Ford v. Summers et al
Filing
32
MEMORANDUM OPINION AND ORDER: 1) The United States' motion for summary judgment [Record No. 28] is GRANTED. Because summary judgment disposes of the issues presented, the corresponding motion to dismiss [Record No. 28] will not be addressed on the merits and will be DENIED w/out prejudice, as moot; 2) Ford's original Complaint [Record No. 1] is DISMISSED w/out prejudice; 3) Ford's First Amended Complaint [Record No. 20] is DISMISSED w/prejudice; 4) This action is DISMISSED and STRICKEN from the Court's docket. Signed by Judge Danny C. Reeves on 5/1/2018.(RC)cc: COR, paper copy of order to pro se plaintiff via U.S. Mail
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
(at London)
EDWARD E. FORD,
Plaintiff,
v.
MS. S. SUMMERS, Nurse, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
Civil Action No. 6: 17-224-DCR
MEMORANDUM OPINION
AND ORDER
*** *** *** ***
Inmate/Plaintiff Edward Ford is presently confined at the United States
Penitentiary-Allenwood in White Deer, Pennsylvania. Proceeding without an attorney,
Ford filed a civil rights action in which he alleges that he was denied proper medical
treatment while confined at United States Penitentiary-McCreary (“USP-McCreary”) in
Pine Knot, Kentucky. [Record No. 1, 20] Defendant United States has filed a Motion to
Dismiss or, in the Alternative, a Motion for Summary Judgment. [Record No. 28] The
matter has been fully briefed and is ripe for review.
I.
Ford alleges in his First Amended Complaint that he developed necrotizing fasciitis
in December 2015 while housed at USP-McCreary and was denied proper medical
treatment and care, resulting in permanent damage. [Record No. 20 at p. 2; 28-2 at p. 2]
Specifically, he claims that, on December 11, 2015, he had a medical appointment to see
Mid-Level Provider Elizabeth Barnes, PA-C, at Health Services about his diabetes, high
-1-
A1C levels, and high blood pressure. Ford informed Barnes during this appointment that
he had a bump on his buttock that was causing a lot of pain and discomfort. [Record No.
20 at p. 3] Although he alleges that Barnes never physically examined him nor prescribed
any medication, the United States has submitted evidence that Barnes examined Ford as a
result of his complaints.
According to the United States, Ford stated during the
examination that he had no pain and, although the examination did not disclose chills or
fever, sores and eruptions in the skin and lesions in the buttock were found and hardness
beneath the skin was noted. Ford was assessed with cellulitis/abscess and was provided
with Sulfamethoxazole/Trimeth (brand name Bacrtim), a combination used to treat
infections. The medication was prescribed to be used two times a day for 10 days for the
skin infection. A follow-up examination was scheduled for approximately two weeks later
after the completion of the antibiotic therapy. [Record No. 28-2 at p. 2, 8-10] Ford labels
this evidence as an “erroneous factual conclusion” [Record No. 30 at p. 5], but cites to no
evidence to support this claim or to otherwise contradict the information submitted by the
United States. Instead, consistent with this evidence, Ford alleges in his First Amended
Complaint that Barnes recommended that he treat the bump with warm water and over-thecounter medication. [Record No. 20 at p. 3]
Ford further asserts that, on December 12, 2015, the bump burst and he attempted
to go back to medical for treatment. However, Defendant Summers allegedly told him to
go back to his unit. [Id.] Ford claims that he returned to medical on December 14, 2015,
but was turned away by Defendant Nurse Free, despite Ford’s statements that he was in
pain. [Id. at p. 3-4] Ford alleges that he returned to medical for the third time on December
-2-
15, 2015, in an attempt to receive further treatment but was again told again to return to his
unit by Summers, despite his continuing claims of intense pain. He asserts that he then
approached AHSA Crimarossa and explained the bump and intense pain, as well as his
failed attempts to see his PA or a doctor. [Record No. 20 at p. 4] Ford contends that
Crimarossa took him back to medical, but that when Summers saw him, she “got a really
bad attitude with me” and took Crimarossa in the back to talk, after which Crimarossa
returned and told him to leave medical and return to his unit. [Id.]
