ELLISON v. UNITED STATES OF AMERICA
Filing
22
ENTRY Discussing Defendant's Partial Motion for Summary Judgment - The United States' motion for partial summary judgment [dkt. 14 ] is denied. Ellison exhausted his administrative remedies regarding his claim that prison medical staff provided him with negligent medical care in treating the knot on his head. This claim shall proceed. See Entry for details. Copy sent to plaintiff via US Mail. Signed by Judge Jane Magnus-Stinson on 6/2/2016. (MAG)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
KYLE ELLISON,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
Case No. 2:15-cv-00385-JMS-MJD
Entry Discussing Defendant’s Partial Motion for Summary Judgment
Kyle Ellison (“Ellison”), an inmate within the Federal Bureau of Prisons (“BOP”), brings
this action against the United States of America under the Federal Tort Claims Act (“FTCA”), 28
U.S.C. § 2675(a) contending that the BOP’s medical staff acted negligently by failing to properly
treat a contusion on his forehead.
The United States argues that Ellison failed to present an administrative tort claim to the
BOP regarding any claims in his Complaint arising after July 23, 2015—namely, the suture
removal and resulting reopening of the surgical incision—before filing this action and, therefore,
he has failed to exhaust his administrative remedies regarding those claims under the FTCA. The
United States seeks the entry of summary judgment in its favor as to any claims in Ellison’s
Complaint arising after July 23, 2015.
I. Standard of Review
Summary judgment should be granted “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P.
56(a). A “material fact” is one that “might affect the outcome of the suit.” Anderson v. Liberty
1
Lobby, Inc., 477 U.S. 242, 248 (1986). The Court views the facts in the light most favorable to the
non-moving party and all reasonable inferences are drawn in the non-movant’s favor. Ault v.
Speicher, 634 F.3d 942, 945 (7th Cir. 2011).
“The applicable substantive law will dictate which facts are material.” National Soffit &
Escutcheons, Inc., v. Superior Systems, Inc., 98 F.3d 262, 265 (7th Cir. 1996) (citing Anderson,
477 U.S. at 248). In this case, the substantive law relates to the FTCA. The FTCA permits a person
to bring suit in federal court against the United States:
for injury or loss of property, or personal injury or death caused by the negligent or
wrongful act or omission of any employee of the Government while acting within
the scope of his office or employment, under circumstances where the United
States, if a private person, would be liable to the claimant in accordance with the
law of the place where the act or omission occurred.
28 U.S.C. § 1346(b)(1). Pursuant to this provision, federal inmates may bring suit for injuries they
sustain in custody as a consequence of the negligence of prison officials. United States v. Muniz,
374 U.S. 150, 150 (1963).
“Like any other federal tort claimant, however, an inmate may not bring such a suit unless
he has first presented his claim to the appropriate federal agency and that agency has denied the
claim.” Buechel v. United States, 746 F.3d 753, 758 (7th Cir. 2014) (citing 28 U.S.C. § 2675(a);
28 C.F.R. § 14.2(a) (requiring claimant to execute a “Standard Form 95 or other written
notification of an incident, accompanied by a claim for money damages in a sum certain for ...
personal injury ... alleged to have occurred by reason of the incident....”)). A plaintiff must file any
claim under the FTCA in exact compliance with the statute’s terms or the claim must be dismissed.
See Deloria v. Veterans Admin., 927 F.2d 1009, 1011-12 (7th Cir. 1991). Title 28 U.S.C. § 2675(a)
states:
An action shall not be instituted upon a claim against the United States for money
damages for ... loss of property ... unless the claimant shall have first presented the
2
claim to the appropriate Federal agency and his claim shall have been finally denied
by the agency in writing.
In other words, the FTCA bars would-be tort plaintiffs from bringing suit against the government
unless the claimant has previously submitted a claim for damages to the offending agency because
Congress wants agencies to have an opportunity to settle disputes before defending against
litigation in court. See McNeil v. United States, 508 U.S. 106, 112 & n. 7 (1993); Smoke Shop,
LLC v. United States, 761 F.3d 779, 786 (7th Cir. 2014) (stating that the exhaustion requirement
is a “condition precedent to the plaintiff’s ability to prevail.”).
II. Undisputed Facts
A.
