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Ford v. Summers

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

May 1, 2018

EDWARD E. FORD, Plaintiff,
MS. S. SUMMERS, Nurse, et al., Defendants.


          Danny C. Reeves United States District Judge.

         Inmate/Plaintiff 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.


         Ford 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]

         Ford 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 unit. [Id.]

         Ford 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.]


         Before 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]

         Thereafter, 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. 22]

         In its 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]

         As a 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 prejudice.


         The 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).

         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 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 ...

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