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Gregory v. United States

United States District Court, M.D. Pennsylvania

February 13, 2017

HOWARD SCOTT GREGORY, Plaintiff
v.
UNITED STATES OF AMERICA, Defendant

          MEMORANDUM

          CHRISTOPHER C. CONNER, CHIEF JUDGE.

         On May 17, 2016, plaintiff Howard Scott Gregory ("Gregory"), an inmate formerly housed at the Federal Correctional Institution at Allenwood, Pennsylvania ("FCI-Allenwood"), commenced this action under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671, et seq. (Doc. 1). Named as the sole defendant is the United States.[1] Presently before the court is the United States' motion (Doc. 16) to dismiss pursuant to Federal Rule of Civil Procedure 12(b) or, in the alternative, for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below, the court will deny the motion.

         1. Summary Judgment Standard of Review

         Through summary adjudication the court may dispose of those claims that do not present a "genuine issue as to any material fact" and for which a jury trial would be an empty and unnecessary formality. See Fed.R.Civ.P. 56(a). The burden of proof is upon the non-moving party to come forth with "affirmative evidence, beyond the allegations of the pleadings, " in support of its right to relief. Pappas v. City of Lebanon, 331 F.Supp.2d 311, 315 (M.D. Pa. 2004); Fed.R.Civ.P. 56(e); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). This evidence must be adequate, as a matter of law, to sustain a judgment in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); see also Fed.R.Civ.P. 56(a), (e). Only if this threshold is met may the cause of action proceed. Pappas, 331 F.Supp.2d at 315. Gregory filed a counter statement of material facts; however, this counter statement fails to reference parts of the record that support his denials and statements in violation of L.R. 56.1.[2]

         II. Statement of Material Facts

         Gregory was designated to FCI-Allenwood on October 14, 2014. (Doc. 20, Statement of Material Facts, ¶ 1). When Gregory arrived at FCI-Allenwood, he had a low bunk pass that was previously issued in June 2014. (Doc. 20 at ¶ 2 n. 1). Therefore, FCI-Allenwood officials assigned Gregory to a low bunk due to his history of seizures. (Doc. 20 at ¶ 2; Doc. 20-1 at 7; Doc. 27 at ¶ 2).

         In January 2015, Gregory was transferred to the Special Housing Unit ("SHU") and assigned to the upper bunk in cell 317. (Doc. 20 at ¶¶ 5, 19; Doc. 20-1 at 23, Inmate History Quarters). On January 21, 2015, Gregory allegedly suffered a seizure, fell from the top bunk, and sustained injuries. (Doc. 1 at 7; Doc. 20 at ¶¶ 6, 19).

         Timothy Pfirman is a physician assistant at FCI-Allenwood and is assigned to the SHU. (Doc. 20 ¶ 3; Doc. 20-1 at 5-6, Declaration of Timothy Pfirman, P.A. ("Pfirman Decl."), ¶ 1-2). As part of his duties, Pfirman makes daily rounds to check on the SHU inmates. (Doc. 20 at ¶ 4; Pfirman Decl. ¶ 2). The parties dispute whether Gregory ever advised Pfirman that he was supposed to be assigned to a lower bunk. (Doc. 20 at ¶ 6; Pfirman Decl. ¶ 10; Doc. 27). Pfirman declares that inmates in the SHU are generally quick to advise him that they have a low bunk pass, and Gregory never informed him that he had a low bunk pass. (Doc. 20 at ¶ 7; Pfirman Decl. ¶ 11). Subsequent to the alleged fall, Gregory reported to Pfirman that he "got up to urinate" and he "next remembers lying on the floor in pain." (Doc. 20 at ¶ 20; Pfirman Decl. ¶ 6; Doc. 27 at ¶¶ 19-22). Pfirman does not recall a report from Gregory that he suffered a seizure prior to the fall, and the alleged fall was unwitnessed and unverified. (Doc. 20 at ¶¶ 20-21; Pfirman Decl. ¶¶ 7, 9).

