Opinion
Case No. 2:16-cv-264
10-09-2018
JOHN CHINNICI, Plaintiff, v. CENTURION OF VERMONT, LLC, Defendant.
ORDER
(Doc. 43)
In October 2016, Plaintiff John Chinnici commenced this personal injury action (Doc. 4). Plaintiff is self-represented. The remaining Defendant is Centurion of Vermont, LLC ("Centurion"). (See Docs. 9, 26.) Centurion moves for summary judgment under Federal Rule of Civil Procedure 56. (Doc. 43). Chinnici has not responded to the motion nor filed a cross-motion as allowed by the Court's June 19, 2018 Order granting his motion for an extension of time. (Docs. 42, 46.) For the reasons set forth below, Defendant's motion for summary judgment is granted.
I. Background
In his Complaint, Plaintiff alleges that, on March 30, 2016, medical staff at Marble Valley Regional Correctional Facility advised Chinnici to apply a warm compress to his left leg due to bruising. Medical staff placed a wet towel in a small bag and instructed Cody Baker, a Correctional Officer ("CO") at Marble Valley, to heat it in the microwave. CO Baker did so for a period of three minutes. As a result of nerve damage, Chinnici does not have feeling in parts of his legs. When Chinnici used the compress, he did not feel it burning his skin. He received third degree burns, blisters, and his tattoo was "burned completely through." (Doc. 4 at 3.) Because the nursing staff at Marble Valley did not provide appropriate treatment for the blisters, they became infected and caused him great pain. From Defendants Centurion and CO Baker, Plaintiff seeks the sum of $200,000 for his pain and suffering, scarring, and cost of getting the scars removed and having the tattoo redone. (Doc. 4 at 3.)
On December 7, 2016, Defendant Centurion filed an Answer to Plaintiff's Complaint. (Doc. 9.) On June 1, 2017, the Court granted Defendant Baker's motion to dismiss holding Plaintiff's claim against him in his official capacity constituted a claim against the State of Vermont and was therefore barred by Eleventh Amendment sovereign immunity. (Doc. 26 at 4-5.) Because Plaintiff argued Defendant Baker acted outside the scope of his authority, the Court allowed Plaintiff until July 3, 2017 to file an amended complaint alleging a claim against Defendant Baker in his individual capacity. (Id. at 5.) Plaintiff did not avail himself of the opportunity.
On December 12, 2017, the case was excused from Early Neutral Evaluation. (Doc. 41.) Also in December, Chinnici requested an extension of time regarding discovery and to file a summary judgment motion. (Doc. 42.) On January 24, 2018, Defendant Centurion filed its motion for summary judgment. In June 2018, the Court granted in part Plaintiff's motion for an extension of time, allowing as unopposed an extension until July 23, 2018 to file a summary judgment motion. Plaintiff has not opposed Defendant's motion for summary judgment or filed a cross-motion.
Defendant's statement of undisputed facts relies primarily on the January 19, 2018 affidavit of Dr. Steven Fisher. (Docs. 43-2, 43-3.) Dr. Fisher is the Regional Medical Director for Centurion, a managed care company providing medical and mental health care to inmates of the State of Vermont Department of Corrections. Defendant's statement sets forth the following facts.
In March 2016, Plaintiff presented to the Centurion medical staff with a series of bruises on his legs. The medical staff recommended he use hot and cold compresses to help with discomfort. When he saw the staff again, his legs were noted to have "no warmth" in the areas with bruises. Medical staff provided Plaintiff an "Identification of Special Needs" form stating he should be provided a "warm compress three times a day to left lower leg" from March 30 to April 1, 2016. The form did not contain instructions as to how to make the warm compress. Medical staff noted the bruises were not affecting Plaintiff's activities of daily living.
