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Lewis v. United States

United States District Court, N.D. Texas, Dallas Division

April 30, 2018

JOHNNY R. LEWIS, Plaintiff,



         Plaintiff Johnny R. Lewis's pro se action under the Federal Tort Claims Act (“FTCA”) has been referred to the undersigned United States magistrate judge for pretrial management under 28 U.S.C. § 636(b) and a standing order of reference from Chief Judge Barbara M. G. Lynn.

         The United States moves for summary judgment. See Dkt. Nos. 27, 28, & 29. Lewis filed a response opposing the motion. See Dkt. No. 31. And the United States filed a reply brief. See Dkt. No. 32.

         The undersigned issues the following findings of fact, conclusions of law, and recommendation that the Court should grant the United States's motion for summary judgment and dismiss this action with prejudice.

         Applicable Background

         Through an unverified pro se complaint [Dkt. No. 3], Lewis, a disabled Air Force veteran, see Dkt. No. 29-1 at 2, alleges that the Dallas VA Medical Center (the “VA”) acted “negligently by submitting [his] drug screening without a signed pain management contract, and without [his] consent, as required by VA policy, ” Dkt. No. 3 at 3. Lewis more fully explains that, on September 23, 2015, he

received a phone call from his primary care clinic nurse at [the VA]. The nurse stated that [Lewis] needed to come in and sign a pain management contract because she could not locate one in the [his] medical file. The nurse informed [Lewis] that the contract is necessary for all patients that are currently prescribed the pain medication Hydrocodone. The nurse also informed [him] that past drug screens had been conducted on [him. Lewis] informed the nurse that he had been on the pain medication since 2010 and no one had ever initiated nor told [him] that a pain management contract was required. Additionally, [Lewis] had never signed a contract, nor consented to drug screening. VA policy requires “that all patients receiving Opioid treatment must consent to and sign a pain management contract, and that providers may order urine or blood drug tests with the patients consent (separate from the contract consent).”

Id. at 2. Lewis seeks $200, 000 in damages. See Id. at 4.

In his administrative claim (the SF-95), submitted in January of 2016, Lewis alleged [p]ersonal injury resulting in emotional distress caused by illegal drug screens performed on [him] on multiple [occasions] without the [his] knowledge and consent as required by VA. Violations of [his] civil and privacy rights. Primary care provider, and medical care provider malpractice.

Dkt. No. 29-1 at 48. The VA denied this tort claim in March of 2016. See Id. at 52-53. And it appears that, by filing this action and raising only negligence, Lewis has abandoned his civil rights and privacy claims.

         Legal Standards

         Under Federal Rule of Civil Procedure 56, summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A factual “issue is material if its resolution could affect the outcome of the action.” Weeks Marine, Inc. v. Fireman's Fund Ins. Co., 340 F.3d 233, 235 (5th Cir. 2003). “A factual dispute is ‘genuine, ' if the evidence is such that a reasonable [trier of fact] could return a verdict for the nonmoving party.” Crowe v. Henry, 115 F.3d 294, 296 (5th Cir. 1997).

         If the moving party seeks summary judgment as to his opponent's claims or defenses, “[t]he moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but is not required to negate elements of the nonmoving party's case.” Lynch Props., Inc. v. Potomac Ins. Co., 140 F.3d 622, 625 (5th Cir. 1998). “Summary judgment must be granted against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which it will bear the burden of proof at trial. If the moving party fails to meet this initial burden, the motion must be denied, regardless of the nonmovant's response.” Pioneer Expl., L.L.C. v. Steadfast Ins. Co., 767 F.3d 503, 511 (5th Cir. 2014) (internal quotation marks and footnote omitted).

         “Once the moving party meets this burden, the nonmoving party must set forth” - and submit evidence of - “specific facts showing a genuine issue for trial and not rest upon the allegations or denials contained in its pleadings.” Lynch Props., 140 F.3d at 625; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); accord Pioneer Expl., 767 F.3d at 511 (“[T]he nonmovant cannot rely on the allegations in the pleadings alone” but rather “must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial.” (internal quotation marks and footnotes omitted)). The Court is required to consider all evidence and view all facts and draw all reasonable inferences in the light most favorable to the nonmoving party and resolve all disputed factual controversies in favor of the nonmoving party - but only if both parties have introduced evidence showing that an actual controversy exists. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Pioneer Expl., 767 F.3d at 511; Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005); Lynch Props., 140 F.3d at 625. “The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in [her] favor. While the court must disregard evidence favorable to the ...

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