JULIE A. ROBINSON, District Judge.
Plaintiff Charles F. Lewis, proceeding pro se, filed suit against Defendant United States of America and several individual Defendants alleging claims for failure to provide proper medical care while Plaintiff was an inmate at three federal prisons. This matter comes before the Court on Defendant's Motion to Dismiss or, in the Alternative, Motion for Summary Judgment (Doc. 16), Plaintiff's Motion for Leave to File Motion for Reconsideration and Reinstatement of Individual Kansas Defendants (Doc. 19), Plaintiff's Motion for the Court to Accept S.F. Form 95 as Timely (Doc. 20), and Plaintiff's Second Motion to Appoint Counsel (Doc. 26). The motions are fully briefed and the Court is prepared to rule. Because Plaintiff fails to controvert the facts presented in Defendant's motion for summary judgment, the Court deems those facts admitted and finds that there is no genuine dispute of material fact regarding Plaintiff's medical care. The Court therefore grants Defendant's motion for summary judgment. Further, for the reasons stated below, the Court denies Plaintiff's motion for reconsideration, motion for the Court to accept S.F. Form 95 as timely, and second motion to appoint counsel.
Plaintiff filed an administrative complaint with the Federal Bureau of Prisons ("BOP") on March 13, 2012, alleging that medical personnel at the United States Penitentiary in Leavenworth, Kansas ("USP Leavenworth") exhibited deliberate indifference toward his medical needs and failed to provide proper medical care in relation to his stoma.
After the BOP denied his claim, Plaintiff filed this suit on April 24, 2014. Judge Samuel A. Crow entered an order on July 14, 2014 directing Plaintiff to show cause why his Complaint should not be dismissed for failing to pay filing fees and for failure to state a claim.
(2) statements by other providers that Dr. McCollum's treatment plan was inadequate; (3) Plaintiff's requests for supplies and the resulting delays and reductions in supplies; (4) Plaintiff's requests to see a specialist and the resulting delays in seeing the specialist; and (5) comments made by medical staff related to his stoma. Plaintiff further alleged, for the first time, that (1) overcrowding and inadequate staffing at USP Leavenworth and FCI Big Spring contributed to improper care of his medical issues; (2) Defendant failed to properly hire, train, and supervise BOP medical staff; and (3) the BOP failed to provide protective footwear, hearing aids, and corrective shoulder surgery.
On August 25, 2015, Judge Crow entered an order directing that the case proceed as a Federal Tort Claims Act ("FTCA") claim against Defendant United States, and dismissing all individual Defendants from the case based on either lack of personal jurisdiction or failure to state plausible Bivens claims.
(1) Motion for Reconsideration and Reinstatement of Individual Kansas Defendants; (2) Motion for the Court to Accept S.F. Form 95 as Timely; and (3) Plaintiff's Response to Defendant's Motion to Dismiss or, in the Alternative, Motion for Summary Judgment.
The Court finds that summary judgment is warranted because there is no genuine dispute of any material fact and Defendant is entitled to judgment as a matter of law. Although Defendant moves in the alternative for dismissal, the Court assumes without deciding that Plaintiff has stated a plausible claim under the FTCA.
Summary judgment is appropriate if the moving party demonstrates "that there is no genuine dispute as to any material fact" and that it is "entitled to judgment as a matter of law."
The moving party initially must show the absence of a genuine dispute of material fact and entitlement to judgment as a matter of law.
Once the movant has met the initial burden of showing the absence of a genuine dispute of material fact, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial."
Where, as here, a pro se plaintiff opposes summary judgment, the court must construe the plaintiff's filing liberally and afford the plaintiff's filings some leniency.
Finally, summary judgment is not a "disfavored procedural shortcut"; on the contrary, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action."
Because Plaintiff does not controvert any of the facts set forth in Defendant's memorandum in support of summary judgment, the Court deems the following facts admitting pursuant to D. Kan. Rule 56.1 and Fed R. Civ. P. 56. Plaintiff Charles Lewis began serving his current 240-month sentence for various Mail, Wire, and Securities Fraud charges on June 23, 2008 at the Federal Correctional Institution in Englewood, Colorado. On September 30, 2008, Plaintiff was transferred to USP Leavenworth, where he remained until April 11, 2013. Plaintiff was transferred to FCI Big Spring on April 11, 2013, and he continues to reside there.
Prior to his incarceration, Plaintiff underwent a resection of his sigmoid colon due to diverticulitis in 2000, resulting in a colostomy and stoma. A stoma is created through the use of a surgical incision and extending a healthy portion of intestine through the abdominal wall to permit removal of fecal waste in a location other than the anus. Plaintiff came into BOP custody with the stoma and colostomy in place. During his incarceration, Plaintiff reported medical issues related to ulcerative colitis and his stoma. Because of these issues and other chronic conditions, Plaintiff saw clinical staff at USP Leavenworth and other BOP institutions during advanced scheduled appointments and through the sick call process and Chronic Care Clinics ("CCC").
