Baker v. United States
| Decision Date | 18 January 2013 |
| Docket Number | No. 5:11-CT-3070-D,5:11-CT-3070-D |
| Court | U.S. District Court — Eastern District of North Carolina |
| Parties | GREGORY EARL BAKER, Plaintiff, v. UNITED STATES, et al., Defendants. |
Gregory Earl Baker ("Baker" or "plaintiff"), a former federal inmate, brings this action seeking relief pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680 [D.E. 1,3]. Baker contests the medical care that he received while incarcerated at the Federal Correctional Institution in Burner, North Carolina ("FCI-Butner"). He seeks relief for medical malpractice, negligence, and deliberate indifference to his medical needs in violation of the Eighth Amendment. Compl. [D.E. 3]. The complaint names as defendants the United States and individual defendants FCI-Butner Warden Stephens, FCI-Butner Associate Wardens Batts and Campos, FCI-Butner Medical Director Duchesne, FCI-Butner Physician Assistant Brian Burt, and FCI-Butner Doctor Serrano-Mercado. Compl. ¶¶ 2, 4-9. The United States Attorney represents all defendants.
On May 7, 2012, the court granted in part defendants' motion to dismiss, and dismissed plaintiff's seventh, tenth, and eleventh claims, along with all individual defendants [D.E. 22]. On June 1, 2012, the United States filed a motion to dismiss or for summary judgment [D.E. 25], along with a memorandum and exhibits [D.E. 26] and the declaration of Tracy Christ [D.E. 27]. Bakerresponded in opposition to the motion for summary judgment [D.E. 30], filed a motion for reconsideration [D.E. 31], and filed a motion to amend his complaint [D.E. 32]. Defendant filed a reply in support of its motion for summary judgment [D.E. 34], responded in opposition to the motion for reconsideration [D.E. 35], and moved to stay the motion to amend [D.E. 36]. Baker then filed a notice of constitutional question pursuant to Federal Rule of Civil Procedure 5.1 [D.E. 37], filed proof of service on the North Carolina Attorney General on August 22, 2012 [D.E. 38], and responded in opposition to the motion to stay [D.E. 39]. On September 10, 2012, defendant filed a reply [D.E. 40]. As explained below, the court grants in part defendant's motion to dismiss, denies plaintiff's motion for reconsideration, grants in part plaintiff's motion to amend, and denies as moot defendant's motion to stay.
On May 7, 2012, the court described in detail the facts of this case. Order [D.E. 22] 2-5. Briefly, on January 13, 2009, a urologist ("Dr. Ogle") "performed on Baker a urethral stricture procedure and a biopsy of related fibrotic stricture[]" and inserted a catheter. Compl. ¶ 25. On January 18, 2009, when the catheter was removed, "an ulceration was discovered on the head of his penis." Id. ¶ 26. The condition worsened and grew extremely painful, but Baker was frequently denied examinations and prescribed medications. Id. ¶¶ 29-30, 34, 36, 44-45, 48. On July 17,2009, Dr. Ogle performed a biopsy of the lesion, and determined that Baker suffered from squamous cell carcinoma. Id. ¶ 50. In late July, 2009, Baker "was referred to Duke University Medical Center ("DUMC") for [a] dermatological oncology consultation." Id. ¶ 51. According to Baker, as a result of the delay in obtaining a biopsy and diagnosis, Baker was ineligible "for a procedure meant to save portions of his penis," and "no alternative remained but a full penectomy in hopes of preventing the cancer's spread." Id. ¶ 52-53. "Baker subsequently endured removal of lymph nodes down hislegs, in another step to prevent his cancer from spreading" and "had tubes placed in his legs to help drain post-surgical fluids, but the left drain tube failed multiple times under the . . . United States'[s] and its employees' supervision." Id. ¶ 54. On December 16, 2009, during a follow-up appointment at DUMC, Baker's outside surgeon "immediately admitted [Baker] to recover under [the surgeon's] personal supervision" and expressed "'frustration' and 'shock' at the defendants' failed aftercare." Id. ¶ 55. On January 15, 2010, Baker was discharged from DUMC. On March 10, 2010, Baker was released from prison. Id. ¶56.
