Moore v. United States
| Decision Date | 12 August 2011 |
| Docket Number | CASE NO: 2:07-cv-14640 |
| Parties | GREGORY MOORE, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
HONORABLE VICTORIA A. ROBERTS
This matter is before the Court on cross-motions for summary judgment. Because material issues of fact exist, summary judgment is DENIED. However, several of Plaintiff's claims are DISMISSED without prejudice for failure to exhaust.
Plaintiff Gregory Moore ("Plaintiff") is a federal inmate housed at the Federal Correctional Institution in Milan, Michigan ("FCI-Milan") since June 29, 2004, and in the custody of the Bureau of Prisons ("BOP") since September 23, 1996. (R. 58-4). Prior to FCI-Milan, Plaintiff was incarcerated at FCI-Pekin. (Id.)
Plaintiff has a number of health issues, including degenerative joint disorder ("DJD") in his left shoulder and right ankle, obesity, hypertension, asthma, Type II diabetes, and diabetes-related conditions. (R. 57-11 at2). Plaintiff was diagnosed with DJD in the 1990s and his case is considered severe; he frequently experiences swelling, arthritis, intensepain, and bone to bone friction. (R. 57-3 at 2-3). DJD has also greatly limited Plaintiff's range of motion and his ability to lift, walk, or stand. (See R. 57-2 at 2-6; R. 57-7, PI. Depo. at 48-50).
Despite being told by BOP consulting physicians as early as August 1999 that his condition requires orthopedic surgery, including ankle surgery and "a total shoulder replacement," (R. 57-2 at 5), up until now Plaintiff has received only conservative, nonsurgical treatments. Such treatment has not alleviated Plaintiff's pain. On July 28, 2004, Plaintiff brought suit against the staff of FCI-Pekin, alleging that their regimen of conservative treatment violated the Eighth Amendment prohibition against deliberate indifference to health care needs. (R. 58-17, Moore v. Samolia, No. 04-1151 . Summary judgment was granted to the defendant. (Id.)
After his transfer to FCI-Milan in June 2004, Plaintiff received his first medical evaluation on July 19, 2004. (R. 58-18, Malatinsky Decl. at 2). Plaintiff was evaluated by Dr. Paul Harvey, then clinical director of FCI-Milan. Dr. Harvey observed swelling in Plaintiff's ankle and referred him to BOP consultant orthopedist Dr. Kanwaldeep Sidhu. (R. 57-3 at 2).
Dr. Sidhu examined Plaintiff's ankle on July 29,2004. (R. 57-4, Malatinsky Depo. at 116-17). Dr. Sidhu, who is licensed as an orthopedist but lacks permission to perform surgery at FCI-Milan, concluded that Plaintiff suffered severe DJD; he recommended that Plaintiff be referred to an outside orthopedic surgeon who, unlike Dr. Sidhu, was authorized to evaluate Plaintiff's surgical treatment options. Dr. Sidhu made an accompanying notation in Plaintiff's medical file that read, "plz refer to an outside foot/ankle orthopedis[t] to see ifpt [patient] is a candidate for ankle fusion." (R. 57-3 at 2).
Between July 2004 and February 2007, Plaintiff never received orthopedic surgery on his ankle or a referral to an orthopedic surgeon. Despite complaining about his DJD symptoms no less than 18 times, Plaintiff was also denied all forms of treatment for his ankle besides conservative therapies of soft shoes, a walking cane, occasional pain relievers, and food and work-related accommodations. (R. 58-22). These treatment decisions were made by Dr. William Malatinsky, a family practice doctor who succeeded Dr. Paul Harvey as clinical director for FCI-Milan around August 2004. (R. 57-4 at 15). Dr. Malatinsky was also chairperson for the FCI-Milan Utilization Review Committee ("URC"), which must approve all inmate requests for specialty medical treatment. (Id. at 22-24).
Although Dr. Malatinsky is not an orthopedic specialist, Dr. Malatinsky denied Plaintiff's requests for ankle surgery based on his conclusion that Plaintiff was not a candidate because of his age and diabetes condition. (Id. at 72-78). Dr. Malatinsky opined that ankle surgery on Plaintiff would pose a risk without many benefits. (Id. at 62-65). Despite Dr. Sidhu's recommendation that Plaintiff receive an immediate surgical referral, Dr. Malatinsky told Plaintiff that surgery was appropriate "in the future, not now," and stated that this view was in accord with all of the other medical consultations that Plaintiff received. (R. 57-6). This was incorrect. (R. 57-3 at 2). When Plaintiff asked Dr. Malatinsky why he ignored Dr. Sidhu's recommendation for a surgery referral, Dr. Malatinsky said there was no recommendation from Dr. Sidhu in Plaintiff's medical file. (R. 57-7 at 40-42). This was also incorrect. (R. 57-3 at 2).
