United States District Court, E.D. Kentucky, Southern Division, London
EDWARD E. FORD, Plaintiff,
MS. S. SUMMERS, Nurse, et al., Defendants.
MEMORANDUM OPINION AND ORDER
C. Reeves United States District Judge.
Edward Ford is presently confined at the United States
Penitentiary-Allenwood in White Deer, Pennsylvania.
Proceeding without an attorney, Ford filed a civil rights
action in which he alleges that he was denied proper medical
treatment while confined at United States
Penitentiary-McCreary (“USP-McCreary”) in Pine
Knot, Kentucky. [Record No. 1, 20] Defendant United States
has filed a Motion to Dismiss or, in the Alternative, a
Motion for Summary Judgment. [Record No. 28] The matter has
been fully briefed and is ripe for review.
alleges in his First Amended Complaint that he developed
necrotizing fasciitis in December 2015 while housed at
USP-McCreary and was denied proper medical treatment and
care, resulting in permanent damage. [Record No. 20 at p. 2;
28-2 at p. 2] Specifically, he claims that, on December 11,
2015, he had a medical appointment to see Mid-Level Provider
Elizabeth Barnes, PA-C, at Health Services about his
diabetes, high A1C levels, and high blood pressure. Ford
informed Barnes during this appointment that he had a bump on
his buttock that was causing a lot of pain and discomfort.
[Record No. 20 at p. 3] Although he alleges that Barnes never
physically examined him nor prescribed any medication, the
United States has submitted evidence that Barnes examined
Ford as a result of his complaints. According to the United
States, Ford stated during the examination that he had no
pain and, although the examination did not disclose chills or
fever, sores and eruptions in the skin and lesions in the
buttock were found and hardness beneath the skin was noted.
Ford was assessed with cellulitis/abscess and was provided
with Sulfamethoxazole/Trimeth (brand name Bacrtim), a
combination used to treat infections. The medication was
prescribed to be used two times a day for 10 days for the
skin infection. A follow-up examination was scheduled for
approximately two weeks later after the completion of the
antibiotic therapy. [Record No. 28-2 at p. 2, 8-10] Ford
labels this evidence as an “erroneous factual
conclusion” [Record No. 30 at p. 5], but cites to no
evidence to support this claim or to otherwise contradict the
information submitted by the United States. Instead,
consistent with this evidence, Ford alleges in his First
Amended Complaint that Barnes recommended that he treat the
bump with warm water and over-the-counter medication. [Record
No. 20 at p. 3]
further asserts that, on December 12, 2015, the bump burst
and he attempted to go back to medical for treatment.
However, Defendant Summers allegedly told him to go back to
his unit. [Id.] Ford claims that he returned to
medical on December 14, 2015, but was turned away by
Defendant Nurse Free, despite Ford's statements that he
was in pain. [Id. at p. 3-4] Ford alleges that he
returned to medical for the third time on December 15, 2015,
in an attempt to receive further treatment but was again told
again to return to his unit by Summers, despite his
continuing claims of intense pain. He asserts that he then
approached AHSA Crimarossa and explained the bump and intense
pain, as well as his failed attempts to see his PA or a
doctor. [Record No. 20 at p. 4] Ford contends that Crimarossa
took him back to medical, but that when Summers saw him, she
“got a really bad attitude with me” and took
Crimarossa in the back to talk, after which Crimarossa
returned and told him to leave medical and return to his
asserts that other inmates helped him return to medical
against on December 16, 2015, where he was seen by Nurse
Morrow. [Record No. 20 at p. 4-5] After Ford showed Morrow
his buttock, Morrow consulted with J. West, who made
arrangements to send Ford to Lake Cumberland Regional
Hospital, where Ford underwent surgery. [Id. at p.