Background
In his Complaint, Ellison contends that on August 27, 2014, he hit his forehead in the
shower area, resulting in pain and swelling, and subsequently sought treatment from the FCI Terre
Haute Medical Department. Ellison alleges that the BOP medical staff misdiagnosed the swelling
and growth in his forehead and denied him treatment, eventually necessitating surgery by a
contracting surgeon to remove the growth. On July 21, 2015, Dr. Brett Guinn, a contract physician,
performed surgery at an outside hospital to remove a lipoma from Ellison’s forehead area. Dr.
Guinn is not an employee of the BOP.
After the surgery, Ellison contends that, on July 30, 2015, Kimberly Rhoads, a dental
hygienist, prematurely removed his sutures, contrary to the orders of the contracting surgeon.
According to Ellison, the premature removal of the sutures caused the surgical incision to reopen,
contributing to his permanent injury, scarring, pain and suffering, and mental anguish and anxiety.
B.
Claim Number TRT-NCR-2015-06109
On July 30, 2015, Ellison filed an administrative tort claim on Standard Form 95—Claim
Number TRT-NCR-2015-06109—signed and dated July 23, 2015. This tort claim states:
3
This FCI Terre Haute medical staff/department did noting [sic] when I brought my
medical issue to sick-call & placed them on notice that I was in servere [sic] pain
& suffering where I was told that it was not the knot on my head that was putting
me in pain, and that it was a calcium build-up without giving me an MRI, X-ray, or
Catscan. They prescribed no pain meds. in almost 2yrs of complaining of the severe
pain & suffering I was exsperiancing [sic]. The FCI medical Staff/Dept. has falsely
& wrongly continued to diagnose me & my medical injury for almost 2yrs, until I
started filing my grievance and exhausted by administrative remedy that forced
them to do their job which should have been done in the begining [sic] which would
have proven my injury, pain & suffering was caused by Lipoma ‘FATTY TUMA’
[sic] and not a calcium buildup. . . but they didn’t and I continued to suffer.
Tort Claim, Dkt. 1-1 at p. 1. The BOP denied Claim Number TRT-NCR-2015-06109 by letter
dated October 14, 2015. The response provided by the Bureau of Prisons states, “Investigation of
your claim did not reveal you suffered any personal injury as a result of the negligent acts or
omissions of Bureau of Prisons employees acting within the scope of their employment.” Dkt. 11 at 4.
C. Claim Number TRT-NCR-2016-00105
On September 22, 2015, Ellison submitted another administrative claim—Claim Number
TRT-NCR-2016-00105—with the BOP. Claim Number TRT-NCR-2016-00105 was signed by
Ellison and dated July 23, 2015, and was identical to Claim Number TRT-NCR-2015-06109 that
Ellison had previously filed on July 30, 2015, raising no new allegations.
Claim Number TRT-NCR-2016-00105 was denied on the grounds that the BOP had
responded to Ellison’s previous tort claim, the claim raised was identical to his previous claim,
and no new issues or evidence were put forth.
III. Discussion
The United States argues that it is entitled to entry of judgment in its favor as to any claims
arising after July 23, 2015—specifically, the purportedly premature suture removal and resulting
4
reopening of the surgical incision—because Ellison failed to exhaust those claims under the FTCA.
This Court disagrees, but not for the reasons raised by Ellison. 1
The applicable regulations provide that a claim is deemed “presented” when a federal
agency receives from a claimant an executed Standard Form 95 or other written notification of an
incident, accompanied by a claim for money damages in a sum certain for property loss, personal
injury, or death alleged to have occurred by reason of the incident. 28 C.F.R. § 14.2(a). All that is
required is “sufficient notice to enable the agency to investigate the claim.” Palay v. United States,
349 F.3d 418, 426 (7th Cir. 2003) (internal quotations omitted). Any cause of action fairly implicit
in the facts set forth in the Standard Form 95 will be considered a claim that was “presented” to
the BOP for purposes of the exhaustion requirement. Id. Put another way, if the claim would have
been apparent to a “legally sophisticated reader” of the form, then the Court will charge the agency
with notice of that claim and deem it to have been exhausted. Id. The Court finds that the claim at
issue in this case is whether BOP medical staff were negligent in their treatment of Ellison’s knot
on his head which resulted in pain and suffering and for which he seeks money damages.
