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SIMPSON v. FEDERAL BUREAU OF PRISONS

September 28, 2005.

ERNEST SIMPSON, Plaintiff,
v.
FEDERAL BUREAU OF PRISONS, ET AL., Defendants.



The opinion of the court was delivered by: THOMAS VANASKIE, Chief Judge

MEMORANDUM

I. Introduction.

Presently before the Court is Defendant's Second Motion for Summary Judgment (Dkt. Entry 36), and Plaintiff's Motion for Appointment of Counsel. (Dkt. Entry 43.) Both motions are ripe and fully briefed by the parties. For the reasons that follow, Plaintiff's Motion for Appointment of Counsel will be denied and Defendant's Second Motion for Summary Judgment will be granted.

  II. Procedural History

  The sole remaining claim in this matter arises under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671, et seq., and concerns alleged inadequate medical treatment provided by the Federal Bureau of Prisons ("BOP") medical staff for Simpson's chronic left ear infections. On January 11, 2002, Simpson filed an administrative tort claim against the BOP. On or about June 21, 2002, he received notice that the BOP denied his claim. Plaintiff filed the present action on December 19, 2002, and an amended complaint on January 30, 2003. Defendant waived service of the complaint on May 22, 2003, and filed a motion for summary judgment on June 30, 2003. Simpson then requested, and received, a stay of the summary judgment proceedings to allow him to pursue discovery in this matter. (See Dkt. Entry 29.) The first summary judgment motion was dismissed, without prejudice. I ordered that all discovery be completed by July 30, 2004, and dispositive motions filed by August 31, 2004. (See Dkt. Entry 30.)

  Almost 4 months after the Defendant allegedly served Plaintiff with inadequate discovery responses on March 18, 2004, Simpson filed a motion to compel. (Dkt. Entry 33.) Prior to the resolution of that motion, Defendant filed a Second Motion for Summary Judgment. Defendant claims that, absent expert medical testimony, Simpson cannot present a viable medical malpractice claim. (Dkt. Entry 37.)

  Simpson filed his opposition to Defendant's motion on October 28, 2004. (Dkt. Entries 41 and 42.) He argued that he cannot adequately defend against Defendant's summary judgment motion without the discovery that was the subject of his motion to compel. (Dkt. Entry 41.) He asserted that Defendant's responses to discovery were so inadequate and evasive that they did not constitute a response, and without full disclosure he could not gain "valuable information to proffer expert opinions regarding his case." (Dkt. Entry 42.) Simpson also argued that, contrary to Defendant's assertion, the absence of expert testimony on his behalf was not fatal to his case as the matter presented is so simple and obvious as to be within a lay person's range of experience and comprehension. (Dkt. Entry 41.)

  Several months after filing his response, Simpson sought the appointment of counsel. (Dkt Entry 43). His motion for appointment of counsel was based on the following factors: (1) his difficulties in obtaining discovery materials from Defendants; (2) his incarceration precluded him from taking depositions in this matter; (3) his inability to obtain medical records from the BOP's outside Ear, Nose and Throat ("ENT") specialist who examined him and performed surgery on his ear; (4) his expected transfer to the Maryland Department of Corrections, which may not have Pennsylvania legal materials; and (5) other medical problems may render him mentally incapable of representing himself at trial. Defendant opposed this motion based on Simpson's demonstrated ability to represent himself and the questionable merit of his claim given his failure to produce an expert opinion.*fn1 (Dkt. Entry 47.) On March 14, 2005, I denied Simpson's motion to compel discovery, finding that Defendant had provided full and complete discovery. (See Dkt. Entry 52.) In this regard, Defendant provided Simpson with a complete copy of the medical records in its possession. Simpson did not seek reconsideration of that motion, nor has he sought to amend his opposition to Defendant's motion for summary judgment in light of my ruling on his motion to compel.

  III. Statement of Facts.

  According to Simpson, on February 22, 2000, he went to sick call after experiencing pain and fluid discharge from his left ear. (Dkt. Entry 1 and 6.) He was seen by a Physician's Assistant ("PA") who diagnosed him as having chronic otitis media, a left perforated tympanic membrane and yellowish discharge. The PA noted that Simpson should be seen by an ENT doctor upon reaching his parent institution. (Id.) He was seen almost on a monthly basis starting from March 2000 until May 2001 by various PAs who prescribed antibiotics for his persistent ear infections.

  Records produced by Defendant indicate that Simpson arrived at FCI Allenwood on April 6, 2000. He first sought treatment for an ear infection on May 9, 2000. An audiogram was attempted on May 15, 2000, but could not be completed. The records reflect recurrent ear infections and consistent treatment with antibiotics.

  On December 5, 2000, a PA wrote a consultation request to have Simpson seen by Dr. Frank, an ENT Specialist. Simpson was not seen by Dr. Frank until June 28, 2001. Dr. Frank made a "preliminary diagnosis of left ear TM perforation, left ear discharge and hearing loss despite antibiotics X over one year and noted on the recommendation for an Audiogram; arrange for left ear Tympanyoplasty and Middle Ear Exploration." (Dkt. Entry 6.) On September 13, 2001, Plaintiff again presented at sick call with extreme pain in his left ear.

  On December 10, 2001, Plaintiff had a Tympanyoplasty and Middle Ear Exploration at a private hospital performed by Dr. Frank. Plaintiff claims that BOP staff failed to follow Dr. Frank's post-operative care instructions as he was not taken to see Dr. Frank for his post-operative visit for almost two months after surgery, instead of two weeks as requested by Dr. Frank. Similarly, Simpson's sutures were removed later than advised by Dr. Frank.

  On January 3, 2002, Simpson again appeared at sick call experiencing pain and discharge from his left ear. He was seen by Dr. Frank on January 30, 2002, where a small left ear perforation was noted and antibiotics were prescribed. Notable improvement was seen at Simpson's February 27, 2002, follow-up visit with Dr. Frank. He was to return to see Dr. Frank in three months, but more than ten months passed and he had not seen Dr. ...


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