Mcghee v. U.S.A
| Decision Date | 04 February 2011 |
| Docket Number | No. 5:09-CT-3192-BO,5:09-CT-3192-BO |
| Court | U.S. District Court — Eastern District of North Carolina |
| Parties | JOHN E. MCGHEE, Plaintiff, v. UNITED STATES OF AMERICA, et al, Defendants. |
John E. McGhee ("plaintiff'), a federal inmate, has filed this suit pursuant to the Federal Tort Claims Act ("FTCA") and Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics. 403 U.S. 388 (1971). Presently, the matter is before the court on defendants' motion to dismiss or for summary judgment. Plaintiff asserts his FTCA claim against the United States of America. He asserts his Bivens claims against M. Lee, G. Ortiz, Robin Hunter-Busker, and Nurse Scott.
Taking the facts as alleged by plaintiff, on August 1, 2008, a fight broke out, two inmates assaulted plaintiff, and plaintiff's jaw was broken. The fight occurred at the indoor recreation area of Federal Correctional Institution-Burner II ("FCI-Butner II"). The following day, on August 2, 2008, medical staff assessed plaintiff's injuries. He was to be given pain medication and an x-ray was scheduled. However, plaintiff states the medication and nutritional supplement was delayed and he was not seen by a doctor or x-rayed until August 7, 2008. While waiting for the medical attention, he was in pain and unable to chew. On August 14, 2008, plaintiff underwent surgery. He claims that before and after his surgery, defendants failed to provide medical attention, pain medication, and nutritional supplements in a timely or consistent manner. He also claims the medical staff left the' archbars' in his jaw over two weeks longer than reasonable, which has resulted in sever pain and deformity of his jaw. One administrative grievance provided by plaintiff does statethat "[w]hile we regret that there may have been some delay in getting the archbars removed, there was no harm done as a result of prolonged retention of the archbars."
The FCI-Butner II recreation area is part of the complex wide recreation department. Mem. in Supp. of Defs' Mot. to Dismiss, or in the alternative for Summ. J., Edwards Decl. ¶ 3. The area provides recreation services to the five institutions of Federal Correctional Center-Butner ("FCC-Butner"). Id. Policy does not dictate recreation staffing levels. Id. at ¶ 4-5. "[I]n consideration of budgetary constraints, staff resources and institution security concerns, the Recreation Supervisor has determined that a minimum of two, and when possible, three recreation staff should be assigned to ensure the recreation activities are conducted in a secure and orderly manner. Id. Staff has discretion to move throughout the recreation area "to facilitate the recreation activities and monitor the inmates." Id. at ¶ 6-8. At the time of the incident, three recreation staff, including defendant M. Lee, were assigned to the area. Id. at ¶ 10. Defendant G. Ortiz was not assigned to work on the date of the fight. Id.
Plaintiff claims the FCI-Butner II recreation department was under-staffed, and the staff on duty were not in the security office or indoor recreation area during the fight. From this, plaintiff alleged deliberate indifference to his safety and well-being. Plaintiff also alleges delay in obtaining medical care a well as post surgery care.
It appears that plaintiff has failed to request any administrative remedy in regard to the failure to protect/supervise while in the FCI-Butner II recreation department. See Id., Cox Decl. ¶¶ 12-13; response, D.E.# 17. On February 19, 2009, plaintiff filed an administrative claim under the FTCA which was denied on June 10, 2009. Compl., Attch.
The court shall first review the Bivens claims for deliberate indifference and failure to protect. Because the court has considered matters outside of the pleadings, the motion shall be considered as one for summary judgment. Fed. R. Civ. P. 12(d). Summary judgment is appropriate when, after reviewing the record taken as a whole, no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby. Inc.. 477 U.S. 242, 247-48 (1986). The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett. 477 U.S. 317, 325 (1986). Once the moving party has met its burden, the non-moving party may not rest on the allegations or denials in its pleading, Anderson. 477 U.S. at 248, but "must come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp.. 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)). A mere scintilla of evidence supporting the case is not enough. Anderson. 477 U.S. at 252. The court construes the evidence in the light most favorable to the non-moving party and draws all reasonable inferences in the non-movant's favor. Matsushita Elec. Indus. Co.. 475 U.S. at 586-87.