Ford asserts that other inmates helped him return to medical against on December
16, 2015, where he was seen by Nurse Morrow. [Record No. 20 at p. 4-5] After Ford
showed Morrow his buttock, Morrow consulted with J. West, who made arrangements to
send Ford to Lake Cumberland Regional Hospital, where Ford underwent surgery. [Id. at
p. 5] Ford alleges that, as a result of the negligence of the staff at USP-McCreary, he
suffered personal injury, including necrotizing fasciitis, for which he had to undergo lifesaving surgery. As a result, he claims that now suffers permanent damage, including the
loss of both buttocks, the loss of his anus, lung damage, and the loss of 10 inches of
intestines. [Id. at p. 5] He also asserts that he will be required to use a colostomy bag for
the remainder of his life. [Id.]
II.
Before addressing the merits of the United States’ motion, the Court must first
clarify the claims that are currently pending. Ford originally filed his Complaint pursuant
to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), naming as
Defendants “Ms. Summers, Nurse,” “Ms. Free, Nurse,” “Ms. Crimarossa, AHSP,”
-3-
Associate Warden Barron and Warden Holland.
He asserted claims of deliberate
indifference to his serious medical needs in violation of the Eighth Amendment to the
United States Constitution. [Record No. 1 at 5] Although the exact nature of Ford’s claim
was unclear, the Court construed it under Bivens, dismissed the prison officials as
defendants, and directed the United States Marshals Service to serve the medical provider
defendants. [Record No. 12]
Thereafter, Ford filed a First Amended Complaint which named only the United
States as a Defendant. [Record No. 20] Ford explained in the introductory paragraph of
his First Amended Complaint that he seeks leave to amend his initial complaint to a federal
tort claim action (“FTCA”) under 28 U.S.C. § 1346(b), 28 U.S.C. § 2671-2680 et seq. [Id.]
In addition to removing the individual medical providers as defendants, Ford’s First
Amended Complaint also removed his prior request for punitive damages which are
unavailable in an FTCA action. [Id. at p. 6] The Court granted Ford’s motion for leave to
amend his complaint and directed that the First Amended Complaint be served on the
United States. [Record No. 22]
In its motion to dismiss or for summary judgment, the United States correctly notes
that “[a]n amended complaint supersedes an earlier complaint for all purposes.” [Record
No. 28-1 at p. 2, FN2, quoting In re Refrigerant Compressors Antitrust Litigation, 731 F.3d
586, 589 (6th Cir. 2013)] Accordingly, the government interprets the language in the First
Amended Complaint (i.e., that Ford seeks to amend his complaint from a Bivens action to
a claim under the FTCA) as a statement of intention to completely replace his previouslyasserted Bivens claims and only pursue a claim under the FTCA. [Id.] Ford does not
-4-
disagree with this interpretation of his First Amended Complaint. In fact, he refers to his
claims as “negligent/Tort Claims Actions,” not constitutional actions. [Record No. 30 at
p. 5]
As a result of the foregoing, the Court agrees that Ford’s First Amended Complaint
supersedes his original Complaint. Thus, the claim pending before the Court is construed
as an FTCA claim against the United States and not a Bivens claim against the individual
medical providers that were previously named as Defendants. Therefore, as a matter of
clarification, the Court will dismiss Ford’s original Complaint asserting Bivens claims
against individual defendants without prejudice.
III.
The United States has moved to dismiss the Amended Complaint under Rule
12(b)(6) and has also moved for summary judgment under Rule 56 of the Federal Rules of
Civil Procedure. In seeking this relief, the government has attached and is relying upon
declarations extrinsic to the pleadings. [Record No. 28] As a result, the Court will treat
the motion under Rule 56 of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 12(d);
Wysocki v. Int’l Bus. Mach. Corp., 607 F. 3d 1102, 1104 (6th Cir. 2010); see also Ball v.
Union Carbide Corp., 385 F.3d 713, 719 (6th Cir. 2004) (where defendant moves both to
dismiss and for summary judgment, the plaintiff is on notice that summary judgment is
being requested, and the court’s consideration as such is appropriate where the nonmovant
submits documents and affidavits in opposition to summary judgment).
A motion under Rule 56 challenges the viability of another party’s claim by
asserting that at least one essential element of that claim is not supported by legally-5-
sufficient evidence. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 324-25
(1986). A party moving for summary judgment must establish that, even viewing the
record in the light most favorable to the nonmovant, there is no genuine dispute as to any
material fact and that the party is entitled to a judgment as a matter of law. Loyd v. St.
