United States District Court, E.D. Arkansas, Western Division
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 ...