Opinion
C. A. 1:22-cv-1687-SAL-SVH
06-14-2023
Calvin James Reid, # 25278-076, Plaintiff, v. United States of America, Defendant.
REPORT AND RECOMMENDATION
SHIVA V. HODGES, UNITED STATES MAGISTRATE JUDGE
Calvin James Reid (“Plaintiff”), proceeding pro se and in forma pauperis, brings this action pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. (“FTCA”). He alleges the United States of America (“United States”) has been grossly negligent, engaged in willful, wanton, and reckless conduct, and has breached its duty of care by failing to treat his serious medical needs while he has been a federal inmate incarcerated at the Federal Correctional Institution (“FCI”) Williamsburg in Salters, South Carolina. [ECF No. 50 at 1].
This matter comes before the court on the motions for summary judgment by Plaintiff [ECF No. 64] and by the United States [ECF No. 65], and on Plaintiff's motion for judgment on the pleadings [ECF No. 68]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of the dismissal procedures and the possible consequences if he failed to respond adequately to the United States' motion. [ECF No. 66]. In his response to the United States' summary judgment motion, Plaintiff renews his motions for appointment of counsel and appointment of a medical expert. [ECF Nos. 72, 722]. Plaintiff and the United States having filed responses [ECF Nos. 69, 71, 72, 73], the motions are ripe for disposition.
Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(d) (D.S.C.), this matter has been referred to the undersigned for all pretrial proceedings. Having carefully considered the parties' submissions and the record in this case, the undersigned denies Plaintiff's renewed motion for appointment of counsel and appointment of a medical expert [ECF No. 72] and recommends the district judge deny Plaintiff's motions for judgment on the pleadings [ECF No. 68] and for summary judgment [ECF No. 64] and grant the United States' motion for summary judgment [ECF No. 65].
I. Factual Background
On May 26, 2021, Plaintiff underwent an ultrasound of his scrotum that showed epididymal cysts and varicocele. Id. at 8. Plaintiff was transferred to FCI Williamsburg on August 20, 2021. [ECF No. 72-4 at 1]. On August 23, 2021, a prison medical official indicated he would have to resubmit a request for a second ultrasound of Plaintiff's scrotum. [ECF No. 50 at 2]. However, Stephen Hoey, D.O., did not order a second ultrasound of Plaintiff's scrotum until December 30, 2021. [ECF No. 64-2 at 4]. On February 24, 2022, the second scrotal ultrasound showed the cysts had grown. Id. at 8. Despite evidence of growth, prison medical staff failed to provide medical treatment for the epididymal cysts and varicocele. Id. at 2, 8. Plaintiff noted hard bumps and nodules and complained of pain and burning sensation, but has not been evaluated by an outside doctor for possible malignancy. Id. at 2.
Although prison medical staff informed Plaintiff on August 23, 2021, that they would resubmit a request for magnetic resonance imaging (“MRI”), they did not request an MRI of Plaintiff's left shoulder until December 20, 2021, with a target date of March 21, 2022. [ECF Nos. 50 at 2 and 64-2 at 6]. Plaintiff did not undergo an MRI of his left shoulder until June 22, 2022. [ECF No. 64-2 at 3]. The MRI of Plaintiff's left shoulder showed mild-to-moderate tendinosis of the supraspinatus tendon with small partial-thickness intratendinous tears of the distal supraspinatus tendon; moderate hypertrophic changes at the acromioclavicular joint with prominent subacromial spur causing narrowing of the supraspinatus outlet, suggestive of supraspinatus impingement syndrome; and evidence of bone marrow reconversion. Id. Plaintiff claims he was approved for surgery in August 2022, but that he has not been examined by a medical specialist. [ECF Nos. 50 at 4 at 72-4 at 2]. Plaintiff's health care provider discontinued Plaintiff's prescription for Naproxen, which he had previously used to manage his pain. Id. at 4-5. Plaintiff received no treatment for his left shoulder impairment, despite prison medical staff's knowledge of that impairment. Id. at 5.
