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Krembel v. United States

United States District Court, E.D. North Carolina, Western Division

March 29, 2019

MICHAEL L. KREMBEL, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDER

          LOUISE W. FLANAGAN UNITED STATES DISTRICT JUDGE.

         This matter is before the court on defendant's motion to dismiss for lack of jurisdiction, or in the alternative, for summary judgment (DE 36), and motion to seal (DE 41). The issues raised have been fully briefed and are ripe for adjudication. For the following reasons, the court grants defendant's alternative motion for summary judgment and motion to seal.

         STATEMENT OF THE CASE

         On January 27, 2016, plaintiff, a federal inmate proceeding with counsel, filed this negligence action pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-2680. Plaintiff asserts the United States breached its duty to ensure he received adequate medical care by negligently delaying treatment. Upon frivolity review, the court allowed the matter to proceed.[1]

         On August 15, 2016, defendant filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). In this motion, defendant argued that plaintiff's claims were barred by the independent contractor exception to the FTCA. The court denied the motion to dismiss, but also invited defendant to renew this argument on summary judgment, noting that “a more fully developed record may reveal that [an independent contractor] was negligent and Defendant was not.” (Order (DE 27) 5).

         On March 15, 2018, defendant filed the instant motion, relying upon a memorandum of law, statement of material facts, and appendix including an affidavit from non-party Andrew Stock (“Stock”); portions of plaintiff's medical records; excerpts from plaintiff's deposition; and a copy of a contract between the Federal Bureau of Prisons (“BOP”) and the University of Massachusetts Medical School (“UMASS”).[2]

         Plaintiff responded to the summary judgment motion, relying upon a memorandum of law, statement of material facts, and appendix including portions of plaintiff's medical records; photographs of plaintiff's injuries; BOP health care policies; a report from non-party Dr. John Carr (“Carr”); and excerpts from plaintiff's deposition.

         Defendant replied, relying in support of summary judgment upon an appendix including an affidavit from non-party Christina Kelly; portions of plaintiff's medical records; the curriculum vitae and opinions of non-parties Dr. Jon C. Starr (“Starr”) and Dr. Chauncey A. McHargue (“McHargue”); and excerpts from plaintiff's deposition.

         STATEMENT OF THE FACTS

         The facts viewed in the light most favorable to plaintiff may be summarized as follows. Since June 2012, the Federal Correctional Complex in Butner, North Carolina (“Butner”) has contracted with UMASS to provide medical care to its inmates. (Stock Aff. (DE 39-1) ¶ 4). Pursuant to this contract, UMASS provides physicians and other staff, both medical and non-medical, who deliver a wide variety of medical services to inmates at Butner. (Id.). UMASS provides these services through on-site clinic visits and community based referral. (Id. ¶ 5) . N e i t h e r the BOP, nor officials at Butner, exercise control over the day-to-day medical judgment of UMASS contract physicians. (Id.). The BOP does maintain, however, the authority to approve or deny referrals for treatment and specific treatments recommended by UMASS contract physicians. (Id.).

         Specifically, when an inmate at Butner seeks speciality medical care, he is examined first by BOP medical staff. (Id. ¶ 7). If BOP medical staff believes a speciality care appointment is required, he or she will enter a consultation request into the BOP's electronic medical records system (“BEMR”). (Id.). For speciality appointments that require a trip outside Butner, the request is forwarded to a BOP employee responsible for ensuring that the request is reviewed by Butner's Utilization Review Committee (“URC”). (Id.). After the URC approves a consultation request, it is then forwarded to the UMASS scheduling coordinator. (Id.). A UMASS scheduling coordinator is then responsible for scheduling, and notifying BOP medical staff of, the speciality appointment. (Id. ¶ 9). After UMASS notifies the BOP of the speciality appointment, prison officials then enter the appointment information in BEMR, including the time and date of the appointment. (Id.). UMASS is responsible for the re-scheduling or cancellation of any off-site speciality appointments. (Id.). Similarly, when an appointment is rescheduled or canceled, UMASS is responsible for notifying the BOP of the new appointment. (Id.).

         UMASS selects its own scheduling coordinator. (Id. ¶ 6). This coordinator is responsible for scheduling all offsite medical appointments recommended by UMASS and approved by the BOP. (Id.). The scheduling coordinator is compensated by UMASS, not the United States. (Id.). Furthermore, the BOP does not oversee UMASS's scheduling process. (Id. ¶ 10). After the BOP refers inmates to UMASS for off-site speciality care, the UMASS scheduling coordinator is responsible for balancing the urgency of the inmate's medical needs against the availability of off-site specialists. (Id.). Likewise, the UMASS scheduling coordinator is responsible for notifying Butner medical records staff of the scheduling, re-scheduling, or cancellation of any off-site specialist appointments. (Id.). To this end, the contract between the BOP and UMASS charges UMASS with establishing administrative systems to ensure that the process runs smoothly. (Id.).

         On or about June 6, 2013, plaintiff was transferred from the Federal Correctional Institution at Fort Dix, New Jersey (“FCI Fort Dix”) to Butner. (Compl. (DE-1) ¶ 6). Plaintiff has been diagnosed with squamous cell carcinoma, and received treatment for that condition, including three surgeries, while he was incarcerated at FCI Fort Dix. (Id. ¶ 7); (Def. Ex. (DE 39-2) 17).

         When plaintiff arrived at Butner, no active disease was present. (Def. Ex. (DE 39-2) 9). However, BOP medical staff noted that the likelihood of recurrence was high. (Id.). Eventually, plaintiff developed a new scalp lesion. (Id.). Dr. Stanley Katz (“Katz”)[3] examined plaintiff, and on July 8, 2013, indicated “[i]t is my strong opinion that the patient is a candidate for Mohs micrographic surgery . . . This would be the true standard of care, and frankly due to the patient's good health and ability to tolerate such a procedure, I know nothing else that would be adequate ...


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