Upon entering custody at FCI Englewood on September 23, 2008, Plaintiff was evaluated by medical staff on two occasions. Plaintiff disclosed a history of ulcerative colitis, diverticulitis (resulting in a colostomy), and other conditions. On July 15, 2008, medical staff evaluated Plaintiff's stoma and reported that it was non-tender and soft. On August 1, 2008, a BOP doctor evaluated Plaintiff again and gave him equipment for his stoma and a referral for a surgical consult to evaluate whether his colostomy needed to be secured to the skin better.
Before obtaining the surgical consult, Plaintiff was transferred to USP Leavenworth. Medical staff initially screened him there on September 30, 2008. Plaintiff was seen again shortly thereafter, and he reported that his colitis was well controlled. At a sick call appointment on December 18, 2008, Plaintiff complained that his stoma tore easily. Plaintiff was recommended for a general surgical consult. On December 23, 2008, the Clinical Director, Dr. William McCollum, evaluated Plaintiff's stoma. Dr. McCollum discontinued the previous surgical consult and opted to further evaluate Plaintiff's surgical medical records and his current condition before ordering surgical intervention. Dr. McCollum recommended that Plaintiff digitally dilate the colostomy site pending further review.
On March 30, 2009, at a CCC appointment, Plaintiff indicated he wanted his colostomy surgically reversed and acknowledged that he was awaiting further review of his prior medical records. On July 16, 2009, an outside specialist at Cushing Hospital evaluated plaintiff for possible surgical reversal, and noted that Plaintiff's colostomy was pink with no blood noted. During a CCC visit on September 9, 2009, Plaintiff denied problems with his colostomy and blood in his stool. Plaintiff was advised that surgical reversal for his colostomy was not appropriate given his prior operation. Medical staff also noted marked improvement of his colostomy at this appointment.
Plaintiff was seen periodically over the next few months where he expressed concerns of pain and scarring based on dilation of his stoma. Clinical staff and the Clinical Director closely evaluated Plaintiff during this time. Despite his concerns that surgical reversal of the colostomy site could result in significant complications, including death, the Clinical director referred Plaintiff to a general surgeon for evaluation. On January 3, 2011, a general surgeon evaluated Plaintiff's colostomy site. The surgeon recommended using three percent saline solution on gauze pads as needed to help heal the hypertrophic granulation tissue. At a sick call appointment on January 3, 2011, Plaintiff asked about using silver nitrate and obtaining another specialist's opinion. Plaintiff complained during his CCC visit later that month of difficulty in having his pouches stay in place and of absorption problems.
In March 2011, Plaintiff submitted an Inmate Request seeking a single cell and additional medical supplies. Plaintiff received neither, because medical staff determined he was receiving an adequate amount of supplies and a single cell was not clinically or medically necessary. Plaintiff's monthly gauze patch allotment was previously doubled to ten from five, and medical staff noted that he was hoarding supplies. At a CCC appointment in July 2011, Plaintiff admitted that he was not following instructions given by an outside medical specialist because he was unhappy with the plan of care. At a CCC appointment on January 6, 2012, Plaintiff complained about his stoma. BOP staff arranged for nursing staff to evaluate his stoma area and determine if a surgical consult was necessary. On February 3, 2012, a BOP registered nurse evaluated Plaintiff's stoma. The nurse noted Plaintiff was obsessive about digitally dilating his stoma and changing his wafer/bag, and that doing so too frequently caused irritation and trauma. The nurse worked with Plaintiff to decrease the frequency of dilation and to properly use his supplies. The nurse also recommended that an ostomy nurse at the Federal Medical Center in Lexington, Kentucky assess Plaintiff's situation and evaluate supplies and treatment options.
The nurse at USP Leavenworth consulted with the ostomy nurse in Lexington, who recommended various supplies, including a ConvaTec Ostomy Appliance Belt, ConvaTec Stomahesive powder, 3M Cavilon No Sting Barrier Film, Eakin Cohesive Seals, Smaller ConvaTec Durahesive Convex Wafers, closed end pouches, and Kenalog spray. The ostomy nurse also recommended clinical staff assist with changing wafers to ensure compliance with the care plan. Plaintiff met with the nurse to review this plan on April 6, 2012. From April to June 2012, BOP staff evaluated Plaintiff's stoma every three to four days to ensure compliance with the plan of care for Plaintiff's stoma. Plaintiff expressed concerns initially about foregoing digital dilation, which he indicated he had always done since he had the stoma. Medical staff also noted Plaintiff's non-compliance with the care plan during this time period. Nevertheless, Plaintiff's stoma area significantly improved, and Plaintiff verbalized his pleasure with the treatment plan, stating that the nurse had "found a good recipe."