Plaintiff alleges he experienced diarrhea for over a month, and prison medical staff provided no treatment for it. Id. at 4.
Plaintiff claims the United States owes him a duty of care and has breached that duty through its negligent acts or omissions, causing him mental anguish, extreme mental disturbance, extreme discomfort, and extreme pain and suffering. Id. at 3. He asserts he is having difficulty sleeping, eating, and carrying out daily activities as a result of the United States' disregard for his medical needs. Id. at 6.
Plaintiff has exhausted his administrative remedies under FTCA claim numbers TRT-SER-2022-00226, TRT-SER-2022-01237, and TRT-SER-2022-03131. Id. at 1. He requests compensatory and punitive damages in excess of $20,000,000. Id. at 10.
II. Discussion
A. Renewed Motion for Appointment of Counsel
Plaintiff attached copies of his prior motions for appointment of counsel to his response to the United States' summary judgment motion. [ECF No. 722 at 2]. To the extent Plaintiff intends to renew those motions through the attachments, the undersigned denies his request for appointment of counsel for the reasons specified in the court's prior orders. [ECF Nos. 35, 77].
The undersigned also denies Plaintiff's motion for appointment of a medical expert to review his medical malpractice claim. [ECF No. 72-2 at 2]. Courts rarely exercise discretion to appoint experts for indigent parties and only under “compelling circumstances.” See United States Marshal Serv. v. Means, 741 F.2d 1053, 1057-58 (8th Cir. 1984) (finding that under Rule 706(b) of the Federal Rules of Evidence, the court may order the United States, as a party to advance the fees and expenses of lay and expert witnesses called by the court, but only in “compelling circumstances”); see also Boring v. Kozakiewicz, 833 F.2d 468 (3d Cir. 1987) (upholding the district court's denial of a civil plaintiff's request for funds to pay an expert medical witness and observing that neither 28 U.S.C. § 1915 nor any other authority provides such funding). Plaintiff's complaint fails to present compelling circumstances that would lead the court to order the United States to advance expenses for him to retain an expert medical witness. Accordingly, the undersigned denies Plaintiff's motion.
B. Motion for Judgment on the Pleadings
1. Standard of Review
After pleadings are closed, a party may move for judgment on the pleadings. Fed.R.Civ.P. 12(c). A Rule 12(c) motion “dispose[s] of [a] case[] in which there is no substantive dispute that warrants the litigants and the court proceeding further.” Lewis v. Excel Mech., C/A No. 2:13-cv-281-PMD, 2013 WL 4585873, at *1 (D.S.C. Aug. 28, 2013) (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, § 1368 (3d ed. 2010)). In considering a motion brought pursuant to Rule 12(c), the court's review is confined to the pleadings, Abell Co. v. Balt. Typographical Union No. 12, 338 F.3d 190, 193 (4th Cir. 1964), and “any documents and exhibits attached to and incorporated into the pleadings,” Lewis, 2013 WL 4585873, at *1 (citing Eagle Nation, Inc. v. Mkt. Force, Inc., 180 F.Supp.2d 752, 754 (E.D. N.C. 2001)). The court must construe the pleadings in the light most favorable to the non-moving party. Burbach Broad. Co. v. Elkins Radio Corp., 278 F.3d 401, 405-06 (4th Cir. 2002). “A motion for judgment on the pleadings should be granted only if ‘the moving party has clearly established that no material issue of fact remains to be resolved and the party is entitled to judgment as a matter of law.'” Lewis, 2013 WL 4585873, at *2 (quoting United States v. Any & All Radio Station Transmission Equip., 207 F.3d 458, 462 (8th Cir. 2000) (internal citation omitted)).
2. Analysis
Plaintiff argues “defendant has provided discovery and interrogatories which equated to over 500 pages of medical records and the defendant has failed [to] present any facts in the record to dispute Plaintiff's assertions that the United States breached its duty of care owed to Plaintiff” or “to . . . dispute . . . any material fact . . . presented in Plaintiff's claims.” [ECF No. 68 at 1]. The United States appropriately notes Plaintiff's motion “reads as a motion for summary judgment, based upon the legal standard he references.” [ECF No. 71 at 2]. Because Plaintiff directs the court to evidence outside of the pleadings, which the court may not permissibly consider in evaluating a motion for judgment on the pleadings under Fed.R.Civ.P. 12(c), the undersigned recommends denying Plaintiff's motion for judgment on the pleadings.
