Christensen v. United States of America et al

Filing 19

MEMORANDUM OPINION & ORDER: 1. Defendant United States of America's motion for summary judgment 14 and [14-14] is GRANTED. 2. This action is DISMISSED and STRICKEN from the Court's docket. 3. A final and appealable Judgment shall be entered this date. Signed by Judge Danny C. Reeves on 04/27/2015.(LC)cc: COR, Plaintiff via U.S. Mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
(at Lexington)
HERBERT SAMUEL CHRISTENSEN,
JR.,
Plaintiff,
v.
UNITED STATES OF AMERICA, et al.,
Defendants.

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Civil Action No. 5: 14-134-DCR

MEMORANDUM OPINION
AND ORDER

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Herbert Samuel Christensen, Jr., was formerly an inmate confined at the Federal
Medical Center in Lexington, Kentucky (“FMC-Lexington”).1

While incarcerated,

Christensen filed a pro se Complaint under the Federal Tort Claims Act, 28 U.S.C. § 2671,
(“FTCA”) seeking recovery for the “personal physical and psychological injuries” he
allegedly sustained as a result of the defendants’ actions and inactions. [Record No. 1, p. 1]
Christensen seeks compensatory damages of $10,000.00.

After conducting the initial

screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A, the Court dismissed all but one of
the plaintiff’s claims. [Record No. 6]

The only surviving claim is against the United States

under the FTCA for negligence due to an alleged violation of Kentucky’s seatbelt laws.
This matter is currently pending for consideration of the United States’ motion to
dismiss for failure to state a claim or, in the alternative, for summary judgment. [Record No.
14-14] Christensen has not filed a response to the defendant’s motion, and the time to do so

1
Per the Federal Bureau of Prisons’ website, Christensen was released from custody on August 18,
2014. See www.bop.gov/inmateloc/ (last checked April 22, 2015).

has expired. See LR 7.1(c). For the reasons discussed below, the Court will grant the
defendant’s motion for summary judgment.
I.
On July 1, 2013, Christensen was taken by medical escort to the University of
Kentucky Hospital (“UK Hospital”). He claims that, prior to leaving FMC-Lexington, he
was forced to sit sideways due to the “small and narrow” seat on the wheelchair-accessible
transportation van. According to Christensen, this caused the seatbelt to rest improperly on
his neck, which injured his “left neck and the nerves in his left ulnar nerve distribution.”
[Record No. 1, p. 4] Specifically, he claims “permanent nerve damage to his left ulnar nerve
[sic] pain, tingling and numbness and burning.” [Id. at 3] When Christensen asked an
officer about the seatbelt, he was told that “was the best [the officer] could do.” [Record No.
14-1, p. 22] Christensen also claims that, during the return trip on July 1, 2013, the seatbelt
was not strapped around him at all, causing him undue stress and psychological injuries,
including “mental anguish, nightmares, anxiety, and indignity of being dehumanized.”
[Record No. 1, p. 6] The plaintiff argues that the failure to properly use the seatbelt violated
Kentucky state law, citing Ky. Rev. Stat. 189.125(6). [Record No. 1, p. 12]
On August 6, 2013, Christensen filed an Informal Resolution Form at FMCLexington, complaining of the staff’s failure to use seatbelts but requesting no specific relief.
On the same date, Christensen was provided a Request for Administrative Remedy form,
which he filed on August 9, 2013. [Record No. 14-1, p. 57] The Warden responded on
August 29, 2013, finding that the July 1, 2013 medical transport staff properly secured a
seatbelt around the plaintiff. The Warden stated that, during the medical trip, Christensen
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had not communicated to the escorting staff that he was uncomfortable and made no attempt
to readjust his position. Christensen was reminded that, upon his return to the institution, he
was escorted to the FMC-Lexington clinic for a routine, post-medical-trip assessment and
reported no pain or distress. The Warden pointed out that it was not until August 2, 2013,
that Christensen reported to the clinic with claims of worsening numbness and tingling in the
left arm since the last medical trip.