However, Plaintiff persisted in his efforts to obtain surgery clearance, and Dr. Malatinsky eventually told Plaintiff that he would consider referring him to an orthopedicsurgeon if he achieved better management of his diabetes. (R. 58-18, Malatinsky Decl. at 15-23).
Between October 2004 and May 2005, Plaintiff spoke to the FCI-Milan medical staff about his DJD approximately eight times, complaining of intense ankle as well as shoulder pain. (Id.). In June 2005, Dr. Malatinsky arranged for Plaintiff to have an initial shoulder evaluation; Dr. Sidhu examined Plaintiff on June 30, 2005. (R. 58-22). He concluded that Plaintiff would "eventually need total shoulder arthroplasty," but noted that as a 46-year old, Plaintiff was still "very young" for a shoulder replacement procedure. (Id.) Unlike with regard to Plaintiff's ankle, Dr. Sidhu did not recommend that Plaintiff receive an immediate surgical referral.
Plaintiff did not receive any other orthopedic consultations between July 2005 and January 2007, but continued to have regular checkups with Dr. Malatinsky and other FCI-Milan staff, and complained about his ankle and shoulder condition at least eight different times. (See R. 58-18 at 5-8; R. 58-21). When Plaintiff indicated that his pain was worsening, he was offered conservative treatments like pain relievers, a hot compress, a walking cane, and soft shoes. (R. 58-18 at 6, 8, 10). However, when Plaintiff requested surgery authorization at various times, Dr. Malatinsky again told Plaintiff that he would refer him for additional orthopedic consultations if he achieved better management of his diabetes. (Id. at 5-10).
On February 5th 2007, Plaintiff filed an administrative complaint with the BOP,seeking damages in connection with Dr. Malatinsky's refusal to authorize orthopedic surgery on his shoulder or ankle. (R, 58-1). The BOP denied Plaintiff's claim on May 11,2007. (R. 58-2). Plaintiff also wrote to United States Senator Carl Levin, pleading for the Senator to intervene and help him obtain medical treatment. Senator Levin contacted the BOP Director on May 18,2007, asking that Plaintiff's medical concerns be reviewed. FCI-Milan's warden, C. Eichenlaub, responded to the Senator's letter on May 23, 2007, stating that Plaintiff had "been seen by staff physicians and an outside orthopedic specialist on several occasions," but that "[d]ue to his young age and the stage of the disease, surgery was not warranted at this time." (R. 57-8).
On October 24,2007, Plaintiff commenced this lawsuit, seeking damages under the Federal Torts Claims Act ("FTCA"), 28 U.S.C. § 2671, et seq., and the Eighth Amendment. Plaintiff's pro se complaint argued that Dr. Malatinsky committed medical malpractice when he blocked Plaintiff from receiving orthopedic surgery and discussing his treatment options with orthopedic surgeons. (R. 58-3 at 3-5). In addition, Plaintiff argued that Warden Eichenlaub negligently failed to ensure that Plaintiff receive necessary medical treatment, and tortiously misrepresented his medical treatment history to Senator Levin. (Id.). Plaintiff sought $1 million dollars in damages from the United States, and Dr. Malatinsky and Warden Eichenlaub in their individual capacities. (Id. at 5-6).
On July 23, 2008, Plaintiff's case was referred to a magistrate judge for a report and recommendation ("R&R") and pretrial proceedings. On August 12, 2008, the magistrate recommended that Plaintiff's Eighth Amendment and Bivens claims be dismissed because Plaintiff failed to establish that Warren Eichenlaub and Dr. Malatinsky were deliberately indifferent as required to establish a constitutional violation. (R. 6 at 4-6). This R&R wasadopted over Plaintiff's objection on October 22, 2008. (R. 15). The Court noted: "[w]here a prisoner has received some medical attention and the dispute is over the adequacy of the treatment, federal courts are generally reluctant to second guess medical judgments and to constitutionalize claim which sound in state tort law." (Id. at 5 (citing Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976) (internal citations omitted)). However, Plaintiff was allowed to proceed with his FTCA claim against the United States, which had been substituted in as a defendant pursuant to 28 U.S.C. § 2579(d). (Id.) Plaintiff was also assigned pro-bono counsel and granted leave to retain expert witnesses.
On February 24, 2010, while suit was pending, Dr. Sidhu evaluated Plaintiff's shoulder. Dr. Sidhu noted that he last saw Plaintiff in 2005, and concluded that Plaintiff now had severe arthritis in his shoulder that warranted an immediate surgical referral. (R. 5825). On May 25, 2010, Dr. Malatinsky gave Plaintiff the requested shoulder referral, and Plaintiff was briefly examined by orthopedic surgeon Dr. John K. Anderson. (Id.). Plaintiff's appointment with Dr. Anderson lasted approximately five minutes, and did not include a discussion of the risks or benefits of surgery, surgical treatment options, or the impact of diabetes or age. (R. 63 at 2). Dr. Anderson diagnosed Plaintiff with end-stage glenohumeral arthritis, but concluded "[a]t the...
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