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Green v. United States

United States District Court, E.D. Kentucky, Southern Division, London

April 15, 2014

JOHN GREEN, Plaintiff,


DANNY C. REEVES, District Judge.

Pro se Plaintiff John Green is currently confined at the United States Penitentiary - McCreary in Pine Knot, Kentucky. Green claims that, for more than two years, he had been complaining to prison personnel about a serious skin condition. On June 26, 2013, Green filed suit under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680, and 28 U.S.C. § 1331 pursuant to the doctrine announced in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). [Record No. 1] Green seeks compensatory and punitive damages as well as injunctive relief.

On January 17, 2014, the Court conducted a preliminary review of Green's Complaint pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A. Based on this review, the Court determined that Green's constitutional claims against Physician's Assistant ("PA") Karen Baker were time-barred and must be dismissed. Additionally, his Bivens claims asserted against the United States and PA Baker, in her official capacity, were barred by sovereign immunity and, therefore, dismissed. However, the United States was required to respond to Green's claims under the FTCA. On March 21, 2014, the United States moved the Court to dismiss those claims or, alternatively, for summary judgment. [Record No. 16] Green responded to the motion on April 4, 2014. And on this date, the United States filed its reply. Having considered these materials, the Court concludes that summary judgment is appropriate with respect to Green's remaining claims.


The facts relevant to the pending motion are outlined in the Court's earlier Memorandum Opinion and Order. [Record No. 12] Green alleges that he has been complaining to prison medical staff about a skin rash for more than four years. [Record No. 1, pp. 2-3] He contends that his assigned health care provider, PA Baker, has refused to provide additional or different care, or to refer him to an outside specialist. [Record No. 1, pp. 2-3] Notwithstanding these assertions, on July 14, 2011, Green was examined by the Bureau of Prisons' ("BOP") Regional Mast Physician. [ See id., p. 13.] Green was diagnosed with eczema, a chronic condition which causes skin inflammation that is treated palliatively, and for which there is no known cure. [ See id., pp. 13, 16.] While the physician prescribed a fluocinonide cream to treat any flare-ups, Green contends that the medication failed to treat his ailments. [ Id., pp. 3, 9-10]

On July 15, 2011, Green filed an informal grievance alleging that his condition had persisted for more than two years and that repeated visits to the health services department at the prison had failed to properly treat his condition. [ Id., pp. 8-9] However, after receiving his informal grievance, prison officials denied the relief requested by Green. [ Id., p. 10] This decision was affirmed in subsequent appeals to the warden and to the BOP's Regional Office. On May 2, 2012, the BOP's Central Office denied Green's appeal, concluding that the treatment provided to him was appropriate. Green was advised to work with his health care providers to treat the symptoms of this chronic condition. [ See id., pp. 10-16.]

Unsatisfied with this determination, on July 7, 2012, Green filed a Standard Form 95, Claim for Damage, Injury, or Death, with the BOP, thereby satisfying the first step in exhausting a claim under the FTCA. [ Id., pp. 18-19] The BOP denied his claim on December 11, 2012, again finding that the medical care he was receiving was appropriate. Green was advised that if he disagreed with this determination he had six months to file suit with the appropriate district court. [ Id., p. 23] On May 28, 2013, Green filed his Complaint which was subsequently transferred to this Court.


Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Chao v. Hall Holding Co., 285 F.3d 415, 424 (6th Cir. 2002). A dispute over a material fact is not "genuine" unless a reasonable jury could return a verdict for the nonmoving party. That is, the determination must be "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." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).

The party moving for summary judgment bears the burden of showing that no genuine issue of material fact exists. CenTra, Inc. v. Estrin, 538 F.3d 402, 412 (6th Cir. 2008). However, once the moving party has met its burden of production, "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Sigler v. Am. Honda Motor Co., 532 F.3d 469, 483 (6th Cir. 2008) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). Instead, the nonmoving party must present "significant probative evidence" of a genuine dispute... to defeat the motion for summary judgment. Chao, 285 F.3d at 424. The nonmoving party cannot simply rely upon the assertions in its pleadings. It must come forward with probative evidence, such as sworn affidavits, to support its claims. Celotex, 477 U.S. at 324. In deciding whether to grant summary judgment, the Court views all the facts and inferences drawn from the evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587.

The United States contends that summary judgment is appropriate and Green's remaining claims should be dismissed because: (1) the medical care provided at USP McCreary has been consistent with the standard of a reasonably competent medical practitioner; (2) a request for a different form of treatment does not establish negligence or a claim for medical malpractice; and (3) the plaintiff's claims are only supported by speculation, possibility, and unsupported conclusions which do not establish that the government breached the applicable standard of care or caused Green to suffer harm and damage. In response, Green asks the Court to provide funds so that he can employ an expert witness to support his claims.[1] Additionally, he seeks leave to conduct discovery. However, Green has not addressed the merits of the government's arguments.


After summarizing Green's administrative claims and treatment history [Record No. 16-1, p. 3-], the United States argues that summary judgment is appropriate. It contends that, under the FTCA, it may be held liable only to the extent that a private person would be liable under the same circumstances. Risch v. Kenton County, et al., 2012 U.S. Dist. LEXIS 118567, *8 (E.D. Ky. 2012); Vance v. United States, 90 F.3d 1145, 1148 (6th Cir. 1996). Under Kentucky law, a plaintiff must allege and prove that the treatment in issue fell below the standard of care and skill of a reasonably competent practitioner and that such negligence proximately caused the injury complained of. Reams v. Stutler, 642 S.W.2d 586, 588 (Ky. 1982); Earle v. United States, 2007 U.S. Dist. LEXIS 84216 (E.D. Ky. 2007). Further, expert testimony is required in most cases[2] alleging medical malpractice due to the highly technical and complicated nature of the claims. Jason Rose v. United States, 2011 U.S. Dist LEXIS 22610, *3 (E.D. Ky. 2011); Johnson v. Vaughn, 370 S.W.2d 591, 597 (Ky. 1963); Baylis v. Lourdes Hosp., Inc., 805 S.W.2d 122, 124 (Ky. 1991).

The United States contends that the facts of the present case are similar to those in Beard v. United States, 2009 WL 305893 (E.D. Ky. 2009). In Beard, the plaintiff alleged that he had received negligent medical treatment for a painful skin problem while being housed in disciplinary segregation at the Federal Medical Center in Lexington, Kentucky. Beard was placed in segregated housing for approximately eight months. The Court determined that expert testimony was necessary to establish a claim of medical negligence under Kentucky law. More specifically, the Court held that the proper treatment of the plaintiff's condition was not common knowledge. And because the plaintiff did not present necessary evidence regarding the standard of care for the subject ...

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