Jimmy Rushing v. United States , 288 F. App'x 616 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 30, 2008
No. 07-14798 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-01958-CV-2-RDP-HGD
JIMMY RUSHING,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(July 30, 2008)
Before BIRCH, DUBINA and FAY, Circuit Judges.
PER CURIAM:
Jimmy Rushing, a pro se federal prisoner, appeals the district court’s grant
of the government’s motion for summary judgment on Rushing’s medical
malpractice and negligence claim, brought pursuant to the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. §§ 2671, 1346(b). First, Rushing argues that the court erred
in finding that his FTCA claim was untimely, and that his injury accrued when an
orthopedic surgeon recommended reconstructive ankle surgery in October 2002.
Second, Rushing argues that the court erred by, alternatively, granting the
government’s motion for summary judgment on the merits of his claim because
Rushing contends that the Bureau of Prisons (“BOP”) failed to provide him with
health care comparable to that available in the community when the BOP decided
to delay his necessary ankle surgery. For the reasons set forth more fully below,
we affirm.
In his pro se FTCA complaint, Rushing stated that, while incarcerated, he
suffered a sports-related injury to his left ankle in May 1994.1 Rushing underwent
ligament construction surgery ten years later, in May 2004, even though surgery
was recommended as early as October 2002. Rushing alleged that the BOP’s 10-
year delay in providing him necessary surgery caused him to suffer unnecessary
pain.
1
Rushing filed his administrative claim on December 30, 2004.
2
Before trial, the government filed a special report, which the magistrate
judge construed as a motion for summary judgment. Among other things, the
government included affidavits from three doctors at the BOP. According to the
doctors, under the BOP’s policy, Rushing’s ankle condition was classified as an
elective, non-emergency procedure. The government asserted that, when Rushing
reported that his pain had increased, and conservative treatment was no longer
warranted, surgery was approved and provided in a timely manner.
The magistrate notified Rushing that he had 20 days to respond to the
motion with counter-affidavits and/or documents to show a genuine issue for trial.
Rushing responded pro se, but he only provided his own affidavit with the
response.
The magistrate judge recommended granting the government’s motion for
summary judgment on two alternative grounds. First, the magistrate determined
that Rushing’s claim was untimely because Rushing knew of both the existence
and the probable cause of his injury in October 2002, when the first orthopedic
surgeon recommended surgery, but had not filed his administrative complaint until
December 30, 2004. Thus, the magistrate concluded, Rushing’s claim was not
filed within the FTCA’s two-year statute of limitations period. Second, applying
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Alabama2 substantive law, the magistrate concluded that Rushing failed to
establish that the government had not exercised reasonable care in treating him.
Specifically, the magistrate found that Rushing had “failed to dispute with specific
facts the affidavits submitted by the medical personnel or support with specific
facts his claim that the defendant was negligent in failing to provide surgery
sooner.”
The district court, after noting Rushing’s objections, and stating that it had
carefully considered the record in this case, adopted the magistrate’s report and
accepted the magistrate’s recommendations. The court granted the government’s
motion for summary judgment and dismissed Rushing’s claim with prejudice.
I.
“We review de novo a district court’s grant of summary judgment, applying
the same standard that bound the district court and viewing the evidence and all
reasonable inferences in the light most favorable to [Rushing].” Rodriguez v.
Sec’y Dep’t of Corrs, 508 F.3d 611, 616 (11th Cir. 2007). Summary judgment is
appropriate “if the pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any material fact and that
2
Rushing was housed at Federal Correction Institution (“FCI”) Yazoo City (Mississippi)
from March 12, 2001, until June 2, 2003, when he received a disciplinary transfer to FCI
Talladega (Alabama).
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the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c).
Pleadings filed by a pro se litigant should be reviewed under a “less stringent”
standard than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S.
519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972) (citations omitted). We
may affirm a decision of the district court on any ground supported by the record.
Bircoll v. Miami-Dade County, 480 F.3d 1072, 1088 n.21 (11th Cir. 2007).
