Embrey v. United States
MEMORANDUM OPINION & ORDER, granting 17 SEALED MOTION filed by United States for summary judgment. Signed by Judge Henry R. Wilhoit, Jr on 9/12/12.(SMT)cc: COR, Embrey via USMail
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CASE NO. 11-1l5-HRW
WILLIAM J.R. EMBREY,
MEMORANDUM OPINION AND ORDER
This matter is before the Court upon the Defendant's Motion to Dismiss or in the
Alternative for Summary Judgment [Docket No. 17]. For the reasons set forth herein, the Court
finds that summary judgment is appropriate.
Plaintiff William J.R. Embrey is currently incarcerated at the Federal Correctional
Institution in Ashland Kentucky (hereinafter "FCI Ashland").
Embrey instigated this civil action against the United States pursuant to the Federal Tort
Claims Act (hereinafter "FTCA"), 28 U.S.C. §§ 1346(b), 2671-80. He alleges that the United
States, through its Bureau of Prisons staff: (l) "deprived Plaintiff of food from the prison mess
hall for 26 days"; (2) "refus[ed] to allow him a wheel-chair so he could go to the mess hall for
food"; (3) "[t]orc[ed] him to walk to the medical department and up two sets of stairs to reach
the medical department" while knowing Plaintiff "could not stand or walk without assistance"
and (4) failed to provide him with proper medical care [Complaint, Docket No.1, pg. 3-4]
Embrey alleges that as a result of these acts and omissions, he suffered injury and seeks
compensatory damages in the amount of $10,000 as well as fees and costs [Complaint, Docket
No.1, pg. 6].
Defendant seeks judgment as a matter of law as to all claims alleged herein.
STANDARD OF REVIEW
Defendant's motion seeks dismissal pursuant to Fed.R.Civ.Proc. 12(b)(6) or, in the
alternative, summary judgment pursuant to Fed.R.Civ.Proc. 56. In support of its motion,
Defendant has submitted documents which are not part of the pleadings in this case. This court
may accept "matters outside the pleadings," but in doing so it must treat the motion "as one for
summary judgment under Rule 56. Fed.R.Civ.P. 12(d). See also Jones v. City a/Cincinnati, 521
F.3d 555 (6th Cir. 2008).
In 1986, the United States Supreme Court set forth the standard for summary judgment
in a trilogy of cases: Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d
202 (1986), Celotex v. Cartett, 477 U.S. 317. 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), and
Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348,89
L.Ed.2d 538 (1986). Following this precedent and Fed.R.Civ.P. 56©, the moving party is
entitled to judgment as a matter oflaw when "[t]he pleadings, depositions, answers to
interrogatories and admissions on file, together with affidavits, if any, show that there is no
genuine issue of material fact." Summary judgment is mandated against a party who has failed
to establish an essential element of his or her case after adequate time for discovery. In such a
situation, there is no genuine issue of material fact as the failure to prove an essential fact renders
all other facts irrelevant. Celotex v. Cartett, 477 U.S. at 322-323.
The FTCA was enacted in 1948 and partially waives the sovereign immunity of the
United States by providing United States District Courts with subject matter jurisdiction over tort
claims brought against the United States. 28 U.S.C. § 1346. Under the FTCA, the United States
has waived its sovereign immunity for claims against it for monetary damages arising from
"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." 28 U.S.c. §
1346(b). In an FTCA claim, liability is determined by reference to the law of the state where the
alleged negligent or wrongful conduct occurred. Id. See also, Sellers v. United States, 870 F.2d
1098, 1101 (6 th Cir. 1989).
In this case, the alleged acts of negligence occurred in Kentucky, therefore Kentucky law
governs this Court's analysis. In order to state a cause of action based on negligence under
Kentucky law, a plaintiff must establish the following elements: "(1) a duty on the part of the
defendant; (2) a breach of that duty; and (3) consequent injury." Illinois Central R.R. v. Vincent,
KY, 412 S.W.2d 874, 876 (Ky. 1967).
Plaintiff has not presented a cognizable claim under the FTCA with regard to his
access to food.
Plaintiff alleges that the Defendants "deprived [him] of food from the prison mess hall for
26 days and cause[d] [him] personal injury...." [Docket No.1 pg. 3].
This bald assertion in his Complaint notwithstanding, Plaintiff has not established
physical injury resulting from his alleged access to mainline food. Regardless of whether he was,
in fact, denied access to food, 1 absent evidence of physical injury, Plaintiff cannot maintain this
Notably, sales invoices from the prison Commissary during the time Plaintiff alleges he
was denied access to food from the kitchen show that he made six large purchases. For example,
in June 2010 he purchased 20 packages of cream cheese, 20 cans of tuna, 24 cans of mackerel, 8
Snickers bars, 3 Milky Way bars, 2 packages of M & M's, 5 cups of cheese, 10 cans of soup, 8
bricks of mozzarella, 4 cans ofrefried beans and 3 12-packs of soft drinks [Docket No. 17-6].
claim under the FTCA.
