Galloway v. Federal Tort Claims Act

Filing 86

Memorandum of Opinion and Order For the reasons set forth herein, Plaintiff's Motion for Summary Judgment (ECF No. 62 , supplemented at ECF No. 78 ) is denied, and the Government's Motion for Summary Judgment (ECF No. 80 ) is granted in full. Any claim of medical malpractice arising from Plaintiff's June 2014 seizure is dismissed. Judge Benita Y. Pearson on 7/31/2019. (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

CHARLES LEONARD GALLOWAY,
Plaintiff,
v.
FEDERAL TORT CLAIMS ACT, et al.,
Defendants.

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CASE NO. 4:17-CV-1314
(4:16-CV-572)
JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION AND
ORDER [Resolving ECF Nos. 62, 80]

Pending before the Court are Plaintiff Charles Leonard Galloway’s motion for summary
judgment (ECF No. 62, supplemented at ECF No. 78) and Defendant the United States of
America’s1 (the “United States” or the “Government”) motion to dismiss and for summary
judgment (ECF No. 80). The Government filed a response in opposition (ECF No. 82) to
Plaintiff’s motion for summary judgment, and Plaintiff did not file a reply. Plaintiff also did not
file a response in opposition to the Government’s motion. Insofar as Plaintiff’s other filings
reflect an argument in opposition to dismissal or summary judgment, however, the Court
liberally construes the content of those filings. Plaintiff has submitted no evidence in support of
his motion, nor in opposition to the Government’s motion.

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Plaintiff’s only remaining claims arise under the Federal Tort Claims Act. The
United States is the only remaining named Defendant. ECF No. 49; Minutes of
Proceedings (Feb. 22, 2019).

(4:17CV1314)
For the reasons stated herein, summary judgment is granted in favor of the United States
as to both remaining claims. Any claim of negligence or medical malpractice arising from
Plaintiff’s June 2014 seizure is dismissed.
I. Background
Plaintiff advances two distinct claims against the United States, both arising under the
Federal Tort Claims Act (“FTCA”).2 The first sounds in medical malpractice, and the second
sounds in ordinary negligence.
Plaintiff has been in federal custody since 2011 and is scheduled to be released in 2028.
ECF No. 80-2 at PageID#: 350; see BOP Inmate Locator, https://www.bop.gov/mobile/
find inmate/. He arrived at the Federal Correctional Institution in Elkton, Ohio (“FCI Elkton”),
in 2012, and he was transferred to FCI Schuylkill in Pennsylvania in November 2018. ECF No.
80-2 at PageID#: 363, 366.
In September 2013, while housed at FCI Elkton, Plaintiff presented to sick call
complaining that his “tongue didn’t work.” Case No. 4:16-CV-572-BYP (N.D. Ohio, filed Mar.
9, 2016), ECF No. 1 at PageID#: 4; Case No. 4:17-CV-1314-BYP (N.D. Ohio, filed Jun3 22,
2017), ECF No. 62-2 at PageID#: 262. He was turned away, however, when the physician
insisted Plaintiff was “faking it.” Case No. 4:16-CV-572, ECF No. 1 at PageID#: 4; Case No.
4:17-CV-1314, ECF No. 62-2 at PageID#: 262. The nurse, perceiving that Plaintiff was