Initially, Rushing claims in his brief on appeal that, as a result of the surgery,
he suffers from post-operative physical and mental trauma and has become a
cripple for life. However, construing Rushing’s pro se complaint liberally, he did
not allege in his complaint that he suffered any injury, physical or otherwise, as a
result of the BOP’s negligence or medical malpractice with regard to the surgery
itself. See Haines, 404 U.S. at 520-21, 92 S.Ct. at 595-96. Instead, Rushing
asserted in his complaint that he “experienced repeated falls, tears of tendons in his
good leg from his instability in walking, continued extreme pain, muscle wasting,
mental and emotional pain, and the possibility of being crippled” due to the BOP’s
decision to delay the surgery that had been diagnosed in October 2002. Rushing
did not move to amend his complaint to include any additional claims. Thus, to the
extent that Rushing claims that the BOP’s medical staff performed the surgery
negligently, that claim is outside the scope of his complaint.
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In addition, Rushing contends in his brief that the district court failed to
conduct a de novo review of the magistrate judge’s report and recommendation as
it was required to do under 28 U.S.C. § 636(b). However, although the court did
not explicitly state that it had conducted a “de novo review,” it did implicitly state
as much when it noted that it had carefully considered the record, the magistrate’s
report and recommendations, and the objections. Thus, the record does not support
Rushing’s contention otherwise. See Diaz v. United States, 930 F.2d 832, 835-36
(11th Cir. 1991) (rejecting a similar argument in a 28 U.S.C. § 2255 proceeding).
“The FTCA is a specific, congressional exception to the United States’
sovereign immunity for tort claims, under which the government may be sued by
certain parties under certain circumstances for particular tortious acts committed by
employees of the government.” Turner ex rel. Turner v. United States, 514 F.3d
1194, 1200 (11th Cir. 2008) (citations and quotation marks omitted). “However,
this waiver must be scrupulously observed, and not expanded, by the courts.” Id.(citations and quotation marks omitted). “A federal court may not exercise
jurisdiction over a suit under the FTCA unless the claimant first files an
administrative claim with the appropriate agency.” Suarez v. United States, 22
F.3d 1064, 1065 (11th Cir. 1994) (citing 28 U.S.C. § 2675(a)). “The
administrative claim must be filed within two years from the time the claim accrues
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and must be ‘accompanied by a claim for money damages in a sum certain.’”
Dalrymple v. United States, 460 F.3d 1318, 1324 (11th Cir. 2006) (citing 28 C.F.R.
§ 14.2(a); 28 U.S.C. §§ 2675, 2401(b)).
The Supreme Court has stated that, generally, a claim “accrues” for purposes
of the FTCA, “at the time of the plaintiff’s injury.” United States v. Kubrick, 444
U.S. 111, 120, 100 S.Ct. 352, 358, 62 L.Ed.2d 259 (1979). Thus, a claim
“accrues” when the plaintiff is “armed with the facts about the harm done to him,
[and] can protect himself by seeking advice in the medical and legal community.”
Id. at 123, 100 S.Ct. at 360.
In medical malpractice claims, however, a claim accrues “when the plaintiff
is, or in the exercise of reasonable diligence should be, aware of both [his] injury
and its connection with some act of the defendant.” Diaz v. United States, 165
F.3d 1337, 1339 (11th Cir. 1999). “The rationale behind the modified rule is to
protect plaintiffs who are blamelessly unaware of their claim because the injury has
not yet manifested itself or because the facts establishing a causal link between the
injury and the medical malpractice are in the control of the tortfeasor or are
otherwise not evident.” Id. Under the rule for medical malpractice claims,
the plaintiff need not know that []he has a legally cognizable claim for
the claim to accrue, and may not bury [his] head in the sand once []he
is put on notice that the government may have caused an injury. [He]
will not automatically lose [his] claim, however, merely because the
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circumstances surrounding the injury make its existence or
governmental cause not reasonably knowable.
