United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
T. PITTMAN UNITED STATES DISTRICT JUDGE
the Court is Defendant United States of America's Motion
for Summary Judgment (ECF No. 31), Plaintiff Eric Daniel
Pealer's Response (ECF No. 46), and the United
States' Reply (ECF No. 48). Having considered the motion,
briefing, and applicable law, the Court finds that the United
States' Motion for Summary Judgment should be and is
hereby GRANTED. Accordingly, Pealer's
claims against the United States are hereby DISMISSED
a 37-year-old man, went into custody of the Federal Bureau of
Prisons (BOP) on November 19, 2015, entering at FMC Fort
Worth. Def.'s App. MSJ at 1, 4, 6, ECF No. 33-1. On the
day Pealer arrived at FMC Fort Worth, he underwent a
health-intake screening during which he reported a history of
melanoma in his left eye that had been treated with surgery
and radiation. Id. at 1-2, 10-16. A nurse noted that
Pealer was blind in his left eye as a result and that he had
been undergoing frequent monitoring but no other treatment at
the time of his imprisonment. Id. at 12. Four days
later, a BOP physician evaluated Pealer. Id. at
17-20; see also Compl. at ¶ 13, ECF No. 1.
Pealer reported a history of surgical removal of a melanoma
from his left eye retina in 2006, which resulted in blindness
in that eye. Def.'s App. MSJ at 17. The physician placed
consultation requests for an oncologist and an
ophthalmologist to evaluate Pealer. Id. at 17,
19-20; Compl. at ¶ 13.
following spring, Pealer had both consultations. On April 5,
2016, an oncologist/hematologist evaluated him. Def.'s
App. MSJ at 21, 24. The specialist recommended that Pealer
return in six months and that he should also have an
appointment with an ophthalmologist. Id. A month
later, an ophthalmologist evaluated Plaintiff. Id.
at 26, 29-30. The ophthalmologist recommended a referral for
a B-Scan to monitor Pealer for regrowth of the melanoma, and
also recommended follow up with ophthalmology in a month for
further evaluation. Id.
27, 2016, Pealer reported left eye pain during sick call
rounds. Id. at 32. He also reported that he had a
mole on his head and a mole on his stomach, both of which
appeared to be getting bigger and were sensitive.
Id. Pealer was scheduled to see a provider and saw a
nurse practitioner the following month. Id. at
34-36. He again reported left eye pain and noted that the two
moles appeared to be getting bigger and were sensitive.
Id. at 34. The nurse practitioner examined Pealer
and placed a dermatology consultation request. Id.
at 34-35. Approximately one week later, Pealer saw the
ophthalmologist again. Id. at 37-39. He underwent a
B-Scan, which showed “likely regrowth of prior
choroidal melanoma” in Pealer's left eye.
Id. at 37. On the same day, Pealer's physician
placed a consultation request for an oculoplastics evaluation
for possible enucleation of Pealer's left eye.
Id. at 40.
days later, an oculoplastics specialist evaluated Pealer and
recommended enucleation of Pealer's left eye for uveal
melanoma, as a retina specialist had also recommended.
Id. at 41-42. The provider noted that Pealer's
B-Scan showed melanoma in the left eye. Id. at 41.
Four days later, Pealer's physician placed a consultation
request for oculoplastics for a left eye enucleation.
Id. at 43. A nurse practitioner later followed up
with Plaintiff and discussed the plan to remove his eye.
Id. at 44-45. Pealer indicated he was aware of the
removal plan, and he does not dispute that he agreed to
undergo the procedure. Id. at 44; Compl. at ¶
September 15, 2016, Pealer underwent enucleation of his left
eye, with implant. Def.'s App. MSJ at 51-53. Dr. Matthew
Hammons of the Fort Worth Surgery Center, performed the
surgery. Id. at 51-52. The pre- and post-operation
diagnoses were melanoma of the left eye. Id. at 51.
The pathology report, which was faxed to FMC Fort Worth on
October 13, 2016, indicated there was a “necrotic
neoplasm of choroid, with patchy calcifications, consistent
with previous radiation therapy of melanoma.”
Id. at 64-65. The report noted that there was
“[n]o visible malignant melanoma . . . present, but
tumor cell ghosts are identified within the choroidal
mass.” Id. at 64.
