Opinion
No. 01-3094-GTV
February 26, 2004
MEMORANDUM AND ORDER
Plaintiff Mack Jones, proceeding pro se, brings this action pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b), 2671-2680, against Defendant United States of America ("Defendant"). Plaintiff, formerly a prisoner at the United States Penitentiary in Leavenworth, Kansas ("USP Leavenworth"), alleges that: (1) he suffered a knee injury caused by Defendant's negligently maintained prison grounds; (2) the medical staff at USP Leavenworth were negligent because they failed to provide him proper physical therapy and follow-up examinations for his injured knee; and (3) the medical staff at USP Leavenworth were negligent because they failed to instruct the prison safety office to prepare an accident report concerning his injury. This case is before the court on Defendant's Motion to Dismiss Or. Alternatively. Motion for Summary Judgment (Doc. 8). Because the parties have submitted and the court has considered materials outside the pleadings, Defendant's motion will be treated as a Rule 56 motion for summary judgment. See Fed.R.Civ.P. 12(b)(6); Whitesel v. Sengenberger, 222 F.3d 861, 865-66 (10th Cir. 2000). For the reasons stated below, Defendant's motion for summary judgment (Doc. 8) is granted in part, and denied in part. In addition, the court reserves its decision on Plaintiff's medical malpractice claims to allow Plaintiff an opportunity to provide evidence from an expert witness in support of his claims.
Plaintiff originally filed this lawsuit against Janet Reno, United States Attorney General, Kathleen Hawk, Director of the Bureau of Prisons, Dr. Phillip Hill, former Chief Medical Officer at USP Leavenworth, "D. Shepard," former Chief Medical Officer at USP Leavenworth, and "Mr. Garner," Supervisor of CMS at USP Leavenworth. In a previous order, the court dismissed these individual defendants and substituted the United States of America as the sole defendant in this FTCA action (Doc. 4). See 28 U.S.C. § 2672.
During the pendency of this action, Plaintiff was transferred to the United States Penitentiary in Florence, Colorado.
I. FACTUAL BACKGROUND
The following facts are taken from the record and are either uncontroverted or viewed in the light most favorable to Plaintiff's case.
On May 5, 1998, Plaintiff reported to the Health Services Unit at USP Leavenworth complaining of knee pain. Plaintiff alleges that as he was exiting the CMS building on the premises of USP Leavenworth, he stepped into a pothole and heard a loud popping sound coming from his knee. An examination revealed that Plaintiff had sustained a fracture to the lateral tibial plateau of his left knee. Because the necessary medical care was beyond the medical staff's capabilities at USP Leavenworth, Plaintiff was admitted to Saint John Hospital in Leavenworth, Kansas. On May 6, 1998, Dr. Gary D. Boston, an orthopedic surgeon at Saint John Hospital, performed surgery to repair Plaintiff's knee. The next day, Dr. Boston determined that Plaintiff was in satisfactory condition and discharged him from Saint John Hospital. Upon his return to the prison, USP Leavenworth medical staff provided Plaintiff with crutches and pain medication.
Dr. Boston visited Plaintiff at USP Leavenworth on May 12, 1998 and on June 9, 1998, and noted that he was making satisfactory progress. On June 23, 1998, Dr. Boston returned to USP Leavenworth and removed Plaintiff's cast and staples. At that time, Dr. Boston recommended that Plaintiff perform a series of range of motion exercises, utilize an Ace wrap for knee support, and refrain from attempting any deep knee bends or toe touches for four weeks. Dr. Boston did not set a specific date for a follow-up appointment.
Between July 23, 1998, and October 22, 1999, Plaintiff visited the Health Services Unit on six occasions complaining of knee pain. Entries from Plaintiff's medical records in March and October of 1999 indicate a possible diagnosis of osteoarthritis, an erosion of cartilage in the joint that commonly occurs following the type of injury Plaintiff sustained. During this period, the Health Services Unit prescribed pain medication to Plaintiff, provided Plaintiff with a soak pan, granted him a two-day "lay-in," and instructed him to perform mild knee exercises.