The Warden provided a detailed summary of

Christensen’s prison medical records and advised that if Christensen was not satisfied with
the response to his administrative complaint, he could appeal to the Regional Director.
[Record No. 14-1, pp. 58-59] Christensen appealed the Warden’s determination.
On November 13, 2013, the Regional Director found that the Warden had adequately
addressed Christensen’s complaints and that the actions of staff were within the BOP’s
policies and procedures. Because Christensen did not provide any evidence that he had been
transported in an improper or unsafe manner, his appeal was denied. [Record No. 14-1, p.
61]

Christensen did not appeal this decision to the BOP’s Central Office.2

Instead,

Christensen filed an administrative tort claim with the BOP regarding the alleged seatbelt
infractions. [Record No. 14-1, pp. 20-22] On December 23, 2013, the BOP rejected this
claim as duplicative of a previously-filed tort claim concerning the failure to use seatbelts on
medical transports on July 9, 2012 and September 6, 2012. On March 17, 2014, the BOP

2
28 C.F.R 542.15 (a) provides that appeals to the General Counsel in the appropriate form (BP-11)
must be filed within 30 days of the date of the Regional Director signed his response (BP-10). The last
entry in the BOP’s Administrative Remedy Records for Christensen is the denial of his BP-10 on
November 13, 2013. [Record No. 14-1, p. 55; See also Record No. 14-6, p. 276]

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informed Christensen that the duplicative and responses were closed. [Record No. 14-1, pp.
4, 27] Christensen then filed suit in this Court. [Record No. 1]
II.
The United States seeks dismissal pursuant Rule 12(b)(6) of the Federal Rules of
Civil Procedure or, alternatively, summary judgment under Rule 56. Rule 12(b)(6) provides
that if “matters outside the pleadings are presented and not excluded by the court, the motion
must be treated as one for summary judgment under Rule 56.” The obligation to convert to a
summary judgment motion is mandatory if matters outside the pleadings are not excluded by
the Court. Max Arnold & Sons, LLC v. W.L. Hailey & Co., Inc., 452 F.3d 494, 503 (6th Cir.
2006) (applying Rule 12(d) to a Rule 12(c) motion). However, a court may consider matters
outside of the pleadings without converting to a Rule 56 motion if the documents are
“referred to in the complaint and are central to the claims contained therein.” Bassett v. Nat’l
Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008). The government has submitted
numerous exhibits and affidavits, all of which the Court has considered in evaluating the
Defendant’s motion.

