McLean v. United States

Decision Date13 July 2018
Docket NumberCIVIL ACTION NO. 9:17-2702-DCC-BM
PartiesJames E. Mclean, Jr., # 17701-058, Plaintiff, v. United States of America, Defendant.
CourtU.S. District Court — District of South Carolina
REPORT AND RECOMMENDATION

This action has been filed by the Plaintiff, pro se, asserting claims relating to his medical care pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671, et. seq.. Plaintiff is a federal prison inmate at the Federal Correctional Institution in Estill, South Carolina (FCI-Estill).

The Defendant filed a Rule 12 motion to dismiss on March 23, 2018. As the Plaintiff is proceeding pro se, a Roseboro order was entered by the Court on March 26, 2018, advising Plaintiff of the importance of a dispositive motion and of the need for him to file an adequate response. Plaintiff was specifically advised that if he failed to respond adequately, the Defendant's motion may be granted, thereby ending his case. Plaintiff thereafter filed a memorandum in opposition to the Defendant's motion to dismiss on April 23, 2018, following which the Defendant filed a reply memorandum on May 1, 2018. Plaintiff then filed a sur reply on May 7, 2018.

The Defendant's motion is now before the Court for disposition.1

Allegations of the Complaint

Plaintiff has submitted a twenty-six (26) page Complaint wherein he alleges that he suffers from a rare bone disease known as Rickets.2 Plaintiff alleges that if untreated, or improperly treated, Rickets can be "crippling". Plaintiff alleges that prior to his incarceration he was prescribed Vitamin D (taken daily) and phosphorous, which effectively treated his condition and allowed him to enjoy a somewhat normal life. See Complaint, ¶ ¶ 1-2. However, Plaintiff alleges that following his conviction on federal charges in November 2002, Plaintiff initially did not receive proper medical treatment for his condition while in county jails awaiting transfer to federal prison. Id., ¶ 3. Plaintiff alleges that when he was transferred to the Federal Bureau of Prisons (BOP) in 2004, medical staff initially provided him with a prescription for the "proper amount of Vitamin D", and that he was also provided with some calcium and phosphate. However, Plaintiff alleges that BOP medical staff subsequently reduced his Vitamin D and dropped the phosphate altogether. Id., ¶ ¶ 4-5. Plaintiff alleges that his "orthopedic doctor" who had treated him prior to his incarceration did not think Plaintiff needed to change his Vitamin D and calcium regimen, but that even though he forwarded a copy of his physician's letter to the BOP's medical staff, the BOP's medical staff continued toprovide him with an inadequate amount of Vitamin D3 and gave him no phosphate. Id., ¶ ¶ 6-7.

Plaintiff alleges that as a result of the BOP's medical staff decisions, he "started having great pain in his knees and other joints". Plaintiff further alleges that after he was "called to court for his appeal", when he returned to the prison he went without his medicine "for a while", which caused him to start having "great back and joint pain". Id., ¶ ¶ 8-10. Plaintiff alleges that although his medications were eventually renewed, they were still at "inadequate" levels to properly treat his condition. Id., ¶ 11. Plaintiff alleges that after he was transferred to a different federal prison he was eventually given Vitamin D capsules of fifty thousand IU, but that he only received "one or so" per week, which was not enough. Moreover, Plaintiff alleges that he was still provided no phosphate, even though his "lab results suggested he needed phosphate". Id., ¶ 18.

Plaintiff alleges that after about three years at this facility (FCI-Butner), Plaintiff was transferred to FCI-Ashland, where he initially "went without any treatment for his health issue Rickets for many days". Plaintiff further alleges that although he did eventually receive his medicine, it was again "not sufficient" for his needs. After spending about two years at FCI-Ashland, Plaintiff was transferred to his current location at FCI-Estill. Id., ¶ ¶ 19-20. However, Plaintiff alleges that after his arrival at FCI-Estill, he was only given blood pressure medicine and was told that he had to buy vitamins from the commissary. Plaintiff alleges that as a result he was not prescribed any treatment for his Rickets until he was seen by a physician well over a year after he had arrived at FCI-Estill, but that even then he was only prescribed 2000 IU tablets to be taken twice a day, while the doctor never prescribed him any phosphate. Id., ¶ 21. Plaintiff alleges thathe has "Vitamin D resist Rickets", which means that it takes a very large dosage of Vitamin D to effectively treat his condition. Even so, Plaintiff alleges that he has yet to receive the proper treatment at FCI-Estill, which is causing him to suffer "great pain in all of his major joints", affecting his ability to walk and move about, and that he "sleeps in pain as well". Id., ¶ ¶ 22-26.

