Powell v. United States of America et al

Filing 89

MEMORANDUM OPINION and ORDER: The court has concluded that the Federal Bureau of Prisons ("Bureau") violated the duty of care it owed to Powell, that Powell was damaged by that violation, and that the government should compensate Powell f or his damages. Therefore, the court ORDERS that Powell have and recover as his damages the amount of Fifty-One Thousand Five Hundred and 00/100 Dollars ($51,500.00) from United States of America. (Ordered by Judge John McBryde on 9/21/2017) (tln)

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US. DTSTRtCT COURT -~ NORTilEfu'l D'STRICTOF TEXt\S .,. 1""') F JJJ,~';•" r IN THE UNITED STATES DISTRICT , OURT NORTHERN DISTRICT OF TEXA~ . FORT WORTH DIVISION I' § OTIS D. POWELL, § Plaintiff, $;;ml 20J;l CLFL::, u.s. DlSTRK~TC~URT § § § § § UNITED STATES OF AMERICA, Defendant. NO. 4:16-CV-1130-A MEMORANDUM OPINION and ORDER This is an action by Otis D. Powell ("Powell") against United States of America under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 ("FTCA"). The government has agreed that Powell exhausted his administrative remedies. The court has concluded that the Federal Bureau of Prisons ("Bureau") violated the duty of care it owed to Powell, that Powell was damaged by that violation, and that the government should compensate Powell for his damages. I. Nature of Powell's Complaints Powell's live pleading is the amended complaint he filed July 31, 2017. Doc. 44. 1 I By ______~D~.,-,.~,~-------------'-'------·J § § vs. ! In a general way, his alleged 'The "Doc._" references are to the numbers assigned to the referenced items on the docket in this Case No. 4:16-CV-1130-A. complaints are as follows: He was shot during an altercation at a bar in 2007. Over the years, the bullet migrated through his body until it came to rest against various nerves, and under the skin on his left shoulder, causing him extreme pain and discomfort. The Bureau failed to provide him the care it was legally obligated to provide for treatment related to the bullet that was migrating through his body. On many occasions, he unsuccessfully sought from the Bureau medical attention for the problems he was suffering by reason of the migrating bullet, including requests for surgical removal of the bullet. His repeated requests for surgical removal of the bullet were denied, and he was not provided the relief he needed from the pain and other difficulties he was experiencing by reason of the existence of the bullet under his skin. His final attempt to obtain proper care from the Bureau related to the migrating bullet was on December 29, 2014, when he informed medical personnel at the prison where he was then confined, FMC Fort Worth, that he was having difficulty sleeping on his left side and discomfort because of the bullet in his body, but he was not provided appropriate care at that time, and was denied access to a doctor to discuss the issue. That led to his decision in early-January 2015 to remove the bullet himself; 2 and, he did so by cutting it out with a razor blade in his prison cell. When he reported what he had done to prison personnel, they treated the wound created by Powell's self-performed surgery, and promptly issued a disciplinary report accusing him of selfmutilation, an accusation that ultimately caused him to receive discipline, including loss of privileges, loss of quarters, loss of good conduct time, and disciplinary segregation. 2 II. Findings of Evidentiary Facts A. The Trial Evidence The bench trial of this action was conducted on August 28, 2017. Powell testified on his own behalf. The government called as its witnesses two doctors who had seen Powell at FMC Carswell, Charles Eilert, D.O., a medical officer at FMC Carswell, and Syed Fateh Hyder, M.D., a clinical director at FMC Carswell. The court received in evidence all exhibits shown on the exhibit lists filed by the parties, Docs. 78 and 79, plus two exhibits (Exhibits 9 and 10) that were added to the government's exhibit list during the course of the trial, Doc. 79 at 2. 2 In addition, By order issued August 25, 2017, his complaints concerning the disciplinary action taken against him were severed into a separate civil action characterized as an action brought by Powell under 28 U.S. C.§ 2241. Consequently, the propriety of the disciplinary action is not an issue to be resolved in the captioned action. 3 an exhibit identified as Court's Exhibit 1 during the trial was received as evidence.' B. Evidentiary Facts Established by the Trial Evidence 1. Places of Confinement and Pertinent Entries in Medical Records The court starts its detailed findings of evidentiary facts with a discussion of Powell's places of confinement, followed by a discussion of pertinent entries in the medical records of each of those places. a. Places of Confinement by the Bureau After Powell Was Sentenced in January 2009 The records of the United States District Court for the Eastern District of Texas show that Powell was sentenced in January 2009 to a term of imprisonment of 188 months. CR-00010-001, E.D. Tex., Doc. 35-1 at 2. No. 1:08- Items in the medical records that were provided by the government at trial as its Exhibit 1 indicate that Powell's first place of confinement by the Bureau was at its Milan, Michigan facility, Gov't Ex. 1 at 035, that he was transferred to the Bureau's Terre Haute, Indiana facility in August 2013, id. at 138, and that he was then transferred to one of the Bureau's Fort Worth, Texas facilities 3 A redacted copy ofComt's Exhibit 1 is an attachment to a document titled "Defendant's Response to Court's August 28, 20 17 Request for a Partially Redacted Copy of the Dec. 3, 2014 Utilization Review Committee Meeting." Doc. 82. 