United States District Court, N.D. Texas, Fort Worth Division
DAVID C. JENKINS, BOP No. 09013-078, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
MEMORANDUM OPINION AND ORDER
T. PITTMAN UNITED STATES DISTRICT JUDGE.
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
Jenkins, an inmate at the Bureau of Prisons'
(“BOP”) FMC-Fort Worth 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.
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.
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”).
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.
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).
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)).
Expert Testimony Required to Support Medical
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 ...