Perez Alvarez v. United States

          RECOMMENDED DISPOSITION

         I. Procedures for Filing Objections:

         This Recommended Disposition (“Recommendation”) has been sent to Chief Judge Brian S. Miller. Any party may file written objections with the Clerk of Court. To be considered, objections must be filed within 14 days. Objections should be specific and should include the factual or legal basis for the objection.

         If the parties do not file objections, they risk waiving the right to appeal questions of fact. And, if no objections are filed, Chief Judge Miller can adopt this Recommendation without independently reviewing the record.

         II. Procedural Background:

         Plaintiff Manuel DeJesus Perez Alvarez is currently an inmate at the Beaumont Medium Federal Correctional Institution (“BM-FCI”) in Beaumont, Texas. Mr. Perez Alvarez alleges that he fell and injured his ankle while incarcerated at the Forrest City Medium Federal Correctional Institution (“FC-FCI”) on September 15, 2015, as a result of negligence on the part of prison employees. (Docket entry #1) He states that he was transferred “soon after [his] accident” to BM-FCI. (#1)

         Mr. Perez Alvarez initially sued Gene Beasley, who was Warden at FC-FCI when Mr. Perez Alvarez fell, and Dallas Jones, the Warden at BM-FCI. Mr. Perez Alvarez also sued the United States of America (“United States”) under the Federal Tort Claims Act (“FTCA”) for negligence at both FC-FCI and BM-FCI. He also stated supplemental Texas state-law claims for medical malpractice and negligence arising from the medical treatment he received from Correct Care Solutions (“CCS”) after he was transferred to BM-FCI.^[1] (#1)

         The Court granted summary judgment to Defendants Beasley and Jones because Mr. Perez Alvarez failed to his exhaust administrative remedies against these defendants prior to filing suit. The United States and CCS, however, remain defendants in the case. (#38)

         Before the United States filed its motion for summary judgment, CCS moved to dismiss Mr. Perez Alvarez's state-law claims against it. (#40) In its motion to dismiss, CCS asserted, in error, that all claims against other defendants had been dismissed; and it urged the Court to exercise its discretion not to assume supplemental jurisdiction under 28 U.S.C. § 1367(c)(3), because the claims remaining against CCS are Texas state-law claims. (#41)

         The United States then moved for summary judgment on all claims against it. (#42) Mr. Perez Alvarez has not responded to either motion and the time for doing so has passed.

         III. The United States of America's Motion for Summary Judgment:

         A. Undisputed Facts

         Mr. Perez Alvarez is 43 years old. (#44-1 at p. 1) He was an inmate at FC-FCI from August 1, 2014 until February 4, 2016. According to Mr. Perez Alvarez, medical care providers failed to appropriately treat his left ankle injury after he fell from his bunk bed. (#1) Specifically, he claims his injury was misdiagnosed as a tendon injury because medical providers at FC-FCI did not obtain a medical resonance image (“MRI”). (#1 at pp. 1-3) CCS, a contract medical provider, assumed Mr. Perez Alvarez's medical care after he was transferred to BM-FCI. (#13) Mr. Perez Alvarez asserts he did not receive proper diagnoses or care at BM-FCI until January 30, 2017, when an MRI revealed an arthritic cyst in his ankle. (#1 at p. 2) He claims he now experiences pain and must use a cane or wheelchair for ambulation. (Id.)

         Upon his arrival to FC-FCI, Mr. Perez Alvarez had a medical history of hypertension and glaucoma. (#44-1, Attachment 24) Joseph Capps, M.D., treated Mr. Perez Alvarez at the chronic care clinic and noted that Mr. Perez Alvarez also had gastroesophageal reflux disease and intermittent chest pain. (Id.)

         On September 16, 2015, medical providers examined Mr. Perez Alvarez, who came to health services complaining that he had fallen the night before trying to climb from his top bunk and had injured his ankle. (#44-1 at pp. 1-2, Attachment 2 at p. 1) The nurse examined Mr. Perez Alvarez and noted no redness or swelling to the ankle. He estimated his pain as a 6 out of 10. She provided Mr. Perez Alvarez acetaminophen (Tylenol) and placed orders for an x-ray. (Id. at p. 2) Later that day, when health services requested that Mr. Perez Alvarez be brought for the x-ray, he refused. (#44-1 at p. 2, Attachment 3) Mr. Perez Alvarez signed a Medical Treatment Refusal indicating that he understood that his refusal could cause a delay in care and/or further tissue damage. (Id. at Attachment 4)

         On October 14, 2015, Mr. Perez Alvarez returned to health services complaining of pain in his ankle related to the fall. P. Morehart, APN, prescribed ibuprofen and ordered x-rays. (Id. at Attachment 5) The x-ray of Mr. Perez Alvarez's left foot, taken October 21, 2015, was negative for fracture or dislocation but did show an os peroneum^[2]and a small posterior calcaneal enthesophyte.^[3] (Id. at p. 2, Attachment 6) Neither the os peroneum nor the calcaneal enthesophyte could have been caused by a fall from a bunk or any other acute injury. (Id. at p. 3) A fall can exacerbate pain or discomfort, however, associated with either condition. (Id.) Mr. Perez Alvarez continued to be treated with pain medication.

         Nurse Morehart reviewed Mr. Perez Alvarez's medical chart on November 4, 2015 and noted findings on the x-ray that could have contributed to Mr. Perez Alvarez's left ankle pain. She wrote that she would discuss strengthening exercises and using over-the-counter pain medication for pain control with Mr. Perez Alvarez. (Id. at p. 2, Attachment 7)

         During a sick-call encounter on November 18, 2015, Nurse Morehart prescribed ibuprofen and noted that a referral to podiatry might be indicated to assess whether Mr. Perez Alvarez needs wider shoes. Nurse Morehart gave Mr. Perez Alvarez a temporary soft-shoe pass. (Id. at p. 3, Attachment 8 at p. 3)

         Dr. Capps examined Mr. Perez Alvarez on December 23, 2015. He initially ordered a repeat of the ankle x-ray because the prior report had noted a corrupted image; but the second x-ray was ultimately cancelled. (Id. at p. 3, Attachment 9 at p. 3, Attachment 10) Dr. Capps prescribed naproxen for pain. (Id. at p. 3, Attachment 9 at ...