Tijerina v. United States of America

Filing 33

ORDER OVERRULING OBJECTION AND ADOPTING 29 REPORT AND RECOMMENDATIONS for Francisco Tijerina; Granting 20 MOTION to Dismiss filed by United States of America, Denying Without Prejudice 25 MOTION to Amend/Correct 1 Complaint filed by Francisco Tijerina and any and all other motions are Denied.. Signed by District Judge Robert W. Schroeder, III on 3/27/2018. (sm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
FRANCISCO TIJERINA

§

v.

§

UNITED STATES OF AMERICA

§

CIVIL ACTION NO. 5:16cv162

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
The Plaintiff Francisco Tijerina, a former prisoner of the Federal Correctional Institution in
Texarkana, filed this civil action under the Federal Tort Claims Act. Docket No. 1. This Court
referred the case to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3)
and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to United
States Magistrate Judges. The sole named Defendant is the United States of America.
I. Background
Plaintiff states he had heart surgery at Christus St. Michael’s Health Center, a hospital in
Texarkana, on August 26, 2014. Docket No. 31 at 4. He returned to the prison on September 2,
2014. Id.
Two days later, on September 4, 2014, Plaintiff states he complained of dizziness and passed
out. Id. He explains he had been given an improper dose of a blood thinner called Coumadin by
the medical staff at the prison, causing him to suffer low blood pressure and internal bleeding. Id.
As a result, Plaintiff asserts he had to be rushed back to the hospital for emergency heart surgery.
Id.
According to Plaintiff, an investigation showed he had been prescribed 2.5 mg of Coumadin
but had been given 5 mg. Id. He contended the medical staff at the prison did not administer any
INR swabs to record his blood, but nonetheless gave him an improper dose of the medication. Id.
Plaintiff filed an administrative tort claim, but the response stated there was no evidence the

improper dosage of Coumadin caused the symptoms Plaintiff had experienced. Docket No. 1 at 4.
Instead, the response claimed the symptoms Plaintiff suffered were complications from his previous
surgery and was not caused by the Coumadin overdose. Id.
In his federal tort claim, Plaintiff contended “the Defendant United States of America, by
and through its agents, servants, and employees, conducted an initial examination of Plaintiff, and
said Defendant, by and through its medical agents, servants and employees administered double the
prescribed dose of above mentioned prescribed Coumadin by way of orally.” Docket No. 1 at 2.
As a result, Plaintiff asserted he sustained serious physical injuries, was confined to the hospital
for days, and suffered through emergency surgery and emergency life-saving medical intervention.
Id. at 4. He sought $3 million in damages as well as the costs of suit. Id. at 5.
II. The Government’s Motion to Dismiss and the Plaintiff’s Reply
The Government was ordered to answer the lawsuit and filed a motion to dismiss with 388
pages of evidence attached. Docket No. 20. The Court gave Plaintiff notice of intent to construe
the motion as one for summary judgment and gave Plaintiff an opportunity to respond, which he
did. Docket No. 24. The motion to dismiss or for summary judgment argued any negligent act in
this case was not committed by an employee of the Federal Bureau of Prisons, but by an employee
of Christus St. Michaels Hospital who incorrectly told a Bureau of Prisons nurse the prescription
was for 5 mg of Coumadin rather than for 2.5 mg. Docket No. 20. The Government also
maintained, according to the summary judgment evidence, Plaintiff returned to the hospital with a
pericardial effusion and pleural effusion, but these were not caused by receiving a two-day dosage
of excessive Coumadin. Id.
Plaintiff’s response to the motion to dismiss or for summary judgment acknowledged his
filing under the Federal Tort Claims Act was incorrect and sought leave to amend to set out a claim
under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388
(1971). Docket No. 24 at 4. In its reply, the Government asserted Plaintiff’s attempt to amend to
add a Bivens claim was futile because Plaintiff failed to exhaust the administrative remedies
available for Bivens claims, the attempt to amend was untimely, and Plaintiff did not identify any

