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Saldana v. United States

United States District Court, M.D. Pennsylvania

March 19, 2018

FRANCISCO SALDANA, Plaintiff
v.
UNITED STATES OF AMERICA, et al., Defendants

          MEMORANDUM

          Robert D. Mariani United States District Judge.

         Plaintiff, Francisco Saldana, an inmate formerly confined at the Canaan United States Penitentiary in Waymart, Pennsylvania ("USP-Canaan"), initiated this action pursuant to Bivens[1]28 U.S.C. § 1331, and the Federal Tort Claims Act ("FTCA")[2]. (Doc. 1). Named as Defendants are the United States of America, Dr. Walter Dobushak, Milton Washington, and Joseph Fuga. The complaint raises deliberate indifference and negligence claims against Defendants. Presently ripe for disposition is Defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. (Doc. 20). For the reasons set forth below, the Court will grant Defendants' motion.

         I. Summary Judgment Standard of Review

         Through summary adjudication, the court may dispose of those claims that do not present a "genuine dispute as to any material fact." Fed.R.Civ.P. 56(a). "As to materiality, ... [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         The party moving for summary judgment bears the burden of showing the absence of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once such a showing has been made, the non-moving party must offer specific facts contradicting those averred by the movant to establish a genuine issue of material fact. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990). Therefore, the non-moving party may not oppose summary judgment simply on the basis of the pleadings, or on conclusory statements that a factual issue exists. Anderson, 477 U.S. at 248. "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record ... or showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1)(A)-(B). In evaluating whether summary judgment should be granted, "[t]he court need consider only the cited materials, but it may consider other materials in the record." Fed.R.Civ.P. 56(c)(3). "Inferences should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true." Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir.1992), cert, denied 507 U.S. 912 (1993).

         However, "facts must be viewed in the light most favorable to the nonmoving party only if there is a 'genuine' dispute as to those facts." Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007). If a party has carried its burden under the summary judgment rule,

its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.

Id. (internal quotations, citations, and alterations omitted).

         II. Statement of Undisputed Facts[3]

         Saldana is a federal inmate who is currently incarcerated at the United States Medical Center for Federal Prisoners in Springfield, Missouri. (Doc. 27, Statement of Material Facts ("SMF"), ¶ 1; Doc. 27-1, pp. 3-4, Declaration of Michael FiggsGanter, ¶ 3; Doc. 48, Counter Statement of Material Facts). At all relevant times, Saldana was housed at USP-Canaan. (SMF ¶ 2; Doc. 48, Counter Statement of Material Facts).

         A. Facts Related to the Medical Care Provided to Saldana

         Dr. Dobushak was formerly employed by the Federal Bureau of Prisons ("BOP") as the Clinical Director for USP-Canaan. (SMF ¶ 3; Doc. 27-1, pp. 43-47, Declaration of Dr. Walter Dobushak ("Dobushak Decl."), ¶ 1). Saldana alleges that the lack of treatment began in May 2013 until his transfer to the Medical Center for Prisoners. (SMF ¶ 5; Dobushak Decl. ¶ 3).

         The parties dispute whether Dr. Dobushak examined Saldana on May 17, 2013. (SMF ¶ 6; Doc. 48, ¶ B(1)). A Clinical Encounter note dated May 17, 2013, indicates that Dr. Dobushak examined Saldana and noted that Saldana's diabetes was "grossly uncontrolled." (SMF ¶6; Dobushak Decl. ¶ 4; Doc. 27-1, pp. 160-64, Clinical Encounter dated May 17, 2013). Dr. Dobushak noted that Saldana was not taking his insulin as prescribed. (SMF ¶ 7; Dobushak Decl. ¶ 4; Doc. 27-1, p. 160). The parties dispute whether Saldana's diabetes and insulin levels were monitored until he was transferred to the Springfield Medical Center. (SMF ¶ 8; Dobushak Decl. ¶ 4; Doc. 27-1, pp. 48-171; Doc. 48 ¶ B(3)).

         The parties dispute when Saldana's right foot was first evaluated at USP-Canaan's Health Services Department ("HSD"). (SMF ¶ 9; Doc. 48, ¶ B(4)). Defendants assert that Saldana's right foot was first evaluated on September 13, 2013. (SMF ¶ 9; Dobushak Decl. ¶4; Doc. 27-1, p. 147). Saldana asserts that his right foot was evaluated on May 14, 2014. (Doc. 48, ¶ B(4)).

