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McLoyd v. United States

July 27, 2006

LUTHER MCLOYD, PLAINTIFF,
v.
UNITED STATES OF AMERICA AND FEDERAL BUREAU OF PRISONS, DEFENDANTS.



The opinion of the court was delivered by: Simandle, District Judge

OPINION

Plaintiff filed this action pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671-80, and 28 U.S.C. § 1346, alleging injuries he suffered while in prison were caused by medical malpractice. Defendants moved for summary judgment pursuant to Rule 56, Fed. R. Civ. P., because the plaintiff failed to provide an Affidavit of Merit. That motion is unopposed. For the following reasons, Defendants' motion will be granted.

I. BACKGROUND

A. Facts

The facts which bear on the pending motion are set forth in plaintiff's well-pleaded complaint which, for the purposes of summary judgment, the Court must accept as true.*fn1

In September, 2003, plaintiff was a prisoner at the FCI-Fort Dix correctional facility. (Compl. ¶ 8.) On September 3, 2002, plaintiff injured himself at the prison. (Id. at ¶ 12.) That same day, plaintiff was examined by a practitioner who allegedly mistakenly diagnosed the injury and provided insufficient treatment. (Id. at ¶ 15.) Following this diagnosis, plaintiff returned to the clinic on September 19, 2002, at which time x-rays were taken leading to a diagnosis of a dislocation of the lunate bone in his wrist. (Id. at ¶ 16.)

Plaintiff alleges that on October 10, 2002, an orthopedist at the South Jersey Hand Center advised him that the left wrist bones were "healing out of place due to improper treatment and ligament damage." (Id. at ¶ 17.) On December 3, 2002, Plaintiff was transported to Cooper Hospital where he was advised that surgery was necessary to repair the lunate dislocation. (Id. at ¶ 17.) Surgery to repair plaintiffs wrist was conducted on April 9, 2003 at Cooper Hospital. (Id. at ¶ 19.)

Plaintiff alleges that he has suffered serious and lasting injury as a result of his improper treatment while under the care of practitioners working for, or under contract with, FCI-Fort Dix. (Id. at ¶¶ 21-23.) Plaintiff seeks damages in the amount of $1,000,000 plus costs. (Id. at ¶ 24.)

B. Procedural History

Plaintiff filed a complaint against the United States of America and the Federal Bureau of Prisons on February 19, 2004. Defendants filed an answer on May 24, 2004.

Following an initial conference, on August 5, 2004, Magistrate Judge Rosen issued a scheduling order setting February 28, 2005 as the due date for pretrial discovery.

No evidentiary submissions were filed by the plaintiff. On May 18, 2005, Defendants wrote a letter to the Court noting that answers to Defendants' interrogatories had not been received, nor had any expert reports been produced by Plaintiff. A conference call was held on May 23, 2005 and plaintiff's attorney was given time to procure an expert. That deadline has expired but Plaintiff has not produced an expert. To date, Plaintiff has not filed an Affidavit of Merit.

Defendants filed the present motion for Summary Judgment on January 27, 2006, which is not opposed.

II. DISCUSSION

Defendants have moved for dismissal with prejudice because Plaintiff has failed to provide an Affidavit of Merit.*fn2

A. Applicable Substantive Law

This cause of action is brought by the Plaintiff under the Federal Tort Claims Act (the "FTCA"), 28 U.S.C. §§ 2671-80. The FTCA provides:

The head of each Federal agency or his designee, in accordance with regulations prescribed by the Attorney General, may consider, ascertain, adjust, determine, compromise, and settle any claim for money damages against the United States for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the agency while acting within the scope of his office or employment, under circumstances where the United States, if a ...


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