United States District Court, N.D. Alabama, Eastern Division
Delfino Gonzalez Sanchez, Plaintiff, Pro se, Porterville, CA.
For United States of America, Federal Bureau of Prisons, John T Rathman, Warden, Dr Mark Holbrook, Dr.; Clinical Director, Defendants: Carolyn Williams Steverson, U.S. ATTORNEY'S OFFICE, Birmingham, AL; Don B Long, III, United States Attorney's Office - NDAL, Birmingham, AL.
REPORT AND RECOMMENDATION
JOHN E. OTT, Chief United States Magistrate Judge.
The plaintiff, Delfino Gonzales Sanchez, was a federal inmate at Talladega Federal Correctional Institution (T.F.C.I.) in Talladega, Alabama, when he filed this pro se action pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Investigation, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and the Federal Tort Claims Act (FTCA) on March 21, 2013. (Doc. 1). He names the United States of America, the Federal Bureau of Prisons, Warden John T. Rathman, and Clinical Director Dr. Mark Holbrook as defendants, and claims the defendants were deliberately indifferent to his serious medical needs, and committed " medical malpractice/neglect, " both of which resulted in the loss of vision in his right eye. (Id. at 1-2). The plaintiff seeks a jury trial and monetary damages. (Id. at 1). In accordance with the usual practices of this court and 28 U.S.C. § 636(b)(2), the complaint was referred to the undersigned magistrate judge for a preliminary report and recommendation. See McCarthy v. Bronson, 500 U.S. 136, 111 S.Ct. 1737, 114 L.Ed.2d 194 (1991).
I. Procedural History
On October 7, 2013, the court entered an Order for Special Report directing that copies of the complaint be forwarded to Warden John T. Rathman and Dr. Mark Holbrook, and requesting they file a special report addressing the factual allegations contained therein. (Doc. 15). The defendants were advised the special report could be submitted under oath or accompanied by affidavits and, if appropriate, would be considered as a motion for summary judgment filed pursuant to Rule 56 of the Federal Rules of Civil Procedure. By the same Order, the plaintiff was advised that after he received a copy of the special report submitted by the defendants he should file counter affidavits if he wished to rebut the matters presented by the defendants in the special report. The plaintiff was further advised that such affidavits should be filed within twenty days after receiving a copy of the defendants' special report.
On October 28, 2013, the undersigned entered an order clarifying that the defendants were to respond to the plaintiff's Bivens and FTCA claims. (Doc. 18). On March 5, 2014, the defendants filed a partial response to the Order for Special Report which addressed only the plaintiff's Bivens claims. (Doc. 27). Simultaneously therewith, the defendants moved for leave to file the partial response, asserting the " FTCA claims require[d] additional review." (Doc. 28). On April 15, 2014, the defendants' motion for leave was denied, and they were ordered " to file a special report or otherwise respond to Plaintiff's FTCA claims within thirty (30) days of the" entry date of the order. (Doc. 29 at 2). Defendants Rathman and Holbrook were also ordered to sign and return a waiver of service within the same time period. (Id.).
On May 14, 2014, the defendants filed an Answer to the plaintiff's FTCA claim. (Doc. 30). On May 15, 2014, defendants Rathman and Holbrook filed signed waivers of service of process. (Doc. 31-1, 31-2).
On May 16, 2014, the court entered an order construing the defendants' special report as a motion for summary judgment. (Doc. 32). In the same order, the plaintiff was notified that he would have twenty days to respond to the motion for summary judgment, filing affidavits or other material if he chose. (Id.). He also was advised of the consequences of any default or failure to comply with Fed.R.Civ.P. 56. See Griffith v. Wainwright, 772 F.2d 822, 825 (11th Cir. 1985). The plaintiff did not file a response.
II. SUMMARY JUDGMENT STANDARD OF REVIEW
Since the defendants filed an answer to the plaintiff's FTCA claim, the only claims being considered for summary judgment review are the plaintiff's Bivens claims. To that end, the court must determine whether the moving parties, the defendants, are entitled to judgment as a matter of law as to the Bivens claims.
Summary judgment may be granted only if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Federal Rule of Civil Procedure 56 . In making that assessment, the court must view the evidence in a light most favorable to the non-moving party and must draw all reasonable inferences against the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden of proof is upon the moving party to establish his prima facie entitlement to summary judgment by showing the absence of genuine issues and that he is due to prevail as a matter of law. See Clark v. Coats & Clark, Inc., 929 F.2d 604 (11th Cir. 1991). Once that initial burden has been carried, however, the non-moving party may not merely rest upon his pleading, but must come forward with evidence supporting each essential element of his claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Barfield v. Brierton, 883 F.2d 923 (11th Cir. 1989). Unless the plaintiff, who carries the ultimate burden of proving his action, is able to show some evidence with respect to each element of his claim, all other issues of fact become immaterial, and the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Bennett v. Parker, 898 F.2d 1530 (11th Cir. 1990). As the Eleventh Circuit has explained:
Facts in dispute cease to be " material" facts when the plaintiff fails to establish a prima facie case. " In such a situation, there can be 'no genuine issue as to any material fact, ' since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial." Thus, under such circumstances, the public official is entitled to judgment as a matter of law, because the plaintiff has failed to carry the burden of proof. This rule facilitates the dismissal of factually unsupported claims prior to trial.