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Plaintiff’s claims were initially presented in separate actions. See Case No.
4:16-CV-572-BYP (N.D. Ohio filed Mar. 9, 2016); Case No. 4:17-CV-1314-BYP (N.D.
Ohio June 22, 2017). The two actions were consolidated. ECF No. 49 (latter docket).
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behaving in a threatening manner, called an emergency, and Plaintiff was placed in the Special
Housing Unit for several days. Case No. 4:16-CV-572, ECF No. 1 at PageID#: 4; Case No. 4:17CV-1314, ECF No. 62-2 at PageID#: 262. While there, on September 18, 2013, he suffered a
stroke. Id. at PageID#: 367. Plaintiff was transported in an ambulance to an outside medical
facility and eventually to St. Elizabeth’s Hospital in Youngstown, Ohio, where an evaluation
revealed that surgery was not necessary. Case No. 4:16-CV-572, ECF No. 1 at PageID#: 4; Case
No. 4:17-CV-1314, ECF No. 78 at PageID#: 323; ECF No. 80-4 at PageID#: 504. He was later
transported to another facility for rehabilitation. ECF No. 80-4 at PageID#: 504.
Over the course of the following years, Plaintiff was treated for complications resulting
from his stroke, including “residual seizure disorder[,] aphasia[,] abnormal gait[,] and movement
disorder.”3 See ECF No. 80-3 at PageID#: 470-503; ECF No. 80-2 at PageID#: 391-404.
Specifically, he was prescribed a twice-daily dosage of anti-seizure medicine (“Keppra”) and was
counseled that his safety, including adherence to that prescription, was “paramount.” See ECF
No. 80-3 at PageID#: 475; ECF No. 80-2 at PageID#: 398 (“two times a day”). Despite those
complications, Plaintiff’s “comprehension . . . remains intact,” ECF No. 80-2 at PageID#: 467,
and he routinely presents as “alert and oriented,” ECF No. 80-3 at PageID#: 473, 477, 498, 500.
Plaintiff acknowledges that he falls down often. ECF No. 80-2 at PageID#: 366-68.
On June 6, 2014, Plaintiff suffered a seizure. Although Plaintiff suggests he “couldn’t
have missed [a dose]” of his anti-seizure medication, medical records reflect that his seizure

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Plaintiff also suffers from diabetes, hypertension, chronic hepatitis B, and renal
insufficiency. ECF No. 80-2 at PageID#: 418; ECF No. 80-3 at PageID#: 481.
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occurred because Plaintiff “[m]issed 10 doses of Keppra.” ECF No. 80-3 at PageID#: 472.
Plaintiff was immediately sent to St. Elizabeth’s Hospital to be checked, id., and he reports no
complications or injuries arising from the June 2014 seizure.
On November 3, 2016, while walking through the dish line at the chow hall, Plaintiff
slipped and fell on a wet floor. Case No. 4:17-CV-1314, ECF No. 1 at PageID#: 3; see ECF No.
80-3 at PageID#: 496-501. He says an inmate who worked as a dishwasher was spraying water
indiscriminately on the counter and on the floor. ECF No. 80-2 at PageID#: 363-64, 383-84.
Plaintiff does not know whether wet floor signs were placed in the chow hall at the time, id. at
PageID#: 388, but he acknowledges that the chow hall was well lighted and that he was familiar
with the area around the dish line. Id. at PageID#: 378-79, 363-64.
Plaintiff was taken immediately to Health Services, and from there he was transported to
a local hospital for a precautionary CT scan. Id. at PageID#: 386-88; see ECF No. 80-5 at
PageID#: 531. The CT scan was returned negative for any brain injuries. ECF No. 80-2 at
PageID#: 386-88; see ECF No. 80-5 at PageID#: 531. Back at FCI Elkton, Plaintiff was
examined, given acetaminophin (“Tylenol”) for pain, and sent on his way. See ECF No. 80-2 at
PageID#: 421-30; ECF No. 80-3 at PageID#: 495-501. Several follow-up visits revealed some
pain in his back but no lasting injuries. ECF No. 80-3 at PageID#: 490-95.
II. Legal Standard
Summary judgment is appropriately granted when the pleadings, the discovery and
disclosure materials on file, and any affidavits show “that there is no genuine dispute as to any