Plaintiff also alleges that his condition has caused him to loose teeth, and that the medical personnel at the prison have not provided proper care for his dental needs. Id., ¶ ¶ 28-32. Plaintiff alleges that he was eventually told he would be allowed to get dentures, which required the extraction of Plaintiff's remaining teeth, but that the dentist refused to allow him [Plaintiff] to watch the procedure by holding a small hand mirror. Id., ¶ ¶ 34-36. Plaintiff then reviews the dental procedure he had for the extraction of his teeth, which Plaintiff alleges was not done properly, and alleges that the way his procedure was handled and its aftermath has resulted in him not being able to properly chew food. Id., ¶ ¶ 37-46, 51.

Plaintiff alleges that has suffered, and is continuing to suffer from, numerous medical problems as a result of the inadequate care he has received, and seeks monetary damages. Plaintiff attached ninety-nine (99) pages of affidavits and supporting documents to his Complaint. See generally, Plaintiff's Complaint, with attached exhibits.

Discussion

When considering a Rule 12 motion to dismiss, the Court is required to accept the allegations in the pleading as true, and draw all reasonable factual inferences in favor of the party opposing the motion. The motion can be granted only if the party opposing the motion has failed to set forth sufficient factual matters to state a plausible claim for relief "on its face". Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009); see also Vogt v. Greenmarine Holding, LLC, 318 F.Supp. 2d136, 144 (S.D.N.Y. 2004)["[O]n a motion to dismiss, the Court does not weigh the strength of the evidence, and simply considers whether the [claim] alleges sufficient facts which, if true, would permit a reasonable fact finder to find [the party seeking dismissal of the claim] liable."]. Further, the Federal Court is also charged with liberally construing a complaint filed by a pro se litigant to allow for the development of a potentially meritorious case. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972). Even so, the requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleadings to allege facts which set forth a Federal claim, nor can the Court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Social Services, 901 F.2d 387 (4th Cir. 1990). Here, after careful review and consideration of the pleadings in this case and the arguments of the parties, and in light of the requirements of Rule 12 and the liberal construction given to pro se pleadings, the undersigned finds for the reasons set forth hereinbelow that the Defendant is entitled to dismissal of this case unless Plaintiff can comply with the medical affidavit requirement of S.C. Code Ann. § 15-36-100, as amended.

The FTCA waives sovereign immunity and allows suits against the United States for personal injuries caused by government employees acting within the scope of their employment. Under this Act, a plaintiff may recover a monetary award from the United States for damages "caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope...of employment." 28 U.S.C. § 1346(b). Whether any government employee was negligent is to be determined "in accordance with the law of the place where the act or omissionoccurred," here the State of South Carolina.4 28 U.S.C. § 1346(b)(1). In order to prove negligence in South Carolina, Plaintiff must prove by a preponderance of the evidence that 1) the Defendant had a legal duty of care5; 2) the Defendant failed to discharge that duty; and 3) the Defendant's breach proximately caused him injury. Ajaj v. United States, 479 F.Supp.2d 501, 549 (D.S.C. 2007); Saab v. S.C. State Univ., 567 S.E.2d 231, 237 (S.C. 2002); Fisher v. Shipyard Village Council of Co-Owners, Inc., 760 S.E.2d 121, 129 (S.C.Ct.App. 2014); Hubbard v. Taylor, 529 S.E.2d 549 (S.C.Ct.App. 2000). A Plaintiff is required to show negligence with reasonable certainty, not through mere conjecture, and he may not attempt to prove negligence through the doctrine of res ipsa loquitur. Ajaj, 479 F.Supp.2d at 549; Eickhoff v. Beard-Laney, 20 S.E.2d 153, 155 (S.C. 1942); Crider v. Infinger Transportation Co., 148 S.E.2d 732, 734-735 (S.C. 1966).

The FTCA's waiver of sovereign immunity includes claims for medical malpractice, which is what Plaintiff asserts here. See Littlepaige v. United States, 528 Fed.Appx. 289, 291-292 (4th Cir. 2013).6 To establish a cause of action for medical malpractice in South Carolina, Plaintiffmust prove the following facts by a preponderance of the evidence: 1) the presence of a doctor-patient relationship between the parties; 2) recognized and generally accepted standards, practices, and procedures which are exercised by competent physicians in the same branch of medicine under similar circumstances; 3) the medical or health professional's negligence, deviating...

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