Bennett v. Parker, 898 F.2d at 1532 (citations omitted).
The following facts are undisputed, or if disputed, taken in a light most favorable to the plaintiff.
The plaintiff became an inmate at T. F.C.I. on or about May 11, 2009. (Doc. 1 at 2). A vision screen conducted on May 12, 2009, showed the plaintiff's distance and near vision in his right eye were 20/100. (Id., Exhibit D at 29). On October 22, 2009, the plaintiff was seen in sick call, where he complained of irritation in his right eye, with special sensitivity to cold and hot air. (Doc. 27-2 at 8). A mid-level practitioner (MLP) examined him, and noted " bilateral pterygium extending to the cornea." (Id.). The plaintiff was " [a]advised to purchase Visine from the commissary." (Id. at 9).
On June 8, 2010, the plaintiff reported to sick call again. (Doc. 27-3 at 2). He complained he could " not see too far[, o]bjects in the distance appear blurry, " and that his eyes watered in the mornings. (Id.). He was not in pain, but stated " [t]his has been going on for 2 years." (Id.). Dela Cruz noted the plaintiff's bilateral pterygium, and an unspecified " disorder of refraction and accommodation, " which she characterized as chronic. (Id. at 3). His visual acuity in the right eye was 20/50 and 20/30 in the left eye. (Id.). Cruz made a consultation request for an evaluation and possible eyeglass prescription. (Id.). Cruz also " [e]xplained pterygium, the " course of treatment" for it and the optometry referral, whereupon the plaintiff verbalized understanding. (Id. at 16).
On November 9, 2010, the plaintiff filed a medical request, complaining, " I'm having problems with my eye [and] it's getting wors[e]. I can har[dly] see out of it. I need to see a[n] eye doctor as soon as possible." (Doc. 1, Exhibit C at 19). On November 19, 2010, Nurse Dela Cruz instructed the plaintiff to " watch the callout" because he was being referred to an optometrist. (Id.).
According to notes made by Dr. Holbrook, on January 19, 2011, the plaintiff was examined by " optometry." (Doc. 27-4 at 18). He was diagnosed " with increased IOP,  presbyopia,  and pterygium . . . . [The optometrist] recommended Naphcon A and timolol. He also requested f/u in 1 week for recheck of IOP." (Id.). On January 26, 2011, the plaintiff's IOP was rechecked, and there are no notations of any abnormalities. (Id. at 16).
The medical record contains a billing receipt that includes the plaintiff's eyeglass prescription with process dates in February and March 2011. (Doc. 27-4 at 31). The plaintiff received his glasses on April 12, 2011. (Doc. 1, Exhibit C at 21). The next day, he filed a medical request concerning the glasses, stating they " are not helping me to see. I can't see out of my right eye." (Id.). He asked to be rechecked by a doctor. (Id.). On April 14, 2011, MLP Cruz responded that his prescription was based on the examination findings, and asked that the plaintiff " allow time for continuous use for better results." (Id.).
On May 9, 2011, the plaintiff penned another medical request asking to see an eye doctor. (Id. at 20). He stated that he could " no longer see out of [his] right eye[, ] it's gone." (Id.). He also complained he could barely see out of his left eye with the glasses." (Id.). He ended by writing, " I need to see somebody soon this is no game." (Id.). On May 11, 2011, the plaintiff was seen by MLP Marsigan, who reported the plaintiff stated he could not see very well out of his right eye. (Doc. 27-4 at 15). Marsigan provisionally diagnosed the problem as an " error of refraction" and referred the plaintiff to an " eye doctor for evaluation." (Id.).
On June 1, 2011, the plaintiff was seen again by MLP Hernani, and the plaintiff reported an " inability to see with his right eye which started about 7 weeks" earlier. (Id. at 14). The plaintiff was not in pain. (Id.). Hernani checked the plaintiff's IOP, and also reported he " could not see the letters" in his right eye. (Id.). Although the plaintiff had already been referred to optometry, Hernani requested that he be sent to an ophthamologist to rule out " partial-blindness." (Id.).
The plaintiff alleges the " injury to his eye occurred on or around July 2011. (Doc. 1 at 2). The records for that month show that on July 12, 2011, the plaintiff filed a request for administrative remedy in which he complained about the delay in care regarding his right eye, that he could not see from that eye, and that the deterioration had been rapid and painful. (Id., Exhibit B, at 12). He also requested treatment. (Id.).
An attempt at informal resolution failed on July 18, 2011, because the suggestion was for the plaintiff to see the physician's assistant, and the plaintiff stated he already had done so without result. (Doc. 27-10 at 3). The plaintiff requested a BP-9 form. (Doc. 1, Exhibit A at 8). On August 3, 2011, Warden Rathman responded that he received the plaintiff's administrative request on July 22, 2011. (Id., Exhibit B, at 13). Rathman informed the plaintiff that " [b]ased on a review of your medical ...