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material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);
see also Johnson v. Karnes, 398 F. 3d 868, 873 (6th Cir. 2005). The moving party is not
required to file affidavits or other similar materials negating a claim on which its opponent bears
the burden of proof, so long as the movant relies upon the absence of the essential element in the
pleadings, depositions, answers to interrogatories, and admissions on file. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The moving party must “show that the non-moving party has
failed to establish an essential element of his case upon which he would bear the ultimate burden
of proof at trial.” Guarino v. Brookfield Twp. Trustees, 980 F. 2d 399, 403 (6th Cir. 1992).
Once the movant makes a properly supported motion, the burden shifts to the non-moving
party to demonstrate the existence of a genuine dispute. An opposing party may not simply rely
on its pleadings; rather, it must “produce evidence that results in a conflict of material fact to be
resolved by a jury.” Cox. v. Ky. Dep’t of Transp., 53 F.3d 146, 150 (6th Cir. 1995). To defeat
the motion, the non-moving party must “show that there is doubt as to the material facts and that
the record, taken as a whole, does not lead to a judgment for the movant.” Guarino, 980 F.2d at
403. In reviewing a motion for summary judgment, the Court views the evidence in the light
most favorable to the non-moving party when deciding whether a genuine issue of material fact
exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986); Aickes
v. S.H. Kress & Co., 398 U.S. 144 (1970).
“The mere existence of some factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment . . . .” Scott v. Harris, 550 U.S. 372,
380 (2007) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The fact
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(4:17CV1314)
under dispute must be “material,” and the dispute itself must be “genuine.” A fact is “material”
only if its resolution will affect the outcome of the lawsuit. Scott, 550 U.S. at 380. In
determining whether a factual issue is “genuine,” the Court assesses whether the evidence is such
that a reasonable jury could find that the non-moving party is entitled to a verdict. Id.
(“[Summary judgment] will not lie . . . if the evidence is such that a reasonable jury could return
a verdict for the non-moving party.”).
III. Law and Analysis
A. Medical Malpractice: September 2013 Stroke
There is no genuine dispute that, when Plaintiff initially presented to sick call in
September 2013 complaining that “[his] tongue didn’t work,” the doctor dismissed him and said,
repeatedly, that Plaintiff was “faking it.” Case No. 4:16-CV-572, ECF No. 1 at PageID#: 4; Case
No. 4:17-CV-1314, ECF No. 62-2 at PageID#: 262. Plaintiff spent the next several days in the
Special Housing Unit. At some point during his placement there, he began to vomit, and he was
transported in an ambulance to an outside medical facility, and eventually to St. Elizabeth’s
Hospital. ECF No. 78 at PageID#: 323; ECF No. 80-4 at PageID#: 503-04.
Plaintiff had suffered a stroke; specifically, an intracerebral hemmorhage, for which a
medical evaluation indicated no surgery was required. ECF No. 80-4 at PageID#: 504. A
subsequent CT head scan showed “evidence of dead (irretrievably lost) brain tissue . . . at the
time of presentation” at the hospital. Id. Plaintiff implies, but does not expressly argue, that
earlier intervention by medical staff at FCI Elkton would have mitigated the resulting damage to

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his brain, and that ignoring Plaintiff’s early symptoms at his initial presentation to sick call
amounted to medical malpractice.
Under Ohio law, a medical malpractice claim must satisfy four elements: The plaintiff
must show “(1) the existence of a duty owed to the plaintiff by the defendant, (2) a breach of the
defendant’s duty, (3) causation based on probability, and (4) damages.” Loudin v. Radiology &
Imaging Servs., Inc., 924 N.E.2d 433, 454 (Ohio Ct. App. 2009) (citing Stinson v. England, 633
N.E.2d 532, 537 (Ohio 1994)).
The Government’s expert explained that “[a] stroke (sometimes referred to as an
infarction) ultimately leads to the death of the affected brain tissue. Once infarction has
occurred, the loss of tissue is irreversible.” Id. The expert further opined, “[b]ased on the CT
scans and location of the hemorrhage, no intervention would have reversed the damage to
[Plaintiff’s] language center. This means that upon the hemorrhage, Mr. Galloway was forever
left with a language deficit.” Id. If that expert opinion is credited, then Plaintiff’s medical
malpractice claim cannot survive as a matter of law. Whether or not FCI Elkton’s medical staff
breached its duty of care to Plaintiff, the Government’s expert’s opinion (ECF No. 80-4) breaks
the chain of actual and proximate causation between the physician’s breach and Plaintiff’s injury.
Plaintiff marshals no evidence from any witness, lay or expert, to restore that broken link.
Plaintiff “has failed to establish an essential element of his case upon which he would bear the
ultimate burden of proof at trial.” Guarino, 980 F. 2d at 403.
The Government also points out that Plaintiff’s medical malpractice claim is barred by
the statute of limitations. ECF No. 80-1 at PageID#: 342. Plaintiff was obligated to file his tort
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claim no later than two years from the date the action accrued. 28 U.S.C. § 2401(b); United
States v. Kubrick, 444 U.S. 111, 122 (1979). He filed his action for medical malpractice on
March 9, 2016, about two years and six months after his cause of action first became available.
Case No. 4:16-CV-572, ECF No. 1. Plaintiff submits neither evidence nor argument to suggest
that the period of limitations should have been tolled or that his cause of action accrued later than
it seems.
There is no genuine dispute of material fact as to the actual and proximate cause of
Plaintiff’s injuries or with respect to the statute of limitations, and the United States is entitled to
judgment as a matter of law on each ground independently. The Government’s motion for
summary judgment (ECF No. 80) is granted,4 and Plaintiff’s motion for summary judgment (ECF
Nos. 62, 78) is denied.
B. Medical Malpractice: June 2014 Seizure
Plaintiff’s pleading does not suggest any discontentment with his medical treatment well
after his 2013 stroke. Case No. 4:16-CV-572, ECF No. 1 at PageID#: 4-5. The first written
indication that Plaintiff wished to press such a claim appeared in his supplement to his motion
for summary judgment, in which he explained that his June 2014 seizure was the result of
negligence or malpractice by the FCI Elkton medical staff. See ECF No. 78 at PageID#: 324.

