United States District Court, M.D. Pennsylvania
REPORT AND RECOMMENDATION
KAROLINE MEHALCHICK UNITED STATES MAGISTRATE JUDGE
Denon Kitt, proceeding pro se, is a federal inmate
currently incarcerated at USP Victorville in Adalanto,
California. On June 8, 2015, Kitt initiated this action by
filing a complaint against the United States of America under
the Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§ 1346. (Doc. 1). Kitt's complaint stems from events
that occurred in October of 2013, when Kitt was exposed to
another inmate at USP Canaan (the “carrier
inmate”) with active tuberculosis. (Doc. 1, at 2-3).
Kitt subsequently tested positive for latent tuberculosis,
and brought this FTCA claim alleging that the Federal Bureau
of Prisons (“BOP”) failed to take reasonable
precautions that would have prevented Kitt from being exposed
to tuberculosis. (Doc. 1, at 5). On January 19, 2017,
following Defendant's first motion for summary judgment,
the Court entered an Order adopting the report and
recommendation of the undersigned magistrate judge, (Doc. 41;
Doc. 37), in which it dismissed Kitt's claims of medical
malpractice, and allowed the parties to proceed with
discovery on Kitt's claims of ordinary negligence.
a period of discovery, Defendant filed a second motion for
motion for summary judgment on June 8, 2017 (Doc. 58). On
July 6, 2017, Defendant filed a brief in support of its
motion for summary judgment (Doc.63), along with a statement
of facts (Doc. 62), and supporting exhibits (Doc. 62-1). Kitt
filed a brief in opposition to the motion for summary
judgment (Doc. 64). Defendant filed a reply brief (Doc. 58)
on August 21, 2017. On June 23, 2017, prior to filing his
brief in opposition, Kitt filed a motion for transcript and
discovery (Doc. 61), brought pursuant to Rule 56(d) of the
Federal Rules of Civil Procedure. On December 15, 2017, the
Court granted that motion, and deferred ruling on
Defendant's motion for summary judgment, giving the
parties additional time to resolve any outstanding discovery
requests. (Doc. 70). On December 26, 2017, Kitt filed a
“motion for judgment on the pleadings” (Doc. 71)
in response to the Court's order, advising the Court that
he wishes the Court to rule on the motion for summary
judgment with the documentation and pleadings it has in its
possession. The Court recommends granting Kitt's motion
for judgment on the pleadings, and turns now to the motion
for summary judgment, which, having been fully briefed, is
now ripe for disposition.
following factual background is largely taken from
Defendant's Statement of Undisputed Material Facts (Doc.
62). Kitt did not file a statement of material fact in
opposition to the motion for summary judgment, but does
assert facts in his brief in opposition. (Doc. 64). Where the
parties dispute certain facts, those disputes are noted.
Local Rule 56.1 requires that a party opposing a motion for
summary judgment shall include a “separate, short and
concise statement of the material facts, responding to the
numbered paragraphs set forth in the statement required in
the foregoing paragraph, as to which it is contended that
there exists a genuine issue to be tried.” Local Rule
56.1. Further, the rule provides that all material facts set
forth in the movant's statement will “be deemed to
be admitted unless controverted by the statement required to
be served by the opposing party.” Id. To
comply with Local Rule 56.1, Kitt should (1) clearly and
unequivocally admit or deny whether each fact contained in
Defendants' statement of facts is undisputed and/or
material, (2) set forth the basis for any denial if any fact
is not admitted in its entirety, and (3) provide a
citation to the record that supports any such denial.
Occhipinti v. Bauer, No. 3:13-CV-1875, 2016 WL
5844327, at *3 (M.D. Pa. Sept. 30, 2016) (emphasis added);
Park v. Veasie, 2011 WL 1831708, *4 (M.D. Pa. 2011).
“Unsupported assertions, conclusory allegations, or
mere suspicions” are insufficient to overcome a motion
for summary judgment. Schaar v. Lehigh Valley Health
Servs., Inc., 732 F.Supp.2d 490, 493 (E.D.Pa. 2010).
Bureau of Prisons' (“BOP”) policy for
infectious disease management, including tuberculosis, is set
forth in Program Statement 6190.04, Infectious Disease
Management. (Doc. 62, ¶ 1; Doc. 62-1, at 4, ¶ 5;
Doc. 62-1, at 33-37; Doc. 64, at 4). Before an inmate is
transferred between BOP institutions, the infectious disease
policy requires a documented medical clearance for
tuberculosis, indicating there is “no evidence of
medical complaints/symptoms associated with tuberculosis
within the past 30 days and has … a baseline negative
chest x-ray result if the tuberculin skin test is
positive[.]” (Doc. 62, ¶ 2; Doc. 62-1; Doc. 62-1,
at 36). Kimberly Bucklaw, R.N., was appointed to the position
of Quality Improvement Infection Prevention and Control
Coordinator at USP Canaan in 2005, and is responsible for the
management of the various infectious disease control programs
throughout USP Canaan, ensuring that appropriate screening,
prevention, reporting as well as medical treatment occurs
following the onset of any infectious diseases at the
institution. (Doc. 62-1, at 49, ¶¶ 1-2). RN Bucklaw
assists staff in the review and interpretation of testing,
direct activities to identify and control infectious disease
at USP Canaan, as well as coordination with federal and
community health care agencies to verify that the appropriate
medical care is provided to any individual in need of
treatment. (Doc. 62-1, at 49, ¶¶ 1-2).
review of the medical records of the carrier inmate
identified in Kitt's complaint reveals that inmate
transferred into USP Canaan from Estill Federal Correctional
Institute located in Estill, South Carolina in May, 2011.