Joseph Mercy Oakland, 766 F.3d 580, 588 (6th Cir. 2014). The burden then shifts to the
nonmoving party to “come forward with some probative evidence to support its claim.”
Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir.1994). However, if a responding
party’s allegations are clearly contradicted by the record such that that a reasonable jury
could not adopt them, the court need not accept them when determining whether summary
judgment is appropriate. Scott v. Harris, 550 U.S. 372, 380 (2007).
IV.
The FTCA is a limited waiver of sovereign immunity which permits an action
against the United States for negligent or wrongful acts or omissions of its employees while
acting within the scope of their employment. See 28 U.S.C. § 1346(b)(1). See also Fitch
v. United States, 513 F.2d 1013, 1015 (6th Cir.1975); United States v. Orleans, 425 U.S.
807, 813 (1975). The FTCA is the exclusive remedy for tort actions against the federal
government, its agencies, and its employees. 28 U.S.C. § 2679. The United States seeks
summary judgment because Ford’s FTCA claim is time-barred. In short, the government
asserts that he did not file this action within six months of the BOP’s denial of his
administrative claim. [Record No. 28-1]
A plaintiff must exhaust administrative remedies prior to adjudicating an FTCA
claim in federal court. Garzon v. Luttrell, 24 Fed.Appx. 400, 402 (6th Cir. 2001). The
-6-
FTCA also contains its own statute of limitations, which provides that “[a] tort claim
against the United States shall be forever barred unless it is presented in writing to the
appropriate Federal agency within two years after such claim accrues or unless action is
begun within six months after the date of mailing, by certified or registered mail, of notice
of final denial of the claim by the agency to which it was presented.” 28 U.S.C.A. § 2401.
The BOP Consolidated Legal Center (“CLC”) sent a notice of final denial of Ford’s
administrative tort claim with respect to his December 2015 medical treatment by letter
dated May 10, 2017. [Record No. 20-2] This letter also notified Ford that he may file suit
with respect to his tort claim no less than six months from the date of that letter. [Id. at p.
2] Pursuant to this notice, Ford was required to file his FTCA lawsuit by approximately
November 10, 2017. And while Ford filed his original Complaint asserting Bivens claims
on August 15, 2017 [Record No. 1], he did not file his First Amended Complaint indicating
his intent to bring an FTCA action until November 16, 2017, and it was not served on the
United States until December 4, 2017. [Record No. 20, 26] The United States argues that
Ford’s First Amended Complaint asserting his FTCA claim does not relate back to his
original complaint for statute of limitations purposes and must be dismissed as untimely.
“Under Federal Rule of Civil Procedure 15(c)(1)(C), a change of ‘party or the
naming of [a] party against whom a claim is asserted’ relates back to the original complaint
if the claim arose out of the same conduct, transaction, or occurrence set out in the original
complaint, and if, within the Rule 4(m) period for serving the summons and complaint, ‘the
party to be brought in by amendment: (i) received such notice of the action that it will not
be prejudiced in defending on the merits; and (ii) knew or should have known that the
-7-
action would have been brought against it, but for a mistake concerning the proper party's
identity.’” Goodwin v. Summit Cty., 703 F. App'x 379, 383-84 (6th Cir. 2017)(quoting Rule
15(c)(1)). Here, Ford did not seek to substitute the United States as a Defendant to his
original Bivens claim, but rather sought to add a completely new claim against a completely
new defendant. Thus, Ford’s First Amended Complaint does not relate back to the original
filing date for limitations purposes. It names a new party as a defendant and creates a new
cause of action. Asher v. Unarco Material Handling, Inc., 596 F.3d 313, 318 (6th Cir.
2010) (“[T]he precedent of this circuit clearly holds that ‘an amendment which adds a new
party creates a new cause of action and there is no relation back to the original filing for
purposes of limitations.’”) (quoting In re Kent Holland Die Casting & Plating, Inc., 928
F.2d 1448, 1449 (6th Cir.1991). See also In re Biozoom, Inc. Sec. Litig., 93 F. Supp. 3d
801, 812 (N.D. Ohio 2015) (“Under Sixth Circuit law, Rule 15(c) only permits the
substitution of plaintiffs or defendants, not the addition of them.”). Accordingly, Ford’s
First Amended Complaint seeking to pursue an FTCA claim against the United States is
untimely.
