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Downs v. United States

United States District Court, M.D. Florida, Ocala Division

September 27, 2019

DEANGELO JEROME DOWNS, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDER

          PAUL G. BYRON, UNITED STATE DISTRICT JUDGE.

         Plaintiff, a federal inmate acting pro se, initiated this case by filing a civil rights complaint alleging constitutional violations[1] by individual federal actors in connection with an injury to his left Achilles tendon. (Doc. 1.) The defendants moved to dismiss (Doc. 24), and their motion was granted without prejudice to any claim Plaintiff may have under the Federal Tort Claims Act (FTCA) for medical malpractice. (Doc. 31); 28 U.S.C. §§ 2671, 1346(b).

         The United States was added as a party on January 25, 2018 and filed its Answer on March 26, 2018. (Doc. 37.) After a period of discovery, the United States moved for summary judgment. (Doc. 43.) Plaintiff filed his response in opposition on February 12, 2019. (Doc. 50.) This matter is ripe for review. For the reasons discussed below, the United States’ Motion for Summary Judgment (Doc. 43) is due to be granted.

         A. Plaintiff’s Complaint

         Plaintiff alleges that on April 26, 2014, while incarcerated at the Coleman Federal Correctional Complex, United States Penitentiary I, he was playing basketball when he injured his left Achilles tendon. He reported to medical but was told to come back the following day. (Doc. 1 at ¶ 14.) Plaintiff reported to medical the next day and told Nurse Crystal Harris that he heard a pop near his left ankle and that he was still in pain. His lower left leg was swollen. (Id. at ¶ 15.) Nurse Harris requested an x-ray and told Plaintiff to rest his left ankle, ice it at night, bandage it for compression, and to elevate it at night to reduce swelling. Plaintiff was issued crutches. (Id. ¶ 18.)

         On April 29, 2014, Plaintiff returned to the medical department and was seen by a Mid-Level Practitioner. MLP Chipi told Plaintiff it appeared he had twisted his ankle; Plaintiff told him it was not in his ankle, the pain was too great. (Id. at ¶ 19.) A May 8, 2014, radiology report stated that Plaintiff had swelling in his left ankle and a tender Achilles. (Id. at ¶ 20.) On May 30, 2014, Plaintiff reported to sick call and complained that his lower leg was very painful, his left foot swollen, and his left heel was numb. (Id. at ¶ 21.)

         On June 19, 2014, Plaintiff saw Dr. Alex Seda, complaining of pain in his Achilles tendon and numbness in his heel. Dr. Seda assessed the injury as Achilles bursitis or tendonitis and prescribed naproxen. Dr. Seda also told Plaintiff he would request an ultrasound. (Id. at ¶ 22.) On June 25, 2014, an ultrasound showed that Plaintiff had a soft tissue mass on his left ankle consistent with a ruptured Achilles tendon. An MRI and/or surgical evaluation was suggested. (Id. at ¶ 24.) Plaintiff received his MRI on July 30, 2014, showing a distal Achilles tendon rupture with a 4-centimeter gap between the frayed ends. (Id. at ¶¶ 25-26.)

         On August 20, 2014, Plaintiff saw Dr. Miguel Cintron at Coleman and requested surgery. Dr. Cintron told him surgery was not needed. (Id. at ¶ 28.) Plaintiff saw MLP Chipi on August 27, 2014, September 12, 2014, and October 9, 2014, each time complaining of pain and requesting surgery. (Id. at ¶¶ 29-32.)

         By February 27, 2015, Plaintiff had been transferred to Beaumont USP, where he saw Dr. Sreedhar Palavarapu, who referred Plaintiff to a physical therapist. (Id. at ¶¶ 33-34.) After six weeks of physical therapy, he met some but not all goals set at his initial evaluation. (Id. at ¶¶ 35-36.) Plaintiff was eventually referred to an orthopedic surgeon. On August 25, 2015, Beaumont Bone and Joint evaluated Plaintiff and noted that because of the time that had passed since the injury (1-1.5 years), there were no surgical interventions that would be possible. The distance between the frayed ends was too great, and Plaintiff exhibited substantial atrophy of his calf muscle. (Id. at ¶ 39.)

         For relief, Plaintiff seeks compensatory and punitive damages, as well as costs. (Id. at ¶¶ 48-53.)

         B. Standard of Review

         Pursuant to the Federal Rules of Civil Procedure, summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). A genuine issue of material fact exists where the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). In applying the standard for summary judgment, the Court must review all of the evidence “in the light most favorable to the nonmoving party.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The nonmoving party must go “beyond the pleadings, [and show] that there exist genuine issues of material fact.” Anderson, 477 U.S. at 249.

         C. United States’ Motion for Summary Judgment (Doc. 43)

         The United States has moved, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for summary judgment in its favor. The United States contends that summary judgment is appropriate because the undisputed material facts show that Plaintiff has failed to retain a medical expert to offer standard of care opinions as required by Florida law in a medical malpractice case. In support of its motion, the United States attaches Plaintiff’s responses to interrogatories, wherein he lists partial identifying and contact information for four expert witnesses (three physicians and one physical therapist who treated Plaintiff) but fails to identify what opinions they will offer, what ...


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