4 (Federal Medical Center Fort Worth, a/k/a FMC Fort Worth) in March 2014, id. at 167-68, where he remains. b. Pertinent Entries in the Medical Records The government represented that its Exhibit 1 was the "Complete Medical Records for Otis Powell." Doc. 79 at 1. Those records appear to contain daily entries pertaining to health care provided by the Bureau to Powell starting in mid-2009 and going through December 2016. Gov't Ex. 1. The attachment to this memorandum opinion and order, which the court incorporates herein for all purposes, summarizes, and in some instances provides relevant quotations from, those records. Powell called to the attention of the medical personnel at Milan in mid-2009 the existence of the bullet in his body and a problem it was causing him. Id. at 006. He repeated his concerns about the bullet to the medical personnel at Milan in December 2009, id. at 002, again in February 2010, id. at 086, again in March 2010, id. at 045, and again in August 2011, when he complained that the bullet hurt "when he lay down," id. at 090. In September 2011, an x-ray was made of the area about which Powell complained, which disclosed existence of a bullet in his body. Id. at 091 & 107. After Powell was transferred to Terre Haute, his problems with the bullet increased. On August 6, 2013, he reported during 5 a physical examination that the bullet was causing him "intermittent pain," id. at 124, and the examination disclosed "weakness at left hand" because of the gunshot wound, id. at 127. In January 2014, he was seen by a registered nurse at Terre Haute with a complaint that he was having a burning, sharp pain because of the bullet in his shoulder. Later that month he saw a medical doctor at Terre Haute, who noted that the bullet had migrated and was now just under Powell's skin, and that Powell found it uncomfortable, with the result that Powell was taking Ibuprofen. Id. at 158. That visit was before Powell's transfer from Terre Haute to Fort Worth. Under the heading "Plan," the examining doctor made the following entry: As inmate anticipates transfer soon, he was advised to present to health services at receiving facility regarding removal of bullet. It is just under the skin and does not present any musculoskeletal impairment. In the record pertaining to Powell's transfer from Terre Haute to Fort Worth, there was a listing under health problems of a chronic weakness in Powell's left hand because of the 2007 gunshot wound. Id. at 167. After Powell's transfer to Fort Worth, and during his initial medical evaluation in Fort Worth, there was an entry dated April 3, 2014, concerning the current painful condition the 6 bullet was causing Powell to experience, followed by the entry "Left Shoulder Blade-Bullet Location Causing Pain. Reports Pending Surgery Before Transfer." Id. at 165. The next day, on April 4, 2014, is when Powell was seen by Dr. Eilert, who noted that Powell had a bullet under his skin that he was requesting to be surgically removed. Id. at 155. Dr. Eilert observed a lump in the shape of a bullet under his skin, which was superficially moveable over the left scapula. Id. Dr. Eilert was concerned enough that he sought consultation for performance of surgery to remove the bullet. Id. at 157. The consultation was requested on April 4, 2014, and the target date for the response was April 8, 2014. However, the consultation request was denied on May 6, 2014, with the notation "No clinical indication for removal." Id. at 206. On June 17, 2014, Powell was seen by a registered nurse, complaining of pain of number 6 on the pain scale because of a bullet that was coming out. Id. at 152. He informed the nurse that he was taking about four Ibuprofen at night, but that it did not help. Id. The assessment the nurse recorded in the records was as follows: ASSESSMENT: Inmate has had multiple complaints of same issue; he is requesting that the bullet under 7 his left scapula be removed. States it is causing him "real bad" pain, especially at night. Foreign body can be felt under left scapula. Inmate did not appear to be in distress during this encounter. Will schedule for further eval by provider. Id. at 153. Powell was seen by Dr. Fateh Hyder on November 28, 2014, when Powell complained that the pain from the bullet became worse two days earlier, that the pain was number 7 on pain scale, and that it was a burning pain. the bullet be taken out. Id. at 147. Again Powell urged that When the doctor examined Powell, he noted a palpable bullet fragment. Id. at 148. A radiology report was again requested, id., and Dr. Fateh Hyder made another request for general surgery referral, stating that the lodged bullet fragment was causing pain, and that the patient wanted it removed, id. at 149. The doctor prescribed a pain medication for Powell, instructing him to take one pill, orally and with food, twice daily. Id. at 182. The general surgery referral requested by Dr. Fateh Hyder was disapproved on December 10, 2014. 