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Peterson v. United States

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

November 1, 2017




         This matter is before the Court on the Recommended Disposition of United States Magistrate Judge Robert E. Wier, (DE 17, at 17) and his earlier Order denying discovery (DE 32). This action was referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b) for all further disposition, including preparing proposed findings of fact and recommendations on any dispositive motions. (DE 17, at 17). Subsequently, the United States filed a Motion to Dismiss, or in the Alternative for Summary Judgment. (DE 23). The Magistrate Judge issued his Recommended Disposition on that motion on May 22, 2017. (DE 42). Based on his review of the record and the applicable law governing the motion, the Magistrate Judge recommended that the United States' motion be granted on the basis that pro se Plaintiff Stephen Desmund Peterson's claim was time-barred. (DE 42 at 30). Pursuant to 28 U.S.C. § 636(b)(1) and Fed R. Civ. P. 72(b)(2), Peterson filed objections to the Magistrate Judge's Recommended Disposition. (DE 44). The United States responded in opposition to those objections, (DE 46), and Peterson replied, (DE 48). As a result, this matter is now ripe for a decision.

         I. BACKGROUND

         This action was initiated in June 2014 when Stephen Peterson, a federal inmate confined at United States Penitentiary (“USP”) McCreary in Pine Knot, Kentucky, filed a pro se civil rights complaint against a number of Defendants. (DE 1). In his complaint, Peterson alleged he was entitled to compensatory damages under the FTCA due to negligence or medical malpractice associated with surgery performed on his right forearm on October 27, 2009, while he was confined at USP-Victorville, in Victorville, California. The procedure was performed by Dr. Louis Redix at Barstow Community Hospital and consisted of a “Repair of malunion of the ulna with bone graft.” (DE 1-2, at 2-4). Peterson claimed that Dr. Redix used a contaminated “allograft” cadaver implant without his consent, causing him pain in his forearm and requiring additional surgeries. (DE 1, at 11-12). Following the surgery, Peterson's arm was placed in a cast and he remained hospitalized until October 29, 2009. (DE 1, at 16, DE 1-2, at 4).

         Peterson also alleged that Dr. Redix and the prison staff were negligent and deliberately indifferent to his post-surgery medical needs and denied his right to proper medical care. (DE 1, at 16-17). Peterson began complaining to prison medical staff about pain and adverse side effects shortly after the surgery. On November 2, 2009 he complained of “pain and swelling.” (DE 1-2, at 19). On December 20, 2009 and again on December 24, 2009 he reported pain in his right forearm at the surgical site one week after doing pushups. (DE 1-2, at 27, 30). On December 28, 2009, an x-ray was performed on Peterson's arm. The radiologist's findings were: “Abnormal. suspected fracture/failure of malleable plate hardware which transfixes mid-ulna fracture at the level of the 3rd-most distal screw. ballistic fragments. non-union of fracture fragments.” (DE 1-2, at 31).

         On January 25, 2010, Peterson requested another x-ray because “he had surgery on his right forearm approximately three months ago . . . [and] can feel stuff moving in there sometimes.” (DE 1-2, at 41). Peterson again requested a new x-ray on March 26, 2010 and reported that he “still ha[d] a ‘cracking/popping' sound with rotation of the right forearm.” (DE 1-2, at 47). Peterson was sent for a new x-ray on March 31, 2010. The subsequent radiologist report found: “Abnormal. - fractured fixation plate. - nonunited mid ulnar fracture with distraction and angulation.” (DE 1-2, at 56). On April 5, 2010, Peterson was seen by prison medical staff and had his first x-ray reviewed. He complained of “persistent pain and ‘feeling stuff move around inside right arm' at surgery site” and denied any new injury. He was told he needed an orthopedic consultation to consider further surgery. (DE 1-2, at 51). Then, on April 18, 2010, Peterson requested copies of his x-rays “to be sent to [his] family doctor to get a second opinion about [his] right finger and forearm.” (DE 1-2, at 60). In that request, he stated:

I am tired of dealing with the pain and discomfort. I know something is wrong in there because of the clicking and popping. My finger is tender and every time I bump it against anything, it hurts. It's not natural for [it] to be like this. I need a second opinion. I would like a copy of my x-rays to be sent out to the streets.

         (DE 1-2, at 60).