Plaintiff received similar medical treatment from late 1999 until mid-2001. In December 1999, the Health Services Unit issued Plaintiff a cane and a soaking basin, and prescribed him different pain medication. In 2000, Plaintiff visited the Health Services Unit on four occasions to obtain pain medications. In June and July of 2001, prison officials denied Plaintiff full medical examinations after they placed him in the prison's Special Housing Unit (SHU). Despite his placement in SHU, Plaintiff still received prescription refills for his knee pain.
II. STANDARD OF REVIEW
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Lack of a genuine issue of material fact means that the evidence is such that no reasonable jury could return a verdict for the nonmoving party.Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52.
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. This burden may be met by showing that there is a lack of evidence to support the nonmoving party's case.Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to show that there is a genuine issue of material fact left for trial. Anderson, 477 U.S. at 256. "[A] party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial."Id Therefore, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Id. The court must consider the record in the light most favorable to the nonmoving party.Bee v. Greaves. 744 F.2d 1387, 1396 (10th Cir. 1984).
III. DISCUSSION A. Timeliness of Plaintiff's Complaint
As an initial matter, the court must determine if it has jurisdiction over Plaintiff's claims.
Defendant argues that Plaintiff's claims are barred because he failed to timely file his lawsuit in federal court. The court disagrees.
"Under the FTCA, filing an administrative claim with the appropriate federal agency is a prerequisite to bringing a civil action against the United States for damages for the negligence or wrongful act of any United States employee." Indus. Constructors Corp. v. United States Bureau of Reclamation, 15 F.3d 963, 967 (10th Cir. 1994) (citing 28 U.S.C. § 2675(a); Three-M Enters., Inc. v. United States, 548 F.2d 293, 294 (10th Cir. 1977)). The specific statute of limitations for tort claims against the United States is set forth in 28 U.S.C. § 2401(b). Section 2401(b) provides:
A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal Agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.
These requirements are jurisdictional. Indus. Constructors Corp., 15 F.3d at 967 (citations omitted).
The Bureau of Prisons North Central Regional Office received Plaintiff's administrative tort claim on April 26, 2000 and denied his claim in a letter dated September 6, 2000. The six-month limitation period to file suit in federal court started running on September 11, 2000, the day that the North Central Regional Office mailed the denial letter to Plaintiff via certified mail. Defendant contends that Plaintiff's action is untimely because the last day of the six-month period was March 12, 2000, but the U.S. District Court clerk's office did not stamp Plaintiffs complaint "filed" until March 13, 2000.
March 11, 2000 fell on a Sunday.
The court determines that Plaintiffs complaint is timely under the prison mailbox rule. "Under the federal mailbox rule, a pro se prisoner's cause of action is considered filed when the prisoner delivers the pleading to prison officials for mailing," Garcia v. Shanks, 351 F.3d 468, 471 (10th Cir. 2003) (citing Houston v. Lack, 487 U.S. 266, 276 (1988)), "rather than on the date the court clerk receives it." United States v. Rodriguez-Aguirre, 30 Fed. Appx. 803, 805 (10th Cir. 2002).
In Houston v. Lack, the Supreme Court applied the prison mailbox rule to a pro se prisoner's notice of appeal. 487 U.S. at 270. The Supreme Court justified the rule based on the unique circumstances facing an incarcerated prisoner. Id The court observed that prisoners cannot "monitor the processing of their notices of appeal," "cannot personally travel to the courthouse to see that the notice is stamped `filed,'" and are forced to "entrust the forwarding of [the] notice of appeal to prison authorities . . . who may have every incentive to delay." Id. at 270-71.
In 1993, five years after the Houston decision, Congress substantially codified the prison mailbox rule by amending Rule 4 of the Federal Rules of Appellate Procedure. United States v. Gray, 182 F.3d 762, 766 n. 7 (10th Cir. 1999). In 1998, Congress amended the rule again. The current rule states, in relevant part:
If an inmate confined in an institution files a notice of appeal in either a civil or a criminal case, the notice is timely if it is deposited in the institution's internal mail system on or before the last day for filing. If an institution has a system designed for legal mail, the inmate must use that system to receive the benefit of this rule.
Timely filing may be shown by a declaration . . . or by a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.
Fed.R.App.P. 4(c)(1) (2003).
