Tucker v. United States

          ORDER

          LOUISE W. FLANAGAN, United States District Judge

         The matter comes before the court on defendant's motion to dismiss for failure to state a claim pursuant to Federal Rules of Civil Procedure 12(b)(1), (6) (DE 67), which the court construes as a motion for summary judgment pursuant to Rule 56(a). Also before the court are the following motions: 1) defendants' motion for reconsideration and to strike plaintiff's jury trial demands (DE 54), 2) plaintiff's motion to stay (DE 56), 3) plaintiff's motion to appoint counsel (DE 59), plaintiff's motion for summary judgment (DE 72), and 4) plaintiff's motion for entry of default (DE 74). The issues raised are ripe for ruling. For the following reasons, the court grants defendants' motion for summary judgment and denies the remaining motions.

         STATEMENT OF THE CASE

         On July 31, 2015, plaintiff, a federal prisoner, filed the instant action pro se and contemporaneously filed a motion for leave to proceed without the prepayment of the filing fee. On August 24, 2015, United States Magistrate Judge Robert B. Jones, Jr., granted plaintiff's motion for leave to proceed without the prepayment of the filing fee. On January 29, 2016, 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.

         On February 25, 2016, plaintiff filed a particularized complaint and stated an intent to pursue his action against defendant pursuant to the FTCA only. In his particularized complaint, plaintiff brought four claims: (1) a medical negligence claim; (2) a claim that he was denied food service at “mainline”; (3) a claim related to plaintiff's placement into a specialized housing unit (“SHU”); and (4) a claim of access to a law library. (See Am. Compl. 5-6). The court allowed plaintiff to proceed with his FTCA action against defendant on April 6, 2016. Accordingly, all other previously-named defendants were dismissed from this action.

         On July 13, 2016, defendant 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 regarding his medical negligence claim. On November 21, 2016, the court provided the parties notice of its intent to construe defendant's motion to dismiss as a motion for summary judgment, and provided the parties an opportunity to respond. Plaintiff subsequently filed a response in opposition and various other motions, for a jury trial, to stay his jury demand, and for status.

         On February 16, 2017, the court granted defendant's motion for summary judgment as to his medical negligence claims. In the order, the court dismissed plaintiff's FTCA action related to his medical negligence claims and set a new deadline of April 3, 2017, for dispositive motions to address plaintiff's three other remaining claims. The court also granted plaintiff's motion for a jury trial. On February 27, 2017, plaintiff filed a motion for extension of time, which the court granted on March 30, 2017, extending the deadline to file dispositive motions to August 15, 2017.

         On March 30, 2017, defendant filed the instant motion for reconsideration of plaintiff's jury trial demand and motion to strike plaintiff's jury trial demand. On April 5, 2017, plaintiff filed the instant motion to stay on the basis that he was in protective custody and awaiting transfer to another incarceration facility. On April 25, 2017, defendant responded in opposition. On May 8, 2017, plaintiff filed the instant motion to appoint counsel because of his restrictive control status. On May 25, 2017, defendant responded in opposition.

         On August 15, 2017, defendant filed the instant motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1), (6) for failure to state a claim upon which relief may be granted. In support of their motion, defendants attach the declaration of Christina Kelley, providing plaintiff's administrative grievance history. (See Kelley Decl. (DE 69), Attach. 1, 2). On February 2, 2018, the court 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. The clerk of court issued a Rule 56 letter in compliance with Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975). On February 23, 2018, defendants provided additional materials to support their motion, including: a declaration by Robin Hunter-Buskey (“Hunter-Buskey”) (DE 79-1), the clinical encounter log from November 26, 2013 (DE 79-2), and the November 26, 2013, incident report (DE 79-3). On March 13, 2018, plaintiff filed a reply addressing defendant's additional materials.

         In the meantime, on September 5, 2017, plaintiff filed the instant motion for summary judgment pursuant to Federal Rule of Civil Procedure Rule 56, and defendants timely responded in opposition. On December 18, 2017, plaintiff filed the instant motion for entry of default on the basis that defendants did not respond to his motion for summary judgment. On December 19, 2017, defendants responded in opposition.

