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Kitt v. United States

United States District Court, M.D. Pennsylvania

February 27, 2018

DENON KITT, Plaintiff,

          MARIANI, J.



         Plaintiff 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.

         Following 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.

         I. Factual Background

         The 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).

         The 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).

         A 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 confirmed.

(Doc. 62-1, at 60).

         USP Canaan later received positive confirmation that testing indicated positive findings for active tuberculosis on August 19, 2013, in a Report of Consultation by Dr.

         Rosita 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).

         As a 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 ...

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