United States District Court, E.D. North Carolina, Western Division
MICHAEL L. KREMBEL, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
W. FLANAGAN UNITED STATES DISTRICT JUDGE.
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.
OF THE CASE
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.
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).
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”).
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
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
OF THE FACTS
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.).
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.
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.).
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).
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”) 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 ...