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. 18). 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,
Plaintiff Andre Hurston's claims against the United
States are hereby DISMISSED with prejudice.
is a federal inmate in the custody of the Federal Bureau of
Prisons (“BOP”). Pl.'s Complaint, ECF No. 1
at ¶ 4. Hurston alleges that in June 2018, while he was
in federal custody at Federal Medical Center, Fort Worth
(“FMC Fort Worth”), he noticed a small hole in
his leg. Id. at ¶ 9. He applied Neosporin and
the wound scabbed over, but a week later when the scab fell
off, there was a hole in Hurston's leg. Id.
Hurston asserts that he was told by staff that he could
receive wound-care treatment. Id. Hurston's
medical records indicate that on June 16, 2018, he was
evaluated by the FMC Fort Worth medical staff, who cleaned
his wound and applied a bandage. Def.'s MSJ App'x at
17, 2018, the nurse providing Hurston's wound care
dressed the wound and told Hurston to go to sick call the
next day. Pl.'s Complaint at ¶ 10. The next day,
Hurston attended sick call and described the wound to the
evaluating nurse. Id. at ¶ 11. Hurston alleges
that when he attempted to remove his dressing, the nurse
stopped him because the nurse said the dressing material was
too expensive. Id. The nurse then allegedly told
Hurston that he would put Hurston on wound care clinic, but
Hurston alleges that he never did. Id.
22, 2018, Hurston went to sick call again and filled out the
same form before he was seen by the same evaluating nurse.
Id. at ¶ 12. Hurston alleges that the
evaluating nurse said he had forgot to put Hurston on the
wound care clinic, but that Hurston would be on the call out
for wound care clinic the next day. Id. But Hurston
was again not placed on the call out. Id. This time,
however, Hurston's dressing was changed. Id.
25, 2018, Hurston went to sick call again, filled out the
same form, and was seen by the same evaluating nurse.
Id. at ¶ 13. This time, Hurston waited until
the nurse placed Hurston on wound care call out. Id.
The nurse took a culture of the drainage from the wound and
prescribed Sulfamethoxazole / Trimeth for ten days.
Id. Plaintiff alleges that the hole in his leg grew
from the size of a pencil eraser to the size of a half
dollar. Id. at ¶ 14.
medical records indicate that on June 27, 2018, a nurse
practitioner evaluated him for the wound (as well as a
swollen thumb) and provided Hurston with education so that he
could take care of his ankle wound. Def.'s MSJ App'x
at 5-6. The next day, Hurston was evaluated by the same nurse
practitioner. Id. at 7-9. Hurston reported that the
wound had become more irritated, so he was prescribed
antibiotics and wound care clinic for seven days.
Id. Hurston's medical records indicate that on
June 30, 2018, he failed to show up to this scheduled wound
care appointment. Id. at 13.
July 1, 2018, through July 11, 2018, Hurston was seen every
day by a nurse for wound care. Id. at 12-13. On July
5, 2018, the medical records note that Hurston's wound
was cleaned and FMC Fort Worth staff applied “medihoney
and maxorb Ag” and covered the wound with dressing.
Id. at 14. Hurston's medical records show that
on July 8, 2018, he was evaluated by a nurse for wound care
and that his wound was cleansed with
“CarraKlenz.” Id. at 17.
Hurston was examined by a doctor on July 9, 2018, the doctor
told Hurston that the wound looked like a stasis ulcer.
Pl.'s Complaint at ¶ 15. When Hurston asked the
doctor the results of the culture, Hurston claims that the
doctor told him the culture was discarded because it had been
turned in too late. Id. On July 11, 2018, Hurston
was seen by a wound-care specialist and his wound was
cultured. Def.'s MSJ App'x at 22-23. The wound was
cleaned and wrapped and Hurston was educated about pressure
relief measures and wound debridement. Id. at 23.
The wound-care specialist found that Hurston's symptoms
were consistent with chronic venous insufficiency.
Id. at 22. On July 13, 2018, Hurston was seen for
wound care and the wound was cleaned and dressed.
Id. at 12. On July 16, 2018, Hurston was seen for
wound care, and he reported no complaints. Id. at
began seeing a physician, and the physician decided to take a
culture, picture, and measurement of Hurston's wound.
Pl.'s Complaint at ¶ 16. Hurston states that on July
19, 2018, the physician informed him that he had a staph
infection. Id. On July 20, 2018, Hurston was
evaluated by both the physical therapist and doctor, and he
was prescribed Doxycycline. Id. at ¶ 17.
Hurston's medical records reveal that from July 22, 2018,
through July 27, 2018, Hurston was evaluated by FMC Fort
Worth medical staff and that his wound was repeatedly cleaned
and dressed. Def.'s MSJ App'x at 11, 25. And from
July 28, 2018, through August 11, 2018, Hurston was seen
every day by a wound-care nurse, and that as of August 11,
2018, there were no signs or symptoms of an infection.
Id. at 10. When Hurston was evaluated for an
unrelated medical issue on December 21, 2018, the physician
noted that Hurston had an open wound growing Staphylococcus
on his leg and that Hurston “had been adequately
treated and the ulceration healed.” Id. at 31.
filing an administrative tort claim with the BOP (Def.'s
MSJ App'x at 32-37), Hurston filed a complaint in this
Court on February 1, 2019, asserting claims against the BOP
under the Federal Tort Claims Act (“FTCA”) for
negligent medical care. See ECF No. 1. On October
25, 2019, the United States filed the instant Motion for
Summary Judgment. See ECF No. 18. On December 3,
2019, the Court issued an order, noting that Hurston's
deadline to respond to the Motion for Summary Judgment was
November 14, 2019, but that the Court would extend
Hurston's time to file a response to December 30, 2019.
See ECF No. 23. The Court further stated that if
Hurston failed to file a response by the newly extended
deadline, the Court would accept the facts in the United
States' motion as uncontroverted. See Id. As of
the date of this order, Hurston has still not filed a
response to the Motion for Summary Judgment. Accordingly, the
motion is ripe for the Court's review, and the Court
accepts the United States' statements of fact as
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