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Blanchard v. United States

United States District Court, N.D. West Virginia

November 8, 2017

RAY BLANCHARD, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant,

          REPORT AND RECOMMENDATION

          ROBERT W. TRUMBLE, UNITED STATES MAGISTRATE JUDGE

         I. Procedural History

         The pro se plaintiff initiated this case on April 13, 2015, by filing a complaint pursuant to the Federal Tort Claim Act (“FTCA”). ECF No. 1. On April 15, 2015, the plaintiff's motion to proceed in forma pauperis was granted [ECF No. 7], and on May 11, 2015, the plaintiff paid his initial partial filing fee. ECF No. 11. Upon preliminary review, it appeared that the plaintiff might not have exhausted his administrative tort claim as required by 28 U.S.C. § 2675, or might have filed his FTCA beyond the statute of limitations. Accordingly, the defendant was instructed to file an answer limited to exhaustion and timeliness, and the Clerk of Court was directed to issue a 60 day summons for the United States Attorney's Office for the Northern District of West Virginia and the Attorney General for the United States. ECF No. 18.

         On November 10, 2016, the defendant filed its response on the limited issues of exhaustion and timeliness and acknowledged that the plaintiff had indeed exhausted his remedies and was timely as required by 28 U.S.C. § 2401(b) and 28 U.S.C. § 2675.ECF No. 20.[1] Therefore, on March 28, 2017, the defendant was ordered to file an answer addressing the merits of the complaint. ECF No. 21.

         On June 6, 2017, the defendant filed a Motion to Dismiss or, in the alternative, Motion for Summary Judgment with a memorandum in support and exhibits. ECF Nos. 27 & 28. On June 12, 2017, an Order and Roseboro Notice was issued. ECF No. 32. On October 6, 2017, in apparent response, the plaintiff filed a “Motion Under Rule 56(A) for Summary Judgment.” ECF No. 43.

         II. Material Facts[2]

         The plaintiff is a former federal inmate, who was designated to FCC Hazelton from June 6, 2013, until February 20, 2014. ECF No. 27-2 at 8. On December 31, 2013, he was seen in the Special Housing Unit (“SHU”) at 8:58 p.m. by a health service professional after he complained of an injury to his right knee. ECF No. 28-1 at 2. At that time, he reported that his right knee was swollen and hurt after jumping from his top bunk to the floor. Id. The plaintiff claimed that he was not able to tolerate weight on his right leg. Id. Medical assessment revealed mild to moderate swelling below the right knee. Id. The plaintiff complained of discomfort when attempting to move and was unable to perform full range of motion during the assessment. Id. The plaintiff did, however, demonstrate good capillary refill and palpable pulses in his lower right extremity indicating that there was still good blood flow in his leg. Id. The plaintiff's knee was wrapped in a 6-inch Ace bandage; 800 mg. Ibuprofen was ordered for his pain management, to be filled at the earliest possible time; and an x-ray was ordered. Id. The physician assistant on duty was informed of the Plaintiff's status, and the Plaintiff was instructed to contact Health Services if he experienced any numbness or signs of decreased blood flow. Id.

         On January 2, 2014, the Plaintiff was evaluated in Health Services. Id. He was placed in a splint and transferred to Monongalia General Hospital for assessment of a possible tibial or fibular fracture. ECF. No. 28-1 at 6-11. It was noted that he demonstrated good sensation and capillary refill following the splint application. When the plaintiff returned from the hospital that same date, his discharge paperwork indicated that he should have a follow up evaluation in a week. Id. The plaintiff's leg was then undressed and assessed with no significant findings. Id. His dressing was reapplied, and he was taken by wheelchair to his cell in the SHU. The plaintiff was permitted to keep the wheelchair in his possession. Id.

         On January 8, 2014, Dr. Chris Vasilakis, an orthopedic surgeon, evaluated the plaintiff's right knee and determined that the knee had minor effusion and bruising. ECF No. 28-1 at 16. He was able to bend his knee 40 to 90 degrees, but the stability of the knee was unable to be assessed. Id. X-ray examination revealed a comminuted lateral tibial plateau fracture in the right knee. Id. In his recommendation, Dr. Vasilakis advised that he would review the plaintiff's CT scan at Monongalia General Hospital to determine if surgery would be necessary or whether the plaintiff's case should be referred to West Virginia University Ortho trauma service for surgical fixation. Id. Dr. Vasilakis recommended that the plaintiff continue to ice his knee, avoid placing weight on it, keep it wrapped with the Ace bandage, and use Tylenol 3 for pain management. Id.

         On January 9, 2014, the Plaintiff was provided with Acetaminophen with Codeine for pain management to be taken twice daily for five days. ECF No. 28-1 at 18. On January 14, 2014, the plaintiff's pain medication was renewed for an additional ten days. Id. at 20.

         On January 23, 2014, the Plaintiff underwent surgery at Monongalia General Hospital to repair the right lateral tibial plateau fracture through open reduction with internal fixation (“ORIF”). ECF No. 28-1 at 22. The surgeon noted that the surgery went well with excellent alignment of the fracture. Id. The plaintiff was sent to the recovery room in good condition. Id.

         The plaintiff received postoperative care at Monongalia General Hospital from January 24, 2014, through January 27, 2014, on which date he was returned to FCC Hazelton. ECF No. 28-1 at 26-36. On January 25, 2014, consulting provider, Dr. Gregg O'Malley, MD, noted that the plaintiff showed no signed of complications from the knee surgery. Id. at 26. The same day that he returned FCC Hazelton, January 27, 2014, an order was placed for a follow-up x-ray examination. Id. at 36. In addition, it was noted that the plaintiff's staples would be removed in 11 days, and the plaintiff would be placed in a handicapped accessible cell in the SHU. Id. On February 3, 2014, the Plaintiff's pain medication was renewed for 10 days. Id. at 38.

         On February 20, 2017, the plaintiff was transferred from FCC Hazelton to USP McCreary. ECF No. 27-2 at 8. The plaintiff was seen at USP McCreary's Health Services on March 3, 2014[3], at which time a post-surgical x-ray was ordered. ECF No. 28-1 at 48. He was seen again in the McCreary Health Services on March 25, 2014.

         In August of 2014, an orthopedist recommended that he have arthroscopic surgery of the right knee. ECF No. 28-1 at 67. He eventually underwent surgery to repair the meniscus in his right knee.[4] By December 2, 2014, the Plaintiff was moving around well. In fact, he declared he had “no pain” and asked the health provider at McCreary if he could begin working out. Upon examination, the provider noted the plaintiff's right knee had some crepitus, but no laxity. Two stitches were removed, and the wound was healing nicely. There were no signs of infection and his knee movements were otherwise normal. ECF No. 28-1 at 81.

         III. The Complaint

         In his complaint, the plaintiff alleges that he was denied his right to emergency medical treatment as required by page 21 of Hazelton's Inmate Handbook which provides that emergency health services are available 24 hours daily. The plaintiff appears to allege that the negligence of staff at Hazelton led to his having to have two knee surgeries, and he is still suffering from this injury. He further alleges that Warden O'Brien and his medical official were negligent due to “being transferred while the second surgery was ordered and ...


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