United States District Court, D. New Jersey, Camden Vicinage
Brown Pro Se Plaintiff
B. Taylor, Esq. Office of the U.S. Attorney Attorney for
Defendant United States of America
OPINION [DOCKET NOS. 30, 38, 59]
RENÉE MARIE BUMB UNITED STATES DISTRICT JUDGE
matter comes before the Court upon the Motion for Summary
Judgment by pro se Plaintiff Andrew Brown (the
“Plaintiff”) [Docket No. 30], the Motion for
Summary Judgment by Defendant United States of America (the
“Defendant”) [Docket No. 38], and the Motion for
“Leave to Depose & Supplement” by Plaintiff
[Docket No. 59]. For the reasons set forth herein,
Plaintiff's Motion for Summary Judgment will be denied,
Defendant's Motion for Summary Judgment will be denied
without prejudice, and Plaintiff's Motion for Leave to
Depose & Supplement will be administratively terminated
FACTUAL AND PROCEDURAL BACKGROUND
matter stems from the medical treatment Plaintiff received
for an inguinal hernia while incarcerated, which Plaintiff
claims was deficient. Throughout the relevant time period,
Plaintiff was a federal inmate at FCI Fairton. Def. SOMF
¶ 1 [Docket No. 38-1].
first complained of pain caused by a hernia in his left groin
on January 29, 2013. Id. ¶ 2. The medical staff
at FCI Fairton provided Plaintiff with a hernia belt
“to prevent progression of hernia” and instructed
Plaintiff on how to use the belt. Id. On March 5,
2013, Plaintiff was medically evaluated for reports of pain
due to his hernia. The medical records note that Plaintiff
complained of pain and “wants [hernia] repaired.”
Def. Ex. A p. 33 [Docket No. 56]. Plaintiff was referred for
evaluation of the “need for surgical repair of inguinal
hernia.” Id. p. 34. Thereafter, on March 14,
2015, the Fairton Utilization Review Committee (the
“URC”) referred Plaintiff's initial surgical
consultation to the Fairton clinical director for evaluation.
Def. SOMF ¶ 5.
examination on April 5, 2013, Plaintiff complained of
“pain on hernia” and “insist[ed] on getting
surgery.” Def. Ex. A p. 29. The medical records
indicate that Plaintiff was told to wear his hernia belt at
all times and perform certain prescribed exercises. He was
also advised that “this surgery is elective; it will be
prioritized based on presentation. Will monitor hernia on a
regular basis.” Id. On April 29, 2013, the URC
considered Plaintiff as a candidate for surgical
consultation. Def. SOMF ¶ 8. The following day, the
clinical director decided to defer any referral. Id.
6, 2013, Plaintiff complained that his hernia was
“killing” him and that he was “in a great
deal of pain [and] need[ed] surgery to fix this problem and
improve [his] quality of life.” Def. Ex. B p. 55. He
was advised that he would be seen shortly and to keep an eye
on the call out list. Def. SOMF ¶¶ 9-10. Plaintiff
was examined on June 13, 2013. He complained of pain in his
left groin area from his hernia. He reported that the hernia
caused him pain when he sneezed and exercised and that the
pain affected his quality of life. Def. Ex. A p. 23. The
medical records state: “Educated about plan. As of now
surgery consult was deferred. Will continue monitoring.
Encouraged to use hernia belt.” Id. p. 24.
continued to complain of pain and discomfort associated with
his hernia throughout July 2013. Def. SOMF ¶¶
12-15. On July 14, 2013, Plaintiff requested surgery and was
advised that he would be seen in one week. Id.
¶ 13. Upon examination on July 24, 2013, Plaintiff
complained of daily pain in the left groin area. The medical
report states that the hernia remained without obstruction or
gangrene, that it was reducible, and that a surgical consult
would be done again. Id. ¶ 16. Two days later,
the URC found that Plaintiff's hernia presented a
medically necessary, non-emergent health concern.
Plaintiff's case was referred to the Fairton clinical
director for evaluation. Id. ¶ 17. Plaintiff
was examined again on July 29, 2013. The medical record for
this visit states: “Case discussed in URC and was
decided to have an evaluation by CD to determine need for
surgery. Left inguinal hernia is small, easily reducible and
no report that the condition has interfered with his
activities of daily living. Will re evaluate [sic] condition
in 6 months.” Def. Ex. A p. 19.
September 14, 2013, Plaintiff requested surgical repair of
his hernia because it was affecting his ability to exercise
and because the “only cure is surgery.” Def. SOMF
¶ 20. The following week, Plaintiff was examined and
complained “that his hernia is affecting the quality of
his life.” Id. ¶ 21. The hernia was
observed to be reducible and without obstruction.
Id. On October 13, 2013, Plaintiff again complained
of pain due to his hernia. Id. ¶ 22. Plaintiff
was seen the following week, “complaining about his
hernia.” Id. ¶ 23. The medical records
indicate that Plaintiff “was evaluated by the CD who
did not recommend further treatment. Plaintiff was referred
to the clinical director again because his surgery evaluation
had been denied twice even though Plaintiff believed he
should get the operation.” Id. On October 29,
2013, the clinical director evaluated Plaintiff and
recommended a surgical consultation for repair. Id.