5] Ford alleges that, as a result of the negligence of the
staff at USP-McCreary, he suffered personal injury, including
necrotizing fasciitis, for which he had to undergo
life-saving surgery. As a result, he claims that now suffers
permanent damage, including the loss of both buttocks, the
loss of his anus, lung damage, and the loss of 10 inches of
intestines. [Id. at p. 5] He also asserts that he
will be required to use a colostomy bag for the remainder of
his life. [Id.]
addressing the merits of the United States' motion, the
Court must first clarify the claims that are currently
pending. Ford originally filed his Complaint pursuant to
Bivens v. Six Unknown Federal Narcotics Agents, 403
U.S. 388 (1971), naming as Defendants “Ms. Summers,
Nurse, ” “Ms. Free, Nurse, ” “Ms.
Crimarossa, AHSP, ” Associate Warden Barron and Warden
Holland. He asserted claims of deliberate indifference to his
serious medical needs in violation of the Eighth Amendment to
the United States Constitution. [Record No. 1 at 5] Although
the exact nature of Ford's claim was unclear, the Court
construed it under Bivens, dismissed the prison
officials as defendants, and directed the United States
Marshals Service to serve the medical provider defendants.
[Record No. 12]
Ford filed a First Amended Complaint which named only the
United States as a Defendant. [Record No. 20] Ford explained
in the introductory paragraph of his First Amended Complaint
that he seeks leave to amend his initial complaint to a
federal tort claim action (“FTCA”) under 28
U.S.C. § 1346(b), 28 U.S.C. § 2671-2680 et
seq. [Id.] In addition to removing the
individual medical providers as defendants, Ford's First
Amended Complaint also removed his prior request for punitive
damages which are unavailable in an FTCA action.
[Id. at p. 6] The Court granted Ford's motion
for leave to amend his complaint and directed that the First
Amended Complaint be served on the United States. [Record No.
motion to dismiss or for summary judgment, the United States
correctly notes that “[a]n amended complaint supersedes
an earlier complaint for all purposes.” [Record No.
28-1 at p. 2, FN2, quoting In re Refrigerant Compressors
Antitrust Litigation, 731 F.3d 586, 589 (6th Cir. 2013)]
Accordingly, the government interprets the language in the
First Amended Complaint (i.e., that Ford seeks to amend his
complaint from a Bivens action to
a claim under the FTCA) as a statement of intention to
completely replace his previously-asserted Bivens
claims and only pursue a claim under the FTCA. [Id.]
Ford does not disagree with this interpretation of his First
Amended Complaint. In fact, he refers to his claims as
“negligent/Tort Claims Actions, ” not
constitutional actions. [Record No. 30 at p. 5]
result of the foregoing, the Court agrees that Ford's
First Amended Complaint supersedes his original Complaint.
Thus, the claim pending before the Court is construed as an
FTCA claim against the United States and not a
Bivens claim against the individual medical
providers that were previously named as Defendants.
Therefore, as a matter of clarification, the Court will
dismiss Ford's original Complaint asserting
Bivens claims against individual defendants without
United States has moved to dismiss the Amended Complaint
under Rule 12(b)(6) and has also moved for summary judgment
under Rule 56 of the Federal Rules of Civil Procedure. In
seeking this relief, the government has attached and is
relying upon declarations extrinsic to the pleadings. [Record
No. 28] As a result, the Court will treat the motion under
Rule 56 of the Federal Rules of Civil Procedure. Fed.R.Civ.P.
12(d); Wysocki v. Int'l Bus. Mach. Corp., 607
F.3d 1102, 1104 (6th Cir. 2010); see also Ball v. Union
Carbide Corp., 385 F.3d 713, 719 (6th Cir. 2004) (where
defendant moves both to dismiss and for summary judgment, the
plaintiff is on notice that summary judgment is being
requested, and the court's consideration as such is
appropriate where the nonmovant submits documents and
affidavits in opposition to summary judgment).
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 the party is
entitled to a judgment as a matter of law. Loyd v. St.
Joseph Mercy Oakland, 766 F.3d 580, 588 (6th Cir. 2014).
The burden then shifts to the nonmoving party to “come
forward with some probative evidence to support its
claim.” Lansing Dairy, Inc. v. Espy, 39 F.3d
1339, 1347 (6th Cir.1994). However, if a responding
party's allegations are ...