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employee of the Federal Bureau of Prisons who violated his rights. Docket No. 27.
III. The Report of the Magistrate Judge
After review of the pleadings, the Magistrate Judge issued a Report construing the
Government’s motion to dismiss as a motion for summary judgment and recommending this motion
be granted. Docket No. 29 at 14. The Magistrate Judge explained that under the Federal Tort
Claims Act, the United States is liable for the acts of its employees only 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. Cleveland ex rel. Cleveland v. U.S., 457 F.3d 397,
403 (5th Cir. 2006). Here, Plaintiff complains of an act of alleged medical malpractice which
occurred in Texas. Under Texas law, a medical malpractice claimant must prove four elements: (1)
a duty by the medical provider to act according to a certain standard; (2) a breach of the applicable
standard of care; (3) injury or harm to the plaintiff; and (4) a causal connection between the breach
of the applicable standard of care and the injury or harm. Coronel v. Providence Imaging
Consultants, P.A., 484 S.W.3d 635, 638 (Tex. App. 2016), review denied (June 9, 2017).
After assuming, without deciding, expert testimony would not be required to establish the
applicable standard of care with regard to giving the proper dose of medication, the Magistrate Judge
determined there was no evidence the Bureau of Prisons nurse breached this standard. Docket No.
29 at 6. Plaintiff offered no evidence of the standard of care applicable to nurses and failed to show
the nurse’s action in accepting the information she received from the hospital staff without doublechecking or verifying the dosage violated this standard of care. Id. at 7. Because the summary
judgment evidence showed the negligent act was not committed by an employee of the
Government, the Magistrate Judge concluded the Court lacked subject matter jurisdiction over a
claim under the Federal Tort Claims Act. Id.
Even assuming the Bureau of Prisons nurse was negligent, despite the absence of any
evidence to support this, the Magistrate Judge went on to state Plaintiff failed to show he suffered
an injury which was proximately caused by a breach of the applicable standard of care. Id. at 8. In

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this case, the Magistrate Judge observed that none of the medical records contained any indication
that Plaintiff’s readmission to the hospital was the result of a two-day Coumadin overdose. Id. He
did not display any of the common symptoms of Coumadin toxicity and was not treated for
Coumadin toxicity, and the summary judgment evidence showed that the pericardial effusion and
pleural effusion for which Plaintiff was treated upon his return to the hospital was not caused by the
Coumadin overdose. Id. at 9.
With regard to Plaintiff’s request to amend his complaint, the Magistrate Judge observed the
Federal Bureau of Prisons has separate and distinct avenues for exhausting Federal Tort Claims Act
claims and Bivens claims. See Lopez-Heredia v. University of Texas Med. Branch Hosp., 240
F.App’x 646 (5th Cir. 2007), citing 28 U.S.C. §§543.30–543.32. The summary judgment evidence
showed that Plaintiff did not exhaust his administrative remedies applicable to Bivens claims, and the
Magistrate Judge determined that this made Plaintiff’s request to add a Bivens claim futile. Docket
No. 29 at 11. The Magistrate Judge also stated that an amendment to add a Bivens claim would be
futile because Plaintiff’s allegations, taken as true, did not support a constitutional claim of
deliberate indifference as would be required to prevail in a Bivens claim. Id. The Magistrate Judge
therefore recommended the Government’s motion to dismiss, construed as a motion for summary
judgment, be granted and the lawsuit dismissed with prejudice, and Plaintiff’s motion for leave to
amend his complaint be denied without prejudice. Id. at 13–14.
IV. The Objections to the Magistrate Judge’s Report
Both the Government and the Plaintiff filed objections to the Report of the Magistrate Judge.
Docket Nos. 30, 31. The Government’s objections asserted Plaintiff’s motion for leave to amend
should be denied with prejudice rather than without prejudice, but stated the Magistrate Judge’s
Report was otherwise correct. Docket No. 30.
Plaintiff’s objections maintained the negligent act was committed by the Bureau of Prisons
nurse because she did not read the written orders as required, but “took the verbal guess as a fact.”
Docket No. 31 at 1. He contends the Bureau of Prisons medical staff had the duty to make sure the
medication they were issuing was in fact the medication prescribed at the correct dosage, which