In addition, a review of the pleadings [ECF Nos. 50, 53, 54] in the light most favorable to the United States does not support granting Plaintiff's motion. In its answer to the amended complaint, the United States “admits only what is contained in the medical records,” otherwise denies Plaintiff's allegations, and raises multiple affirmative and other defenses. [ECF No. 53]. Because “Plaintiff has failed to clearly establish[] that no material issue of fact remains to be resolved,” the undersigned recommends denying Plaintiff's motion for judgment on the pleadings.
C. Motions for Summary Judgment
1. Standard of Review
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the nonmoving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
2. Analysis
Plaintiff alleges the United States is liable for the medical malpracticeof staff at FCI Williamsburg. “Claims of negligence or malpractice, can . . . support a cause of action under the FTCA.” Morrison v. Wilson, C/A No. 4:14-3672-TMC, 2015 WL 1530790, at *3 (D.S.C. Apr. 6, 2015), aff'd, 610 Fed. App'x 358 (4th Cir. 2015). The FTCA waives sovereign immunity and permits suits against the United States for personal injuries caused by government employees acting within the scope of their employment. Under the FTCA, a plaintiff may recover a monetary award from the United States for damages “caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope . . . of employment ....” 28 U.S.C. § 1346(b)(1). Whether any government employee was negligent is to be determined “in accordance with the law of the place where the act or omission occurred.” Id. Because Plaintiff alleges prison medical staff were negligent while he was housed at FCI Williamsburg, the substantive law of South Carolina controls.
Plaintiff references S.C. Code Ann. § 15-32-220, which addresses “[n]on-economic damages” in actions involving medical malpractice claims. [ECF No. 50 at 7, 10]. Although Plaintiff alleges the United States' actions were taken with “intentional disregard for the rights owed to Plaintiff regarding his serious medical needs” id. at 6, the undersigned does not interpret the claim as one for deliberate indifference to a serious medical need under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971), as Plaintiff references the FTCA and negligence, does not sue individual defendants, and neither cites Bivens, nor alleges violation of a constitutional right.
Although not every injury sustained by a patient in a medical facility or while receiving medical treatment results from medical malpractice, where a claim for negligence is brought specifically with regard to the type of medical care or treatment received, it is appropriately construed as a claim for medical malpractice. Dawkins v. Union Hosp. Dist., 758 S.E.2d 501, 504 (S.C. 2014). Medical malpractice is defined by law as “doing that which the reasonably prudent health care provider or heath care institution would not do or not doing that which the reasonably prudent health care provider or health care institution would do in the same or similar circumstances. S.C. Code Ann. § 1532-210(8). To prevail in a claim for medical malpractice under South Carolina law, a plaintiff must prove the following by a preponderance of the evidence:
(1) the presence of a doctor-patient relationship between the parties;
(2) recognized and generally accepted standards, practices, and procedures exercised by competent physicians in the same branch of medicine under similar circumstances;
(3) the health professional deviated from generally-accepted standards, practices, and procedures;
(4) the plaintiff sustained an injury; and
(5) the plaintiff's injury was proximately caused by the health professional's negligence.Brouwer v. Sisters of Charity Providence Hosps., 763 S.E.2d 200, 203 (S.C. 2014) (citation omitted).
