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Bunche v. United States

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

September 10, 2019



          Danny C Reeves, Chief United States District Judge.

         Defendant United States has moved to dismiss Plaintiff Gary Eugene Bunche's Amended Complaint for failure to state a claim or, in the alternative, for summary judgment. [Record No. 76] The Court previously granted summary judgment in favor of the defendant on July 10');">10, 2017. [Record No. 39] However, the United States Court of Appeals for the Sixth Circuit vacated entry of summary judgment regarding Count 1 of the Complaint and remanded the matter for further proceedings on that count. [Record No. 56]

         Count 1 asserts a claim under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671, et seq. [Record No. 8] More specifically, Bunche contends that the federal Bureau of Prisons (“BOP”), breached a statutory duty of care imposed by 18 U.S.C. § 4042(a)(2), resulting in his injury. The matter was referred to United States Magistrate Judge Edward B. Atkins pursuant to 28 U.S.C. § 636(b)(1) to address pretrial matters and prepare a report and recommendation regarding any dispositive motions. Bunche moved to stay all proceedings and extend the time for discovery on July 26, 2019. [Record No. 78] Magistrate Judge Atkins has recommended that the Court grant the defendant's motion to dismiss for failure to state a claim and deny the motion to stay the proceedings. [Record No. 79]

         The Magistrate Judge's August 9, 2019, Recommended Disposition [Record No. 79] clearly articulated that the plaintiff could file objections to his findings within fourteen days of service. [Record No. 79, p. 7] However, Bunche filed untimely objections on September 3, 2019, and failed to explain his tardiness. [Record No. 80] See Fed. R. Civ. P. 5(d)(2)(A), 6(d). Regarding this point, the Court notes that a party who fails to raise timely objections generally forfeits the right to appeal the district court's subsequent ruling on the issues analyzed in a magistrate judge's report. See Berkshire v. Beauvais, 8 F.3d 520');">928 F.3d 520, 530-31 (6th Cir. 2019). Additionally, “[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings.” Thomas v. Arn, 474 U.S. 140');">474 U.S. 140, 150 (1985).

         Notwithstanding Bunche's failure to file timely objections, the Court has conducted a de novo review of the pending motions and responses. At the outset, the record demonstrates that the Sixth Circuit's June 20, 2018 opinion [Record No. 56] has rendered an analysis under Rule 12');">12(b)(6) of the Federal Rules of Civil Procedure unnecessary.[1" name= "FN1" id="FN1">1] When the Sixth Circuit vacated the germane portion of the July 10');">10, 2017 opinion regarding summary judgment [Record No. 39], it held that the plaintiff had properly framed his first claim under the doctrine of negligence per se. [Record No. 56, pp. 5, 7]

         The Sixth Circuit then turned to the question of “whether [Bunche] has stated a claim for negligence per se.” Id. (emphasis added). The court relied on the holding in Friedman v. United States, No. 99-1445, 2000 WL 876391, at *1 (6th Cir. June 21, 2000), to evaluate the plaintiff's argument that 18 U.S.C. § 4042(a)(2) provided a statutory standard of care for a negligence per se claim. [Record No. 56, pp. 5-6] The Friedman decision recognized that prisoners can bring FTCA claims against the BOP for breach of the § 4042(a) statutory duty to, “provide suitable quarters and provide for the safekeeping, care, and subsistence of all persons charged with or convicted of offenses against the United States.” Id. (citing Friedman, 2000 WL876391, at *2-3 (quoting § 4042(a)(2))). Then, assessing Bunche's claim in light of the fact that pro se pleadings are liberally construed, the appellate court concluded that Bunche “sufficiently stated a claim that the government breached its duty of care to him under § 4042(a)(2) when he was denied emergency medical treatment for a ten-hour period.” Id. (citing Luis v. Zang, 833 F.3d 619');">833 F.3d 619, 626 (6th Cir. 2016)).

         Although the Sixth Circuit's holdings focused primarily on this Court's ruling on summary judgment [Record No. 39] rather than Rule 12');">12(b)(6) considerations, it unambiguously concluded that Bunche's Amended Complaint [Record Nos. 8 and 16] had sufficiently stated a negligence per se claim. [Record No. 56, pp. 5-7] And inasmuch as this proceeding must be “consistent with [the Sixth Circuit] order, ” id. at p. 9, the Court will not reassess whether Bunche has stated a claim but instead will address the government's alternative request for entry of summary judgment in its favor. [Record No. 76]

         The Court's procedural approach is further bolstered by the fact that the United States has submitted and relied upon extrinsic evidence to support its pending motion. [Record Nos. 76-2-4 and 77-1] When a party includes and relies upon matters outside the pleadings to support a Rule 12');">12(b)(6) motion, it “must be treated as one for summary judgment under Rule 56.” Fed.R.Civ.1');">p. 12(d); see also Wysocki v. International Business Machine Corp., 607 F.3d, 110');">102, 110');">104 (6th Cir. 2010');">10). “All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed.R.Civ.1');">p. 12(d).

         The United States' motion was filed on May 28, 2019, and it expressly requested summary judgment as an alternative to 12');">12(b)(6) dismissal. [Record No. 76] Bunche had ample notice that the Court would consider summary judgment. Accordingly, a Rule 56 analysis is appropriate.

         The Court adopts the Magistrate Judge's Recommended Disposition [Record No. 79] insofar as it recommends granting the United States' motion and denying the plaintiff's motion to stay the proceedings and extend time for discovery [Record No. 78]. The Court declines, however, to adopt the Magistrate Judge's analysis and conclusions concerning dismissal under Rule 12');">12(b)(6).



         Bunche has suffered from chronic and recurring cellulitis[2] since he was initially incarcerated at the Federal Medical Center in Lexington, Kentucky (“FMC-Lexington”), the site of the incident underlying this case. [Record No. 8 and 25-1, p. 3 n.4] He began to experience symptoms of a cellulitis flare-up at approximately 8:40 p.m. on July 10');">10, 2013. [Record No. 1-4, p. 14] Bunche contacted an officer around 10');">10:30 p.m., and the officer called the on-duty nurse to communicate the plaintiff's complaints. [Record No. 8, p. 3] Through the officer, Bunche told the nurse of his history of cellulitis as well as his concern that he was suffering from sepsis due to an infection. Id. at pp. 3-4. The nurse did not treat him that night but instead instructed Bunche to report to sick call the following morning. Id.

         Bunche reported to his prison work detail the next morning at 8:40 a.m., but eventually sought medical assistance at sick call around 9:30 a.m. [Record Nos. 25-2, p. 3 and 25-6, 1');">p. 1] He advised BOP personnel that he had vomited the prior night and was experiencing a headache, nausea, and pain in his left foot. [Record No. 25-10');">10, p. 2] BOP staff determined at that time that Bunche should be transferred to the University of Kentucky Medical Center (“UKMC”) to “rule out sepsis.” Id. at p. 3.

         Following this transfer, UKMC tests confirmed that Bunche was suffering from cellulitis in his lower left leg but ruled out sepsis. [Record No. 25-12');">12, p1');">p. 10-12');">12] Bunche was also diagnosed with acute kidney injury, but attending doctors noted that the kidney problem was resolved by his July 14, 2013, discharge from the hospital. Id. at pp.10');">10-11. Subsequent kidney tests performed in February, April, and May 2016 reveal no kidney damage. [Record No. 25-16, pp. 580-81, 587-90, 592-93]. UKMC doctors prescribed a ...

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