Accordingly, this motion will be considered under the Rule 56

summary judgment standard.
Summary judgment is appropriate when there are no genuine disputes regarding any
material facts and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Chao v. Hall Holding Co.,
285 F.3d 415, 424 (6th Cir. 2002). A dispute over a material fact is not “genuine” unless a
reasonable jury could return a verdict for the nonmoving party. That is, the determination
must be “whether the evidence presents a sufficient disagreement to require submission to a
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jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986); see Harrison v. Ash, 539 F.3d 510, 516
(6th Cir. 2008).
The party moving for summary judgment bears the burden of showing conclusively
that no genuine issue of material fact exists. CenTra, Inc. v. Estrin, 538 F.3d 402, 412 (6th
Cir. 2008). Despite the fact that its motion is unopposed, the United States still bears this
burden. See Id. Once the moving party has met its burden of production, the nonmoving
party must present “significant probative evidence” of a genuine dispute to defeat the motion
for summary judgment. Chao, 285 F.3d at 424. The nonmoving party cannot rely upon the
assertions in its pleadings; rather, it must come forward with probative evidence, such as
sworn affidavits, to support its claims. Celotex, 477 U.S. at 324. In deciding whether to
grant summary judgment, the Court views all the facts and inferences drawn from the
evidence in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). As outlined above, Christensen has not
disputed the facts outlined in the government’s motion.
III.
Christensen asserts state law claims of negligence and a violation of Kentucky’s
seatbelt law. Ky. Rev. Stat. § 189.125(6) provides that “[a] person shall not operate a motor
vehicle manufactured after 1981 on the public roadways of this state unless the driver and all
passengers are wearing a properly adjusted and fastened seat belt.” In addition, Kentucky
law provides that “[a] person injured by the violation of any statute may recover from the
offender such damages as he sustained by reason of the violation, although a penalty or
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forfeiture is imposed for such violation.” Ky. Rev. Stat. § 446.070. The latter provision
simply “codifies the common law doctrine of ‘negligence per se’ in Kentucky.” Young v.
Carran, 289 S.W.3d 586, 589 (Ky. App. 2008). As noted in the Court’s prior Order, [Record
No. 6, p. 10] Christensen’s negligence claims must be directed against the United States
under the FTCA, 28 U.S.C. § 2679(b)(1).
Generally, the United States is immune from suit except where its sovereign
immunity is explicitly waived. United States v. Mitchell, 445 US. 535, 538 (1980). The
FTCA provides a limited waiver of sovereign immunity; it neither creates a cause of action
against the United States nor provides a means of enforcing federal statutory duties, but it
allows state tort actions against the United States for personal injuries caused by
governmental employees acting within the scope of their employment. See 28 U.S.C. §
1346(b). This waiver of immunity is limited to cases in which “a private individual [would
be liable] under like circumstances.” 28 U.S.C. § 2674. Courts have construed this statute to
include federal inmates’ claims alleging personal injuries sustained while incarcerated caused
by the negligence of government employees. See United States v. Muniz, 374 U.S. 150
(1963).
The United States may only be held liable if the conduct amounts to negligence in
accordance with the law of the state where the conduct occurred. Federal Deposit Ins. Corp
v. Meyer, 510 U.S. 471, 478 (1994) (in FTCA action, the law of the state where the events
occurred controls); See also Lyons v. Brandly, 430 F. App’x 377, 381 (6th Cir. 2011);
Friedman v. United States, 927 F.2d 259, 261 (6th Cir. 1991). Liability under the FTCA is
governed by state law. See Rayonier Inc. v. United States, 352 U.S. 315 (1957); Huffman v.
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United States, 82 F.3d 703, 705 (6th Cir. 1996). Accordingly, Kentucky tort law applies to
Christensen’s claim.
The defendant moves for summary judgment on Christensen’s FTCA claims,
asserting that the plaintiff cannot meet the statute’s requirements. Specifically, the United
States asserts that the plaintiff fails to show the requisite physical injury as required by 28
U.S.C. § 1346(b)(2), which provides:
No person convicted of a felony who is incarcerated while awaiting sentencing
or while serving a sentence may bring a civil action against the United States
or an agency, officer, or employee of the Government, for mental or emotional
injury suffered while in custody without a prior showing of physical injury.
Courts have found this physical injury requirement similar to that under the Prison Litigation
Reform Act (“PLRA”), 42 U.S.C. § 1997e(e). See Glover–Bryant v. Uptagraft, 2009 U.S.
Dist. LEXIS 79342, at *7 (E.D. Ky. Sept. 2, 2009) (Generally, § 1997e(e) applies to all types
of federal prisoner lawsuits, including FTCA claims). Under this section, the United States
Court of Appeals for the Sixth Circuit has held that, while a physical injury need not be
significant, it must be more than de minimis to proceed. Jarriett v. Wilson, 414 F.3d 634 (6th
Cir. 2005).
Christensen alleges both physical and emotional injuries. [Record No. 1, p. 1] His
physical injury purportedly resulted from the position of the seat and seatbelt when he was
belted on the first leg of his medical transport to the UK Hospital; the emotional injury, he
claims, was caused by the trauma of not being belted on the return trip from the UK Hospital
back to FMC-Lexington. However, claims for emotional or mental injury will not stand
without a prior showing of physical injury. 42 U.S.C. § 1997e(e). See also Glover-Bryant,

