia’s pre-suit notice and certification requirement in
medical negligence cases could not be reconciled with the requirements of the Federal Rules of
Civil Procedure (Id., at 2-3 (citing Lorenzo M. Pledger, Sr. v. Lynch, 5 F.4th 511 (2021)). The
excerpt from Lynch cited by Mr. Kerns, however, acknowledges that the Sixth Circuit Court of
Appeals and Seventh Circuit Court of Appeals had held in 2019 that state certificate requirements
conflict with the Federal Rules of Civil Procedure. Consequently, this argument was available
and could have been raised by Mr. Kerns when he responded to the United States’s motion for
summary judgment. The Court cannot consider on a Rule 59(e) motion new legal theories which
could have been offered prior to entry of judgment. Metro. St. Louis Sewer Dist., 440 F.3d at 933.
Accordingly, the Court denies Mr. Kerns’s motions for reconsideration.
IV.

Conclusion

For these reasons the Court denies Mr. Kerns’s motion to add recent medical exam and
prescribed treatment, motion for reconsideration Rule 59(e), motion for reconsideration of Order
of dismissal, and motion for correction of Clerk mistake on docket correction filed on September
27, 2021 (Dkt. Nos. 42, 44, 45, 46, 47).

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So ordered this 16th day of August, 2022.
_______________________________
Kristine G. Baker
United States District Judge

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