         Saldana's diabetes and administration of his insulin continued to be monitored very closely by the medical staff at USP-Canaan. (SMF ¶ 10; Dobushak Decl. ¶ 6; Doc. 27-1, pp. 48-171). On March 21, 2014, Saldana's insulin level was increased and additional testing was ordered to evaluate his overall condition. (SMF ¶ 11; Dobushak Decl. ¶ 6; Doc. 27-1, pp. 135-39).

         On April 11, 2014, Saldana was again seen by the HSD at USP-Canaan and it was noted that his condition had improved. (SMF ¶ 12; Dobushak Decl. ¶ 6; Doc. 27-1, pp. 130-32). At his evaluation on April 11, 2014, it was noted that Saldana's A1C level had decreased, he reported that he was feeling much better, and agreed to continue his new diet and exercise plan. (SMF ¶ 13; Dobushak Decl. ¶ 6; Doc. 27-1, p. 130).

         On May 14, 2014, Saldana was seen in the HSD for a right foot wound. (SMF ¶ 14; Dobushak Decl. ¶ 7; Doc. 27-1, pp. 126-28). At the evaluation on May 14, 2014, Saldana disclosed that he had sustained the foot injury two days prior. (SMF ¶ 15; Dobushak Decl. ¶ 7; Doc. 27-1, p. 126). On May 14, 2014, Saldana's right foot wound was examined, cleaned, and sterilized. (SMF ¶ 16; Dobushak Decl. ¶ 7; Doc. 27-1, pp. 126-128). On May 14, 2014, Saldana was provided a prescription for Cephalexin, an antibiotic, and directed to follow up with the HSD if his condition worsened. (SMF ¶ 17; Dobushak Decl. ¶ 7; Doc. 27-1, pp. 126-28).

         On June 3, 2014, Saldana reported to the HSD to receive wound care. (SMF ¶ 18; Dobushak Decl. ¶ 8; Doc. 27-1, p. 123). During the examination on June 3, 2014, it was noted that Saldana had an open ulceration to the bottom of his right foot. (SMF ¶ 19; Dobushak Decl. ¶ 8; Doc. 27-1, p. 123). Saldana's open ulceration to the bottom of his right foot was cleaned, sterilized, and appropriately dressed. (SMF ¶ 20; Dobushak Decl. ¶ 8; Doc. 27-1, p. 123). On June 3, 2014, the HSD ordered a consult with podiatry. (SMF ¶ 21; Dobushak Decl. ¶ 8; Doc. 27-1, p. 123).

         Saldana was first treated by podiatry at USP-Canaan on June 5, 2014. (SMF ¶ 22; Dobushak Decl. ¶ 9; Doc. 27-1, p. 120). At the June 5, 2014 podiatry appointment, Saldana was provided a prescription for Levofloxacin, an oral antibiotic, ointment to apply to the wound, and further testing was ordered. (SMF ¶ 23; Dobushak Decl. ¶ 9; Doc. 27-1, p. 120).

         On June 8, 2014, Saldana's condition worsened and he was transferred to Wayne Memorial hospital for further evaluation and treatment. (SMF ¶ 24; Dobushak Decl. ¶ 10; Doc. 27-1, p. 118). The parties dispute whether Saldana was evaluated by Wayne Memorial hospital staff. (SMF ¶¶ 26, 27; Doc. 48 ¶¶ B(5)(6)). Defendants contend that the Emergency Department at Wayne Memorial hospital evaluated Saldana, found no new issues, and did not issue any new orders for medical treatment for Saldana. (SMF ¶¶ 26, 27; Dobushak Decl. ¶ 11; Doc. 27-1, pp. 112-15). Saldana contends that he was advised that "nothing is wrong with you." (Doc. 48, ¶¶ B(5)(6)).

         On June 9, 2014, upon return to USP-Canaan, Saldana was evaluated at the HSD. (SMF ¶ 25; Dobushak Decl. ¶ 11; Doc. 27-1, pp. 112-15).

         On June 13, 2014, Saldana was examined in the HSD and the dressing on his wound was changed. (SMF ¶ 28; Dobushak Decl. ¶ 12; Doc. 27-1, pp. 108-110). On June 13, 2014, the HSD received results of Saldana's medical tests from Wayne Memorial hospital that were positive for Staph Haemolyticus. (SMF ¶ 29; Dobushak Decl. ¶ 12; Doc. 27-1, p. 108). Saldana was directed to report back to the HSD daily to have the dressings on his wound changed. (SMF ¶ 30; Dobushak Decl. ¶ 12; Doc. 27-1, p. 109).

