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Norwood v. United States

United States District Court, N.D. Alabama, Eastern Division

March 27, 2015

LARRY WAYNE NORWOOD, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

MEMORANDUM OPINION

SHARON LOVELACE BLACKBURN, District Judge.

On June 27, 2013, the plaintiff, Larry Norwood, filed this pro se action pursuant to the Federal Tort Claims Act (FTCA), alleging that defendants United States of America, the Federal Bureau of Prisons (BOP), Dr. W. Mark Holbrook and Dr. Stokes provided negligent medical care in connection with an injury to his left foot that occurred on February 10, 2011. (Doc. 1 at 1).

I. Pertinent Procedural History

On April 11, 2014, an Order for Special Report was entered directing defendants United States of America, Dr. W. Mark Holbrook and Dr. Stokes to respond to the allegations in plaintiff's complaint. (Doc. 11).[1] The plaintiff was afforded twenty days from the entry date of the order to specifically assert whether the court had misunderstood or misconstrued the claims pled in the complaint. ( Id. at 4). He was also advised that he would "not be allowed to amend the complaint to add parties or claims after the date of the order except upon express leave of court." ( Id. ). The plaintiff filed no corrections to the magistrate judge's recitation of the factual allegations made in support of his claims within the time period allotted.

On June 25, 2014, the United States filed a Notice of Substitution and certified that defendant Dr. William Holbrook "was acting within the scope of his employment with the U.S. Bureau of Prisons at the time of the incident out of which the [FTCA] claims arose." (Doc. 22, 22-1). On July 10, 2014, defendant United States of America filed a special report accompanied by exhibits and affidavits. (Doc. 25). On July 15, 2014, the plaintiff filed a "Petition to Remove Dr. Willie Stokes from this Civil Action Only." (Doc. 28).

On July 22, 2014, the plaintiff was notified that the special report would be construed as a motion for summary judgment, and he was afforded thirty days to respond to the motion for summary judgment, filing affidavits or other material if he chose. (Doc. 34). 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). (Doc. 34). On July 22, 2014, the court deemed the special report to be a motion for summary judgment. (Doc. 35). On July 23, 2014, the plaintiff moved to voluntarily dismiss the Federal Bureau of Prisons as a defendant. (Doc. 36).

On August 6, 2014, the plaintiff moved to amend the complaint in order to increase the dollar amount of damages he requests from $500, 000 to $5, 000, 000. (Doc. 39). On August 7, 2014, the United States submitted a response (doc. 40) in opposition to the plaintiff's amended complaint and on August 14, 2014, the plaintiff filed a reply, (doc. 43). On August 17, 2014, the plaintiff filed a petition to add facts to his proposed amended complaint. (Doc. 45).

On January 30, 2015, the magistrate judge filed a report and recommendation, recommending that defendant United States of America's motion for summary judgment be granted, and this case be dismissed with prejudice. (Doc. 47). The plaintiff filed objections to the report and recommendation (doc. 48) and moved to file an additional response on February 11, 2015, which consisted of a consultation report by Dr. Anthony Tropeano (doc. 49).

II. The Named Defendants

The United States filed a Notice of Substitution and certified that defendant Dr. William Holbrook "was acting within the scope of his employment with the U.S. Bureau of Prisons at the time of the incident out of which the [FTCA] claims arose." (Doc. 22, 22-1). The court finds that defendant United States of America is due to be SUBSTITUTED as defendant for Dr. W. Mark Holbrook, and the claims against Dr. W. Mark Holbrook are due to be DISMISSED for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.

The plaintiff's "Petition to Remove Dr. Willie Stokes from this Civil Action Only, " is construed as a Motion for Voluntary Dismissal of Dr. Stokes as a defendant pursuant Federal Rule of Civil Procedure 41(a)(1)(A), and the motion due to be GRANTED. (Doc. 28). The plaintiff's motion to voluntarily dismiss the Federal Bureau of Prisons as a defendant (doc. 36) also is due to be GRANTED as it is well established that the United States of America is the only proper defendant in an action brought pursuant to the FTCA. See Trupei v. United States, 304 F.Appx. 776, 782 (11th Cir. 2014) (quoting Galvin v. Occupational Safety and Health Admin., 860 F.2d 181, 183 (5th Cir. 1988) ("It is beyond dispute that the United States, and not the responsible agency or employee, is the proper party defendant in a Federal Tort Claims Act suit.")). For the foregoing reasons, the United States of America is the only remaining defendant.

III. Motion to Amend the Complaint, and

Petition to Add Facts to the Amended Complaint

A. Plaintiff's Motion and Petition

On August 6, 2014, the plaintiff filed a motion to amend the complaint. (Doc. 39). In it, he requests permission to amend his complaint for medical malpractice in order increase the dollar amount of damages from $500, 000 to $5, 000, 000. ( Id. at 1). On September 17, 2014, he filed a petition to add facts to his proposed amended complaint. (Doc. 45). He claims that the medical staff is aware that his "left knee... lock[s] up" and causes him to trip or fall. ( Id. ).

Specifically, the plaintiff alleges that "prior to... breaking his foot on February 10, 2011, " the injury that gave rise to the present lawsuit, he "damaged his left knee in the year of 2006." (Doc. 39 at 1). The plaintiff "was examined by Orthopedic Specialists in Illinois, and Total Knee Replacement' (TKR) was recommended." ( Id. ). The plaintiff further alleges that he has been "transferred to numerous locations, " and "nothing was ever done." ( Id. ). He states that he "had a follow up with the Orthopedic here at Talladega FCI... in 2009[, ]" and "even though the Orthopedic states [he] needs a total knee replacement, " Dr. Holbrook told the plaintiff that he "does not meet BOP standards for left knee operation." ( Id. ).

The plaintiff also complains that when he arrived at FCI Talladega in 2008, he had "a bump on his right hand" that medical staff stated was a "wart." ( Id. ). "Two years later, the same bump' turned out to be "Squam[ou]s Cell Cancer." ( Id. at 2). On July 22, 2010, the plaintiff's hand was operated on, but he suffered a post-surgical infection because "no medical staff would treat the open wound" when FCI Talladega "was placed on lock-down status for... 7-8 days." ( Id. ). See also id. at 39 ("Operative Report"). When he was released from lockdown, "MLP Dela Cruz failed to remove all visible stitches" in the plaintiff's hand. ( Id. ). The hand "remained infected for 11 months and had to be operated on again... to remove 2 stitches." ( Id. ).

Finally, the plaintiff makes additional factual allegations concerning the state of his broken foot, the subject of the complaint. ( Id. ). He contends that he has two reports from Dr. Anthony Tropeano, an orthopedist, showing Tropeano had discussions with Dr. Holbrook about his "now deformed left foot... which has never' been operated on." ( Id. ). He complains Holbrook "allowed [him] to remain walking on his [newly] broken left foot for approximately one month after" Holbrook examined it, and that he "is still forced to walk on his now deformed left foot... which started with one broken bone, then two, and then three broken bones as time passed." ( Id. ). The plaintiff attaches several exhibits to his ...


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