Id.The district court erred by adopting and affirming the magistrate judge’s
finding that Rushing’s claim was barred by the two-year statute of limitations.
Rushing’s FTCA complaint alleges that he was injured by the BOP’s delay in
providing him necessary surgery, and that the delay caused him to suffer
unnecessary pain, even though the need for surgery was confirmed by three
orthopedic surgeons as early as October 2002. Despite the October 2002
recommendation for surgery, on January 23, 2003, the BOP’s Utilization Review
Committee (“URC”) deferred Rushing’s surgery for 90 days. Thus, based upon the
allegations in his pro se complaint, Rushing could not have been aware of the
accrual of his injury until: (1) surgery was diagnosed; and (2) the decision was
made to delay the surgery. See Diaz, 165 F.3d at 1339. Accordingly, in the
exercise of reasonable due diligence, Rushing should have been aware of both his
injury and its connection with the BOP’s deferral of surgery no earlier than January
23, 2003. See id. Because Rushing’s December 30, 2004, complaint was filed
within two years of January 23, 2003, his complaint was not untimely. See
Dalrymple, 460 F.3d at 1324.
II.
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With respect to Rushing’s medical malpractice and negligence claim, it must
be determined which state’s law applies. Liability under the FTCA for “personal
injury caused by the negligent or wrongful act or omission of any employee of the
Government,” should be determined “in accordance with the law of the place
where the act or omission occurred.” 28 U.S.C. § 1346(b)(1); see also Ochran v.
United States, 273 F.3d 1315, 1317 (11th Cir. 2001). Because the United States is
the defendant, the FTCA “requires that the ‘whole law of the State where the act or
omission occurred[,]’ including its choice of law rules, be applied.” Gonzalez-
Jiminez De Ruiz v. United States, 378 F.3d 1229, 1230 n.1 (11th Cir. 2004)
(citations omitted). As Rushing was in Mississippi on January 23, 2003, when he
possessed the critical facts of his injury and its cause, Mississippi’s choice of law
rules provisions apply. See id. In this case, under its choice of law provisions,
Mississippi would apply its own substantive law. See Zurich Am. Ins. Co. v.
Goodwin, 920 So.2d 427, 432-33 (Miss. 2006).
In order to prove medical malpractice in Mississippi, Rushing was required
to produce proof of: “(1) the existence of a duty by the defendant to conform to a
specific standard of conduct for the protection of others against an unreasonable
risk of injury; (2) a failure to conform to the required standard; and (3) an injury to
the plaintiff proximately caused by the breach of such duty by the defendant.”
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Hubbard v. Wansley, 954 So.2d 951, 956-57 (Miss. 2007). According to
Mississippi law:
When proving these elements in a medical malpractice suit, expert
testimony must [ordinarily] be used. Not only must this expert
identify and articulate the requisite standard that was not complied
with, the expert must also establish that the failure was the proximate
cause, or proximate contributing cause, of the alleged injuries.
Id. at 957. Notwithstanding the foregoing, Mississippi recognizes a narrow
exception that provides: “[l]ay testimony is sufficient to establish only those
things that are purely factual in nature or thought to be in the common knowledge
of laymen.” Drummond v. Buckley, 627 So.2d 264, 268 (Miss. 1993) (citations
omitted).
Here, whether or not reconstructive surgery was immediately necessary
based upon the condition of Rushing’s ankle was not within the common
knowledge of layman, and, therefore, under Mississippi law, Rushing was required
to establish his medical malpractice claim through the testimony of an expert
witness. See Hubbard, 954 So.2d at 956-57; Drummond, 627 So.2d at 268. In
response to the government’s motion, Rushing only provided his sworn affidavit.
Because Rushing did not support each element of his medical malpractice claim
through the use of expert testimony, the government was entitled to judgment as a
matter of law. See Fed.R.Civ.P. 56(c).
10
In light of the foregoing, the district court’s grant of the government’s
motion for summary judgment is
AFFIRMED.
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