         On June 17, 2014, because Saldana's condition began to worsen, he was again transferred to Wayne Memorial hospital. (SMF ¶ 31; Dobushak Decl. ¶ 13; Doc. 27-1, pp. 100-101). On June 21, 2014, Wayne Memorial hospital informed the HSD at USP-Canaan that Saldana was provided intravenous antibiotics. (SMF ¶ 32; Dobushak Decl. ¶ 13; Doc. 27-1, p. 95). Also un June 21, 2014, Wayne Memorial hospital further advised the HSD that Saldana's wound was improving. (SMF ¶ 33; Dobushak Decl. ¶ 13; Doc. 27-1, p. 95). Saldana was expected to be discharged from Wayne Memorial hospital on June 23, 2014. (SMF ¶ 34; Dobushak Decl. ¶ 14; Doc. 27-1, p. 95).

         After Saldana returned to USP-Canaan he was evaluated by the HSD on June 23, 2014; June 25, 2014; June 26, 2014; June 27, 2014; July 3, 2014; July 17, 2014; July 18, 2014; July 28, 2014; and July 29, 2014. (SMF ¶ 35; Dobushak Decl. ¶ 15; Doc. 27-1, pp. 67-93). Saldana received dressing changes daily, wound care follow-up, and consultations with the podiatry clinic to treat the wound on his right foot. (SMF ¶ 36; Dobushak Decl. ¶ 15; Doc. 27-1, pp. 67-93).

         On July 28, 2014, Saldana was evaluated at the HSD and additional wound care consultation was ordered. (SMF ¶ 37; Dobushak Decl. ¶ 16; Doc. 27-1, p. 75). On July 28, 2014, a note was placed in Saldana's electronic medical record that he had poorly controlled his Type II diabetes and developed a non-healing persistent diabetic foot ulcer on his right foot. (SMF ¶ 38; Dobushak Decl. ¶ 16; Doc. 27-1, p. 75). On July 28, 2014, it was further noted that Saldana had been regularly treated in podiatry at USP-Canaan since the development of the foot ulcer. (SMF ¶ 39; Dobushak Decl. ¶ 16; Doc. 27-1, p. 75). Saldana also underwent numerous debridement's in the area of the wound, and was prescribed medication to treat the wound. (SMF ¶ 40; Dobushak Decl. ¶ 16; Doc. 27-1, p. 75). Saldana was prescribed several antibiotics to treat the wound; specifically, Rocephin, Levaquin, Clindamyon, and Keflex. (SMF ¶ 41; Dobushak Decl. ¶ 16; Doc. 27-1, p. 75).

         On July 29, 2014, Saldana was again transferred to Wayne Memorial hospital. (SMF ¶ 42; Dobushak Decl. ¶ 17; Doc. 27-1, p. 67). On August 1, 2014, Saldana's firth metatarsal head was amputated to stem any further deterioration of the wound and spread of the infection. (SMF ¶ 43; Dobushak Decl. ¶ 17; Doc. 27-1, p. 65). Saldana disputes whether his fifth metatarsal head was amputated "to stem any further deterioration of the wound and spread of the infection." (Doc. 48, ¶ B(7)). Saldana remained at Wayne Memorial hospital until his transfer to the Medical Center for Federal Prisoners in Springfield, Missouri. (SMF ¶ 44; Dobushak Decl. ¶ 17; Doc. 27-1, pp. 48-67).

         The parties dispute whether Dr. Dobushak administered the appropriate course of medical care to Saldana throughout the development of the ulcer on his right foot. (SMF ¶ 45; Dobushak Decl. ¶ 18; Doc. 27-1, pp. 69-95, 100-116, 120-129, 133, 147-48; Doc. 48¶ B(8)). Dr. Dobushak reviewed Saldana's electronic medical record and determined that he was seen, evaluated and treated on a regular basis following the development of the right foot condition. (SMF ¶46; Dobushak Decl. ¶ 18; Doc. 27-1, pp. 69-95, 100-116, 120-129, 133, 147-48). The parties dispute whether Saldana was provided a proper course of medical care which included the administration of antibiotics, consultation with a specialist, and care at Wayne Memorial hospital. (SMF ¶ 47; Dobushak Decl. ¶ 18; Doc. 27-1, pp. 48-71, 95-101, 118-119).