Defendant Hunter-Buskey and defendant Scott assert as commissioned officers in the Public Health Service ("PHS") when treating McGhee, each is entitled to absolute immunity. See 42 U.S.C. § 233(a); Hui v. Castaneda.__U.S.__, 130 S. Ct. 1845, 1851 (2010); Cuoco v. Moritsugu, 222 F.3d 99, 107 (2d Cir. 2000); Cook v. Blair. No. 5:02-CT-609-BO, 2003 WL 23857310, *1-2 (E.D.N.C. Mar. 21, 2003); see generally United States v. Smith. 499 U.S. 160, 170 n.11 (1990) ().
The evidence holds both individuals to be a commissioned PHS officer detailed to FCC Burner. Robin Hunter-Buskey works as a Physician Assistant, Decl. Hunter-Buskey ¶ 1-2, and Addie Scott works as a Registered Nurse. Decl. Scott ¶1-2 Each was serving in that capacity when treating McGhee. Id. Therefore, plaintiff cannot proceed with his claims against Hunter-Buskey and Scott and plaintiff's claims against them are DISMISSED.
Defendant Lee and defendant Ortiz raise plaintiff's failure to exhaust administrative remedies as the affirmative defense to the failure to protect claim. It is well established that a plaintiff seeking to redress prison conditions must first exhaust all available administrative remedies. See 42 U.S.C. § 1997e(a); Porter v. Nussle. 534 U.S. 516, 532 (2002); Booth v. Churner. 532 U.S. 731, 740-41 (2001). The Federal Bureau of Prisons ("BOP") maintains a three-step procedure for processing inmate grievances. The inmate must first direct his complaint to the warden of his institution through a written administrative remedy request. 28 C.F.R §§ 542.12, 542.13, 542.14. After the warden's response, if still unsatisfied, the prisoner may submit an appeal to the regional director. 28 C.F.R. § 542.15(a). Lastly, the inmate may appeal to the office of general counsel in Washington, D.C. 28 C.F.R. 542.15. Each step of the process has its own time limits and procedural instructions, and inmates are required to adhere to them.
Plaintiff agrees that he has failed to exhaust his administrative remedies, and the "Court is without jurisdiction to review this claim under Bivens." (Response, p. 4). Plaintiff seeks to proceed as to this claim soley under the FTCA. Id. Thus, the claim for failure to protect is DISMISSED without prejudice.
Under the FTCA, plaintiff alleges both negligent medical care for failure to provide treatment for plaintiff and lack of proper security. Both issues are properly exhausted and timely raised in this court. See "Right to Sue Letter, " Response to Mot. to Dismiss, Ex. A. No outside attachments and materials have been considered, and the court considers the issues under the applicable motion to dismiss standard. Ashcroft v. Iqbal. 556 U.S.__, __, 129 S. Ct. 1937, 1949 (2009).
Defendant seeks dismissal of McGhee's FTCA claim for "failure to comply with North Carolina's pre-filing requirement Rule 9(j)." Mem. Supp. Mot. Dismiss at 14. Under the FTCA, the United States waives sovereign immunity for "the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." See 28 U.S.C. §§ 2647, 2675(a). A prisoner "can sue under the [FTCA] to recover damages from the United States Government for personal injuries sustained during confinement in a federal prison, by reason of the negligence of a government employee." United States v. Muniz, 374 U.S. 150, 150 (1963). North Carolina substantive law controls claim. See, e.g.. Cibula v. United States. 551 F.3d 316, 319 (4th Cir. 2009) (quotation omitted); see also 28 U.S.C. § 1346(b).
In North Carolina there are substantive legal requirements that a person must follow to pursue a medical malpractice claim. In North Carolina, a plaintiff asserting negligence must prove the existence of a legal duty or standard of care owed to the plaintiff by the defendant, breach of that duty, a causal relationship between the breach of duty and the plaintiff's alleged injuries, and certain actual injury or loss sustained by the plaintiff. Camalier v. Jeffries. 340 N.C. 699, 706 (1995); Blackwell v. Hatley, 688 S.E.2d 742, 746 (N.C. Ct. App. 2010).
North Carolina Rule of Civil Procedure 9(j) states in relevant part: Any complaint alleging medical malpractice by a health care provider as defined in [N.C. Gen. Stat. §] 90-21.11 in failing to comply with the applicable standard of care under [N.C. Gen. Stat. §] 90-21.12 shall be dismissed unless:
(1) The pleading specifically asserts that the medical care has been...
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