“A plaintiff in a medical malpractice case must establish by expert testimony both the standard of care and the defendant's failure to conform to the required standard, unless the subject matter is of common knowledge or experience so that no special learning is needed to evaluate the defendant's conduct.” Id. (citing Carver v. Med. Soc'y of S.C., 286 S.C. 347, 350, 334 S.E.2d 125, 127 (S.C. Ct. App. 1985); David v. McLeod Reg'l Med. Ctr., 367 S.C. 242, 248, 626 S.E.2d 1, 4 (S.C. 2006)). Accordingly, a plaintiff alleging medical malpractice must either present expert witness testimony or establish that the alleged negligent act “lies within the ambit of common knowledge and experience, so that no special learning is needed to evaluate the conduct of the defendant.” Id. at 204 (citing S.C. Code Ann. § 15-36-100(C)(2) (Supp. 2013)). “When expert testimony is not required, the plaintiff must offer evidence that rises above mere speculation or conjecture.” Id. (quoting Hickman v. Sexton Dental Clinic, P.A., 367 S.E.2d 453, 455 (S.C. Ct. App. 1988)).
a. United States' Motion for Summary Judgment
The United States argues the court should grant its motion for summary judgment because Plaintiff has failed to identify a qualified expert to discuss the applicable standard of care and testify that it breached that standard. [ECF No. 65 at 1]. It further maintains Plaintiff has not shown that the alleged negligent acts “lie[] within the ambit of common knowledge and experience, so that no special learning is needed to evaluate [its] conduct.” Id. at 6.
Plaintiff alleges in his complaint that the United States failed to provide any treatment for epididymal cyst and varicocele, did not send him to an outside doctor who could determine whether the hard lumps or nodules detected on ultrasound were malignant, provided no treatment for diarrhea he experienced for over a month, did not order an MRI on his shoulder until after he filed the FTCA claim, delayed treatment of his left shoulder impairments, has not sent him to a surgeon, despite having approved him for shoulder surgery in August 2022, and discontinued his prescription for Naproxen for pain control. [ECF No. 50 at 2-6]. Some of Plaintiff's allegations are refuted by the documents he attached to his pleadings. Plaintiff filed this action on May 27, 2022 [ECF No. 1], but a record he attached to his amended complaint shows C. Davis, APRN, FNP-C ordered an MRI of his left shoulder on or prior to December 20, 2021 [ECF No. 64-2 at 6], refuting his claim that the United States did not order the MRI until after this action was filed. Plaintiff also filed a copy of a testicular ultrasound report dated May 20, 2021, that specified “[b]enign neoplasm of scrotum,” showing the lumps or nodules were benign and that he did not need to be referred to an outside provider for assessment of possible malignancy. [ECF No. 36-3 at 2].
Plaintiff alleges his shoulder injury is “one that has been diagnosed by a physician as mandating treatment or one that is so obvious that a lay person would easily recognize the necessity for a doctor's attention.” [ECF No. 72 at 3] (quoting Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008)). More specifically, Plaintiff argues that “a physician has mandated treatment in the form of surgery.” Id. at 5. He points out he “provided this court with printouts from reputable medical clinic[s]” regarding his impairments. Id. at 5. He argues that because he is an incarcerated inmate, he lacks the means to obtain an expert witness and the court has denied his motion for appointment of a medical expert. Id. at 6-7. Thus, Plaintiff concedes he has failed to establish by expert testimony both the standard of care and the defendant's failure to conform to the required standard, but appears to maintain the objective evidence related to his testimony and the reference materials he has filed with the court regarding his medical conditions show that “the subject matter lies within the ambit of common knowledge so that no special learning is required to evaluate the conduct” of the United States.
