Muniz v. United States

• Decision Date: 09 March 2015
• Docket Number: CIVIL ACTION NO. H-12-1813
• Parties: PEDRO MUNIZ, (Reg. #99022-179), Plaintiff, v. UNITED STATES of AMERICA, et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

PEDRO MUNIZ, (Reg. #99022-179), Plaintiff, v. UNITED STATES of AMERICA, et al., Defendants.

CIVIL ACTION NO. H-12-1813

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

March 9, 2015

MEMORANDUM AND OPINION

Pedro Muniz, a federal inmate proceeding pro se and in forma pauperis, sued a number of medical-service providers working for the Federal Detention Center in Houston, Texas. Muniz also sued the United States, the Bureau of Prisons, and the United States Attorney's Office. Muniz alleged that the individual defendants deprived him of medical care and sought damages under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b) and 2674, from both the individual and government defendants. The defendants have now moved to dismiss or for summary judgment. Muniz filed a response, and the defendants replied. (Docket Entry Nos. 20, 21, 22, 23). Based on the pleadings; the motion, response, and reply; the record; and the applicable law, this court grants the motion and enters a separate order of final judgment dismissing the case with prejudice. The reasons for this ruling are set out in detail below.

I. Muniz's Allegations

Muniz alleges that on May 11, 2010, he went to the Federal Detention Center infirmary for a swollen toe. Dr. Roberto Garza diagnosed an infection. (Docket Entry No. 8, Plaintiff's More Definite Statement, p. 2). Muniz alleges that he was prescribed the "wrong" antibiotic and his toebecame worse. Muniz alleges that when he complained, the FDC medical staff told him that his toe was getting worse because he was not controlling his diabetes.

Muniz alleged that his mother contacted Congresswoman Sheila Jackson Lee and that, as a result, Muniz was taken to a free-world physician two months after the initial infection. He saw Dr. Barnes, who warned Muniz that he could lose his toe. Dr. Barnes prescribed antibiotics, which led to improvement, and Muniz was released. Muniz missed the scheduled follow-up appointment with Dr. Barnes two weeks later because the FDC refused to take him, claiming that he had a blood clot in his leg that made it dangerous for him to travel. (Docket Entry No. 8, Plaintiff's More Definite Statement, p. 3). Muniz alleges that though he continued to take the antibiotics, the infection spread to the bone, and the toe had to be amputated on September 22, 2010. (Docket Entry No. 8, Plaintiff's More Definite Statement, p. 3). Muniz was hospitalized for one week. He alleges that the FDC was negligence because it delayed treating the infection, did not treat him aggressively from the beginning, and in delaying getting Muniz to his follow-up visit. Muniz alleges that the negligence caused to lose his toe.

Muniz alleges that under Texas tort law, FDC Houston staff and employees owed him a duty to follow the outside physician's recommendation, which set the standard of care. Muniz alleged that Dr. Barnes's instruction that he return in two weeks for a follow-up visit established the standard of care and provided expert opinion that the delay was negligent. Muniz alternatively argues that the two-week follow-up appointment is the standard of care based on common knowledge or on res ipsa loquitur.

Muniz filed an amended complaint alleging a civil-rights deprivation and adding as defendants FCI-II Butner (Butner Legal Center), the United States Attorney's Office, Civil Division,and the United States. (Docket Entry No. 4). Muniz sought $1,000,000.00 in compensatory damages for the loss of his toe.

In September 2012, the court ordered Muniz to provide a more definite statement of his claims. (Docket Entry No. 7). In response to a question asking how his civil rights were violated, Muniz stated: "(2) Plaintiff Muniz is not making a civil rights violation claim, he is making a Medical Negligence claim under the FTCA, however, his civil right to good medical care was violated by the medical negligence of employees— at FDC Houston—of the United States." When asked to list the names of each defendant who allegedly violated his civil rights, Muniz responded: "(3) The medical staff at FDC Houston, employees of the United States were medically negligent for failing to properly address my medical issues regarding my toe. . . ." (Docket Entry No. 8). Muniz stated that he was alleging a civil-rights claim as well as a negligence claim. Both must be considered.

Muniz sued the federal government under the Federal Tort Claims Act. Under the FTCA, no action may be brought against the United States unless the claimant first presents the claim to the appropriate federal agency. 28 U.S.C. § 2675(a). Muniz met the FTCA's administrative exhaustion requirement. On March 6, 2012, the BOP South Central Regional Counsel, Jason A. Sickler, denied Muniz's tort claim and informed him that he had six months to file suit in federal court. Muniz filed this suit on June 18, 2012, within the six months.

