United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN United States District Judge
matter now comes before the court on plaintiff's motions
for a jury trial demand (DE 41, 42), motion to stay jury
trial demand (DE 43), and motion for status (DE 45).
Defendants did not respond to plaintiff's motions. Also
before the court is defendant's motion to dismiss for
failure to state a claim pursuant to Federal Rule of Civil
Procedure 12(b)(6) (DE 28), which, as discussed below, the
court construes as a partial motion for summary judgment
pursuant to Rule 56(a). The motion was fully briefed. In this
posture, the issues raised are ripe for adjudication. For the
following reasons, the court grants defendant's partial
motion for summary judgment, grants plaintiff's motions
for a jury demand, and denies plaintiff's remaining
motions as moot.
OF THE CASE
31, 2015, plaintiff, a federal inmate, filed the instant
action pro se and contemporaneously filed a motion
for leave to proceed without the prepayment of the filing
fee. United States Magistrate Judge Robert B. Jones, Jr.,
then granted plaintiff's motion for leave to proceed
without the prepayment of the filing fee on August 24, 2015.
Plaintiff subsequently filed a motion to appoint counsel,
motion to compel, and motion for leave to proceed in
forma pauperis. On February 9, 2016, the court denied
plaintiff's motion to appoint counsel and denied
plaintiff's motion to compel as premature. The court
additionally denied as moot plaintiff's motion to proceed
in forma pauperis in light of the magistrate
judge's August 24, 2015, order. Finally, the court
directed plaintiff to provide clarification as to whether he
sought to bring his action pursuant to the Federal Torts
Claim Act (“FTCA”), 28 U.S.C. § 2672, et
seq., Bivens v. Six Unknown Names Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971), or both.
February 25, 2016, plaintiff filed his particularized
complaint, and stated an intent to pursue his action against
the United States pursuant to the FTCA only. The court
allowed plaintiff to proceed with his FTCA action on April 6,
2016. In June 2016, plaintiff filed a motion for entry of
default and a motion for default judgment. On July 13, 2016,
the United States filed a motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6) arguing that
plaintiff failed to state a claim upon which relief may be
granted. The United States attached the following documents
to its motion: a declaration from Stephen Berry
(“Berry”), a physical therapist employed by the
Federal Correctional Institution in Butner
(“Butner”); portions of plaintiff's medical
records; excerpts from the Federal Bureau of Prisons
(“BOP”) Program Statement; and the BOP's
Health Services Procedures and Protocols Manual. The motion
was fully briefed.
August 22, 2016, plaintiff filed a motion for a subpoena of a
government employee. The motion was fully briefed. On
November 21, 2016, the court denied plaintiff's motion
for entry of default, motion for default judgment, and motion
for a subpoena. The court also provided the parties notice of
its intent to construe the United States' motion to
dismiss as a motion for summary judgment, and provided the
parties an opportunity to respond. That same day, the clerk
of court issued a Rule 56 letter in compliance with
Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir.
1975). Plaintiff then filed a supplemental response to the
United States' motion to dismiss, two motions for a jury
trial demand, a motion to stay the Rule 38 and 39 motions,
and a motion for status.
OF UNDISPUTED FACTS
action concerns his contention that the BOP beached its duty
of care because its employees failed to provide plaintiff the
proper medical shoes while plaintiff was incarcerated at
Butner. Prior to his transfer to Butner, plaintiff was
incarcerated at the Federal Correctional
Institution-Otisville (“Otisville”) in Otisville,
New York. (Berry Decl. ¶ 10). While at Otisville, a
nurse evaluated plaintiff on July 18, 2013, in response to
plaintiff's complaint of a blister on his foot and right
foot pain. (Id. and Attach. 1, p. 38). Plaintiff
then attended a follow-up examination on August 14, 2013, and
Dr. Diane Sommer entered a podiatry consultation request for
plaintiff due to the fact that plaintiff was developing
blisters and callouses on his right foot, despite having been
provided diabetic shoes. (Id. p. 30).
was transferred from Otisville to Butner on September 30,
2013. (Id. ¶ 13). Following his arrival at
Butner, Physician Assistant Robin Hunter-Buskey
(“Hunter-Buskey”) reviewed plaintiff's
medical history. (Id. ¶ 13 and Attach. 1, p.
21). Hunter-Buskey noted that plaintiff had a history of
uncontrolled diabetes, and a recent open wound on his right
great toe which was now healed. (Id. p. 22). After
reviewing plaintiff's medical history, Hunter-Buskey
referred plaintiff to Berry, a physical therapist, to
evaluate plaintiff's footwear, noting that plaintiff had
been issued alternative footwear. (Id. ¶ 13 and
Attach. p. 23).
