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Spurlock v. United States

United States District Court, W.D. Louisiana, Lake Charles Division

May 7, 2019

JOHN THOMAS SPURLOCK
v.
UNITED STATES OF AMERICA

          REPORT AND RECOMMENDATION

          KATHLEEN KAY, UNITED STATES MAGISTRATE JUDGE.

         Before 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.

         I.

         Background

         Spurlock 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.[1] 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.

         II.

         Law & Application

         A. Summary Judgment Standard

         A court 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.

         If the 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).

         A court 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.

         Louisiana 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 testimony.” Id.

         B. Application

         In his 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 ...


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