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the nurse failed to do. Id. Plaintiff asserts this duty stems from the law requiring prisoners receive
“adequate medical care,” which he defines as “the same type of care he would have gotten had he
been a free man.” Id.
Plaintiff further argues this breach of duty created deliberate indifference to his medical
condition, stating “that standard is well established and proven in this case.” Id. at 2. He points
to a copy of Administrative Tort Claim no. TRT-SCR-2015-05932, stating this tort claim gives him
authority to proceed in federal court. Id.
Plaintiff further refers to the Bureau of Prisons Program Statement no. 6031.10, which he
claims reflects established law and practice.1 Id. He contends his claims are within the scope and
intent of the law as well as the Eighth Amendment. Id. Plaintiff argues it is the duty of the Bureau
of Prisons to ensure the laws are not violated and prisoners are protected by them. Id.
V. Discussion
The Government contends it is impossible for Tijerina to exhaust his administrative remedies
because the time has expired for him to do so, and the statute of limitations has expired for bringing
a Bivens claim. Docket No. 30 at 3. Thus, the Government maintains the denial of his motion for
leave to amend should be with prejudice rather than without prejudice. Id. at 4. While perhaps
unlikely, the Court is unwilling to foreclose the possibility of an equitable tolling claim. The
Magistrate Judge properly recommended denial of the motion for leave to amend without prejudice.
In his objections, Plaintiff argues the applicable standard of care gave the Bureau of Prisons
medical staff a duty to ensure the medication being issued to him was in fact the medication

1

There is no “Program Statement 6031.10" in the record, nor on the Federal Bureau of
Prisons website. Program Statement 6031.04 sets out general policies and procedures for providing
medical care to prisoners. This program statement includes an objective reading “health care will
be delivered to inmates in accordance with proven standards of care without compromising public
s a f et y c o n c e r n s
inherent
to the a ge n c y’ s
o v er a l l miss i on . ”
See
https://www.bop.gov/PublicInfo/execute/policysearch?todo=query&series=6000. The program
statements of the Federal Bureau of Prisons do not themselves give rise to private causes of action.
Joost v. Cornell Corr., Inc., No. 97-512T, 1998 WL 939531 (D.R.I., Dec. 11, 1998) (Bureau of
Prisons regulations and program statements neither expressly nor impliedly confer a private right
of action upon prisoners), citing Harper v. Williford, 96 F.3d 1526, 1528 (D.C. Cir. 1996).

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prescribed at the proper dosage. Docket No. 31 at 1. He offered no evidence showing the applicable
standard of care, but simply argued what he believed this standard should be.
Plaintiff’s conclusory assertions concerning the applicable standard of care are insufficient
to defeat the Defendant’s motion for summary judgment. See, e.g., Rodriguez v. Pacificare of Texas,
Inc., 980 F.2d 1014, 1020 (5th Cir. 1993); Kennedy v. United States, 264 F.3d 1142, 2001 WL
822793 (5th Cir. 2001) (conclusory assertions of negligence in a Federal Tort Claims Act case
cannot carry the plaintiff’s summary judgment burden); accord, Paulino v. United States, 2009 WL
2996678 (E.D. Tex. Sept. 15, 2009) (plaintiff’s conclusory opinion that the care he received fell
below the appropriate standard of care was not sufficient). Plaintiff’s objection in this regard is
without merit.
Even assuming Plaintiff adequately pleaded the applicable standard of care, the Magistrate
Judge correctly concluded Plaintiff failed to show any injuries which were proximately caused by
a breach of this standard of care. In a medical malpractice case, plaintiffs are required to present
evidence of a reasonable medical probability that their injuries were proximately caused by the
negligence of one or more of the Defendants; thus, a plaintiff must show the negligent act or
omission was a substantial factor in bringing about the harm and without which the harm would not
have occurred. Kramer v. Lewisville Mem’l Hosp., 858 S.W.2d 397, 400 (Tex. 1993).
The summary judgment evidence showed Plaintiff suffered a pericardial effusion and pleural
effusion and had to go back to the hospital, but there was no evidence this was caused by the twoday Coumadin overdose. He exhibited none of the symptoms of Coumadin toxicity and was not
treated for such a condition; rather, the summary judgment evidence indicated the effusions were
complications arising from the surgery which were unrelated to the Coumadin overdose. The
Magistrate Judge correctly determined there was no showing of proximate cause between the
Coumadin overdose and the pericardial and pleural effusions, and Plaintiff did not lodge a specific
objection to this proposed finding and conclusion. See Battle v. U.S. Parole Commission, 834 F.2d