October 21, 2013, Berry examined plaintiff. (Id.
¶ 14 and Ex. 1, p. 18). In the course of the
examination, plaintiff discussed his prior right toe wound
with Berry, and reported “that he has always had the
right type of shoes so he wouldn't develop wounds.”
(Id.) Plaintiff further stated that “the
institutional boots and the alternate institutional shoes
cause wounds on his feet and are too heavy for his
feet.” (Id.) Berry noted that plaintiff's
goal was “[t]o get a pair of diabetic shoes, ”
and that plaintiff previously had been issued a pair of
alternate institutional shoes, which plaintiff reported were
too large. (Id. ¶ 16 and Ex. 1, pp. 18-19).
Berry offered to provide plaintiff a pair of orthotic
diabetic shoe inserts, but plaintiff declined. (Id.
p. 19). Plaintiff reiterated that he needed medical shoes and
requested that he be issued a soft shoe pass, which would
have permitted him to wear his personal sneakers on the
compound. (Id.) Berry denied plaintiff's request
for a soft-shoe pass. (Id.) Berry, however, did
schedule plaintiff to be seen by a physical therapist once
per year for a routine diabetic foot screen. (Id.)
the next several months, Hunter-Buskey conducted several
examinations of plaintiff in response to plaintiff's
requests for, inter alia, alternative shoes and
permission to wear his sneakers on the compound.
(Id. ¶¶ 17, 18 and Ex. 1, pp. 1, 10, 11,
82). After examining plaintiff on February 24, 2014,
Hunter-Buskey scheduled a consultation with the physical
therapy department so that plaintiff could be re-evaluated
for footwear inserts, even though plaintiff previously had
declined the inserts. (Id. ¶ 19 and Ex. 1, p.
83). On June 24, 2014, plaintiff's primary care
physician, Dr. Patrick Craft, examined plaintiff and stressed
the importance of plaintiff getting his diabetes and blood
pressure under control. (Id. ¶ 20 and Ex. 1, p.
71). That same day, L. Ruffin (“Ruffin”), a nurse
practitioner, made a notation in plaintiff's medical
records discontinuing the August 2013, podiatry consultation
request because plaintiff was referred to the physical
therapy department at Butner. (Id. p. 67).
Throughout 2014, plaintiff was evaluated and treated by
physical therapy and orthopedic staff, in addition to his
primary care providers. (Id. ¶ 21 and Ex. 1,
pp. 59-61, 72-80).
October 1, 2014, Ruffin conducted a bi-lateral diabetic foot
screen on plaintiff. (Id. ¶ 22 and Ex. 1, p.
87). Ruffin noted no deformities and that plaintiff was
wearing authorized shoes which fit well. (Id.)
Additionally, Ruffin assessed plaintiff as a category one
diabetic patient, which did not qualify for medical shoes.
(Id.) Finally, Ruffin instructed plaintiff to
follow-up with his primary care provider or physical
therapist in 6-9 months. (Id.) Plaintiff did not
show up to his May 14, 2015, appointment. (Id.
¶ 23 and Ex. 1, p. 113). At that time, Berry made a
notation in plaintiff's medical records stating that
plaintiff would be permitted to request future diabetic foot
care by making a written request to staff. (Id.)
then attended an appointment with Pascale Lecuire
(“Lecuire”), a physician assistant, on August 10,
2015. (Id. ¶ 24 and Ex. 1, p. 108). Lecuire
referred plaintiff for a physical therapy consultation for
diabetic foot care and toenail trimming. (Id. pp.
108-109). Berry then conducted plaintiff's diabetic foot
screen on September 17, 2015. (Id. ¶ 25, p.
102). In the course of the examination, plaintiff reported
great toe tenderness to the touch, due to ingrown toe nails,
and again requested a pair of medical shoes because his
current shoes were “messing his feet up” and
“causing him problems.” (Id.) Berry
noted that plaintiff had bilateral flat foot, but no other
foot deformities. (Id.) Berry further noted that
plaintiff qualified to wear alternate institution shoes, but
refused to wear them. (Id. at p. 103).
response to plaintiff's continued requests for medical
shoes, Lecuire evaluated plaintiff on September 25, 2015.
(Id. ¶ 26 and Ex. 1, p. 100). Plaintiff
informed Lecuire of plaintiff's pending lawsuit and that
plaintiff had been approved for medical shoes at a prior
institution. (Id.) Lecuire, in turn, noted that
plaintiff's chart reflected that plaintiff was authorized
for medical shoes on July 19, 2013, but that a review of the
clinical encounter note showed no documentation to indicate
that plaintiff met the BOP criteria for the medical shoes.
(Id. at pp. 100-101). Lecuire informed plaintiff
that he would not be ...