SHIPMAN v. UNITED STATES OF AMERICA

Filing 129

ORDER ADOPTING 125 REPORT AND RECOMMENDATION ; granting in part and denying in part 102 Second MOTION for Summary Judgment Renewed. Signed by William Terrell Hodges on 11/27/2017. The objections to the Magistrate Judge' s denials of plaintiff's motion to strike at ECF No. 114 and to compel discovery at ECF No. 115 are overruled. The Clerk shall not enter judgment at this time, and the case is remanded to the Magistrate Judge for further proceedings. (kdm)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
RODNEY RODRIGUEZ SHIPMAN,
Plaintiff,
v.

CASE NO. 5:15-cv-00133-WTH-CJK

UNITED STATES OF AMERICA,
DR. PERRY CATTAU,
Defendants.
_____________________________/
ORDER ADOPTING REPORT AND RECOMMENDATION
This cause comes on for consideration upon the Magistrate Judge's Order and Report and
Recommendation. (ECF No. 125). The parties have been furnished a copy of the Report and
Recommendation and have been afforded an opportunity to file objections pursuant to Title 28,
United States Code, Section 636(b)(1). Plaintiff has filed objections at ECF No. 127. I have
made a de novo review based on those objections.
Having considered the Report and Recommendation, and the timely filed objections, I
have determined that the Report and Recommendation should be adopted. First, the Court
agrees with the Magistrate Judge that Dr. Cattau is not an employee of the United States or so
controlled or supervised by the United States that his conduct can trigger liability under the
Federal Tort Claims Act, 28 U.S.C. § 2671-2680. Summary judgment is thus appropriate on all
claims against the United States based on Dr. Cattau’s conduct.
Also, the Third Amended Complaint, ECF No. 95, can be construed as containing a
deliberate indifference Eighth Amendment claim directly against the United States based on the
action of the FCI-Marianna employees. It is well established, however, that no suit may be

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brought against the United States unless the United States waives its sovereign immunity and
consents to be sued. The United States has not waived sovereign immunity in Bivens or similar
constitution-based actions. See Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682,
688-89, 69 S.Ct. 1457, 1461, 93 L.Ed.2d 1628 (1949); see also Garcia v. United States, 666 F.2d
960, 966 (5th Cir.1982). Therefore, to the extent the third amended complaint is construed to
contain such a claim, the claim is due to be dismissed with prejudice.
However, the Court also agrees with the Magistrate Judge that plaintiff has provided
sufficient evidence, including expert testimony, to put at issue all of the elements in his medical
negligence claim: the professional standard of care, breach of that standard by FCI-Marianna
employees, and causation between that breach and plaintiff's suffering, at a minimum, interim
damages. Thus, material issues of fact exist, and summary judgment is not appropriate.
Finally, at ECF No. 127, the plaintiff objects to two nondispositive orders of the
Magistrate Judge: one denying ECF No. 114, plaintiff’s motion to strike the affidavit of Dr.
Lopez, and the other denying ECF No. 115, plaintiff’s motion to compel production of the
contract between Jackson Hospital and the Bureau of Prisons. Under Federal Rule of Civil
Procedure 72(a), if a party objects to a Magistrate Judge’s order on a nondispositive motion, the
District Judge must “modify or set aside any portion of the order that is clearly erroneous or
contrary to law.” Id. After considering the objections, this Court concludes that the Magistrate
Judge’s rulings are not clearly erroneous or contrary to law.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.

The Magistrate Judge’s Report and Recommendation, ECF No. 125, is adopted
and incorporated by reference in this order.

Case No: 5:15-cv-00133-WTH-CJK

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2.

The United States’ motion for summary judgment, ECF No. 102, is granted in
part and denied in part as follows:
a. It is granted in favor of the United States on plaintiff ‘s claims under the FTCA
based upon the conduct of Dr. Cattau..
b. The motion for summary judgment is denied in all other respects.

3.

To the extent the third amended complaint brings an Eighth Amendment claim
directly against the United States, such claim is dismissed with prejudice.

4.

The objections to the Magistrate Judge's denials of plaintiff's motion to strike at
ECF No. 114 and to compel discovery at ECF No. 115 are overruled.

5.

The Clerk shall not enter judgment at this time, and the case is remanded to the
Magistrate Judge for further proceedings.

DONE AND ORDERED this 27th day of November, 2017

Case No: 5:15-cv-00133-WTH-CJK