         The parties dispute the reasoning behind Dr. Dobushak's decision to discontinue medication prescribed by the Wayne Memorial hospital. (SMF ¶ 48; Doc. 48 ¶ B(10)). Dr. Dobushak contends that he determined, based on a clinical decision, that the antibiotic prescribed by the hospital would not be beneficial. (SMF ¶ 48; Dobushak Decl. ¶ 19; Doc. 27-1, pp. 92-93). Upon clinical review, Dr. Dobushak discovered that there was little to no blood flow entering the affected area, which could have a direct impact on the efficiency of systemic antibiotics. (SMF ¶ 49; Dobushak Decl. ¶ 19). Dr. Dobushak discontinued the use of this medication based on his opinion that it would offer no benefit to Saldana and could possibly cause additional symptoms or harm. (SMF ¶ 50; Dobushak Decl. ¶ 19). Saldana contends that there is no evidence to support Dr. Dobushak's subjective assessments, and asserts that his decisions were "non-medical." (Doc. 48 ¶ B(10)(11)(12)(13)). Saldana asserts that twenty-four days after the antibiotic was discontinued, he developed a staph infection. (Doc. 48 ¶ B(13)(14)(15)).

         Saldana's condition continued to deteriorate based on the progressive small vessel disease resulting in tissue ischemia as well as his poor management of his Type II diabetes. (SMF ¶ 51; Dobushak Decl. ¶ 20). The parties dispute whether this deterioration resulted in a non-healing right ostemmyelitis of the right foot, which required therapeutic amputation to prevent further spread of the bone infection. (SMF ¶ 52; Dobushak Decl. ¶ 20; Doc. 48 ¶ B(14)). Saldana asserts that the poor management of his diabetes was due to prison policy. (Doc, 48 ¶ B(13)). Saldana states that he had to choose to attend the morning insulin line prior to closing, or attend breakfast prior to closing. (Id.). He further states that the afternoon insulin line was at 3:00 p.m., and dinner was at 6:00 p.m., which caused his sugar level to drop. (Id.).

         The parties dispute whether Dr. Dobushak's treatment of Saldana, along with any treatment he received by other staff members from the HSD, caused and/or contributed to the clinical progression or outcome of this case. (SMF ¶ 53; Dobushak Decl. ¶ 20; Doc. 48 ¶B(15)).

         The parties dispute whether any attempts were made to treat Saldana's right foot condition. (SMF ¶ 54; Dobushak Decl. ¶ 20; Doc. 48 ¶ B(16)). The parties further dispute whether the spread of the infection into the bone was preventable or caused by treatment Saldana received at HSD. (Id.).

         B. Facts Regarding the Injury to Saldana's Right Foot Caused by an Alleged Broken and Collapsed Sidewalk Near the Unit F Housing Walkway at USP-Canaan Maintained by Defendant Washington[4]

         Defendant Washington is employed by the BOP as the Environmental and Safety Compliance Administrator at USP-Canaan and has held this position since July 2014. (SMF ¶¶ 55-56; Doc. 27-1, pp. 172-73, Declaration of Milton Washington ("Washington Decl."), ¶¶ 1-2). Defendant Washington is responsible for the planning, direction, and development of all programs related to the safety and environmental health of USP-Canaan. (SMF ¶ 57; Washington Decl. ¶ 3). Defendant Washington is also responsible for developing safety and environmental programs at USP-Canaan that comply with Federal BOP requirements. (SMF ¶ 58; Washington Decl, ¶ 3). Defendant Washington conducts monthly inspections of all work areas of USP-Canaan to ensure that the institution is being maintained and operated appropriately. (SMF ¶ 59; Washington Decl. ¶ 4). Defendant Washington understands that security features related to USP-Canaan require it be properly maintained to minimize any potential injuries to inmates and staff members. (SMF ¶ 60; Washington Decl. ¶ 5). Defendant Washington is aware that any defects in the walkways pose a significant threat to the safety and security of inmates and staff members at USP-Canaan. (SMF ¶ 61; Washington Decl. ¶ 5). Defendant Washington investigates reported accidents at USP-Canaan to determine the cause and the need for any remedial measures. (SMF ¶ 62; Washington Decl. ¶ 6).

         Defendant Washington receives and maintains all documentation related to any injuries reported at USP-Canaan. (SMF ¶ 63; Washington Decl. ¶ 6).

         The parties dispute whether Defendant Washington retains injury reports as statistical data for determining any injury or accident trends at USP-Canaan. (SMF ¶ 64; Washington Decl. ¶ 6; Doc. 48 ¶ B(26)).

         Defendant Washington has reviewed the injury report files and was unable to find any complaints submitted by inmates concerning any defects in the walkway near the F Housing unit at USP-Canaan. (SMF ¶ 65; Washington Decl. ¶ 7).

         The parties dispute whether Defendant Washington recalls Saldana sustaining or reporting any injury to his right foot as a result of a defect in the walkway near the F Housing unit at USP-Canaan. (SMF ¶ 66; Washington Decl. ¶ 8; Doc. 48 ¶ B(28)). The parties dispute whether Defendant Washington purposefully ignored any defect in ...


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