Even if this Court were to interpret Plaintiff s claim as one for mental or emotional
injury, it fails. The FTCA prohibits an inmate from bringing an action against the United States
for mental injury without a showing of accompanying physical injury. 28 U.S.C. § 1346(b)(2).
Plaintiff has not presented a cognizable claim under the FTCA with regard to his
access to a wheelchair or his use of the stairs.
Plaintiff claims that he was wrongfully denied a wheelchair. However, he has failed to
present any evidence that he needed a wheelchair or other ambulatory device during the relevant
time period. Indeed, there is nothing in the record to indicate Plaintiff was somehow limited in
his ability to move about. Although the medical records from the prison show that Plaintiff
suffered from spinal stenosis, the treatment he received was conservative in nature, thereby
negating any allegation, or even implication, that this condition prevented him from walking.
Further, the record establishes that during the relevant time period, Plaintiff was seen
walking in his Unit and to and from the education department [Docket No. 17-13 and 15].
Moreover, Plaintiff was undoubtedly able to walk to and from the Commissary, and carry
his purchases back to his cell.
Plaintiff has not demonstrated that a genuine issue of fact exists with regard to his need
for a wheelchair.
Plaintiff has not presented a cognizable claim under the FTCA as to lack of
Plaintiff maintains that he was denied proper medical care while incarcerated at FCr
Ashland. Under Kentucky law, a plaintiff alleging medical negligence must prove that a medical
provider failed to adhere to the standard of care of a reasonably competent practitioner in the
same medical field, proximately causing the plaintiff injury.
Generally, expert testimony is required to show that a medical provider failed to conform
to the applicable standard of care and caused the plaintiffs injury. See generally, Perkins v.
Hausladen, 828 S.W.2d 652 (Ky. 1992).
Plaintiff has not presented the Court with expert testimony and, thus, cannot establish a
deviation from the standard of care. Therefore, Defendant is entitled to judgment as a matter of
law as to this claim.
Plaintiff has not adequately demonstrated why this Court should delay ruling upon
Defendant's dispositive motion
In an effort to avoid summary judgment, Plaintiff contends that judgment at this time
would be premature and that he is entitled to pursue additional discovery.
While Kentucky substantive law governs the resolution of Embrey's claims, federal
procedural law governs the manner in which they are resolved on a summary judgment motion.
The general rule is that summary judgment is improper if the non-movant is not afforded a
sufficient opportunity for discovery. The non-movant bears the obligation to inform the district
court of his need for discovery. Thus, before a summary judgment motion is decided, the non
moving party must file an affidavit pursuant to Fed. R. Civ. P. 56(d) which details the discovery
needed, or file a motion for additional discovery. If he does neither, "this court will not normally
address whether there was adequate time for discovery." Vance By and Through Hammons v.
US., 90 F.3d 1145, 1149 (6 th Cir. 1145).
In this case, Plaintiff has not filed such an affidavit. Rather, he merely states that
discovery is needed. A conclusory statement as to the need for more discovery is not enough.
Shavrnoch v. Clark Oil and Refining Group, 726 F.2d 291 (6 th Cir. 1984) (finding that District
Court did not err in granting summary judgment where plaintiff did not allege that documents
sought in further discovery contained information that would have created genuine issue of
material fact, and never filed affidavit to stay consideration of summary judgment motion). See
also Wallin v. Norman, 317 F.3d 558 (6 th Cir. 2003)(holding that ifparty opposing a motion for
summary judgment files affidavit stating that he or she unable to present facts essential to justify
the opposition, the district court may permit further discovery so that the opposing party can
adequately oppose the motion for summary judgment; however, it is up to the party opposing the
motion to state why more discovery is needed in the affidavit).
In this case, Embrey does not specify, much less provide a sworn statement, what discovery is
needed, in what form or how long it will take. Without these details in affidavit form, the Court
need not delay ruling upon Defendant's dispositive motion.
Moreover, discovery could not cure the legal deficiencies of the claims in this case, which
still fail as a matter of law.
Accordingly, IT IS HEREBY ORDERED that Defendant's Motion for Summary
Judgment be [Docket No. 17] SUSTAINED.
~ R. Wilhoit ".
United States DIstnct___
This 12th day of September, 2012.
Henry R. Wilhoit, Jr.
Senior U.S. District Judge
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