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419, 421 (5th Cir. 1987) (parties filing objections must specifically identify those findings objected
to, and frivolous, conclusive, or general objections need not be considered by the district court).
Because Plaintiff failed to satisfy the requirement of proximate cause, his claim under the Federal
Tort Claims Act cannot survive the Government’s motion for summary judgment regardless of
whether the allegedly negligent act was committed by an employee of Christus St. Michaels Hospital
or a Bureau of Prisons nurse.
The Fifth Circuit has recently upheld the dismissal of a prisoner’s medical negligence claim
under the Federal Tort Claims Act, explaining “with regard to Blank’s remaining medical
malpractice claims, the district court did not err in granting summary judgment given Blank’s failure
to provide expert testimony [on the essential elements of standard of care, breach, causation, and
damages] as required by the relevant medical malpractice laws of Louisiana and Texas.” Blank v.
United States, No. 17-10024, 2018 WL 1151792 (5th Cir. March 2, 2018). Like Blank, Plaintiff
has proffered no expert evidence or testimony concerning the elements of standard of care, breach,
causation, or damages.
Finally, Plaintiff asserts he has filed an administrative tort claim, giving him authority to
proceed in federal court. Docket No. 31 at 2.

This appears to be a response to the Magistrate

Judge’s conclusion that he has not exhausted his administrative remedies with regard to a Bivens
claim. As the Magistrate Judge correctly explained, Plaintiff’s tort claim exhausted his
administrative remedies for purposes of the Federal Tort Claims Act, but not for purposes of a Bivens
claim. Docket No. 29 at 13. Plaintiff does not contend and the summary judgment evidence does
not show he exhausted the Bureau of Prison’s grievance procedure as would be required to bring a
claim under Bivens. See Lopez-Heredia, 240 F.App’x at 647 (Bureau of Prisons’ Federal Tort
Claims Act claims procedure is separate from the administrative remedies procedure); Lambert v.
United States, 198 F.App’x 835, 2006 WL 2468533 (11th Cir. 2006). Plaintiff’s objections are
without merit.
VI. Conclusion
The Court has conducted a careful de novo review of those portions of the Magistrate Judge’s

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proposed findings and recommendations to which the parties objected. See 28 U.S.C. §636(b)(1)
(District Judge shall “make a de novo determination of those portions of the Report or specified
proposed findings or recommendations to which objection is made.”) Upon such de novo review,
the Court has determined the Report of the Magistrate Judge is correct and the parties’ objections
are without merit. It is accordingly
ORDERED the objections of the Plaintiff and the Defendant are OVERRULED and the
Report of the Magistrate Judge (Docket No. 29) is ADOPTED as the opinion of the District Court.
It is further
ORDERED the Defendant’s Motion to Dismiss (Docket No. 20), construed as a motion for
summary judgment, is GRANTED and the above-styled civil action under the Federal Tort Claims
.
Act is DISMISSED WITH PREJUDICE. It is further
ORDERED the Plaintiff’s Motion for Leave to Amend the Complaint (Docket No. 25) is
DENIED WITHOUT PREJUDICE to Plaintiff’s right to file a new lawsuit raising his Bivens
claims in the event he is able to exhaust his available administrative remedies. The Court offers no
opinion as to the effect, if any, of the statute of limitations with regard to any new lawsuit Plaintiff
may file on this issue. It is further
ORDERED any and all other motions which may be pending in this civil action are
DENIED.
SIGNED this 27th day of March, 2018.

____________________________________
ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

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