The reasoning behind the prison mailbox rule has persuaded several circuit courts, including the Tenth Circuit, to extend the rule to other contexts. See Gray. 182 F.3d at 765 n. 4 (applying the rule to habeas corpus filings under § 2255); Dunn v. White. 880 F.2d 1188, 1190 (10th Cir. 1989) (applying the rule to objections filed in response to a magistrate's report in a civil rights case). Although the Tenth Circuit has not yet decided whether to apply the rule to an untimely filed FTCA complaint, several other circuits have extended Houston's rationale to FTCA complaints, to § 1983 complaints, and even to all untimely filed civil complaints. See e.g., Sulik v. Taney County, Mo., 316 F.3d 813, 815 (8th Cir. 2003) (citing decisions in several circuits that extended the prison mailbox rule to civil complaints).
Following the precedent established by a majority of the circuit courts, the court concludes that Plaintiff's FTCA complaint is timely under the prison mailbox rule. The court will not require Plaintiff to show by declaration or notarized statement that he mailed his complaint from USP Leavenworth on or before March 12, 2001. Because Plaintiffs complaint was received by the clerk's office on March 13, 2001, one day after the filing deadline, the court will assume Plaintiff mailed his complaint from USP Leavenworth on or before March 12, 2001. See United States v. Adkins, 47 Fed. Appx. 534, 536 (10th Cir. 2002) (assuming that a prisoner filed his notice of appeal on or before the filing deadline because the clerk's office received the notice one day after the filing deadline).
B. Plaintiff's Claims
Plaintiff asserts three negligence claims against the United States pursuant to the FTCA. In a FTCA case, the United States "shall be liable [in tort]. . . in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674. The substantive law of the state where the cause of action arose governs a FTCA case. 28 U.S.C. § 1346(b). Kansas law thus governs this matter.
1. Negligent Maintenance of Prison Grounds
Plaintiff first claims that Defendant negligently maintained the prison grounds outside the CMS building at USP Leavenworth. Plaintiff alleges that on May 5, 1998, as he was walking out the front of the CMS building, he stepped into a pothole and injured his knee.
Defendant maintains that it is entitled to summary judgment because the United States did not breach the duty of care it owed to Plaintiff. See 18 U.S.C. § 4042 (requiring the Bureau of Prisons to provide for the protection and care of prisoners). In support of its position, Defendant cites the Injury and Assessment Form Plaintiff signed while receiving treatment at the Health Services Unit immediately following his injury. The form states that Plaintiffs injury occurred after he "suddenly stepped off of a curb." Defendant contends that "[t]he existence and presence of a curb is self-evident, and [P]laintiff's own negligent act of tripping on or taking a misstep on that curb is not a basis upon which the United States can be liable to [P]laintiff in tort."
The court concludes that genuine issues of material fact remain as to whether Defendant breached its duty of care to Plaintiff. Defendant characterizes Plaintiffs knee injury as an unforeseeable accident caused by Plaintiff's failure to pay attention to a curb outside of the CMS building. Plaintiff disputes the existence of any curbs around the property of the CMS building and states that he stepped into a pothole outside the CMS building. The fact that medical personnel instructed Plaintiff to sign an injury form containing the medical staffs interpretation of the circumstances surrounding Plaintiffs injury is not a sufficient basis to grant Defendant's motion for summary judgment.
2. Inadequate Medical Care Claims
Plaintiff next claims that following his knee surgery, the medical staff at USP Leavenworth failed to schedule follow-up visits and failed to ensure that he received proper physical therapy for his knee. Defendant argues that it is entitled to summary judgment because: (1) Plaintiff failed to exhaust his administrative remedies for his medical malpractice claims; and (2) even if he exhausted his administrative remedies, Plaintiff fails to state viable medical malpractice claims under Kansas law.
a. Exhaustion of Administrative Remedies
"As a jurisdictional prerequisite, the FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies." Dulplan v. Harper, 188 F.3d 1195, 1199 (10th Cir. 1999) (citations omitted). Here, Defendant contends that the statements contained in Plaintiffs April 22, 2000 administrative claim do not encompass Plaintiffs allegations of medical malpractice; therefore, Defendant argues, Plaintiff has not properly exhausted his administrative remedies. The court disagrees.
In his administrative claim, Plaintiff asserted a "personal injury claim" against five individuals, including the hospital administrator and the chief medical officer at USP Leavenworth. Plaintiff stated that he stepped into a hole and injured his knee outside of the CMS building. Plaintiff further stated this accident caused him to suffer physical pain and mental anguish "by prison medical personnel."