“In medical malpractice actions, expert testimony is required to establish both the duty owed to the patient and the breach of that duty, unless the subject matter of the claim falls within a layman's common knowledge or experience.” Dawkins v. Union Hosp. Dist., 758 S.E.2d 501, 504 (S.C. 2014) (citing Linog v. Yampolsky, 656 S.E.2d 355, 358 (S.C. 2008) (internal citations omitted)). “[I]n a common-knowledge case, whether a medical malpractice plaintiff's claim meets the threshold of merit can be determined on the face of the complaint, and because the defendant's careless acts are quite obvious, the plaintiff need not present expert testimony to establish the standard of care; in such a case, requiring an affidavit of merit is not necessary to weed out meritless lawsuits.” 70 C.J.S. Physicians & Surgeons § 142 (Supp. 2014). In Brouwer, 763 S.E.2d at 204, the court found “the substance of [the plaintiff's] allegation, i.e., that the negligent exposure of a patient to latex with a known allergy can result in an allergic reaction in that patient, [was] a matter within the common knowledge or experience so that no special learning [was] needed to evaluate [the defendant's] conduct at the pre-litigation stage.” The court referenced other cases in which courts had found matters within the common knowledge or experience that did not require special learning to evaluate the defendants' conduct. Id. (citing Green v. Lilliewood, 249 S.E.2d 910 (1978) (holding tubal ligation rendering intrauterine device and other birth control device useless constitutes a matter of common knowledge); Thomas v. Dootson, 659 S.E.2d 253 (S.C. Ct. App. 2008) (recognizing expert testimony was not required for claim arising from a surgical drill that burned skin on contact because claim would fall within the common knowledge or experience of laymen); Hickman v. Sexton Dental Clinic, P.A., 367 S.E.2d 453 (S.C. Ct. App. 1988) (holding evidence presented was sufficient for the jury to infer without the aid of expert testimony a breach of duty to dental patient where patient testified an unsupervised dental assistant rammed a sharp object into patient's mouth).
Plaintiff's reference to “printouts from reputable clinics,” appears to direct the court to attachments to several of his filings that discuss diagnoses and treatment of varicoceles, epididymal cysts, shoulder impingement syndrome, acromioclavicular joint degeneration, supraspinatus tendinopathy, and chronic pain. Id. at 5 (referencing ECF Nos. 36-6, 68-3, and 72-3). The information he attached discussing varicoceles specifies: “Fortunately, most varicoceles are easy to diagnose and many don't need treatment. If a varicocele causes symptoms, it often can be repaired surgically.” [ECF No. 36-6 at 2]. The materials further note: “Varicocele treatment might not be necessary,” but if it “causes pain, testicular atrophy or infertility . . . you might want to undergo varicocele repair.” Id. at 5. The materials suggest lifestyle and home remedies for those faced with “minor discomfort” whose fertility is not affected. Id. at 6. Plaintiff also attached information from “verywell health” that provides an epididymal cyst “causes a lump in the testicle but often goes away on its own.” Id. at 9. The materials describe the epididymal cyst as “a benign lump.” Id. They indicate epididymal cysts “will either get smaller in size as the body reabsorbs fluid from the cyst or they will stay the same size.” Id. However, they indicate a few additional options, including surgery, are available if an epididymal cyst continues to get larger in size or causes pain, swelling, or embarrassment to the patient. Id.
Plaintiff attached a printout discussing treatment for shoulder impingement syndrome. [ECF No. 68-3 at 4]. The materials note that if shoulder impingement is not diagnosed and treated immediately, it may lead to rotator cuff degeneration and potential tear. Id. They indicate treatment options include ice, compression, rest, limiting strenuous exercise, and, for extreme cases, physical therapy, medications, and surgery. Id. at 6. They specify “[s]houlder . . . impingement surgery is a last resort option.” Id. Plaintiff also attached a section describing acromioclavicular joint degeneration. Id. at 8. The section notes that once degeneration is confirmed on x-rays, the individual should reduce the load and inflammation through use of ice, antiinflammatory tablets, or cortisone injections and might consider surgery if there is no progress over two to three months. Id. at 9. Materials addressing supraspinatus tendinopathy state it may be treated with medication, physical therapy, steroid injections, or surgery. Id. at 10. The materials specifically note “[j]ust because there is a tear, does not necessarily mean surgery is needed.” Id. at 11. They further indicate “[m]ost tendinosis treatment plans will be centered around rest.” Id.
Plaintiff also attached general information he obtained from Trumball Regional Medical Center on November 4, 2019, about chronic pain. [ECF No. 72-3 at 2-5]. This information indicates “[y]ou have a right to have your pain treated” and “[u]ntreated chronic pain can affect your overall health.” Id. at 2.
