Modisette v. United States
| Decision Date | 26 November 2019 |
| Docket Number | 1:18cv533 (LO/MSN) |
| Parties | Jerry Glendon Modisette, Plaintiff, v. United States of America, Defendant. |
| Court | U.S. District Court — Eastern District of Virginia |
Jerry Modisette, a federal inmate proceeding pro se, initiated this suit pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b) and 2671-80. Defendant United States of America ("defendant" or "the government") has filed a motion to dismiss or, in the alternative, motion for summary judgment [Dkt. No. 31-32] and a memorandum of law accompanied by documentary exhibits [Dkt. No. 33] in support of its position. Plaintiff received the Notice required by Local Rule 7(K) and the opportunity to file responsive materials pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975). Dkt. Nos. 31-1, 32-1. He filed a response to defendant's motion [Dkt. No. 35], defendant submitted a reply to plaintiff's response [Dkt. No. 39], and plaintiff filed a surreply [Dkt. No. 40]. This matter is therefore ripe for adjudication. For the reasons that follow, defendant's motion will be granted such that several claims will be dismissed, and judgment will enter in favor of defendant as to those that remain.
Plaintiff is an inmate incarcerated at FCI Petersburg ("Petersburg"). Dkt. No. 4 ("Am. Compl.") ¶ 1.1 Before being transferred to his current institution of confinement, he, from atleast January 2012 through April 2014, was incarcerated at USP Tucson ("Tucson") in Arizona. Id. at ¶¶ 8-12. At Tucson, in January 2012, plaintiff suffered a seizure and struck his head and neck on a table while falling to the ground. Id. at ¶ 8. Tucson staff were notified of the incident and instructed plaintiff to report to medical personnel the next morning. Id. at ¶ 9. Plaintiff reported to medical as instructed and was scheduled for an x-ray. Id. at p. 8. On February 22, 2012, plaintiff saw Doctor Longfellow, who informed plaintiff he had "C2-C3 loss of disc height and end plate irregularity." Id. at ¶ 10. On March 8, 2012, plaintiff requested from Dr. Khan provision of an MRI scan. Id. at ¶ 11.
On April 8, 2014, plaintiff arrived at FCI Petersburg and informed Physician Assistant Hall that his neck was injured but that "still nothing was done in a timely manner." Id. at ¶ 12. At some point in late 2014 or early 2015, plaintiff underwent another x-ray examination. Id. at p. 8. On September 23, 2015, plaintiff saw Orthopedist Dr. Prakash, who ordered an MRI examination for plaintiff. Id. at ¶ 13. Plaintiff underwent the MRI exam on November 3, 2016, after which his "injury was finally diagnosed as being multilevel mild disc herniations and degenerative disc bulging . . . ." Id. at ¶ 14. On November 6, 2017, plaintiff was sent offsite to see Dr. Prakasam Kalluri, who "did not want to operate" at that time and indicated that physical therapy, injections, and gabapentin represented viable options to manage plaintiff's condition. Id. at ¶ 16; id. at p. 8.
Defendant asserts that the Bureau of Prisons ("BOP") received plaintiff's administrative tort claim paperwork on December 28, 2017, see Dkt. No. 33, p. 4, but the Court cannot identify any documentary exhibits that support this assertion. On January 10, 2018, however, BOP sent a letter confirming receipt of plaintiff's claims. Id. at p. 9. In his paperwork, plaintiff claimed tohave suffered personal injuries arising from the medical care he received beginning January 15, 2012 and continuing through 2017. Id. at pp. 6-9.
On February 15, 2018, plaintiff informed Petersburg staff that he had to discontinue taking verlafaxine due to an allergic reaction he had when taking a drug in the "same class of prescription medication." Id. at ¶ 17. Several days later, Dr. Marrero, a member of Petersburg medical staff, "disapproved" of providing plaintiff with gabapentin. Id. at ¶ 18. On March 20, 2018, plaintiff "was taken ... for an offsite Rehabilitation" to treat his neck injury. Id. at ¶ 19.
On May 3, 2018, plaintiff filed his initial complaint, initiating this civil action. See Dkt. No. 1. His amended complaint asserts that BOP was negligent in providing him medical care for his neck injury. He alleges that "[t]he carelessness and negligence of Defendant ... consisted of the following:
On May 29, 2019, defendant hand-delivered a letter to plaintiff requesting certification that plaintiff had received an expert's written opinion prior to service of the complaint or an explanation as to why plaintiff felt such an opinion was unnecessary. Defendant's Exhibit ("DEX") 1. Plaintiff responded that he had not obtained an expert's opinion, citing indigence and the geographical remoteness of his current institution to Tucson, where plaintiff accrued the injury foundational to his claims. DEX 2. Defendant then filed the motions currently before the Court through which it seeks dismissal of plaintiff's claims or entry of judgment in its favor. Dkt. Nos. 31-32.
Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, the Court may dismiss a complaint or its claims for lack of subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). When a defendant challenges the existence of subject-matter jurisdiction, the Court may "regard the pleadings as mere evidence on the issue [ ] and may consider evidence outside [the] pleadings without converting the proceeding to one for summary judgment." Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991); see Virginia v. United States, 926 F. Supp. 537, 540 (E.D. Va.1995) (). As the party asserting jurisdiction, it isplaintiff's burden to prove that federal jurisdiction over his claim is proper. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982).
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A dispute is genuine if a reasonable jury could return a verdict for the nonmoving party," and "[a] fact is material if it might affect the outcome of the suit under the governing law." Variety Stores v. Wal-Mart Stores, Inc., 888 F.3d 651, 659 (4th Cir. 2018). Once the moving party has met its burden to show that it is entitled to judgment as a matter of law, the nonmoving party "must show that there is a genuine dispute of material fact for trial ... by offering sufficient proof in the form of admissible evidence." Id. (quoting Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 216 (4th Cir. 2016)). In evaluating a motion for summary judgment, a district court should consider the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences from those facts in favor of that party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The FTCA provides a limited waiver of the United States' sovereign immunity to allow actions seeking monetary relief for injuries "caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." 28 U.S.C. § 1346(b)(1). The government is only "liable in the same manner and to the same extent as a private individual under like circumstances," 28 U.S.C. § 2674, and the extent of its liability is determined "in accordance with the law of the place where the act or omissionoccurred." 28 U.S.C. § 1346(b)(1). Here, where plaintiff's allegations surround events taking place in Arizona and Virginia, these two states' laws govern the manner and extent to which the United States may be liable as a defendant. Accordingly, the Arizona Medical Malpractice Act ("AMMA"), A.R.S. § 12-561(2), and the Virginia Medical Malpractice Act ("VMMA"), Va. Code §§ 8.01-581.1, et seq., provide the framework upon which to analyze plaintiff's medical malpractice claims under the FTCA. See Mann v. United States, 2012 WL 273690 (D. Ariz. Jan. 31, 2012) (); Starns v. United States, 923 F.2d 34 (4th Cir. 1991) ().
Both Virginia and Arizona state law require, in almost all circumstances, that a party alleging medical malpractice obtain the assistance of an expert to...
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