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2009 U.S. Dist. LEXIS 79342, at *7 (absent a showing of physical injury, compensation
sought for trauma and emotional damages is barred by federal law); Taylor v. United States
of America, et al., 161 F. App’x 483 (6th Cir. 2005); Royal v. Kautzky, 375 F.3d 720, 723
(8th Cir. 2004); Thompson v. Carter, 284 F.3d 411, 416 (2d Cir. 2002); Searles v. Van
Bebber, 251 F.3d 869, 876 (10th Cir. 2001); Allah v. Al-Hafeez, 226 F.3d 247, 250-51 (3d
Cir. 2000); Davis v. District of Columbia, 158 F.3d 1342, 1348-49 (D.C. Cir. 1998).
The FTCA does not define “physical injury,” but when examining the related statute,
courts have construed § 1997e(e) to require more than a de minimis showing of physical
injury. Wardell v. U.S., 2013 U.S. Dist. LEXIS 126473, at *5 (E.D. Ky. Sept. 4, 2013);
Mitchell v. Horn, 318 F.3d 523, 536 (3d Cir. 2003) (surveying the authorities and finding that
the courts of appeals have read § 1997e(e) to require “a less-than-significant-but-more-thande minimis physical injury as a predicate” to allowing the successful pleading of an
emotional injury); Oliver v. Keller, 289 F.3d 623, 627 (9th Cir. 2002) (“for all claims to
which it applies, 42 U.S.C. § 1997e(e) requires a prior showing of physical injury that need
not be significant but must be more than de minimis”); Harris v. Garner, 190 F.3d 1279,
1286 (11th Cir. 1999) (“the physical injury must be more than de minimis, but need not be
significant”) rev’d en banc in part on other grounds; Liner v. Goord, 196 F.3d 132, 135 (2d
Cir. 1999); Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). Thus, while the physical
injury suffered by the plaintiff need not be significant, it must be more than de minimis to
proceed under the FTCA. Jarriett, 414 F.3d at 640.
When a prisoner plaintiff is unable to establish more than a de minimis injury, the
defendant is entitled to summary judgment. See Jarriett, 414 F.3d at 400–01; Shain v.
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Grayson County, Ky., 2011 U.S. Dist. LEXIS 125083, at *4 (W.D. Ky. Oct. 28, 2011) (de
minimis injury where the transport van was not involved in an accident and plaintiff only
alleged red and swollen hands from the restraints and discomfort during the trip); Quinlan v.
Pers. Transp. Servs. Co., LLC, 329 F. App’x 246, 249 (11th Cir. 2009) (temporary chest
pain, headache, difficulty breathing, and back pain during transport van ride were no more
than de minimis injury which barred claim under § 1997e(e)); Corsetti v. Tessmer, 41 F.
App’x 753, 755–56 (6th Cir. 2002) (two small bruises on shoulder that did not require
medical attention were de minimis injuries and not actionable under § 1997e(e)); Oliver, 289
F.3d at 629 (leg pain, back pain, and a painful canker sore were de minimis injuries); Siglar,
112 F.3d at 193 (bruised ear for three days was de minimis injury and did not meet §
1997e(e) standard). Additionally, the temporary aggravation of a pre-existing condition is
considered a de minimis injury. See Wertish v. Krueger, 433 F.3d 1062 (8th Cir. 2006)
(minor scrapes and bruises and the less-than-permanent aggravation of a prior shoulder
condition were de minimis injuries); McKinney v. United States, 2013 U.S. Dist. LEXIS
112409, at *15 (N.D. Tex. Aug. 9, 2013) (lower back pain and minor abrasions to the elbow
were de minimis where plaintiff had full range of motion and no evidence of a back injury,
other than pre-existing disc degeneration).
It appears that Christensen’s medical issues pre-date the transport incident. In support
of its motion for summary judgment, the United States submitted various medical entries and
BOP records regarding Christensen’s alleged injuries. [See Record Nos. 14-1, 14-2, 14-6,
14-7, 14-8, 14-9, 14-10, 14-11, 14-12, 14-13]

On January 26, 2012 – a year and a half

before the seatbelt incident – Christensen underwent an emergency encounter at Health
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Services, complaining of “radiation of numbness in his left arm.” [Record no. 14-2, pp. 912] He was diagnosed with an atrial fibrillation. The following year, Christensen began a
series of counseling sessions following complaints of irritability, difficulty sleeping,
nervousness, and worry.

He was taught relaxation techniques, sleep hygiene, imagery,

mindful meditation, and diaphragmatic breathing.
On May 23, 2013, a follow-up encounter was performed at Health Services. [Record
No. 14-2, pp. 17-19] Christensen stated that he had had discomfort in his left arm and into
his shoulder for 2 to 3 months. He did not recall any specific trauma to the area and stated
that he had mild symptoms of positional pain in the shoulder. The examination revealed
tenderness and decreased range of motion in the shoulder. On May 28, 2013, x-rays of
Christensen’s cervical spine and left shoulder were taken, and he was diagnosed with
degenerative disk disease. [Record No. 14-2, pp. 21-22] He was found to be otherwise in
good health.
On July 1, 2013, the date of the alleged injury, Christensen was transported to UK
Hospital Gill Heart Institute for a scheduled medical appointment regarding his atrial
fibrillation.