The undersigned has considered this evidence in the light most favorable to Plaintiff, as the non-moving party, but cannot find that it establishes the United States' alleged negligent acts “lie[] within the ambit of common knowledge and experience, so that no special learning is needed to evaluate the conduct of the defendant.” S.C. Code Ann. § 15-36-100(C)(2). The face of the amended complaint does not show that the United States engaged in “quite obvious” careless acts with respect to Plaintiff's medical treatment. 70 C.J.S. Physicians & Surgeons § 142 (Supp. 2014). Neither the amended complaint nor any of the attachments Plaintiff included with other pleadings demonstrate the standard of care or that the United States deviated from it. The materials Plaintiff attached indicate that various treatment options exist, some of his impairments do not generally require treatment, and that rest is among the acceptable treatment options. See ECF Nos. 36-6, 68-3, and 72-3. In the absence of expert testimony as to the standard of care required given Plaintiff's objective imaging, signs, and symptoms, Plaintiff's assertion that the United States deviated from the standard of care is mere conjecture. Brouwer, 763 S.E.2d at 204.
Plaintiff has neither produced expert testimony as to the standard of care and the United States' failure to conform to the required standard, nor presented a plausible argument that establishes that the alleged negligent acts “lie[] within the ambit of common knowledge and experience, so that no special learning is needed to evaluate the conduct of the defendant.” Because Plaintiff has not met the burden to proceed on a claim for medical malpractice under South Carolina law, the United States is entitled to summary judgment on Plaintiff's FTCA claim.
This case is distinguishable from Pledger v. Lynch, 5 F.4th 511 (4th Cir. 2021). In Pledger, the court found the district court erred in dismissing a medical negligence claim brought pursuant to the FTCA based on the plaintiff's failure to meet pre-suit requirements under West Virginia law because a plaintiff is only required to comply with the filing requirements in the Federal Rules of Civil Procedure. It further held the district court erred in granting summary judgment without providing the plaintiff with notice of the evidence needed to address the summary judgment motion or an opportunity to engage in discovery. Here, the undersigned is not recommending dismissal based on Plaintiff's failure to comply with filing requirements for medical malpractice cases under South Carolina law, but is instead recommending summary judgment based on his failure to meet the burden of proof required in a medical malpractice case under South Carolina law. Plaintiff was advised of his opportunity to conduct discovery, and the discovery deadline passed without him filing a supporting affidavit or any other evidence that would establish the required standard of care or the United States's breach. [ECF No. 51]. Also, unlike in Pledger, Plaintiff was advised in the order issued pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), that he was “required to support his version of all disputed facts with materials such as . . . affidavits or declarations” and that his “failure to support facts in dispute with such material may result in the court granting the motion.” [ECF No. 66 at 2].
b. Plaintiff's Motion for Summary Judgment
Without discussing the elements required to establish the United States' liability under the FTCA, Plaintiff references his amended complaint and argues he has “made a showing sufficient to establish the existence of an element essential to his case.” [ECF No. 64 at 2]. He claims the court's granting of his motion for summary judgment is supported by “the fact that the defendant has failed to provide facts disputing [his] version of claims, and continues to delay medical treatment, or surgery that would cure the injury to [his] left shoulder.” Id. Plaintiff attaches several medical records to his motion, but fails to reference the medical records in his briefs or explain the significance of the medical records. See generally ECF Nos. 64 and 64-2.
Plaintiff has failed to meet the burden of proof required to support a claim for medical malpractice because he has neither provided expert testimony to establish the standard of care and the United States' failure to conform to that standard or shown that “the subject matter lies within the ambit of common knowledge so that no special learning is required to evaluate the conduct” of the medical providers at FCI Williamsburg. Accordingly, the undersigned recommends the court deny Plaintiff's motion for summary judgment [ECF No. 64].
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned denies Plaintiff's renewed motion for appointment of counsel and appointment of an expert witness [ECF No. 72] and recommends the United States' motion for summary judgment be granted [ECF No. 65] and Plaintiff's motions for summary judgment [ECF No. 64] and judgment on the pleadings [ECF No. 68] be denied.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamondv. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).