The defendants have moved to dismiss the civil rights claims against the United States, its agencies, and its employees for lack of jurisdiction, for failure to state a claim, and for failure to exhaust administrative remedies under the Prison Litigation Reform Act (PLRA), 42 U.S.C. §1997e(a). The United States has also moved to dismiss the FTCA claims against the federal agencies and employees.

Muniz moved to supplement his response with an affidavit of an expert witness, a nurse practitioner. (Docket Entry No. 21). The defendants moved to strike this witness, arguing that she is not a physician, and that her opinions are not sufficiently reliable under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). (Docket Entry No. 22).

Each argument and response is analyzed below.

II. The Evidence in the Record

The defendants submitted the following evidence:

(A) a declaration of Dr. Roberto Garza, M.D.;

(B) a U.S. Dept. of Justice, Federal Bureau of Prisons, denial letter;

(C) the declaration of Tamala Robinson, a legal assistant at the Bureau of Prisons;

(D) the declaration of Tara Ross, a nurse at the FDC; and

(E) the declaration of Oanh Vo, a nurse at the FDC.

Roberto Garza testified as follows:

1. I am presently employed by the Federal Bureau of Prisons (BOP) as Staff Physician at the Federal Detention Center in Houston, TX (FDC Houston). I have held this position since September 2005.

2. I have been a licensed Physician since July 2000. I specialize in Family Practice[.]

3. I have read, and am familiar with, the Complaint filed by Plaintiff, Pedro Muniz, reg. no. 99022-179, (Muniz) in the above referenced lawsuit.

4. I am familiar with Muniz's medical records maintained in the BOP's Bureau Electronic Medical Records (BEMR) database that reflect the following:

5. On January 12, 2010, Muniz arrived at Federal Detention Center (FDC), Houston, with a diagnosis of Insulin dependent Type II Diabetes, chronic kidney disease with a 25% function, Hypertension, High Cholesterol, and Obesity. He measured 5 feet, seven inches tall, and weighed two hundred and fifty[-] seven pounds.

6. On May 11, 2010, he reported to Health Services department "sick call" and was seen by Mid-Level Practitioner Patrick Osayande for complaints of right foot infection and was started on antibiotics (Amoxicillin/Clav) for ten days, and was told to keep the digit clean. Muniz was assessed with cellulitis and abscess of foot. Also, on May 11, 2010, I ordered another antibiotic, Sulfamethoxazole/trimeth for 14 days.

7. Cellulitis is an infection of the skin, whereas an abscess is where the skin infection has concentrated itself in a certain area.

8. Amoxicillin/Clav is a combination antibiotic frequently utilized to treat cellulitis. Sulfamethoxizole/trim is also a combination antibiotic which also works well against skin infections, covering other bacteria which other antibiotics may not cover.

9. Due to his numerous health issues, Muniz was evaluated again the next day, May 12, 2010, by the Clinical Director, Dr. Anthony Cubb, for chronic care purposes. At that time, Dr. Cubb attempted to educate him on the importance of adhering to his diet and insulin regimen, and the importance of losing weight. Complying with a strict diet, and restricting the intake of sugars and carbohydrates can limit the use of insulin therapy. Patients often do not adhere to a strict diet and prefer to have insulin manage their eating habits instead of their diabetes, thus leading to complications, as in this case, of circulation which can result in amputation. Dr. Cubb told Muniz to make himself available for daily clinic wound care, and stressed the importance of adhering to the antibiotic regimen. However, Muniz became belligerent about being started on dialysis, for which he was not a candidate at that time.

10. Dr. Cubb also noted that Muniz appeared to possibly have toe trauma and peripheral vascular disease, and was under care at that time. Peripheral vascular disease had resulted from poorcirculation due to his diabetes. Diabetes affects many systems and the vascular system is very prone to its affects. This best deterrent is proper diet/weight management/medical therapy control of one's health.

11. Later that same day, Muniz was seen by Mr. Osayande for a follow up on his toe. His dressing was changed and dressing materials were provided for self care, with instructions to follow up every other day.

12. I then saw Muniz on May 21, 2010. During that visit, I noted that the blister was healing well between the 4th and 5th toes. Muniz reported that his right foot pain had been improving since being on Augmenting[sic] and Bactrim. The Amoxicilin/Clav was continued for 10 days, and the Sulfamethoxazole/trimeth was continued for 14 days. Additionally, Mupirocin Ointment, a topical antibiotic that is able to act locally on the infection, was prescribed for 14 days.

13. On June 11, 2010, Muniz presented to Nurse Tara Ross and reported hitting his toe on something in his cell which opened a wound and caused excessive bleeding. The

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