Yosuf v. United States

• Decision Date: 20 June 1986
• Docket Number: Civ. No. 83-1819.
• Citation: 642 F. Supp. 432
• Parties: Mir M. YOSUF, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

642 F. Supp. 432

Mir M. YOSUF, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. No. 83-1819.

United States District Court, M.D. Pennsylvania.

June 20, 1986.

John M. Humphrey, Rieders, Travis, Mussina, Humphrey & Harris, Williamsport, Pa., Robert Greenspan, Landover, Md., for plaintiff.

James W. Walker, Asst. U.S. Atty., Scranton, Pa., Royce C. Lamberth, Charles F. Flynn, Asst. U.S. Attys., Stanley S. Harris, U.S. Atty., Washington, D.C., for defendant.

OPINION

MUIR, District Judge.

I. Introduction.

On June 9, 1983, Yosuf M. Mir filed the complaint in this action pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. in the United States District Court for the District of Columbia. By order of December 2, 1983, the Honorable Thomas Penfield Jackson transferred this action to this Court. Mir's complaint arose from an incident in which Mir fell at the Allenwood Federal Prison Camp, Montgomery, Pennsylvania. As a result of the fall, Mir injured his left arm, wrist, and hand. Mir alleges that the Bureau of Prisons refused him adequate and proper treatment for the injuries sustained by him. The liability phase of the case was tried to the Court from January 16 through January 29, 1986. By opinion of March 7, 1986, 642 F.Supp. 415, we concluded that the Bureau of Prisons was a proximate cause of the injury to Mir and liable for damages flowing from that injury.

The damages stage of this case was tried to the Court from May 20, 1986 through May 27, 1986. Our findings of fact, conclusions of law, and discussion as to damages follow. Our Findings of Fact beginning with No. 138 are sequential to the 137 facts found in the liability stage of this matter. Those facts which are undisputed will be followed by "U."

II. Findings of Fact.

138. Mir's severely decreased use of his left hand has continued up to the present despite the prescription of isometric exercises and an arm immobilizer.

139. Mir suffers from numbness in the fingers of his left hand, painful limitation of motion of the fingers and wrist of the left hand, and occasional headaches.

140. Mir keeps his left wrist and fingers in a flexed position and is unable readily to open the fingers or bend the wrist. The fingers can be opened passively and the wrist moved passively but such movements are painful. For all practical purposes, Mir is currently suffering from a 100 percent disability of the left hand and wrist and a substantial disability of the arm.

141. Mir's inability to use his left hand is at least partially psychogenic.

142. Mir has a chronic pain type syndrome and a complex problem with the left upper extremity.

143. The objective medical evidence does not account fully for the stiffness and lack of motion in the wrist and fingers.

144. Mir's treating physician, Orthopedic Surgeon Dr. Douglas Sanderson, recommends that Mir receive repeat EMG studies, followed by surgery to release the left median and ulnar nerves which, if successful, will reduce by approximately 50 percent the pain and numbness which Mir presently has in his left hand and wrist. (Undisputed, hereafter "U").

145. The decreased discomfort resulting from successful surgery may better enable Mir to perform exercises designed to strengthen the muscles in the left wrist and hand and otherwise to carry out a course of rehabilitation.

146. Although Mir testified that he has exercised his hand and wrist since release from prison, he has made no ascertainable progress, and indeed appears to have regressed, which is due in large part to his psychogenic difficulties and low threshold for pain.

147. Even with the recommended course of treatment, there is little chance that Mir will regain 100% function of his left hand and wrist.

148. With the recommended course of medical treatment, the chances are fair that Mir will regain substantial function in his left hand and wrist such that he may be able to use that hand and wrist for short periods of time in vocational and avocational pursuits.

149. If, promptly upon his release from custody, Mir had obtained proper medical treatment, he should have regained substantial use of his left hand and wrist.

