United States District Court, N.D. West Virginia
REPORT AND RECOMMENDATION
W. TRUMBLE, UNITED STATES MAGISTRATE JUDGE
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
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. Therefore, on March 28, 2017, the
defendant was ordered to file an answer addressing the merits
of the complaint. ECF No. 21.
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.
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.
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.
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
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.
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.
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.
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, 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.
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. 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.
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