Although BOP employees provide primary medical care to inmates incarcerated at Burner, BOP provides specialty medical care through specialty clinics staffed by independent contractor physician specialists through a contract with a private company, Medical Development International ("MDI"). Jimenez Decl. [D.E. 26-8] ¶¶ 5, 9, 19; see also [D.E. 26-6] (Mot. Summ. J., Ex. 5 (BOP-MDI contract)). Dr. Ogle is not a BOP employee, but a urologist who performs medical services at Burner through the MDI contract. Jimenez Decl. ¶ 10. "BOP medical providers make referrals for inmates to be seen" by MDI physicians such as Dr. Ogle. Id. ¶ 12. Moreover, "BOP does maintain the authority to approve or deny referrals for treatment and specific treatments recommended by MDI contract physicians." Id. ¶ 7; see also Christ Decl. [D.E. 27] ¶ 6 (). While an "onsite MDI Scheduler, who is not a BOP employee, schedules all appointment[s] for specialty clinics," a BOP employee is responsible for "coordinat[ing] the processing of all paperwork associated with [an] outside medical trip" in order to ensure the inmate's ability to attend outside medical appointments. Jimenez Decl. ¶¶ 12, 15. Additionally, BOP custody staff must transport inmates to the Federal Medical Center for medical appointments. Id. ¶19.
First, the court addresses Baker's motion for reconsideration [D.E. 31]. Baker objects to the court's dismissal of his Bivens claims against the supervisory defendants, particularly Warden Stephens. Mot. Reconsider 3-6, 13. Federal Rule of Civil Procedure 54(b), which governs Baker's motion, provides:
any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.
Fed. R. Civ. P. 54(b). Before a final order is entered, "a district court retains the power to reconsider and modify its interlocutory judgments, including partial summary judgments, at any time prior to final judgment when such is warranted." Am. Canoe Ass'n. Inc. v. Murphy Farms. Inc., 326 F.3d 505, 514-15 (4th Cir. 2003). "Motions for reconsideration of interlocutory orders are not subject to the strict standards applicable to motions for reconsideration of a final judgment," but are "committed to the discretion of the district court . . . ." Id.
In dismissing Baker's claims against Stephens, Batts, Campos, and Serrano-Mercado, the court considered Baker's arguments concerning his personal requests for medical care to each defendant, as well as the specific allegations of his complaint against each supervisory defendant. Order 5-9. Baker's motion for reconsideration reprises his argument that the supervisory defendants' responses to his grievances "were so grossly inadequate that they constituted tacit approval of the institutional bureaucracy's deliberate indifference to his life-threatening medical needs." Mot. Reconsider 9. Thus, Baker has not presented any argument warranting reconsideration. See, e.g., Iko v. Shreve, 535 F.3d 225, 242 (4th Cir. 2008); Sawyer v. Stolle, No. 2:11CV446, 2011 WL 6396592, at *12-13 (E.D. Va. Dec. 20, 2011) (unpublished); Davis v. Sec'yof Dep't of Pub. Safety & Corr. Servs., No. JFM-10-2009, 2011 WL 2974906, at *4 (D. Md. July 20, 2011) (unpublished); Green v. Rubenstein, 644 F. Supp. 2d 723, 747-48 (S.D. W. Va. 2009). Therefore, the court denies plaintiff's motion for reconsideration.
Next, the court addresses the United States's motion to dismiss or for summary judgment [D.E. 25]. Defendant asserts the court lacks subject-matter jurisdiction over Baker's FTCA claim. Alternatively, defendant argues that Baker fails to state a claim upon which relief can be granted, or, that defendant is entitled to summary judgment.
Under Rule 12(b)(1), plaintiff bears the burden of establishing federal jurisdiction. See Fed. R. Civ. P. 12(b)(1); Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). When a Rule 12(b)(1) motion attacks the complaint as failing to state facts upon which subject-matter jurisdiction may be based, the facts in the complaint are assumed to be true. Kerns, 585 F.3d at 192. Where the Rule 12(b)(1) motion attacks the existence of subject-matter jurisdiction, apart from the complaint, the court may weigh the evidence to determine the existence of jurisdiction. Id.
In analyzing a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure for "failure to state a claim upon which relief can be granted," a court must determine whether the complaint is legally and factually sufficient. See Fed. R. Civ. P. 12(b)(6); Ashcroft v. Iqbal, 556 U.S. 662, 677-80 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 132S. Ct. 1327(2012); Giarratano v. Johnson, 521 F.3d 298,302 (4th Cir. 2008); Goodman v. Praxair. Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc); accord Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam). A court need not accept a complaint's legal conclusions, elements of a cause of action, or bare assertions devoid of further factual enhancement. See, e.g., Iqbal, 556 U.S. at 768; Nemet ChevroletLtd. v. Consumeraffairs. com, Inc., 591 F.3d 250, 255 (4th Cir. 2009). Similarly, a court "need not accept as true unwarranted inferences, unreasonable conclusions, or arguments." Giarratano, 521 F.3d at 302 (quotation omitted); see Iqbal, 556 U.S. at 678-79.
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