The United States complains that the tort claim signed July 23, 2015, made no mention of
the surgery, which occurred on July 21, 2015, or resulting suture removal, which occurred on July
30, 2015. Nor is there any reference to Ms. Rhoads, whom Ellison contends removed the sutures.
1
Ellison argues that the Federal Bureau of Prisons (“BOP”) had notice of these additional claims
from the administrative tort claim he filed and a separate administrative remedy that he submitted.
But, the administrative remedy process is of no benefit to Ellison. The administrative remedy
process is separate and distinct from the tort claim process, and filing under one does not invoke
the other. See Macias v. Zenk, 495 F.3d 37, 44 (2d Cir. 2007) (recognizing that prisoners “cannot
satisfy the PLRA’s exhaustion requirement solely by filing . . . administrative tort claims”); LopezHeredia v. Univ. of Texas Med. Branch, 240 F. App’x 646, 647 (5th Cir. July 6, 2007)
(unpublished) (“The BOP’s FTCA claims procedure is separate from the BOP’s administrative
remedies procedure.” (citation omitted)); King v. Lukens, No. 2:10-cv-0061-JMS-WGH, 2013 WL
174117, at *6 (S.D. Ind. Jan. 16, 2013) (noting that the FTCA has its own exhaustion requirement
separate from the administrative remedy process).
5
This is true enough, but the United States’ conclusion that as a result it was thwarted in its efforts
to investigate and evaluate Ellison’s claim prior to litigation does not follow.
It is plain from the tort claim that Ellison is upset about the treatment he has received for
the knot on his head. The United States’ investigator had the opportunity to consider the treatment
in its entirety, including the current status of the injury. See Warrum v. United States, 427 F.3d
1048, 1050 (7th Cir. 2005) (noting that “the purpose of the FTCA’s exhaustion requirement is to
facilitate the administrative evaluation of tort claims by the agency whose activity gave rise to the
claim and permit settlement of meritorious claims more quickly and without litigation” (citations
omitted)). In fact, the BOP’s response states, “[i]nvestigation of your claim did not reveal you
suffered any personal injury as a result of the negligent acts or omissions of Bureau of Prisons
employees acting within the scope of their employment.” Dkt. 1-1 at 4. The response does not
address any of the individual factual allegations raised in the tort claim, only the claim in general.
That is, whether Ellison suffered personal injury as a result of the negligent acts of BOP employees
in treating the knot on his head.
The Court rejects the United States’ argument that Ellison’s claim that Ms. Rhoads
prematurely removed his sutures resulting from the surgery to treat the knot on his head is a
separate alleged act of a government employee distinct from the allegations in his tort claim. The
United States will not be permitted to splice the single claim raised in this case—negligent
treatment of a medical condition—into multiple sub-claims in an effort to narrow the scope of
liability. Ellison’s Standard Form 95 gave the BOP sufficient notice to enable the agency to
investigate the claim. Allegations concerning the surgery to remove his lipoma, the suture removal,
or Ms. Rhoads were not necessary to put the agency on notice that Ellison was complaining of the
treatment he received for the knot on his head.
6
It was the second claim, TRT-NCR-2016-00105, in this instance which provided sufficient
written notification of the incident and the claim for money damages for the injury alleged to have
occurred. This Form was submitted after all of the allegations of injury occurred. This generous
reading of Ellison’s second claim is consistent with Seventh Circuit precedent. Palay, 349 F.3d at
425 (“Form 95 is entitled to a generous construction.”); Buechel, 746 F.3d at 760 (reviewing pro
se litigant’s administrative claim and “giving Buechel the benefit of every reasonable inference
that may be drawn from his allegations.”).
The United States’ motion for partial summary judgment [dkt. 14] is denied. Ellison
exhausted his administrative remedies regarding his claim that prison medical staff provided him
with negligent medical care in treating the knot on his head. This claim shall proceed.
IT IS SO ORDERED.
_______________________________
Date: June 2, 2016
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana
Distribution:
All Electronically Registered Counsel
KYLE ELLISON
88432-054
TERRE HAUTE FEDERAL CORRECTIONAL INSTITUTION
Inmate Mail/Parcels
P.O. BOX 33
TERRE HAUTE, IN 47808
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?