209. Id. at The reason for the disapproval was "Limited Medical Value." Id. at 209, 269. Powell was seen again by a registered nurse on December 16, 2014, with complaints of pain in his shoulder and neck, which he described as number 7 on the pain scale and with the words "Pins 8 and Needles," again referring to the bullet lodged in his body. Id. at 144-45. On December 22, 2014, Powell again arranged to be seen by a registered nurse, with a complaint of pain in his left shoulder and neck, which he described as a number 6 on the pain scale. He told the nurse that he had been unable to sleep on his back, had intermittent "pins and needles" feeling to his left side, and that his left arm felt paralyzed at times. Id. at 142. The nurse recorded that his anti-inflammatories were ineffective. Powell's final visit to medical personnel before he removed the bullet himself was on December 29, 2014, when he was seen by a nurse practitioner. Id. at 139-140. The following entry was made in that record: Inmate requesting bullet removed from left shoulder blade d/t GSW seven years ago. Inmate reports difficulty sleeping on left side and discomfort. Inmate has made multiple attempts at this facility and previous facility to have bullet removed. Inmate advised consult to general surgery was disapproved. Advised not medically indicated at this time. Inmate states, "will just have to write somebody up to get this removed." Xray results pending. Id. at 139. The December 29, 2014 x-ray report confirmed that there was a "ballistic fragment" in the area of Powell's left scapula. Id. at 192. 9 On January 6, 2015, Powell was seen by a registered nurse concerning his wound from cutting the bullet out himself on January 5, 2015. Id. at 222. The only other entries in the medical records for the year 2015 pertaining to the area of the body where the migrating bullet was located and from which it was cut are a listing of dates in January when Powell's wound was dressed, id. at 241, and an entry in January when Powell expressed difficulty climbing into his bunk because of the wound, id. at 219. There are no entries in Powell's 2016 medical records that appear to bear on the part of Powell's body where the bullet was migrating or the place where it was cut out, thus indicating that while Powell was having significant problems because of the migrating bullet before he cut it out, those problems went away once he performed his self-surgery. 2. Summary of Trial Testimony and Exhibits a. Powell's Evidence i. Powell's Exhibits Powell testified at the trial, and his thirteen exhibits (Plaintiff's Exhibits A through L) were received as part of the 10 of the Bureau in failing to remove the bullet as part of its care of Powell as a person convicted of an offense against the United States, as contemplated by § 4042 (a) (2). The court finds that Powell suffered significant injury and damages that were proximately caused by the Bureau's negligence in failing to provide the care to Powell that it was statutorily required to provide. While putting a dollar value on physical pain, mental anguish, and physical impairment is a difficult undertaking, the court has decided, from its experiences in presiding over litigation, that the damage amounts set forth below are reasonable assessments of the compensable damages Powell suffered as a proximate result of the negligent conduct of the Bureau. The court has taken into account that as time went by starting in January 2014 until January 2015, the intensity of Powell's daily suffering by reason of the bullet in his body increased. The daily dollar amounts the court has assigned to his damages are a fair average for the daily damages suffered by Powell from January 31, 2014 until he removed the bullet himself on January 5, 2015, a total of 340 days. 50 The compensable damages the court is awarding Powell consist of: 1. For physical pain experienced by Powell at the rate of $75.00 per day for each of the 340 days, for a total of $25,500.00. 2. For physical impairment suffered by Powell, including interference with his normal life activities, such as sleep, at the rate of $50.00 per day for each of the 340 days, for a total of $17,000.00. 3. For emotional anguish suffered by Powell at the rate of $25.00 per day for each of the 340 days, for a total of $8,500.00. In addition, the court finds that Powell experienced physical pain while self-removing the bullet for which he should recover another $500.00. The grand total of those elements of damage is $51,500.00, which is the amount of compensable damages the court is awarding Powell for the damages he suffered as a proximate result of the negligent failure of the Bureau to comply with its statutory obligation to provide him appropriate care. 51 VI. Order Therefore, The court ORDERS that Powell have and recover as his damages the amount of Fifty-One Thousand Five Hundred and 00/100 Dollars ($51,500.00) from United States of America. SIGNED September 21, 2017. / 52

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