The court does not construe the allegations contained in Plaintiffs administrative claim to encompass only his premises liability theory. Plaintiff made sufficient references to USP Leavenworth's medical staff to provide the Bureau of Prisons with notice of his inadequate medical care claims. See Burchfield v. United States, 168 F.3d 1252, 1255 (11th Cir. 1999) (citation omitted) (stating that the amount of information required in the administrative claim is "minimal");Magnuson v. United States, No. 87-3308-O, 1994 WL 478308, at *4 (D. Kan. Aug. 31, 1994) (recognizing "that an administrative claim need not present every possible theory of liability to satisfy the exhaustion requirement"). Accordingly, the court determines that Plaintiff exhausted his administrative remedies for his medical malpractice claims.
b. Viability of Plaintiff's Medical Malpractice Claims Under Kansas Law
To establish a claim for medical malpractice in Kansas, a plaintiff must demonstrate that the defendant owed him a duty, the defendant breached the duty and a causal nexus exists between the duty breached and the plaintiffs injury. Sharpies v. Roberts, 816 P.2d 390, 397 (Kan. 1991) (quoting Durflinger v. Arfiles, 673 P.2d 86, 91 (Kan. 1983)). "Under Kansas law, a physician has a duty to use reasonable and ordinary care and diligence in the diagnosis and treatment of his or her patients, to use his or her best judgment, and to exercise that reasonable degree of learning, skill and experience which is ordinarily possessed by other physicians in the same or similar locations under like circumstances." Rios v. Bigler, 847 F. Supp. 1538, 1542 (D. Kan. 1994) (citing Durflinger, 673 P.2d at 92). "Except where the lack of reasonable care or the existence of proximate cause is apparent to the average layman from common knowledge or experience, expert testimony is required in medical malpractice cases to establish the accepted standard of care and to prove causation."Bacon v. Mercy Hosp. of Ft. Scott, 756 P.2d 416, 420 (Kan. 1988) (citations omitted). A plaintiff's failure to establish these elements against a particular defendant will entitle that defendant to judgment as a matter of law. Rios, 847 F. Supp. at 1542 (citingMellies v. Nat'l Heritage. Inc., 636 P.2d 215, 218 (Kan.Ct.App. 1981)).
Defendant argues that Plaintiff's medical records indicate that he "received extensive and proper medical care that was commensurate with community standards" and "exceeded the applicable standard of care."
The court concludes that it will reserve decision on Defendant's motion for summary judgment as to Plaintiff's medical malpractice claims. Under Kansas law, Plaintiff is required to furnish an expert to prove that the care provided by USP Leavenworth's medical staff fell below the applicable standard of care and caused Plaintiff further injury. Thus, the success of Plaintiff's medical malpractice claims hinge upon his provision of expert testimony. Plaintiff has failed to identify an expert witness, but the court acknowledges that discovery has not been completed at this point in the lawsuit. Accordingly, the court grants Plaintiff forty-five (45) days from the date of this order to supplement his brief in opposition to Defendant's motion for summary judgment with the relevant evidence provided by an expert.
3. Failure to File an Accident Report
Finally, Plaintiff claims that the hospital administrator at USP Leavenworth failed to notify the prison's safety office about Plaintiff's accident. Plaintiff contends that this was necessary so that the safety office could investigate and file an accident report providing a full account of his injury. Plaintiff argues that this failure amounted to negligence.The court concludes that Plaintiffs allegations are insufficient to rise to a level of actionable negligence. Accordingly, Plaintiffs claim is dismissed.
IT IS, THEREFORE, BY THE COURT ORDERED that: (1) Defendant's motion for summary judgment is denied as to Plaintiff's premises liability claim; (2) Defendant's motion for summary judgment is granted as to Plaintiff's failure to file an accident report claim; and (3) the court will reserve decision on Defendant's motion for summary judgment as to Plaintiff's medical malpractice claims. The court grants Plaintiff forty-five (45) days from the date of this order to provide evidence from an expert regarding the applicable standard of care and to raise a genuine issue of material fact regarding causation.
Copies of this order shall be transmitted to counsel of record.
IT IS SO ORDERED.