(Doc. 62-1, at 49, ¶ 5). On arrival at USP Canaan in
2011, the medical documentation indicated that this inmate,
while previously treated for latent tuberculosis, was
asymptomatic of active tuberculosis and appropriately
transferred to USP Canaan. (Doc. 62-1, at 49, ¶ 6; Doc.
62-1, at 52). That inmate's Intra-System Transfer Form
indicates he had a chest x-ray performed on April 20, 2011,
which was negative for the active strain of tuberculosis.
(Doc. 62-1, at 52). If that inmate's documentation had
indicated any positive findings for the presence of an
infectious disease, RN Bucklaw would have taken steps to
prevent his designation to USP Canaan, pursuant to her
authority as the Quality Improvement Infection Prevention and
Control Coordinator at the institution. (Doc. 62-1, at 50,
¶ 7). Following this inmate's arrival at USP Canaan,
he remained asymptomatic for any infectious disease until
treatment for an unrelated medical condition revealed
findings consistent with tuberculosis. (Doc. 62-1, at 50,
¶ 8). An August 15, 2012 radiological evaluation of the
inmate's chest identified a mass located in this
inmate's left upper chest, but the physician's note
specifically stated that he did not see any evidence of
tuberculosis in the chest at that time. (Doc. 62-1, at 60).
The inmate began receiving treatment for two umbilical
hernias as well as an injury to his right elbow on January 7,
2013, for which surgical repair was recommended. (Doc. 62-1,
at 53-54). A pre- operative chest x-ray on January 18, 2013,
revealed an unspecified mass in his left lung, but the inmate
was asymptomatic for tuberculosis at this time. (Doc. 62-1,
at 56). On June 26, 2013, the inmate had a follow-up
examination following a chest x-ray in which a hilar mass of
the left lung was observed, and a CT scan was ordered to rule
out cancer. (Doc. 62-1, at 57-59). The inmate was transferred
to Wayne Memorial Hospital on August 12, 2013. (Doc. 62-1, at
57). An administrative note was entered into the inmate's
medical record on August 13, 2013 stating:
IM remains in precautionary isolation. Seen this AM by
pulmonology with bronchoscopy planned. Differential remain
granulomatous vs. cryptoccocal vs. neoplastic process in LUL
lung. Will be maintained in isolation until sputums are
(Doc. 62-1, at 60).
Canaan later received positive confirmation that testing
indicated positive findings for active tuberculosis on August
19, 2013, in a Report of Consultation by Dr.
Liu at Wayne Memorial Hospital, which states:
[Inmate] is a 44 year old male who was referred from Waymart
Prison for work up of lung mass. Patient has known lung mass
since 2010. He was previously hospitalized in South Carolina,
had work up and probably bronchoscopy with negative results.
He had a left pulmonary nodule that had been persistent.
Recently he complained of persistent cough for several months
productive of yellowish green sputum. Recent chest CAT scan
noted increase in size of the nodule and he was referred to
oncologist. Oncologist recommended the patient be admitted to
the hospital for further evaluation. He was seen by Dr.
McVeigh who noted CAT scan showed stable left upper lobe
nodule but there are new cavitary masses in the left upper
lobe and the superior segment of the left upper lobe, also
multiple bronchopulmonary nodules raising the possibility of
AFB infection. Sputum AFB was ordered and apparently today
sputum AFB was reported to be positive, ID pending. Patient
complained of fatigue but denies fever. He denies blood
streaked sputum. He may have some weight loss. He was exposed
to tuberculosis in 1994 and had six months of therapy; not
sure whether it was latent or active TB treatment. He does
not know the source of his exposure.
(Doc. 62-1, at 64).
result of the August 19, 2013, confirmation of active
tuberculosis from Wayne Memorial Hospital, RN Bucklaw took
appropriate actions concerning notification of individuals at
USP Canaan, as well as with the Bureau of Prisons'
Regional Office, and a plan was put into place to identify
and treat any potential cases of tuberculosis within the
facility. (Doc. 62-1, at 50, ¶ 14). The carrier inmate
returned from Wayne Memorial Hospital to USP Canaan on
November 14, 2013, at which time he was placed in isolation,
being separated from all inmates until his discharge from
custody on December 6, 2013. (Doc. 62-1, at 62-63). RN
Bucklaw is unaware of any specific cases of active
tuberculosis identified at USP Canaan following this
inmate's designation to USP Canaan, and is confident that
the policy and procedures ...