150. Mir's explanation of why he did not seek a more rigorous course of treatment was not credible.

151. Mir's treating physician feels that, at best, Mir will be able to perform only light or sedentary duties, and in a position where extended use of the left upper extremity is not required. (U)

152. In addition to the medical treatment recommended, both the treating physician and a vocational psychologist who examined Mir recommend that he undergo psychological counselling for a period from six months to one year. (U)

153. For several months following his wrist injury on or about August 31, 1980, and while incarcerated in the segregation unit at the Lewisburg Penitentiary, Mir suffered from pain in his left wrist, as well as numbness in the fingers of the left hand and in the left hand itself. The pain was exacerbated by the refusal of the medical personnel to give Mir pain medication.

154. During these initial months, the pain and numbness caused frustration in Mir and affected his ability to sleep.

155. After several months, the pain decreased, but Mir continued, and continues through the present, to have pain upon movement of the left fingers and wrist.

156. Changes in the weather aggravate somewhat the pain in Mir's left fingers and wrist.

157. Mir suffers from the numbness in the fingers of the left hand which is a constant source of irritation and which adversely affects his sleep.

158. Mir's attempts to minimize the pain by keeping his left hand flexed and without movement has also resulted in general decreased use of the entire left arm.

159. Presently, Mir suffers from occasional severe headaches as a result of his injury.

160. From the time of his accident through his release from custody in January, 1983, and from his release through the present, Mir has not used his left hand for anything except the bracing of objects.

161. In August, 1985, Mir's treating physician prescribed an arm immobilizer which is a sling-type device. Mir wears the arm immobilizer most of the time, including while sleeping, which is more often than prescribed by his physician.

162. The pain and loss of use of the left hand and wrist have had various psychological effects upon Mir such as anger, frustration, and occasional depression.

163. Prior to his disability, Mir actively engaged in various athletic pursuits such as weight lifting, swimming, basketball, tennis, and soccer.

164. Prior to his disability, Mir actively engaged in various woodworking and home remodeling projects.

165. As a result of his disability and pain, Mir is no longer vigorously able to pursue any of these activities.

166. As a result of the inability to use his dominant hand, Mir has difficulty in performing such simple tasks as dressing himself, using eating utensils, writing, performing routine household chores and household maintenance.

167. Mir's disability has also interfered with his religious activities and customs. As a "Said" (direct descendant of Mohammed) in the Islamic faith, Mir is particularly affected by the inability to use his left hand. In the Islamic culture, the left hand is used for toilet purposes while the right hand is used for eating out of common bowls or plates. Thus, an individual without the use of his left hand is not necessarily welcome in the higher circles of Islamic society. Additionally, followers of Islam pray five times per day with head and both hands on the floor. Mir's inability to place his hands on the floor while in the praying position has caused him to withdraw from engaging in group religious activities in which he formerly engaged.

168. Mir's pain, suffering and loss of enjoyment of life will continue indefinitely.

169. Even if the medical treatment recommended by his physician achieves the maximum expectations, Mir will have some numbness in his fingers and will have discomfort upon using his left hand for long periods of time.

170. Mir has been taking pain medication since he began treating with Dr. Sanderson, and will continue on that medication at least through the recommended surgery and recovery therefrom. (U)

171. During the time that Mir's left hand has been in the flexed position, from a few weeks after the August 31, 1980 accident through the present, said position of the hand constitutes a disfigurement.

172. Mir's disfigurement may be eliminated or reduced if the recommended medical treatment achieves its maximum benefits.

173. In a letter submitted to the court which sentenced Mir in September, 1979, the individual who supervised Mir as an engineering aide described him as an outstanding employee who was honest, open, hard working, and quite reliable, and one the supervisor would not hesitate to rehire.

174. Because of the disability of his left hand and wrist, Mir has been unable to engage in any of the above occupations, from the time of his release from custody in January 1983 through the present.

175. Mir is currently working as a telephone answering clerk for the woman he intends to marry at the minimum wage rate of $3.35 per hour.

176. Mir has applied to some universities and embassies for a job utilizing Mir's ability to speak foreign languages. He has been refused employment.

177. Even with the maximum improvement which could be expected from the suggested medical treatment, Mir's earning capacity will continue to be low because of his physical disability, educational disadvantage, cultural differences, prison record and communication deficiency.

178. While Mir was in the United States during the years 1971 and until his incarceration in August, 1979, he was supported primarily by contributions or an allowance from his father, a wealthy man in Afghanistan.

179. As an immigrant to the United States, he has not been able to integrate himself well into his...