When Plaintiff returned to medical staff on April 1, they noted a blister. The next day, he denied pain or discomfort and was advised to rest, elevate his legs, and apply warm compresses for the bruising. On April 3 and 4, medical staff noted additional blisters and cleaned the blisters, applied triple antibiotic ointment, and placed a band-aid over the area. On April 5 and 6, though medical staff noted Plaintiff's leg was at risk for infection, it was not infected at that time. Medical staff applied Bacitracin, an antibiotic ointment.
Plaintiff was transferred from Marble Valley Correctional Facility to Southern State Correctional Facility. On April 14, medical staff at Southern State cleaned and dressed the blisters. On April 15, Plaintiff saw the medical provider who noted the treatment plan was to continue to clean the wound, apply a silvadene cream or anitmicrobial ointment, and change the dressing daily until Plaintiff's leg was fully healed. Plaintiff continued to receive daily treatment. On May 11, Plaintiff told the medical provider his leg was "almost better." (Doc. 43-3 ¶ 19.) By May 13, Plaintiff's wound was considered healed.
Dr. Fisher states:
In the community, blisters are treated in the same way as medical staff treated Mr. Chinnici's blister: clean the blister, apply ointment to ward off infection, cover the area with a dressing, and change the dressing daily. This is what medical staff at both Marble Valley Correctional Facility and Southern State Correctional Facility did for Mr. Chinnici.(Doc. 43-3 ¶ 24.)
II. Motion for Summary Judgment Standard
Summary judgment may be granted only when the moving party shows that there is no genuine dispute as to any material fact and it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. A grant of summary judgment is reviewed de novo. Amaker v. Foley, 274 F.3d 677, 680-81 (2d Cir. 2001).
Federal Rule of Civil Procedure 56 allows a party to seek a judgment before trial on the grounds that all facts relevant to a claim or defense are undisputed and those facts entitle the party to judgment. Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004). The moving party must submit a statement of facts deemed by it to be undisputed. Fed. R. Civ. P. 56(c); D. Vt. L.R. 56(a). The statement must reference admissible evidence in the record tending to prove each such fact, e.g., deposition testimony, affidavits, admissions, etc. See Fed. R. Civ. P. 56(c)(2). "The non-moving party need not respond to the motion. However, a non-response runs the risk of unresponded-to statements of undisputed facts proffered by the movant being deemed admitted." Jackson v. Fed. Express, 766 F.3d 189, 194 (2d Cir. 2014). Before summary judgment may be entered, however, a "district court must ensure that each statement of material fact is supported by record evidence sufficient to satisfy the movant's burden of production even if the statement is unopposed." Id. "Rule 56 does not allow district courts to automatically grant summary judgment on a claim simply because the summary judgment motion . . . is unopposed." Id.
Because Plaintiff is self-represented, the Court must show "special solicitude before granting the . . . motion for summary judgment." Ruotolo v. IRS, 28 F.3d 6, 8 (2d Cir. 1994); see also Tracy v. Freshwater, 623 F.3d 90, 101-02 (2d Cir. 2010) (discussing various forms of solicitude shown to self-represented litigants). However, where, as here, a defendant moves for summary judgment against a plaintiff who bears the burden of proving the factual elements of the claims asserted, the plaintiff takes a great risk in not opposing the motion. Though the court must examine the defendant-movant's submission for evidentiary and legal sufficiency, if the defendant-movant submits an evidentiary proffer sufficient to defeat a claim, the plaintiff cannot win without proffering evidence sufficient to allow a trier of fact to find in its favor on each fact material to its claim. Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 84 (2d Cir. 2004) (once defendant-movant "demonstrates an absence of a genuine issue of material fact," plaintiff bears burden of production to show "specific facts showing that there is a genuine issue for trial" for each such fact).
III. Analysis
Defendant provided the required Notice to Pro Se Litigant warning Chinnici his claims could be dismissed if he failed to respond to the motion for summary judgment. (Doc. 43-4.) The notice also informed Chinnici his failure to respond with a statement of disputed facts and affidavits or documentary evidence contradicting the facts asserted by Defendant could result in the Court accepting Defendant's assertions as true. (Id. at 2.) Accordingly, the Court accepts Defendant's factual assertions as true as discussed below.
