United States District Court, E.D. Kentucky, Southern Division, London
JAFARI T. MOORE PLAINTIFF
UNITED STATES OF AMERICA, et al. DEFENDANTS
ORDER ADOPTING REPORT AND RECOMMENDATION
L. Bunning United States District Judge.
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.
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)).
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.
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. 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.
Factual and Procedural Background
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
(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).
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).
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
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)).
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