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The Government also argues that Plaintiff’s failure to submit an expert affidavit
of merit requires dismissal of his medical malpractice claim. ECF No. 80 at PageID#:
339-42. Because the Court concludes that there is no genuine dispute of material fact and
the Government is entitled to judgment as a matter of law, it is unnecessary to address the
Government’s motion to dismiss.
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(4:17CV1314)
Because the allegation does not appear in Plaintiff’s pleading (either as originally filed or as
amended), Plaintiff cannot succeed on such an allegation, and the United States is entitled to
judgment as a matter of law.
Even if the allegation were well pleaded, however, there would be no genuine dispute of
material fact, and the United States would be entitled to judgment as a matter of law.
Contemporaneous medical records reveal that, leading up to his seizure, Plaintiff had “[m]issed
10 doses of Keppra,” his prescribed anti-seizure medication. ECF No. 80-3 at PageID#: 472.
They also reveal Plaintiff’s own report to medical staff that he “forgot to take [his] seizure
medicine.” Id. at PageID#: 477. Plaintiff’s own pleading reports that he occasionally “can’t
remember . . . to take [his] pills.” Case No. 4:16-CV-572, ECF No. 1 at PageID#: 5. Plaintiff
confirmed that, after his seizure, he was placed back on the daily pill line because he had been
delinquent prior to the seizure. ECF No. 80-2 at PageID#: 421; see ECF No. 80-3 at PageID#:
472 (“Pill line for keppra was initiated upon return [from the hospital].”). The Government’s
expert reports Plaintiff’s “notes indicate no evidence of seizure while Mr. Galloway is taking his
[medication].” ECF No. 80-4 at PageID#: 505. Plaintiff’s generalized suggestion in his
deposition that he “couldn’t have missed” a single dose, ECF No. 80-2 at PageID#: 394, is
nonspecific and contradicted by medical records, Plaintiff’s own, more specific testimony, and
his pleading. Again, Plaintiff cannot establish that any injury he sustained occurred as a result of
bad medical treatment.