On June 14, 2012, a wound care stoma nurse recommended the use of silver nitrate. Nursing staff continued to see Plaintiff one to two times per week for the use of the silver nitrate, which significantly improved the hypertrophic granulation. Medical staff noted that the skin around the stoma was intact and normal in color. On December 14, 2012, the outside stoma nurse evaluated Plaintiff again, noted significant improvement, and recommended use of silver nitrate only as needed. In March 2013, clinical staff agreed to give Plaintiff supplies for him to manage his own stoma care. Plaintiff was advised against dilating the area to avoid new scaring, bleeding, and irritation. In response, Plaintiff shook his head and stated that "the courts will decide."
In April 2013, Plaintiff transferred to FCI Big Spring, where staff continued to evaluate his stoma and colostomy through sick call and CCC with appropriate supplies for care of his colostomy and stoma. Plaintiff did not appear for two of his sick call appointments at FCI Big Spring. In August 2013, an outside surgeon evaluated Plaintiff's colostomy and recommended silver nitrate as needed and no other significant intervention at that time.
Defendant first moves for summary judgment on several claims based on Plaintiff's failure to exhaust administrative remedies. Exhaustion of administrative remedies is a prerequisite to suit under the FTCA.
Defendant moves for summary judgment on the basis that no genuine dispute of material fact exists as to whether Plaintiff suffered an injury as a result of his treatment at USP Leavenworth.
Here, the undisputed facts in the record demonstrate that Plaintiff received timely and competent care for the medical issues related to his stoma. Doctors and nurses at USP Leavenworth created a plan of care and supervised Plaintiff while he progressed through the plan. To be sure, Plaintiff experienced pain and medical staff revised the plan during the course of Plaintiff's treatment. However, the treatment ultimately resulted in an improved condition in Plaintiff's stoma, and Plaintiff commented to his medical providers that they had "found a good recipe for treatment." Plaintiff does not contest these facts in his response to Defendant's summary judgment motion. Rather, Plaintiff's response reads like a second amended complaint, alleging facts regarding perceived inadequacies in his medical treatment without providing factual support from the record. As explained above, Plaintiff is not excused, simply by nature of his status as a pro se litigant, from compliance with the requirement that he support assertions of fact with evidence from the record pursuant to Fed. R. Civ. P. 56.
In his response to Defendant's motion to dismiss or for summary judgment, Plaintiff included a Motion for Leave to File Motion for Reconsideration and Reinstatement of Individual Kansas Defendants.
Plaintiff also included in his response a Motion for the Court to Accept S.F. Form 95 as Timely. The relevant "S.F. Form 95" refers to the Standard Form 95 complaint that Plaintiff completed and allegedly submitted to the BOP on March 13, 2012. Plaintiff's motion appears to be in response to Defendant's argument in support of its summary judgment motion that the FTCA statute of limitations bars Plaintiff's action because he filed his administrative complaint on July 29, 2013, rather than on March 13, 2012.
Plaintiff moves for a second time for the appointment of counsel. In support of his motion, Plaintiff argues that he is untrained in the practice of law, that he is unable to afford counsel, and that the issues in this case are complex and will require significant research and investigation. There is generally no constitutional right to the appointment of counsel in a civil case, and the decision whether to appoint counsel is left to the discretion of the district court.
Plaintiff does not address these factors in support of his motion, beyond mentioning briefly that the issues involved in this case are complex. The Court recognizes that the nature of this case, which involves state and federal legal standards and voluminous medical records, may be factually and legally complex, especially for a pro se plaintiff. However, the Court also recognizes that Plaintiff seemingly has the ability to investigate the facts of his claim, and has had several months to prepare responses and other motions. Most importantly, as explained above, the Court finds that Plaintiff has not presented sufficient evidentiary support to maintain a viable claim and survive summary judgment. Therefore, the Court denies Plaintiff's second motion for appointment of counsel.
The Court grants Defendant's motion for summary judgment because there is no genuine dispute of material fact concerning Plaintiff's medical care, and thus Defendant is entitled to judgment as a matter of law. Additionally, the Court denies Plaintiff's motion for leave to file motion for reconsideration because the motion does not state any grounds for reconsideration and no such grounds appear to exist. Because the Court resolves Defendant's motion for summary judgment on grounds not related to the timing of Plaintiff's administrative claim, the Court finds that Plaintiff's motion for the Court to accept S.F. Form 95 as timely is moot. Finally, the Court denies Plaintiff's second motion for appointment of counsel because Plaintiff has not presented a viable claim.
