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Brown v. United States

United States District Court, D. New Jersey, Camden Vicinage

March 21, 2017

ANDREW BROWN, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          Andrew Brown Pro Se Plaintiff

          Anne 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

         This 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 as premature.

         I. FACTUAL AND PROCEDURAL BACKGROUND[1]

         This 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].

         Plaintiff 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.

         Upon 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.

         On June 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.

         Plaintiff 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.

         On 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.

         Upon 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.

         On June 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. ¶ 42.

         On or 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. ¶¶ 15-16.

         On or 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].

         Plaintiff 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].

         Plaintiff 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].

         The 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.

         II. SUMMARY ...


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