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Bunche v. United States

United States District Court, E.D. Kentucky, Central Division, Lexington

July 10, 2017

GARY EUGENE BUNCHE, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM OPINION AND ORDER

          Danny C. Reeves United States District Judge

         Federal inmate Gary Eugene Bunche is confined at the Federal Medical Center in Lexington, Kentucky. Bunche filed this action pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80 (“FTCA”), alleging that healthcare staff at the prison failed to provide him with adequate medical care. [Record No. 1] The United States has moved to dismiss his First Amended Complaint or, in the alternative, for summary judgment. [Record No. 25] The matter has been fully briefed and is ripe for decision.

         I.

         Since his federal incarceration began in 2008, Bunche has suffered from a variety of chronic medical conditions, including recurrent cellulitis.[1][Record No. 25- 11 at 3 n.4] In April 2013, following an examination for swelling in his left foot, Bunche was again diagnosed with cellulitis and an antibiotic prescription (Doxycyline) was issued. During a follow-up examination one month later, a CT scan was ordered to rule out pelvic inflammation. [Record Nos. 25-10 at 2; 25-12 at 1-2, 5-7]

         On July 10, 2013, at approximately 8:40 p.m., Bunche began to experience symptoms from his cellulitis. He did not immediately seek treatment, believing that staff would not address the matter until his symptoms were externally observable. [Record No. 1-4 at 14] However, at 10:30 p.m., Bunche went to the officers station in his unit and advised Officer Hogan that he needed emergency medical treatment for sepsis[2] in his left leg. Hogan telephoned an on-duty nurse and conveyed Bunches self-reported symptoms. In response to the nurses inquiry, Bunche stated that the symptoms were a recurring condition because he was suffering from cellulitis, a fact documented in his medical records. The nurse directed Bunche to go to the sick call the next morning. Id. Bunche asserts that prison staff failed to record his request for immediate medical treatment in their activity logs. He further contends that he was only able to return to his cell with the assistance of other inmates. [Record No. 8 at 3-4]

         At 8:40 a.m. the next morning, Bunche reported to his prison job and worked until 9:30 a.m. when he left to report to sick call. [Record Nos. 25-2 at 3; No. 25-6 at 1] Once there, he told healthcare staff that he had vomited overnight and was experiencing nausea, headache, and pain in his left foot. Staff concluded that he should be sent to the emergency room at the University of Kentucky Medical Center (“UKMC”) to rule out sepsis. [Record Nos. 25-10 at 3; 25-12 at 8]

         Following his arrival at UKMC, a MRI and other tests were performed. The tests established that Bunche was not suffering from sepsis and confirmed his diagnosis with cellulitis in his lower left leg.[3] [Record No. 25-12 at 10-12] A ten-day course of clindamycin was prescribed. Bunche was discharged to return to the prison on July 14, 2013. [Record No. 8 at 4; No. 1-4 at 25-28]

         By July 15, Bunche reported that his condition was much improved and that he wished to return to work at his prison job. [Record Nos. 25-10 at 4; 25-12 at 28] During a July 30 follow-up appointment, it was determined that Bunche had failed to complete the 10-day course of antibiotics. [Record Nos. 25-10 at 4; 25-13 at 7-8]

         On June 22, 2015, Bunche filed a Standard Form 95 with the Bureau of Prisons, seeking $45 million in administrative settlement of his claims arising from the above-described events. [Record No. 25-5] The BOP denied his claim on August 26, 2015, concluding that his medical care was appropriate because his symptoms did not indicate the need for emergency treatment. [Record Nos. 1-5 at 1-3; 25-4] Bunche sought reconsideration of the BOPs denial, but the BOP denied that request on February 18, 2016. [Record No. 1-7]

         Bunche filed suit on August 17, 2016. Bunche contends that as a result of the 10-hour delay in treatment, he suffered anxiety, excruciating pain, and kidney damage, which he characterizes as a breach of “ministerial, fiduciary, statutory, regulatory, and procedural duties.” He further asserts that all of these duties, the source of which he does not identify, were also violated by the failure of the nurse and the officer to make a record of the initial 10:30 p.m. encounter. [Record No. 8 at 4-6]

         The United States argues that Bunche has failed to support his claim regarding the adequacy and timeliness of the medical care he received with expert testimony as required by law, and that his claims are not of the kind which fall within the “common knowledge” or other exceptions to that requirement. [Record No. 25-1 at 12-16] With respect to Bunches “property” claim arising out of the failure of BOP staff to record his request for medical care on the evening of July 10, 2013 into its log books, Bunche has not demonstrated that any such duty existed, or that the failure to log his request was the cause of any injury. [Record No. 25-1 at 19-25]

         II.

         The Court treats the governments motion to dismiss as a motion for summary judgment because it has attached and relied upon documents and declarations extrinsic to the pleadings. 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 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). A party moving for summary judgment must establish that, even viewing the record in the light most favorable to the nonmovant, there is no genuine dispute as to any material fact and that it is entitled to a judgment as a matter of law. Loyd v. St. Joseph Mercy Oakland, 766 F.3d 580, 588 (6th Cir. 2014).

         A moving party does not need her own evidence to support this assertion, but needs 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 ...


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