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Carter v. United States

United States District Court, S.D. West Virginia, Beckley Division

November 4, 2019

GREGORY CARTER, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM OPINION AND VERDICT

          IRENE C. BERGER, UNITED STATES DISTRICT JUDGE

         On the 23rd day of July, 2019, came the Plaintiff, Gregory Carter, in person and by counsel, Mark R. Staun, and also came the United States by its Assistant United States Attorneys, Matthew C. Lindsay and Jason S. Bailey, for a bench trial in the above-styled matter. The bench trial continued on July 24, 2019, and on August 27, 2019. The Plaintiff was an inmate at FCI Beckley between approximately December 2013 and June 2018. He alleges that a pre-existing ankle injury was exacerbated when he fell after prison employees required him to remain in a flooded cell. The Court has reviewed the Defendant United States of America's Proposed Findings of Fact and Conclusions of Law (Document 109) and the Plaintiff's Proposed Findings of Fact and Conclusions of Law (Document 111), as well as all testimony and exhibits introduced during trial.

         For the reasons stated herein, the Court concludes that the Plaintiff has demonstrated by a preponderance of the evidence that his injuries were the result of negligence of employees of the United States acting within the scope of their employment. Therefore, the Court finds that the United States is liable for Mr. Carter's injuries sustained in the fall in his cell.

         FINDINGS OF FACT

         Mr. Carter injured his right ankle in two falls prior to his incarceration. On November 12, 2013, he was involved in a work-related accident and suffered a minor sprain. Medical records and testimony indicate that it was resolved within approximately a week. He slipped on ice on December 10, 2013, and suffered a more serious sprain. A VA hospital provided crutches and an air cast. He reported to FCI Beckley on December 13, 2013, and informed medical staff of the sprain. They issued a boot in place of the air cast and permitted him to continue using the crutches. He was also assigned to a downstairs housing unit and lower bunk because of his ankle injury.

         He continued to receive medical care with slow improvements to his ankle, moving to a single crutch, then a cane, and giving up the boot. He was scheduled to have an MRI of his ankle. At the last doctor's visit prior to the fall at issue, on March 28, 2014, he reported pain at a level of 3/10. The ankle remained swollen and painful. Mr. Carter testified that he did not return to medical during the month of April because his ankle continued to improve.

         In the early morning hours of May 3, 2014, a water leak resulted in approximately two inches of water flooding the cell Mr. Carter shared with Clifton Perry. The Court found both Mr. Carter and Mr. Perry quite credible.[1] Both offered frank, direct testimony, did not hesitate to answer questions posed by counsel for either party, and were forthcoming in answering questions that could reflect negatively on their character, including describing the crimes that brought them to federal prison. Their accounts of the events are largely corroborative, although their recollections differ in certain respects. Those differences are of the type which are common or expected when multiple people try to independently recall the details of events that occurred years in the past without rehearsing to ensure entirely consistent testimony. Where the accounts differ, the Court finds Mr. Carter more credible because his recollections appeared clearer, as would be reasonable given that the events had a more substantial impact on his life and he reviewed his recollections more frequently as a result of the medical care, institutional discipline, and litigation that resulted.

         One area in which they offered different accounts is when the leak began. Mr. Carter testified that the water leak began in the evening of May 2, 2014, and he reported it to a correctional officer at that time. He stated that the officer provided him with a mop and bucket to clean up the water before lockdown on May 2, 2014, but did nothing to resolve the water leak. Mr. Perry testified that the leak began overnight, and he first noticed it when he woke between 5:00 and 5:30 a.m. on May 3, 2014. Regardless of when the leak began, shortly after 5:00 a.m., the cell had about two inches of water on the floor. The men pressed the distress button at approximately 5:30 a.m. Correctional Officer Lagowski[2] responded but refused to open the cell door to facilitate cleaning up the water or otherwise resolve the issue. Officer Lagowski reported the incident to Lieutenant Darrell Pritt, and they agreed that nothing should be done until shift change when the cells would be unlocked. According to both Mr. Perry and Mr. Carter, shift change occurred around 7:15 to 7:30, approximately two hours after the first distress call.[3]

         Mr. Carter went back to bed but had to get up to use the rest room after a short time. While trying to maneuver, with his cane, the few steps from the toilet back to his bed, he slipped and fell, twisting and re-injuring his ankle. Mr. Perry hit the distress button to notify staff that Mr. Carter had been hurt.

         Officer Lagowski returned to the cell, and Mr. Carter reported his fall and requested medical assistance. Officer Lagowski said he wanted Mr. Carter to go to the Lieutenant's office and told him to get up, but Mr. Carter said he could not get up because of his injured ankle. Officer Lagowski called Lieutenant Pritt around 6:15 a.m. Officer Lagowski informed Lieutenant Pritt of Mr. Carter's fall and claimed that Mr. Carter had been insolent and insulted him.[4] Lieutenant Pritt testified that he did not view the situation as one that warranted use of the duress alarm. Nonetheless, he directed officers stationed elsewhere to respond to the cell and bring Mr. Carter to his office, both to await medical personnel and to address the alleged disrespect. A group of four BOP employees, including Lieutenant Austin, arrived at the cell in less than five minutes.[5] The officers handcuffed Mr. Perry and removed him from the cell. An officer ordered Mr. Carter to get up to go to the Lieutenant's office. He again explained that he could not stand on his injured ankle but was again ordered to get up. When he attempted to comply, his cane slipped and he fell again, hitting his head on a locker. Officers then helped him into a wheelchair, and he was taken to Lieutenant Pritt's office around 6:30 a.m. As they were making their way to the Lieutenant's office, officers, including Lieutenant Austin, berated Mr. Carter for his fall and warned him that he would be sent to the SHU (special housing unit) as soon as he was medically cleared. Mr. Carter was placed in a cell in the Lieutenant's office.

         Sometime after 7:00 a.m., Nurse Owens arrived and examined his ankle and head. She did not see any visible injury to his head, and Mr. Carter testified that his head, neck, and back pain from the fall resolved within a few weeks with no lasting impact. Nurse Owens noted that his ankle was swollen and tender, with a decrease active range of motion, and that he was unable to tolerate attempts of passive range of motion. She gave him an ace bandage for his ankle, and he continued to use the cane. She also ordered an x-ray, which “was negative for any bony process.” (Document 125-2 at 90.)

         Mr. Carter was keyed in to the SHU at 8:16 a.m. on May 3, and remained for six days. He was then moved to a top bunk in a top tier cell and threatened with being sent back to the SHU when he requested that his medical accommodation pass for a low bunk be accommodated. He was eventually returned to his original cell.

         Mr. Carter's ankle continued to be swollen and painful the remainder of his time in FCI Beckley, and he continued to rely on a cane. He had an MRI on July 7, 2014. The interpretation includes the following impressions:

1. Tenosynovitis of the peroneus brevis and flexor hallucis longus tendons with no evidence of complete tendon disruption.
2. There is no ligamentous ...

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