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Jenkins v. United States

United States District Court, N.D. Texas, Fort Worth Division

December 17, 2019

DAVID C. JENKINS, BOP No. 09013-078, Plaintiff,



         This case is before the Court for review of pro-se inmate/Plaintiff David C. Jenkins's claim under the Federal Tort Claims Act (FTCA) against the United States of America (USA). Before the Court is the United States of America's motion for summary judgment, along with its brief and appendix in support. USA Mot. for Summ J, ECF No. 20; USA Brief, ECF No. 21; USA App., ECF No. 22-1. Plaintiff filed a response to the motion for summary judgment (ECF No. 32) and the USA filed a reply (ECF No. 33). After review and consideration of the summary judgment motion, supporting documents, Jenkins's response, USA's reply, the record, and the applicable law, the Court concludes that the USA's motion for summary judgment should be and is hereby GRANTED.


         Plaintiff Jenkins, an inmate at the Bureau of Prisons' (“BOP”) FMC-Fort Worth[1] facility, filed an original complaint naming the USA and asserting claims under the FTCA arising from the medical care provided to him. Compl. 1-10, ECF No. 1. The USA filed an answer, and the Court issued a scheduling order. ECF Nos. 13, 15. Consistent with that schedule, the USA filed the motion for summary judgment, which is now ripe.

         Jenkins complains and alleges that the BOP medical staff and outside medical providers committed medical malpractice by not providing (1) hernia-repair surgery in a timely manner and (2) proper follow up care after he had the surgery. Complaint 4-9, ECF No. 1. Jenkins's factual allegations begin while he was housed at FCI-Beaumont in Beaumont, Texas from December 2012 until February 2014, when he was transferred into FMC-Fort Worth. Complaint 3, ECF No. 1. Jenkins's chronology of events continues at FMC-Fort Worth until June 2014, when he was transferred out of FMC-Fort Worth for a 10-month period while on a writ. He returned to FMC-Fort Worth on April 16, 2015, and his complaints regarding the scheduling of his hernia operation, the operation, and post-surgery procedures and medical care continued until August 2017. Reply 4-5, ECF No. 32.


         As noted, the USA filed an appendix in support of the motion for summary judgment that includes a total of 169 pages of records. ECF No. 22-1. The appendix includes the August 5, 2019 Declaration of FMC-Fort Worth Assistant Health Service Administrator Stephanie Long with records of Jenkins designation and sentence computation information (Attachments One and Two); 121 pages of medical records for inmate Jenkins (Attachment Three); and BOP Memorandums regarding Elective Medical Care (Attachments Four and Five). USA's MSJ App. 3-147, ECF No. 22-1. The appendix also includes the August 2, 2019 Declaration of BOP Information Specialist Brenda Victor with copies of records of Jenkins's administrative tort claim, and the Declarations of (1) FCI-Beaumont Business Administrator Dennis Sherrill, (2) FCI-Beaumont Contract Specialist Dawn Page, and (3) FMC-Fort Worth Business Administrator Jason Noel. USA App. 148-169, ECF No. 22-1. Jenkins declared his complaint in this matter to be “true and correct” and made “under penalty of perjury.” Complaint 10, ECF No. 1. The Court considers the complaint as competent summary-judgment evidence in resolving the summary judgment motion. See Barnes v. Johnson, 204 Fed.Appx. 377, 378 (5th Cir. 2006) (citing King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994) a plaintiff's verified complaint may serve as competent summary judgment evidence); see also Hart v. Hairston, 343 F.3d 762, 765 (5th Cir. 2003) (citing Huckabay v. Moore, 142 F.3d 233, 240 n. 6 (5th Cir. 1998)); see generally Nissho-Iwai American Corp. v. Kline, 845 F.2d 1300, 1306 (5th Cir. 1989) (noting that the statutory exception in 28 U.S.C. § 1746 permits unsworn declarations to substitute for an affidavit if made “under penalty of perjury” and verified as “true and correct”).

         The USA has presented a lengthy history related to what Jenkins's medical records in the USA Appendix (ECF No.22-1, pages 19-139) reveal regarding the medical care provided to Jenkins during the relevant time periods made the basis of the complaint. Resp. 6-13, ECF No. 21. Other than reciting a “Summary of Events” in his reply, Jenkins has not come forward with any evidence to contest the Defendant's summary judgment motion. Repy 4, ECF No. 32. As explained in detail in the analysis section below, however, because all of Jenkins's medical care claims for relief under the FTCA can be resolved on a legal ground, the Court does not include a restatement of a factual chronology.


         When the record establishes “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law, ” summary judgment is appropriate. Fed.R.Civ.P. 56(a). “[A dispute] is ‘genuine' if it is real and substantial, as opposed to merely formal, pretended, or a sham.” Bazan v. Hidalgo Cty., 246 F.3d 481, 489 (5th Cir. 2001) (citation omitted). A fact is “material” if it “might affect the outcome of the suit under governing law.”Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         To demonstrate that a particular fact cannot be genuinely in dispute, a defendant movant must cite to particular parts of materials in the record (e.g., affidavits, depositions, etc.), or show either that (1) the plaintiff cannot produce admissible evidence to support that particular fact, or (2) if the plaintiff has cited any materials in response, show that those materials do not establish the presence of a genuine dispute as to that fact. Fed.R.Civ.P. 56(c)(1). Although the Court is required to consider only the cited materials, it may consider other materials in the record. See Fed. R. Civ. P. 56(c)(3). Nevertheless, Rule 56 “does not impose on the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment. . . .” Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 & n.7 (5th Cir. 1992). Instead, parties should “identify specific evidence in the record, and . . . articulate the ‘precise manner' in which that evidence support[s] their claim.” Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) (citing Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992) (other citation omitted)). In evaluating whether summary judgment is appropriate, the Court “views the evidence in the light most favorable to the nonmovant, drawing all reasonable inferences in the nonmovant's favor.” Sanders-Burns v. City of Plano, 594 F.3d 366, 380 (5th Cir. 2010) (citation omitted) (internal quotation marks omitted). “After the non-movant [here, Jenkins] has been given the opportunity to raise a genuine factual [dispute], if no reasonable juror could find for the non-movant, summary judgment will be granted.” Byers v. Dallas Morning News, Inc., 209 F.3d 419, 424 (5th Cir. 2000) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).


         A. Expert Testimony Required to Support Medical Negligence Claims

         Jenkins alleges negligence under the FTCA on the part of BOP medical staff and outside contractors with FCI-Beaumont by failing to provide surgery for his hernia condition, and negligence on the part of FMC-Fort Worth medical staff and outside contractors for delaying in providing a hernia surgery procedure, and then failing to provide adequate follow-up care after his surgery procedure. Complaint 8-9, ECF No. 1. He alleges that the failure to provide proper medical treatment for his hernia condition amounted ...

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