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Sellers v. United States

United States District Court, N.D. West Virginia, Elkins

February 16, 2017

FREDRICK SELLERS, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDER ADOPTING REPORT AND RECOMMENDATION.

          JOHM PRESTON BAILEY UNITED-STATES DISTRICT JUDGE.

         On this day, the above-styled matter came before this Court for consideration of the Report and Recommendation of United States Magistrate Judge Robert W. Trumble [Doc. 36]. Pursuant to this Court's Local Rules, this action was referred to Magistrate Judge Trumble for submission of a proposed report and recommendation (“R&R”). Magistrate Judge Trumble filed his R&R on December 19, 2016, wherein he recommends this Court grant the Government's Motion to Dismiss or for Summary Judgment, dismiss with prejudice the plaintiff's Complaint under the independent contractor exception as it relates to his claim for unnecessary surgery, and dismiss without prejudice the plaintiff's Complaint for failure to exhaust an administrative tort claim and comply with the MLPA as it relates to his follow-up care and infection following surgery.

         Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo review of those portions of the magistrate judge's findings to which objection is made. However, the Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the findings or recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). In addition, failure to file timely objections constitutes a waiver of de novo review and the right to appeal this Court's Order. 28 U.S.C. § 636(b)(1); Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). Here, objections to Magistrate Judge Trumble's R&R were due within fourteen (14) days of service, pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). The docket reflects that service was accepted on December 21, 2016. [Doc. 37]. The plaintiff timely filed his Objection on December 23, 2016. [Doc. 38]. The plaintiff also filed a timely Supplement to his Objection on December 27, 2016. [Doc. 39]. Additionally, the plaintiff filed a second Supplement to the Objection on January 10, 2017 [Doc. 40], which this Court notes was not timely. However, in the interests of justice, this Court will consider the plaintiff's arguments therein. Accordingly, this Court will review the portions of the R&R to which the petitioner objects under a de novo standard of review. The remainder of the R&R will be reviewed for clear error.

         I. BACKGROUND

         The plaintiff is a federal inmate presently confined at FCI Gilmer in Glenville, West Virginia. He is serving a 188-month sentence imposed on April 4, 2011, in the United States District Court for the District of New Jersey for violation of 21 U.S.C. §§ 841(a)(1) and 846, Conspiracy to Possess with Intent to Distribute Five Kilograms or More of Cocaine. [Doc. 29-1 at 2]. On May 27, 2015, the plaintiff filed an administrative tort claim (“SF-95") with the Federal Bureau of Prisons (“BOP”) alleging negligence on the part of the FCI Gilmer staff for sending him to an outside hospital for an unnecessary hernia repair. The plaintiff requested damages in the amount of three million dollars. [Id. at 5-7]. Following an investigation, the BOP denied the plaintiff's claim by letter dated August 26, 2015, concluding that although there was an erroneous entry made in the plaintiff's medical record regarding an old injury and a hernia, the plaintiff went to an outside hospital, where he consulted with a surgeon who determined that he had a hernia. He also signed a consent form for surgery, and during the surgery, the outside surgeon found and repaired a hernia. [Id. at 10].

         The plaintiff filed his Federal Torts Claim Act (“FTCA”) Complaint [Doc. 1] on October 27, 2015. Therein, he alleges that the FCI Gilmer staff sent him to an outside hospital, where he underwent a needless hernia operation because his medical records included records that belonged to another inmate. He also claims that after the surgery, his surgical wound became infected as a result of the staff's negligence in not providing him with wound care instructions or physical limitations during his recovery. He seeks six million dollars in compensatory and punitive damages, as well as other relief, including immediate release from custody. [Doc. 1].

         Following a March 17, 2016, Order to Answer [Doc. 23], the defendant filed a Motion to Dismiss or, in the Alternative, for Summary Judgment [Doc. 28] on May 17, 2016. In the accompanying Memorandum in Support [Doc. 29], the defendant maintains that the plaintiff's FTCA claim against it must be dismissed on numerous grounds. First, the defendant argues that the FTCA claim as it pertains to the plaintiff's follow-up care and resulting infections was not properly exhausted. Second, the defendant argues that the independent contractor exception applies to the plaintiff's claim regarding his surgery. Third, the defendant argues that the plaintiff's negligence claim against it must be dismissed fo failure to comply with the West Virginia Medical Professional Liability Act (“MPLA”). Finally, the defendant alleges that the plaintiff's negligence claim is without merit.