         STATEMENT OF FACTS

         Except as where otherwise identified below, the facts viewed in the light most favorable to plaintiff may be summarized as follows. On November 25, 2013, plaintiff reported to Health Services for a “call out” to address his illnesses, including pain of his back, hip, elbow, ankle, and leg, as well as vision issues, a lump in his scrotum, and hypertension. (See Pl.'s Aff. (DE 69-1) 3). Due to the uncomfortable chairs in the waiting area, plaintiff sat on the floor. (See id.). While he was waiting, plaintiff alleges that Hunter-Buskey, a physician's assistant at Health Services, told others in the waiting area to leave, however, plaintiff was one of four names who Hunter-Buskey requested to stay. (See id.). A few minutes later, Hunter-Buskey came back into the waiting area told plaintiff to return to his housing unit. (See id.). Hunter-Buskey states that there was an institution recall before plaintiff's 12:30 appointment, and that he refused to leave without receiving an evaluation. (See Hunter-Buskey Decl. (DE 79-1) 3).

         Plaintiff was unable to get up from the floor due and required medical assistance, three staff members, to help him up. (See Pl.'s Aff. (DE 69-1) 4). Plaintiff alleges he lost his balance because he was lifted up too quickly. (See id.). Plaintiff made it about 50-70 feet outside Health Services before he lost control of his left leg and felt pain in his hip and back. (See id.). He was carried back to Health Services for treatment. (See id .). Hunter-Buskey states that prior to her direct observation, plaintiff moved on his own without difficulty, but that “[o]nce he was aware that he [was] under my direct observation, he moved in a much slower manner, and walked with a limp and maintained a rigid posture.” (See Hunter-Buskey Decl. (DE 79-1) 3).

         Once plaintiff was in the treatment area, plaintiff alleges that he was verbally berated by Mr. Henry, the assistant Health Services administrator, and Mr. Henry said to him, “Who the f*** do you think you are? Are you trying to make me look bad? Well, it's not going to be Percy Tucker's way, it's going to be my way! Do you understand me? Look at me when I am talking to you! You don't deserve anything! And you are going to spend Thanksgiving in the SHU! ” (See Pl.'s Aff . (DE 69-1) 4). Plaintiff states that his Federal Bureau of Prisons record will show that his leg condition is a result of an attack by “Inmate Rice” at Brooklyn MDC in February 2013, and relates to his back condition. (See id.). Plaintiff also states that he had not been seen by a doctor upon his transfer to “FCI-2.” (See id.).

         After this alleged incident, the medical team returned to the treatment room, and plaintiff received medical treatment. (See id. 5). Hunter-Buskey gave plaintiff a physical exam. (See Hunter-Buskey Decl. (DE 79-1) 4). Hunter-Buskey put plaintiff in a wheelchair after his exam. (See Pl.'s Aff. (DE 69-1) 5). Hunter-Buskey wheeled plaintiff into the waiting room area and then went to speak with someone in the treatment area. (See id.). Plaintiff states that the person she was speaking with, who is not identified by plaintiff, was talking to her about housing him in the SHU. (See id.). Plaintiff states that his medical records show that Hunter-Buskey ordered an injection in November 2013. (See id.; see also (DE 79-2) 2).

         When Hunter-Buskey returned, she told plaintiff about the conversation she had and plaintiff informed her that he was having issues with his bladder. (See Pl.'s Aff. (DE 69-1) 5). In response, Hunter-Buskey told plaintiff she would get him protective pads. (See id.). Thereafter, Hunter-Buskey left and another person, who plaintiff does not identify, then gave him the protective pads he requested. (See id. 6). On his way out from treatment, plaintiff was stopped by Mr. Henry, who plaintiff believes was hiding. (See id.). Mr. Henry told him he could not take his wheelchair with him out of the waiting area. (See id.). Plaintiff lifted himself up to leave and started walking back to his housing unit. (See id.). Plaintiff alleges Mr. Henry followed plaintiff and verbally assaulted him. (See id.). Plaintiff told Mr. Henry that he could not speak to him “in that way” and then Mr. Henry called for plaintiff to be taken to the SHU. (See id.). Plaintiff was let out of the SHU one hour later. (See id.). Later in the day, plaintiff ...