         Peterson received an outside evaluation from Dr. Ronald S. Dubin of the Kentucky Orthopedic Clinic on June 18, 2010. At that appointment, Peterson reported increasing pain over the past several months and a popping sensation in his forearm. Dr. Dubin noted that Peterson had a “non-union proximal ulna with broken plate” and recommended that “the plate should be removed and the proximal ulna should be bone grafted.” (DE 1-2, at 69). Dr. Dubin also added in his addendum that “The patient indicates that his initially [sic] injury was in 1993. but he had an operation in California, not USP. He also said there were wound infections and other things.” (DE 1-2, at 69). Peterson made another report to prison medical staff on June 23, 2010, who noted that Peterson “State[d] he was told by the orthopedic he would need to not use his right arm until it was fixed.” (DE 1-2, at 75). That report also noted that Peterson “state[d] he does not want to wear a splint because that would show a sign of weakness and he does not want anyone to know that he has a disability because of safety concerns inside the prison.” (DE 1-2, at 75).

         Peterson was referred to Dr. Patrice Beliveau at Premier Orthopedics and Sports Medicine in London, Kentucky. At his examination on April 11, 2011, Dr. Beliveau noted that Peterson reported “that he developed an open wound with bloody purulent discharge, however he was not treated with antibiotics. The wound subsequently closed. He had continual pain and swelling and was eventually diagnosed with a broken hardware and nonunion”[1] (DE 1-2, at 88). Dr. Beliveau recorded that he “discussed the findings and treatment options today with the patient. Given his history of questionable infection we have recommended initial blood work . . . This patient was counseled about condition. Patient verbalized understanding of the current plan of care and is agreeable.” (DE 1-2, at 89).

         Peterson filed his first administrative tort claim related to the surgery (Claim 2011-03006) in March 2011. In that claim he alleged “Damage to the arm abnormal-fractured fixation plate, nonunited mid ulnar fractute [sic] with distraction and angulation.” (DE 23-4, at 1).[2] His second administrative claim (Claim 2014-00048), which is the subject of this action, was filed on October 8, 2013.[3]

         In his complaint, Peterson asserted (1) an Eighth Amendment claim under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971) against various prison officials at five different federal prisons, (2) a tort claim against the United States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-80, and (3) state law tort claims for negligence and medical malpractice. The Court dismissed all of Peterson's claims in two screening orders.[4] Peterson's FTCA claim was initially dismissed as time-barred in the Court's second screening Order issued on April 13, 2016. (DE 12, at 37). In that Order, the Court found that Peterson did not submit his FTCA claim to the Board of Prisons (“BOP”) until October 8, 2013, nearly four years after his initial surgery on October 27, 2009. (DE 12, at 9). Accordingly, the Court found the claim was time-barred by the two-year statute of limitations and that it therefore lacked jurisdiction to consider the claim. (DE 12, at 8); see 28 U.S.C. § 2401(b) (“A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues . . . .”). Peterson, however, submitted a Motion for Reconsideration on April 26, 2016. (DE 14). Pursuant to that motion, and to err on the side of caution, the Court reopened Peterson's FTCA claim to consider whether dismissal of an FTCA claim for lack of subject matter jurisdiction on statute of limitation grounds was inappropriate. (DE 17, at 8); see United States v. Kwai Fun Wong, ___ U.S. ___, 135 S.Ct. 1625, 1629, 191 L.Ed.2d 533 (2015) (holding that the FTCA time limits were non-jurisdictional and subject to equitable tolling).

         The Magistrate Judge filed a Recommended Disposition in this matter on May 22, 2017. (DE 42). Based on his review of the record and applicable case law, the Magistrate Judge recommended that the United States' Motion to Dismiss or, in the Alternative, for Summary Judgment (DE 23) be granted on the grounds that the FTCA claim was time-barred. (DE 42, at 1). The Magistrate Judge concluded that Peterson's claim accrued “likely in late 2009, potentially at various points in 2010, and certainly no later than April 11, 2011.” (De 42, at 14-15). Because Peterson did not file his claim until October 8, 2013, at least two years after accrual, the claim was time-barred by 28 U.S.C. § 2401(b). (DE 42, at 14-15).

