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Moore v. United States

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

March 15, 2017



          David L. Bunning United States District Judge.

         This matter is before the Court on Magistrate Judge Hanley Ingram's Report and Recommendation (“R&R”) (Doc. # 66), wherein he recommends that Defendants' Motion for Summary Judgment (Doc. # 48) be granted in full. Having reviewed the parties' briefings, the Court will adopt the R&R as the findings of fact and conclusions of law of the Court.

         Pursuant to 28 U.S.C. § 636(b)(1), a party may file written objections within fourteen days after being served with a copy of a Magistrate's R&R. If a party is properly informed of the consequences of failing to file an objection, and fails to file an objection, “the party waives subsequent review by the district court.” Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995). Objections must specifically challenge portions of the report or the proposed findings or recommendations. Filing vague, general, or conclusory objections does not meet the specificity requirements, and such objections may be treated as a complete failure to file. Zimmerman v. Cason, 354 F. App'x 228, 230 (6th Cir. 2009) (citing Cole v. Yukins, 7 F. App'x 354, 356 (6th Cir. 2001)).

         District courts in the Sixth Circuit have also held that “an ‘objection' that does nothing more than state a disagreement with a magistrate's suggested resolution, or simply summarizes what has been presented before, is not an ‘objection' as that term is used in this context.” VanDiver v. Martin, 304 F.Supp.2d 934, 938 (E.D. Mich. 2004); Holl v. Potter, No. C-1-09-618, 2011 WL 4337038, at *1 (S.D. Ohio Sept. 15, 2011) (holding that “objections that merely restate arguments raised in the memoranda considered by the Magistrate Judge are not proper, and the Court may consider such repetitive arguments waived”). Therefore, these “objections” fail to put the Court on notice of any potential errors in the Magistrate's R&R. VanDiver, 304 F.Supp.2d at 938.

         Here, Plaintiff's Objection relies primarily on an amended affidavit which is not part of the record, was not considered by the Magistrate Judge, and will not be considered by this Court reviewing the Magistrate Judge's R&R.[1] Disregarding the amended affidavit that Plaintiff attempts to incorporate into his briefing, Plaintiff's “objections” largely reiterate the same arguments raised before the Magistrate Judge. To the extent that Plaintiff's claims are reviewable, they fail on the merits.

         A. Factual and Procedural Background

         The following facts are taken from the R&R:

On April 21, 2013 Federal inmate Jafari T. Moore injured his left pinky finger while housed at the United State Penitentiary in Pine Knot, Kentucky (“USP McCreary”). Over two years later, the finger was partially amputated. He brings two claims related to these events: an Eighth Amendment claim of deliberate indifference under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), and a claim for medical malpractice under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-80. He names as defendants the United States, three medical personnel who treated him in Kentucky, and the director of the Federal Bureau of Prisons (“BOP”).

(Doc. # 66 at 1). In May, 2013, Plaintiff filed a pro se complaint. (Doc. # 1). Upon initial screening, this Court dismissed Plaintiff's claims against the Department of Agriculture, Department of Justice, the warden, and several other individuals. (Doc. # 13). On April 14, 2015, Plaintiff filed a motion for reconsideration and for leave to file an amended complaint. (Doc. # 19). This Court denied the motion to reconsider, but allowed Plaintiff to filed an amended complaint. (Docs. # 23, 24).

         On March 11, 2016, the remaining Defendants moved to dismiss Plaintiff's amended complaint, or in the alternative, for summary judgment. (Doc. # 48). Subsequently, Plaintiff obtained counsel, and requested an extension of time to respond to Defendants' motion. (Doc. # 53). Plaintiff's response included an affidavit by medical expert Brian Fingado, M.D. (Doc. # 59).

         Magistrate Judge Ingram issued his R&R on August 11, 2016, in which he recommended that Defendants' Motion for Summary Judgment be granted. (Doc. # 66). On August 25, Plaintiff moved to supplement the record with an amended affidavit from Dr. Fingado. (Doc. # 70). The next day, Plaintiff filed an Objection to the Magistrate Judge's R&R, which included the amended affidavit. (Doc. # 71). On September 8, 2016, this Court issued an Order denying Plaintiff's Motion to Supplement the record. (Doc. # 72). Plaintiff moved for this Court to reconsider its Order (Doc. # 73), but that motion was recently denied (Doc. # 82). Defendants have responded to Plaintiff's Objection to the R&R (Doc. # 78), and Plaintiff has replied to their response (Doc. # 81). Accordingly, the R&R is now ripe for the Court's review.

         B. FTCA Claim

         Liability under the FTCA is generally determined according to the law of the state where the injury occurred. Young v. United States, 71 F.3d 1238, 1242 (6th Cir. 1995). Here, the alleged injury occurred in Kentucky. Under Kentucky law, a Plaintiff bringing a medical malpractice claim must “put forth expert testimony to show that the defendant medical provider failed to conform to the standard of care.” Blankenship v. Collier, 302 S.W.3d 665, 670 (Ky. 2010). “An expert opinion that is conclusory and fails to set forth the underlying rationale is not adequate” to raise a triable issue. Austin v. Children's Hosp. Med. Ctr., 92 F.3d 1185 (6th Cir. 1992) (table decision) (citing Turpin v. Merrell Dow Pharm., Inc., 959 F.2d 1349, 1360 (6th Cir. 1992)).

         Plaintiff does not offer a specific objection to the Magistrate Judge's analysis of the FTCA claim. Rather, he argues for a second time that “the evidence in the instant case[] shows that there are genuine issues of material fact as to the essential elements of the plaintiff's claims, that require that the instant case be presented to the trier of fact.” (Doc. # 76 at 1). As the Magistrate Judge explained, a medical malpractice claim requires evidence, in the form of expert testimony, that establishes a standard of care, and Plaintiff's expert affidavit “nowhere indicate[d] what that standard of care might be.” (Doc. # 66 at 6-7). Instead, Plaintiff's affidavit was a “skeleton devoid of evidentiary meat for the Court to digest.” Id. at 8. Plaintiff attempted to remedy his inadequate claim by presenting evidence in an amended expert affidavit, tailored to meet the requirements ...

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