As noted above, Christensen was seen for a routine post-trip medical

examination encounter at Health Services and reported no complaints. [Record No. 14-2, pp.
25-27] The following week, Christensen complained of increased anxiety symptoms and
continued to experience sleep disturbance. [Id. at 32] When asked if he could identify a
trigger for his increased symptoms of anxiety, Christensen discussed being taken out for a
medical trip on July 1, 2013, and experiencing anxiety for not being restrained by a seatbelt
during the trip. He maintained that this had happened repeatedly and that he experienced
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nightmares that prevented him from getting adequate sleep. He also reported experiencing
mild impairment in his functioning, noting that he had difficulty engaging in daily activities.
Christensen acknowledged that he attended work, ate, showered, and exercised daily. After a
follow-up visit, Christensen denied experiencing significant mental health problems,
clinically significant symptoms of anxiety, or significant impairment in his functioning. [Id.
at 33]
On August 2, 2013, Christensen was examined at Health Services, complaining of
tingling and numbness in his left arm that he attributed to the July 1, 2013 medical transport.
[Record No. 14-2, pp. 34-36] Although he admitted that he had experienced this before the
seatbelt incident, he claimed that the transport worsened the pain.

Christensen was

examined, and his shoulder, wrist, spine, hand, and fingers were found normal with a full
range of motion. Christensen was assessed with no significant findings and no apparent
distress. Later that month, a Chronic Care encounter was performed at Health Services. [Id.
at 37-41] Christensen complained of left shoulder pain which radiated to his forearm and
decreased range of movement. [Record No. 9-2] Christensen also reported getting a tingling
sensation in his fingers. The plaintiff’s recent x-rays were verified, showing degenerative
disc disease. He was able to shrug his shoulders, raise his left arm above his head laterally
and anteriorly and reach behind his head and back. Christensen stated he had some pain
during these motions. [Id.] He had a limited range of movement when moving his neck to
the left, and he was referred to Physical Therapy.
On August 20, 2013, Christensen was evaluated at Rehabilitation Services. [Record
No. 9-3] He complained of left shoulder pain and tingling in the left thumb, index, and
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middle fingers. Christensen stated that the pain and numbness had started three months
earlier (around May 2013). [Id.] He could not attribute the pain to any particular injury, but
noted that he had started to lift weights – 180 pounds – on the recreation yard three months
ago, resting the bar on the back of his shoulders and neck, and believed that the symptoms
might have been a result of the weightlifting. Christensen denied any other previous injuries
to his left shoulder and neck, but he also noted that he worked sitting in front of a desk all
day long and could perform all activities of daily living without too many difficulties. The
Rehabilitation Services found that Christensen’s pain was likely due to two separate injuries.
[Id. at 2] The left shoulder pain was most likely caused by Christensen’s weightlifting, and
the numbness in the left hand probably resulted from poor posture. He exhibited signs of an
upper cross postural pattern syndrome which was made worse by his working in front of a
computer all day. The Rehabilitation Services physician recommended physical therapy
once or twice a week for several weeks. After a month, this plan was discontinued for lack
of progress. [Record No. 14-2, p. 47] In a final attempt to document his injuries, the
plaintiff has submitted a report of an MRI from September 22, 2014, after he was released
from BOP custody. [Record No. 9-4] This report confirms Christensen’s degenerative disc
disease diagnosis, “manifested by loss of disc space […] throughout the cervical spine.” [Id.
at 1]
While the plaintiff alleges physical injuries such as permanent nerve damage, pain,
burning, and numbness, he has produced no medical documentation substantiating any
physical injury connected to the transport other than his pre-existent degenerative disc
disease. The United States has provided two doctors’ declarations and documentary medical
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evidence showing that the plaintiff suffered only de minimis injuries. Cast in the light most
favorable to Christensen, at most, the evidence demonstrates that he suffered back and
shoulder pain, numbness, and tingling, which were not serious enough to mention to medical
staff the day of his medical transport and are insufficient to support his claim under the
FTCA. As a result, his FTCA claim is barred by 28 U.S.C. § 1346(b)(2).
IV.
The undisputed facts fail to establish an injury sufficient to proceed under the FTCA.
Further, the defendant is entitled to summary judgment as a matter of law. Accordingly, it is
hereby
ORDERED as follows:
1.

Defendant United States of America’s motion for summary judgment pursuant

to Fed. R. Civ. P. 56 [Record Nos. 14 and 14-14] is GRANTED.
2.

This action is DISMISSED and STRICKEN from the Court’s docket.

3.

A final and appealable Judgment shall be entered this date.

This 27th day of April, 2015.

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