         The Magistrate Judge rejected Peterson's argument that he did not know the precise cause of his problem or that the claim did not accrue until his actual awareness of the exact medical injury. This theory, the Magistrate Judge found, was inconsistent with the Sixth Circuit's inquiry-notice accrual rule, which holds that a claim accrues when a plaintiff possesses enough information related to the injury to seek out legal and expert advice about whether to file a claim. See Hertz v. United States, 560 F.3d 616, 618 (6th Cir. 2009) (alteration in original) (quoting McIntyre v. United States, 367 F.3d 38, 53 (1st Cir. 2004) (citing Kronisch v. United States, 150 F.3d 112, 121 (2d Cir. 1998)). Instead, as the Magistrate Judge succinctly summarized, Peterson “knew the identity of the surgeon, knew he had battled post-surgery infection, knew the arm had never healed, knew the hardware failed, knew a cadaver bone could be involved, and knew the 2011 surgeons were concerned about the infection history. His claim accrued when those facts coalesced.” (DE 42, at 21).

         The Magistrate Judge also considered Peterson's argument that his claim was not time-barred because it was filed within six months of December 18, 2013, when his previous claim was denied. (DE 42, at 22). This argument was found to be inconsistent with the Sixth Circuit's interpretation of the statute: “An FTCA tort claimant must present his claim in writing to the appropriate agency within two years of the date the claim accrued, and bring a civil action within six months after the agency mails the notice of final denial of the claim.” Brockett v. Parks, 48 F. App'x 539, 541 (6th Cir. 2002) (emphasis added). The two year or six month deadlines in § 2401(b) presents “alternative ways of barring a claim, ” not “alternative ways of preserving a claim.” Ellison v. United States, 531 F.3d 359, 362 (6th Cir. 2008). Accordingly, the Magistrate Judge rejected Peterson's legal argument regarding the construction of § 2401(b).

         Finally, the Magistrate Judge found that Peterson's claim was not saved by equitable tolling. Weighing the five equitable tolling factors, the Magistrate Judge found that none weighed in Peterson's favor. (DE 42, at 26-27). Peterson did not lack actual notice of the filing requirement, but was instead acutely aware of it. Similarly, nothing on the record suggested that Peterson lacked constructive knowledge of the filing requirement. Third, Peterson failed to diligently pursue his rights by bringing his claim more than two years after accrual, which itself was eighteen months after the at-issue surgery. Fourth, the United States would suffer real and palpable prejudice in the form of months of discovery and litigation expenses. And finally, the Magistrate Judge found “no reasonableness on behalf of Peterson, who faced the subject extant health problems over the course of many years, yet did not act to formally protect his rights. (DE 42, at 27-28).


         The United States moved to dismiss or, in the alternative, for summary judgment. (DE 23). In his Recommended Disposition, the Magistrate Judge addressed the argument that Peterson's claim is time-barred under the standard for both a motion to dismiss and a motion for summary judgement. (DE 42, at 8-12).

         When evidence outside the pleadings are presented to and accepted by the Court, the Federal Rules provide that a Rule 12(b)(6) motion to dismiss must be treated as a Rule 56 motion for summary judgement. Fed.R.Civ.P. 12(d); see Wysocki v. Int'l Bus. Machine Corp., 607 F.3d 1102 (6th Cir. 2010). The United States did not style its motion as a 12(b)(6), but its motion cannot proceed under Rule 12(b)(1) because the time-bar in § 2401(b) is not jurisdictional. Kwai Fun Wong, ___ U.S. ___, 135 S.Ct. at 1632; see Herr v. United States, 803 F.3d 809, 814 (6th Cir. 2015) (discussing Kwai Fun Wong). Accordingly, the United States' motion is best characterized as a 12(b)(6) failure to state a claim upon which relief can be granted. Because the parties presented evidence outside the pleadings that was accepted and considered by the Magistrate Judge, Rule 56 applies.

         Pursuant to Rule 56, a court shall grant summary judgement “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgement as a matter of law.” Fed R. Civ. P. 56(a). When assessing a motion for summary judgement, the court must construe the evidence and draw all reasonable inferences from the underlying facts in favor of the nonmoving party. Matsushita Elc. Co., Ltd. V .Zenith Radio Corp., 106 S.Ct .1348, 1356 (1986). When a defendant moves for summary judgment, “[t]he mere existence of a scintilla of evidence in support of the plaintiff's position ...

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