United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
KAREN K. CALDWELL, Chief District Judge.
This matter is before the Court upon the motion of the United States to dismiss the complaint, or in the alternative for summary judgment. [R. 26] Plaintiff Herbert Samuel Christensen, Jr. has responded to the motion [R. 34] to which the United States has replied. [R. 42] Christensen has also filed a motion requesting the appointment of a podiatrist to perform a physical examination and to provide expert testimony. [R. 44] The United States has filed its response to his motion [R. 45] to which Christensen has replied. [R. 46] These matters are therefore ripe for adjudication.
Christensen is an inmate formerly confined at the Federal Medical Center in Lexington, Kentucky. Proceeding without an attorney, Christensen filed a complaint asserting a number of claims arising out of his medical treatment at the prison, as well as his invocation of the prison's grievance system and his efforts to obtain copies of certain medical records. [R. 1] On August 26, 2013, the Court conducted the screening required by 28 U.S.C. §§ 1915(e)(2), 1915A, and dismissed all but one of those claims for failure to state a claim. [R. 12] Following service of process, the United States has filed a motion to dismiss the remaining claim, Christensen's claim under the Federal Tort Claims Act, 28 U.S.C. § 2671-80 ("FTCA") that the denial of composite toe work boots constituted medical negligence. [R. 26]
In his complaint, Christensen alleged that he has "had trouble with his feet" since August 25, 2005, which he attributes primarily to "his gait and step being affected from an old ankle injury." He also stated that in August and September 2005, a skin culture revealed that he had a staph infection on his foot, which took more than one course of antibiotics to resolve. [R. 1, pp. 32-33] On December 16, 2009, Christensen requested that his feet be checked to determine whether he needed medical shoes, a soft shoe pass, or insoles for his feet. Christensen indicated that an orthotic foot specialist examined him and, on April 28, 2010, his feet were measured for composite toe work boots, at which point a request was placed for their manufacture and purchase. [R. 28-9, p. 13] When his boots had not arrived within two months, on July 1, 2010, Christensen inquired as to when he would receive them. Christensen indicates that he was told that FMC's Clinical Director, Dr. Growse, had denied the request. [R. 1, pp. 33-34]
On February 21, 2011, Christensen mailed a Standard Form 95 to the BOP seeking administrative settlement of his claim that the denial of his "recommended medical boots" constituted negligence and that as a result he had suffered sores and pain. [R. 11-4, pp. 1-6] The BOP denied that claim on June 29, 2011. [R. 11-4, pp. 8-9]
The United States indicates that in response to a prison grievance Christensen filed on August 7, 2010, regarding this issue, the warden noted that his medical records did not show past subjective complaints of foot pain or any objective medical data indicating the need for custom medical boots, such as a foot deformity or an orthopedic problem. [R. 28, p. 6] Further, x-rays performed on July 6, 2010, revealed only minor arthritis in Christensen's left big toe. [R. 28-9, p. 20] The Clinical Director concluded from this information that Christensen did not meet the criteria for custom orthotics. [R. 28-5, pp. 2, 4] Specifically, Dr. Growse denied the request as medically unnecessary because Christensen's symptoms did not warrant the creation of "custom boots, " and because "composite toe boots" - which are manufactured like ordinary steel toe boots except that the cap is made of a lighter plastic or composite material - would not have addressed any of his medical symptoms. [R. 42-1, Growse Decl. at ¶¶4-6]
The defendant argues that subsequent medical records from 2010 through 2012 only reinforced the prior conclusion that composite toe work boots were not medically necessary. At a November 29, 2010, medical visit, Christensen reported that he had been exercising and was not experiencing swelling in his legs or feet. Christensen similarly reported exercising without difficulty or pain in his foot or ankle at medical appointments on January 5, 2011, and April 13, 2011. [R. 28-7, Brenner Decl. at pp. 3-4] Christensen did report tenderness in the second toe of his left foot during a February 17, 2012, examination, which was diagnosed as degenerative joint disease. Christensen was referred to physical therapy for treatment and provided with a pair of arch supports to alleviate any discomfort. Id. at p. 4.
In its motion, the United States contends that it is entitled to summary judgment because Christensen has failed to provide expert testimony to establish the duty of care and a breach of it, and because Christensen has failed to establish any actual injury resulting from the refusal to provide him with composite toe boots. [R. 28, pp. 13-22, pp. 22-24]
The Court must treat the United States' motion to dismiss the complaint as a motion for summary judgment under Rule 56 because it has attached and relied upon documents and declarations extrinsic to the pleadings in support of it. Fed.R.Civ.P. 12(d); Wysocki v. Int'l Bus. Mach. Corp., 607 F.3d 1102, 1104 (6th Cir. 2010). A motion under Rule 56 challenges the viability of the another party's claim by asserting that at least one essential element of that claim is not supported by legally-sufficient evidence. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 324-25 (1986). If the moving party demonstrates that there is no genuine dispute as to any material fact and that she is entitled to a judgment as a matter of law, she is entitled to summary judgment. Kand Medical, Inc. v. Freund Medical Products, Inc., 963 F.2d 125, 127 (6th Cir. 1992).
The moving party does not need her own evidence to support this assertion, but need only point to the absence of evidence to support the claim. Turner v. City of Taylor, 412 F.3d 629, 638 (6th Cir. 2005). The responding party cannot rely upon allegations in the pleadings, but must point to evidence of record in affidavits, depositions, and written discovery which demonstrates that a factual question remain for trial. Hunley v. DuPont Auto, 341 F.3d 491, 496 (6th Cir. 2003); United States v. WRW Corp., 986 F.2d 138, 143 (6th Cir. 1993) ("A trial court is not required to speculate on which portion of the record the non-moving party relies, nor is there an obligation to wade through' the record for specific facts.").
The court reviews all of the evidence presented by the parties in a light most favorable to the responding party, with the benefit of any reasonable factual inferences which can be drawn in his favor. Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005). The court must grant summary judgment if the evidence would not support a jury verdict for the responding party with respect to at least one essential element of his claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). If the applicable substantive law requires the responding party to meet a higher burden of proof, his evidence must be sufficient to sustain a jury's verdict in his favor in light of that heightened burden of proof at trial. Harvey v. Hollenback, 113 F.3d 639, 642 (6th Cir. 1997); Moore, Owen, Thomas & Co. v. Coffey, 992 F.2d 1439, 1444 (6th Cir. 1993).
The FTCA renders the United States liable in tort for certain damages caused by the negligence of any employee of the government "if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b). Thus if a government employee's conduct in Kentucky would render him or her liable ...