A plaintiff asserting a claim for medical malpractice has the burden of proving:
(1) the degree of knowledge or skill possessed or the degree of care ordinarily exercised by a reasonably skillful, careful, and prudent health care professional engaged in a similar practice under the same or similar circumstances whether or not within the state of Vermont;Vt. Stat. Ann. tit. 12, § 1908. In the usual case, these elements of the applicable standard of care, that defendant breached that standard, and that as a proximate result plaintiff suffered injuries that would not otherwise have occurred "must be proved by expert testimony." Jones v. Block, 762 A.2d 846, 848 (Vt. 2000). The exception to the rule is where the breach is so obvious that it may be understood by the ordinary lay person. See Provost v. Fletcher Allen Health Care, Inc., 890 A.2d 97, 101 (Vt. 2005) ("Except where the alleged violation of the standard of care is so apparent that it can be understood by a layperson without the aid of medical experts, the burden of proof imposed by [statute] requires expert testimony.").
(2) that the defendant either lacked this degree of knowledge or skill or failed to exercise this degree of care; and
(3) that as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.
Here, whether the standard of care for treating bruises and blisters may be determined by laypersons or not, Plaintiff has not brought forward expert testimony regarding a breach of that standard by Defendant or that such a breach proximately caused his injuries. Plaintiff's Complaint alleges his injury occurred from an overheated washcloth given to him by CO Baker on March 30. Dr. Fisher stated the community standard of care is to clean the blister, apply ointment to ward off infection, cover the area with a dressing, and change the dressing daily. The evidence before is that medical staff recommended the use of hot and cold compresses for his bruising and, when Plaintiff's legs were noted to have no warmth, medical staff prescribed warm compresses. The Identification of Special Needs form stating Plaintiff should be provided a warm compress three times a day from March 30 to April 1 did not contain instructions as to how to make the warm compress.
When Plaintiff returned to medical staff on April 1, they noted a blister. He denied pain or discomfort. On April 3 and 4, medical staff noted additional blisters. From April 1 until May 13, medical staff at both Marble Valley and Southern State Correctional Facility, following Plaintiff's transfer there, treated his blisters by cleaning the area, applying antibiotic ointment, and covering them with band-aids. On May 11, Plaintiff told the medical provider his leg was "almost better." (Doc. 43-3 at ¶ 19.) By May 13, Plaintiff's would was considered healed.
There is no evidence supporting Plaintiff's allegation that medical staff at Marble Valley did not provide appropriate treatment for the blisters or that they became infected. At the summary judgment stage, Plaintiff--who bears the burden of proof--must do more than rely on the allegations of his complaint. In the absence of expert testimony, or any admissible evidence from Plaintiff, the only evidence before the Court bearing on the elements of medical malpractice is from Defendant. Plaintiff has not contradicted Defendant's submission of the appropriate standard of care or submitted any evidence demonstrating Defendant breached that standard. Dr. Fisher states the care Plaintiff received for the blisters on his leg was consistent with the community standard. (Doc. 43-3 at ¶ 25.) Accordingly, Plaintiff's medical malpractice claim against Defendant must be DISMISSED. Powell, 364 F.3d at 84 (once defendant-movant "demonstrates an absence of a genuine issue of material fact," plaintiff bears burden of production to show "specific facts showing that there is a genuine issue for trial" for each such fact).
CONCLUSION
For the reasons set forth above, Defendant Centurion of Vermont LLC's Motion for Summary Judgment (Doc. 43) is GRANTED. Chinnici's claims against Defendant Centurion are dismissed with prejudice and the case is dismissed.
SO ORDERED.
Dated at Burlington, in the District of Vermont, this 9th day of October, 2018.
/s/ William K. Sessions III
Hon. William K. Sessions III
District Court Judge