United States District Court, M.D. Pennsylvania
CHRISTOPHER C. CONNER, CHIEF JUDGE.
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. 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
Summary Judgment Standard of Review
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.
Statement of Material Facts
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).
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).
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).
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).
following the alleged fall on January 21, 2015, Gregory
reported to Health Services and the following summary was
[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
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."
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. ...