         In the plaintiff's reply [Doc. 34], the plaintiff acknowledges that in his SF-95, he failed to mention the infection that resulted from the “unnecessary” hernia operation, but argues that it is the clear result of the Government's initial lapse in good judgment. He also argues that, although the surgery may have been performed by an outside contractor, FCI Gilmer's negligence led to the surgery. Regarding the defendant's claim that he failed to comply with the MPLA, the plaintiff argues that his case deals with two non-complex issues that do not require expert testimony because they are within the common knowledge of lay jurors. Additionally, the plaintiff advances the doctrine of res ipsa loquitur. Finally, the plaintiff notes that the BOP has an obligation to provide him with a healthy and safe environment with protection from injury. He argues that there was a breakdown within that duty and, as a consequence, he suffered tremendously. The plaintiff also filed a supplemental response [Doc. 35], in which he points out that the defendant acknowledged that the plaintiff's medical records were scrambled with those of another inmate.

         Magistrate Judge Trumble filed the instant R&R [Doc. 36] on December 19, 2016, recommending that this Court grant the defendant's motion and dismiss the plaintiff's Complaint. Specifically, Magistrate Judge Trumble recommends that the plaintiff's Complaint be dismissed with prejudice under the independent contractor exception as it relates to the plaintiff's claim for unnecessary surgery, and dismissed without prejudice for failure to exhaust an administrative tort claim and comply with the MPLA as it relates to his follow-up care and infection following surgery. In so recommending, the magistrate judge begins by acknowledging that there was an error in the plaintiff's medical records regarding a previous injury during his clinical encounter on October 14, 2014, which was also acknowledged by the BOP. The magistrate judge explains that the plaintiff traveled to an outside hospital, was evaluated by an independent doctor, was diagnosed independently with a hernia, signed an informed consent to undergo surgery to repair hernias, and had an umbilical hernia repaired during surgery. This series of events caused any negligence on the part of the medical staff at FCI Gilmer to not result in an unnecessary surgery for a nonexistent hernia. Magistrate Judge Trumble also describes the FTCA and the independent contractor exception, concluding that the defendant is not responsible for any alleged negligent act or omission of the independent doctor who performed the surgery. Further, the magistrate judge explains that the plaintiff did not exhaust his claim to the BOP regarding his follow-up care for a post-surgical infection, and that, even if he had exhausted this claim, its dismissal is warranted because the plaintiff was required to but did not file a screening certificate of merit pursuant to West Virginia Code § 55-7B-6(c). For these reasons, Magistrate Judge Trumble recommends that the plaintiff's requested relief be denied.

         The plaintiff filed objections on December 23, 2016 [Doc. 38], December 27, 2016 [Doc. 39], and January 10, 2017 [Doc. 40].

         II. DISCUSSION

         The plaintiff's first objection [Doc. 38] simply states that he “would like to appeal the [Court's] dismissal of [his] complaint claiming that the ‘Independent Contractor exception' barred [him] from suing the government under FTCA.” [Doc. 38]. This Court finds that this fails to state any actual, substantive objection and must be OVERRULED.

         In his second objection [Doc. 39], the plaintiff takes issue with the Government's failure to fully take responsibility for “their own actions and culpability, ” arguing that it was FCI Gilmer's employees rather than the surgeon who “scrambled” the medical records. He notes that he wants his “FTCA to focus on the CAUSE of the surgery, ” reasserting his argument that prison officials are required to provide inmates with reasonably adequate medical records. He muses whether it is possible that Magistrate Judge Trumble correctly framed his argument but the Government's summary judgment motion “caused a diversion by placing blame on the outside contractor when in fact the negligence lies with them personally, ” and seems to generally agree with most of the R&R.

         The only real objection made appears to be to the “outside contractor” argument that, although he indicates that he thinks the argument is “fair, ” the plaintiff avers may have distracted the magistrate judge from the fact that liability rests with the defendant. This objection is without merit, and this Court agrees with Magistrate Judge Trumble that the Government is not responsible for the actions of the surgeon. The actual harm alleged by the plaintiff is the surgery itself. The surgery was ...


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