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Additionally, Plaintiff makes no suggestion that he suffered any lasting injury beyond the
seizure itself. See ECF No. 80-3 at PageID#: 472 (reporting no pain and no complications on
June 10, 2014, four days after the seizure).
Any claim pertaining to Plaintiff’s June 2014 seizure is dismissed because it is not well
pleaded. Even if it were well pleaded, summary judgment would be granted with respect to such
a claim because Plaintiff raises no genuine dispute of material fact and the United States is
entitled to judgment as a matter of law.
C. Negligence: November 2016 Slip and Fall
Plaintiff alleges that his November 2016 slip and fall in the chow hall was the result of
negligence by FCI Elkton’s staff. Case No. 17-CV-1314, ECF No. 1 at PageID#: 3. The
Government puts Plaintiff to his proof in its motion for summary judgment, and Plaintiff
advances no evidence to support his claim.
“To prevail on a claim for negligence the plaintiff must prove the following elements: (1)
the existence of a duty owed by the defendant to the plaintiff, (2) the breach of duty, (3)
causation, and (4) damages.” Erie Ins. Co. v. Cortright, 2003 WL 22931380, at *1, ¶ 12 (Ohio
Ct. App. Dec. 12, 2003) (citing Menifee v. Ohio Welding Prods., Inc., 472 N.E.2d 707 (Ohio
1984)).
First, Plaintiff suffered no compensable injury and sustained no damages. He did not lose
consciousness when he fell. ECF No. 80-2 at PageID#: 422; ECF No. 80-3 at PageID#: 496-97.
On the same day he fell, medical records reflect that he was “alert and oriented,” and he
registered no complaints of pain. ECF No. 80-3 at PageID#: 498-99 (“Chief Complaint: No
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Complaint(s) . . . Pain: No.”). The day after the fall, he complained that his “whole back hurt[ ],”
but the medical exam records indicate “[p]ain [was] noted only with twisting or bending.” Id. at
PageID#: 496-97. Plaintiff enjoyed a “full range of motion” in his neck and had no contusions
there. Id. at PageID#: 497. A CT scan taken on the day of the fall was returned negative for any
brain injury. ECF No. 80-2 at PageID#: 386-88; ECF No. 80-4 at PageID#: 504 (CT scan
revealed no “evidence of any new fracture, stroke, [or] other pathology.”). Plaintiff was given
Tylenol and told to perform certain exercises. See ECF No. 80-4 at PageID#: 504; see ECF No.
80-2 at PageID#: 430, 435. Two weeks after the fall, on November 18, 2016, Plaintiff reported a
minor ache (pain level 2 out of 10) in his lower back, and he was given 20 tablets of Tylenol.
ECF No. 80-3 at PageID#: 494-95 (“No Significant Findings/No Apparent Distress”). Plaintiff
visited the clinic again on December 29, 2016, for unrelated reasons, reporting no pain. Id. at
PageID#: 490.
Additionally, Plaintiff makes no showing that FCI Elkton staff knew or reasonably should
have known that the floor in the dish line was wet and, thus, hazardous. It is Plaintiff’s burden to
show that the staff “was . . . aware of the condition of the floor where [the] plaintiff fell.”
Williams v. Ohio Dep’t of Rehab. & Corrs., 583 N.E.2d 1129, 1132 (Ohio Ct. Cl. 1991) (citing
Presley v. Norwood, 303 N.E.2d 81 (Ohio 1973)). In this case, according to Plaintiff, it was an
inmate, not an officer, who sprayed the floor with water, ECF No. 80-2 at PageID#: 383-85, and
Plaintiff makes no indication that any staff was standing nearby. In his deposition, Plaintiff
explained that a person washing trays ordinarily sprays only the area where the trays are placed,
but on this unusual occasion, the individual washing dishes sprayed water indiscriminately on the
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counter and the floor. Id. at PageID#: 363-64, 383-84. Based on the evidence available, prison
staff had no greater reason to be aware of the wet-floor hazard than Plaintiff himself. A
reasonable jury could not conclude that FCI Elkton staff breached its duty of reasonable care.
Indeed, Plaintiff fails to explain why he did not observe the hazard himself. On his initial
administrative remedy form, Plaintiff asserted there were no “wet floor” signs posted in the chow
hall on the day he fell. ECF No. 80-5 at PageID#: 529. In its denial of his grievance, the Bureau
of Prisons disagreed, positing: “[C]aution signs are posted daily during mainline in Food Service
due to the potential of wet floors.” Id. at PageID#: 531. In his deposition, Plaintiff retreated
from his earlier position. When asked whether any “wet floor” signs were posted on the day of
his fall, Plaintiff stated he could not remember. ECF No. 80-2 at PageID#: 388. Plaintiff agreed
that the chow hall was well lighted and that he was familiar with the area around the dish line.
Id. at PageID#: 378-79, 363-64. Even if the floor was wet and consequently unsafe, Plaintiff
fails to explain why he did not see the hazard himself and avert it. Cf. Armstrong v. Best Buy
Co., Inc., 788 N.E.2d 1088, 1091 (Ohio 2003) (“Where a danger is open and obvious, a
landowner owes no duty of care to individuals lawfully on the premises.”).
Plaintiff’s negligence claim lacks evidence that he was injured and that the United States
breached its duty of care, and the United States is entitled to judgment as a matter of law.
Plaintiff’s motion for summary judgment (ECF No. 62, supplemented at ECF No. 78) is therefore
denied, and the Government’s motion (ECF No. 80) is granted.

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IV. Conclusion
For the reasons given, Plaintiff’s motion for summary judgment (ECF No. 62,
supplemented at ECF No. 78) is denied, and the Government’s motion for summary judgment
(ECF No. 80) is granted in full. Any claim of medical malpractice arising from Plaintiff’s June
2014 seizure is dismissed.

IT IS SO ORDERED.
July 31, 2019
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

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