V.
Ford asks the Court to exercise its discretion in applying the doctrine of equitable
tolling and deem his FTCA claim as timely-filed. He claims that, although he was
attempting to diligently pursue his claims, his lack of training in the law and limited access
to a law library contributed to his failure to timely file his FTCA claim. [Record No. 30 at
p. 3-4] But assuming, without deciding, that equitable tolling should be applied in these
-8-
circumstances, Ford’s claim nonetheless fails on the merits as he has failed to establish a
prima facie case of medical negligence under Kentucky law.
As noted previously, the FTCA constitutes a limited waiver of the United States’
sovereign immunity for claims based upon “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); Matthews v.
Robinson, 52 F. App’x 808 (6th Cir. 2002). The law of the state where the relevant conduct
occurred determines the existence and scope of the United States’ liability. Rayonier Inc.
v. United States, 352 U.S. 315, 318 (1957). Ford contends that the medical care he received
from health care professionals employed by the United States fell below the applicable
standard of care in Kentucky. Thus, the Court looks to Kentucky negligence law to
determine whether Ford has presented the essential components of his claim.
Kentucky common law requires that a plaintiff prove that the given treatment fell
below the degree of care and skill expected of a reasonably competent practitioner and that
the negligence proximately caused the plaintiff’s injury or death. Reams v. Stutler, 642
S.W.2d 586, 588 (Ky. 1982). But negligence is never presumed “from the mere evidence
of mental pain and suffering of the patient, or from failure to cure, or poor or bad results,
or because of the appearance of infection.” Andrew v. Begley, 203 S.W.3d 165, 170 (Ky.
App. 2006).
Instead, “[t]o survive a motion for summary judgment in a medical
malpractice case in which a medical expert is required, the plaintiff must produce expert
evidence or summary judgment is proper.” Id. (citing Turner v. Reynolds, 559 S.W.2d
-9-
740, 741-42 (Ky. App. 1977)); Blankenship v. Collier, 302 S.W.3d 665, 675 (Ky. 2012)
(“[A] plaintiff bringing a typical medical malpractice case is required by law to put forth
expert testimony to inform the jury of the applicable medical standard of care, any breach
of that standard and the resulting injury.”).
Kentucky permits a plaintiff to provide evidence of the applicable standard of care
from expert opinion, defendant’s admissions during discovery, or medical evidence
obtained from other treating physicians. Vance By and Through Hammons v. United
States, 90 F.3d 1145, 1148 (6th Cir. 1996) (citing Perkins v. Hausladen, 828 S.W.2d 652,
655-56 (Ky. 1992)). However, Ford has failed to provide any expert testimony or any cite
to any other evidence to support his claim that the medical care provided to him fell below
the applicable standard of care and caused his injuries. Therefore, he has failed to establish
a prima facie case of medical negligence under Kentucky law. Matthews, 52 F. App’x at
810; Andrew, 203 S.W.3d at 170; see also Baylis v. Lourdes Hosp., Inc., 805 S.W.2d 122,
124 (Ky. 1991) (“It is an accepted principle that in most medical negligence cases, proof
of causation requires the testimony of an expert witness because the nature of the inquiry
is such that jurors are not competent to draw their own conclusions from the evidence
without the aid of such expert testimony.”).
In response to a motion for summary judgment, Ford has an obligation – but has
failed – to “come forward with some probative evidence to support [his] claim.” Lansing
Dairy, Inc., 39 F.3d at 1347. Accordingly, the United States’ motion will be granted.
V.
For the reasons outlined above, it is hereby
-10-
ORDERED as follows:
1.
GRANTED.
The United States’ motion for summary judgment [Record No. 28] is
Because summary judgment disposes of the issues presented, the
corresponding motion to dismiss [Record No. 28] will not be addressed on the merits and
will be DENIED, without prejudice, as moot.
2.
Ford’s original Complaint [Record No. 1] is DISMISSED without prejudice.
3.
Ford’s First Amended Complaint [Record No. 20] is DISMISSED with
prejudice.
4.
This action is DISMISSED and STRICKEN from the Court’s docket.
This 1st day of May, 2018.
-11-
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?