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)

US. DTSTRtCT COURT
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NORTilEfu'l D'STRICTOF TEXt\S

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IN THE UNITED STATES DISTRICT , OURT
NORTHERN DISTRICT OF TEXA~
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FORT WORTH DIVISION

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OTIS D. POWELL,

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Plaintiff,

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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

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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.
/

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