United States District Court, W.D. Louisiana, Lake Charles Division
REPORT AND RECOMMENDATION
KATHLEEN KAY, UNITED STATES MAGISTRATE JUDGE.
the court is a Motion for Summary Judgment [doc. 53] filed by
defendant the United States of America
(“government”), in response to the suit filed
against it by pro se plaintiff John Thomas Spurlock under the
Federal Tort Claims Act, 28 U.S.C. § 2671 et
seq. The motion has been referred to the undersigned for
review, report, and recommendation in accordance with the
provisions of 28 U.S.C. § 636.
complains of medical care he received while he was an inmate
in the custody of the Bureau Prisons (“BOP”)
housed at the Federal Correctional Institution at Oakdale,
Louisiana (“FCIO”). Specifically, he alleges that
FCIO healthcare providers delayed in diagnosing him with H1N1
influenza in January 2014, resulting in complications, and
that they delayed an apparent pneumonia diagnosis in April
2015 due to the lack of an X-ray provider at
FCIO. Docs. 4, 6. The government moves for
summary judgment, asserting that Spurlock's conclusory
allegations and failure to designate an expert mean that he
cannot establish a claim of medical malpractice. Doc. 53,
att. 1; see doc. 53, att. 3. Spurlock, who has since
been released from prison, has not responded to this motion
and his time for doing so has passed. Accordingly, the motion
is regarded as unopposed and the government's statement
of uncontested material facts [doc. 53, att. 3] is deemed
admitted under Local Rule 56.2.
Summary Judgment Standard
should grant a motion for summary judgment when the movant
shows “that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56. The party moving for
summary judgment is initially responsible for identifying
portions of pleadings and discovery that show the lack of a
genuine issue of material fact. Tubacex, Inc. v. M/V
Risan, 45 F.3d 951, 954 (5th Cir. 1995). The court must
deny the motion for summary judgment if the movant fails to
meet this burden. Id.
movant makes this showing, however, the burden then shifts to
the non-moving party to “set forth specific facts
showing that there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505,
2511 (1986) (quotations omitted). This requires more than
mere allegations or denials of the adverse party's
pleadings. Instead, the nonmovant must submit
“significant probative evidence” in support of
his claim. State Farm Life Ins. Co. v. Gutterman,
896 F.2d 116, 118 (5th Cir. 1990). “If the evidence is
merely colorable, or is not significantly probative, summary
judgment may be granted.” Anderson, 106 S.Ct.
at 2511 (citations omitted).
may not make credibility determinations or weigh the evidence
in ruling on a motion for summary judgment. Reeves v.
Sanderson Plumbing Prods., Inc., 120 S.Ct. 2097, 2110
(2000). The court is also required to view all evidence in
the light most favorable to the non-moving party and draw all
reasonable inferences in that party's favor. Clift v.
Clift, 210 F.3d 268, 270 (5th Cir. 2000). Under this
standard, a genuine issue of material fact exists if a
reasonable trier of fact could render a verdict for the
nonmoving party. Brumfield v. Hollins, 551 F.3d 322,
326 (5th Cir. 2008). Finally, “[a] motion for summary
judgment cannot be granted simply because there is no
opposition, even if failure to oppose violated a local rule,
” and the movant still has the burden of establishing
the absence of a genuine issue of material fact. Hetzel
v. Bethlehem Steel Corp., 50 F.3d 360, 362 (5th Cir.
1995). The nonmovant's failure to file an opposition and
statement of contested material facts, however, requires the
court to deem the movant's statement of uncontested
material facts admitted for the purposes of this motion.
Local Rule 56.2.
Revised Statute § 9:2794 sets out the elements of a
medical malpractice claim under Louisiana law. A plaintiff
must prove: (1) the applicable standard of care; (2) a breach
of that standard of care by the defendant; and (3) that the
plaintiff's injury was a proximate result of that breach.
Id. at § 9:2794(A). Nurses who perform medical
services are subject to the same standard of care as
physicians: to exercise the degree of skill ordinarily
employed under similar circumstances by members of the
profession in good standing in the same community or
locality, and to use reasonable care and diligence, along
with their best judgment, in their application of skill to
the case. Little v. Pou, 975 So.2d 666, 674-75 (La.
Ct. App. 2d Cir. 2008). Injury alone does not create a
presumption of negligence, and the plaintiff has not proven
his case if the harm would have resulted nevertheless. La.
Rev. Stat. § 9:2794(A)(3), (C); Swartzlander v. Hunt
Lab. Inc., 552 So.2d 1339 (La. Ct. App. 5th Cir. 1989).
Expert testimony is usually required to establish the
applicable standard of care. Schultz v. Guoth, 57
So.3d 1002, 1006-07 (La. 2011). However, an exception is made
where “the negligence is so obvious that a lay person
can infer [it] without the guidance of expert
amended complaint, Spurlock asserts that his diagnosis and
treatment were delayed on two occasions, in January 2014 and
April 2015. He states that a nurse who examined him on
January 21, 2014 dismissed his labored breathing as
“faking” and sent him back to his housing unit,
failing to recognize that he was acutely ill. Doc. 6, p. 4.
An administrative remedy response attached to the complaint
shows that he alleged having experienced flu-like symptoms
for six to seven days before that point, and that he was
transferred to a local hospital on January 21, 2014.
Id. at 12. During his hospitalization Spurlock
tested positive for H1N1. Id. After extended
hospitalization to treat his complications, Spurlock alleges,
he returned to FCIO and sought care at health services on
April 20, 2015. Id. at 4. He asserts that a nurse
there examined him and said that he appeared to be okay, but
that he would need a chest X-ray to see “what was going
on” and that one could not be provided then because
there was no X-ray technician on site. Id. Spurlock
states that he returned to health services on April 26,
complaining of ...