Pealer's return to FMC Fort Worth after the enucleation
surgery, a registered nurse evaluated him. Id. at
46-50. The nurse gave Pealer post-op instructions and placed
orders for Tylenol #3 and promethazine. Id. at 47.
The following day, Pealer's physician evaluated him and
provided further post-op instructions. Id. at 54-55.
Because Pealer was reporting pain at a level of 8 out of 10,
his physician increased the dose of Tylenol #3 to two pills,
three times a day, as needed for three days. Id. at
54. A few weeks later, Pealer was seen by
oncology/hematology. Id. at 56, 59. The oncologist
requested a follow-up evaluation in four months with lab
work. Id. Less than a month after Pealer's
enucleation surgery, the surgeon who performed Pealer's
surgery also saw him for a follow-up appointment.
Id. at 60-63. At that appointment, it was noted that
Pealer was concerned that his eye was not opening completely.
Id. at 60. However, the provider noted that
Pealer's movement was “excellent” and that
Pealer would be “OK for prosthesis in 2 more
following month, Pealer's physician saw Pealer for a
chronic care evaluation. Def.'s App. MSJ at 72-75.
Plaintiff reported no complaints with his left eye or any
other part of his body. Id. at 72. His physician
placed a routine consultation request for Pealer to be
evaluated by oculoplastics. Id. at 74. In February
2017, Pealer saw the oculoplastics specialist, who
recommended an appointment with an ocularist for an ocular
prosthesis and an appointment with an oncologist to rule out
systemic melanoma. Id. at 89-94. The oculoplastics
specialist noted that Pealer's socket was healthy and
that his conformer was in place. Id. at 93. Five
days later, Pealer was seen by oncology/hematology for
monitoring of his melanoma. Id. at 95-100. The
specialist recommended that Pealer follow up in six months
and have lab and x-ray results ready for review at the
appointment. Id. at 95, 99.
months later, Pealer saw his physician again at a chronic
care encounter. Id. at 101-03. Plaintiff again had
no complaints, and his physician placed a consultation
request for oculoplastics to have Pealer evaluated for an
ocular prosthesis. Id. at 101, 103. Pealer was seen
by oncology/hematology approximately six months after his
previous oncology/hematology appointment. Id. at
104-09. The specialist again recommended that Pealer follow
up in six months to continue monitoring his melanoma.
Id. at 104, 108. A couple of months later, Pealer
saw an ocularist. Id. at 110-14. The ocularist noted
that Pealer's socket “looks well and has healed
nicely” and that he was ready for the design and
fitting of a prosthesis. Id. at 110, 113. The
ocularist requested that BOP call the ocularist's office
to schedule the appointment. Id. Pealer received his
ocular prosthesis on June 7, 2018, and the ocularist remarked
that everything had turned out well. Id. at 115- 16.
January 29, 2018, the BOP received an administrative
complaint from Pealer in which he claims that the removal of
his eye was “unnecessary” because “[t]he
pathology report showed that there had in fact been no
compromise in the eye wall and that [his] cancer was in fact
still in remission.” Def.'s App. MSJ at 117,
119-24. He further claimed that he was “supposed to
have a permanent prosthetic eye within a relatively short
time” but that he did not timely receive one,
“causing [his] eye socket to become permanently
disfigured.” Id. at 121. Pealer sought $250,
000 in damages. Id. After receiving no
administrative decision within six months, Pealer timely
filed a complaint in this Court on November 26, 2018. See
Doc. 1; 28 U.S.C. §§ 2401(b); 2675(a). He seeks
$2.375 million for alleged past and future pain and
suffering, future medical costs, future lost earning
capacity, and past and future emotional and psychological
injury. Compl. at ¶ 25. On September 27, 2019, the
United States filed this Motion for Summary Judgment.
See ECF No. 31. Having been fully briefed, the
Motion for Summary Judgment is ripe for the Court's
judgment is proper when the pleadings and evidence on file
show “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). “[T]he
substantive law will identify which facts are
material.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248, 106 S.Ct. 2505 (1986). A genuine dispute
as to any material fact exists “if the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party.” Id. The movant makes a
showing that there is no genuine dispute as to any material
fact by informing the court of the basis of its motion and by