¶ 24. On December 9, 2013, Plaintiff was advised that
his medical consult for surgical repair of his hernia was
referred to the regional reviewer for approval. Id.
¶ 28. On December 31, 2013, Plaintiff's medical
consult for hernia repair was approved by the regional
reviewer and the consult was prioritized as “medically
necessary - non-emergent.” Def. Ex. F p. 145.
examination on January 15, 2014, Plaintiff's hernia was
noted to be “inguinal, w/o obstruction or
gangrene.” Def. SOMF ¶ 30. At that visit,
Plaintiff was “educated that the request for hernia
repair surgery has been approved by regional reviewer,
pending scheduling, advised to watch call out.”
Id. On March 5, 2014, Plaintiff was once again told
that his hernia repair had been approved and was pending
scheduling. Id. ¶ 32. On April 7, 2014,
Plaintiff was examined for his hernia pain. He was advised
that his consultation with an outside specialist was being
scheduled. Id. ¶ 34. On May 8, 2014, Dr.
Nauveed Iqbal examined Plaintiff upon referral by the FCI
Fairton clinical director. Dr. Iqbal noted that Plaintiff had
a hernia “which will require surgical intervention. The
procedure was discussed in detail and all questions and
concerns addressed. Surgery will be scheduled on an
outpatient basis.” Def. Ex. D p. 134.
25, 2014, Plaintiff visited health services to inquire as to
his hernia repair. Plaintiff continued to complain of pain
and was advised to continue taking pain medications and wear
his hernia belt at all times. Def. SOMF ¶ 39. Plaintiff
continued to complain of hernia pain in July 2014.
Id. ¶ 40. On August 8, 2014, the URC designated
Plaintiff's surgical consult as “medically
necessary - routine” and informed Plaintiff that the
consult had been approved at the local level. Id.
around September 16, 2014, Plaintiff's hernia repair
surgery was scheduled for October 3, 2014. Id.
¶ 44. Plaintiff underwent surgical repair of his
inguinal hernia on October 3, 2014. Id. ¶ 46.
On October 10, 2014, Plaintiff's staples were removed and
his wound site appeared to be healing well. Id.
¶ 49. On October 15, 2014, Plaintiff reported blood at
the incision site, but examination revealed that the site
continued to heal well. Id. ¶ 50. According to
Plaintiff, he began experiencing pain in his left testicle,
directly below the location of his hernia, since the hernia
repair surgery. Pl. Aff. ¶ 13 [Docket No. 45]. Plaintiff
did not suffer from such pain prior to the hernia repair
surgery and the pain persists to date. Id.
around November 10, 2014, Plaintiff filed an administrative
tort claim related to his allegedly inadequate medical
treatment. Def. SOMF ¶ 51. On October 27, 2015,
Plaintiff filed the instant action in federal court, along
with an application to proceed in forma pauperis and
an application for appointment of pro bono counsel [Docket
No. 1]. This Court screened the Complaint, pursuant to 28
U.S.C. § 1915(e)(2)(B), and permitted Plaintiff's
Federal Tort Claims Act (“FTCA”) claim against
the United States of America to proceed, but dismissed all
other claims [Docket Nos. 2, 3]. The Court granted
Plaintiff's request to proceed in forma
pauperis, but denied Plaintiff's request for pro
bono counsel without prejudice. Id. Defendant
answered the Complaint on February 29, 2016 [Docket No. 11].
renewed his motion to appoint pro bono counsel on March 16,
2016 [Docket No. 14]. On April 20, 2016, Plaintiff moved to
amend his Complaint to reinstate claims that had been
dismissed by this Court upon screening [Docket No. 16].
Thereafter, on May 23, 2016, Plaintiff moved to appoint an
expert witness [Docket No. 19]. The Court denied
Plaintiff's motion to appoint pro bono counsel on August
2, 2016 [Docket Nos. 25, 26].
filed the instant Motion for Summary Judgment on August 15,
2016 [Docket No. 30], and renewed his request for the
appointment of pro bono counsel on September 1, 2016 [Docket
No. 35]. On September 9, 2016, Defendant filed its Motion for
Summary Judgment [Docket No. 38]. In connection with its
Motion for Summary Judgment, Defendant submitted an expert
report from Dr. Nathaniel R. Evans II, who opined that the
medical treatment Plaintiff received at FCI Fairton for his
inguinal hernia did not deviate from the applicable standard
of care [Docket No. 38-8]. While Plaintiff's previous
motion to appoint pro bono counsel remained pending,
Plaintiff once again moved to appoint pro bono counsel on
October 11, 2016 [Docket No. 43]. On December 9, 2016, the
Court denied Plaintiff's motions to appoint pro bono
counsel, as well as Plaintiff's motion to appoint an
expert witness [Docket Nos. 52, 53]. On December 13, 2016,
the Court denied Plaintiff's motion to amend his
Complaint [Docket No. 54]. Subsequently, on January 22, 2017,
Plaintiff notified the Court that he was no longer
incarcerated [Docket No. 57]. On March 9, 2017, Plaintiff
submitted a motion for leave to depose Defendant's
medical expert, Dr. Evans, and to supplement the summary
judgment record [Docket No. 59].
Court now addresses Plaintiff's Motion for Summary
Judgment and Motion for Leave to Depose & Supplement, as
well as Defendant's Motion for Summary Judgment.