         Elizabete Stahl is a clinical director for the BOP and is assigned to the Federal Correctional Complex at Allenwood. (Doc. 20-1 at 8-10, Declaration of Elizabete Stahl, D.O., F.A.C.P. ("Stahl Decl."), ¶ 1). Stahl declares that while Gregory was at FCI-Allenwood, he was prescribed the appropriate medication to treat and prevent seizures, specifically, Phenytoin and Levetriracetam. (Doc. 20 at ¶ 8; Stahl Decl. ¶ 5). Prior to December 2014, Gregory was permitted to "self-carry" his seizure medication. (Doc. 20 at ¶ 9; Stahl Decl. ¶ 6). On November 17, 2014, Gregory had routine blood work, which showed low levels for Phenytoin. (Doc. 20 at ¶ 10; Stahl Decl. ¶ 7). Stahl opines that the only explanation for such a low level would be that Gregory was not taking his medication as prescribed. (Doc. 20 at ¶ 12; Stahl Decl. ¶ 9). However, according to the pharmacy records, Gregory was picking up his seizure medication. (Doc. 20 at ¶ H; Stahl Decl. ¶ 8). Because Stahl believed there was no rational explanation for his level to be so low, she ordered that Gregory be monitored to ensure that he was actually taking his seizure medication as prescribed. (Doc. 20 at ¶ 13; Stahl Decl. ¶ 10). On several occasions in December 2014, Gregory did not show up to pill line for his medication. (Doc. 20 at ¶ 14; Stahl Decl. ¶ 11; Doc. 20-1 at 19-20). The Medication Administration record shows that during January 2015 Gregory either did not show up for his seizure medication, or refused to take his seizure medication. (Doc. 20 at ¶ 15; Stahl Decl. ¶ 12; Doc. 20-1 at 19-20). Specifically, the few days prior to Gregory's seizure, including January 21, 2015, Gregory refused to take his seizure medication. (Doc. 20 at ¶ 16; Stahl Decl. ¶ 13). The day after Gregory's alleged seizure, he took a morning dose of his seizure medication. (Doc. 20 at ¶ 17; Stahl Decl. ¶ 14). While Gregory was on pill-line, he was advised of the importance of taking his seizure medication. (Doc. 20 at ¶ 18; Stahl Decl. ¶ 15).

         Immediately following the alleged fall on January 21, 2015, Gregory reported to Health Services and the following summary was documented:

[Gregory] fell out of bunk at approximately 0400 this morning. He is not sure what happened. He states that [he] got up to urinate and the next thing he remembers is laying o[n] the floor in pain. He is c/o pain above L eye, posterior neck, and middle back. He also has a pins and needles feeling down the R shoulder and arm to the elbow. He does have mild h/a and nausea. He denies dizziness, vision changes, swelling, numbness, or urine or stool incontinence.

(Doc. 20 at ¶ 22; Doc. 20-1 at 25, BOP Health Services Clinical Encounter).

         Gregory was thereafter transported by ambulance to the Williamsport Regional Medical Center. (Doc. 20 at ¶ 23; Stahl Decl. ¶ 19; Doc. 20-1 at 28; Doc. 27 at ¶¶ 23-28). Gregory complained of chest, right shoulder, neck, head, and back injuries. (Stahl Decl. ¶ 20; Doc. 20-1 at 28-41). After reviewing chest radiographs, the emergency room doctor, Brian Connolly, M.D., noted, "[t]he cardiomediastinal silhouette is within normal limits. There is no airspace consolidation, vascular congestion, pleural effusion or pneumothorax. Normal chest radiographs." (Doc. 20 at ¶ 24; Stahl Decl. ¶ 21; Doc. 20-1 at 29). Dr. Connolly reviewed x-rays of Gregory's right shoulder and did not note any injury. (Doc. 20 at ¶ 25; Stahl Decl. ¶ 22; Doc. 20-1 at 30). His findings were as follows: "[t]here is no fracture or dislocation. There is no evidence of joint effusion. The soft tissues are unremarkable. No acute bony abnormality."

         Dr. Connolly reviewed a CT of Gregory's cervical spine and noted the following:

There is straightening of the normal cervical lordosis which can be secondary to positioning versus spasm. Small anterior osteophyte inferior to the C5 and plate. The prevertebral soft tissue is within normal limits. ...

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