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Buffman v. United States

United States District Court, E.D. Michigan, Southern Division

April 4, 2017

Emmett Buffman, Plaintiff,
United States of America, Defendant.

          Mona K. Majzoub Mag. Judge


          JUDITH E. LEVY United States District Judge

         On September 19, 2013, Emmett Buffman filed a complaint against the United States of America under the Federal Tort Claims Act, alleging federal employees gave him insufficient medical care while he was incarcerated at Milan Federal Correctional Institution (“FCI Milan”). (Dkt. 1.)[1] On May 20, 2016, defendant filed a motion for summary judgment (Dkt. 78), and the Magistrate Judge issued a Report and Recommendation (“R&R”) on January 27, 2017, with a recommendation to grant the motion. (Dkt. 81.) On February 14, 2017, plaintiff filed objections to the R&R. (Dkt. 82.)

         For the reasons set forth below, plaintiff's objections are denied, the R&R is adopted in part, and defendant's motion for summary judgment is granted.

         I. Background

         Plaintiff's complaint arises from what he characterizes as negligent medical treatment for two boils, which allegedly led him to require emergency surgery. (Dkt. 1 at 5-6.) After seeking treatment for the two boils, he alleges former defendants Restituto Pomaloy, Stephen Gidal, and William Malatinsky-dismissed on January 6, 2015-“acted with deliberate indifference, negligence, Abuse of Process, Acts, Errors, Omission, and other tort violations which were intentional” by “failing to follow industry practice norms, as well as the BOP Program Statement regarding Patient Care.” (Dkt. 1 at 6-7.) Mr. Pomaloy and Mr. Gidal were employed as Mid-Level Practitioners by the Bureau of Prisons, a role “analogous to physician's assistants, ” and were under the supervision of Dr. Malatinsky, a licensed physician. (See Dkt. 80 at 7-8.)

         On February 13, 2013, plaintiff sought treatment for a boil and “body aches, chills, weakness, lightheadedness, and a cough.” (Dkt. 82 at 8.) Mr. Pomaloy diagnosed plaintiff with an acute respiratory infection and also referred him to an optometrist for further care related to a white spot on plaintiff's eye. (Id.) Plaintiff alleges his boil was never treated and he was given no instructions regarding his care. (Id.) After being discharged, plaintiff allegedly returned to the Health Services Department at FCI Milan three times between that day and February 20, 2013, and wrote to Dr. Malatinsky to request treatment for the boils. (Dkt. 79-5.)

         On February 20, 2013, plaintiff returned to the Health Services Department and was seen by Mr. Gidel, who wrote that plaintiff had been seen “1 week ago for a boil” and it had “gotten a lot worse.” (Dkt. 79-4 at 1.) Mr. Gidel discharged plaintiff with an order that he be given sulfamethoxazole and acetaminophen, and that he have a “daily dressing change and wound check.” (Id. at 2.) Plaintiff was seen again the next day by Mr. Gidel, who requested lab tests and instructions to “return immediately if condition worsens” and “follow-up in 2-4 hours.” (Dkt. 79- 6 at 2.) The order also requested that Dr. Malatinsky review the lab results. (Id.)

         On February 22, 2013, plaintiff was transferred to St. Joseph Mercy Hospital where he allegedly underwent surgery for the infectious cores at the sites of the boils, and where he convalesced until February 26, 2013. (Dkt. 1 at 20.)

         Following these events, plaintiff filed this complaint pro se, arguing defendants United States of America, Restituto Pomaloy, Stephen Gidal, William Malatinsky, Warden J.A. Terris, and Administrator Zesto were liable under the Federal Tort Claims Act and for constitutional violations under the Bivens doctrine. (See generally Dkt. 1.) On January 6, 2015, the Court dismissed plaintiff's claims against the individual defendants without prejudice for failure to exhaust administrative remedies. (Dkt. 51.)[2]

         On June 22, 2015, plaintiff was granted pro bono counsel. (See Dkt. 64.) And on February 1, 2016, plaintiff filed a witness list, which listed Edward Linker, M.D., and Daniel R. Kaul, M.D., as experts. (Dkt. 70 at 3-4.) It also stated that plaintiff “reserves the right to elicit expert/opinion testimony from any individual who provided medical treatment to Emmett Buffman during his lifetime, ” and from “any and all witnesses [disclosed] by Defendant.” (Id. at 4.) Defendant's witness disclosures listed as potential witnesses Dr. William Malatinsky, Restituto Pomaloy, and Stephen Gidel. (Dkt. 71 at 1.) As an expert, defendant listed Grant M. Greenberg. (Id.) Following these disclosures, plaintiff's counsel then notified defendant on April 15, 2016, that plaintiff would “not be utilizing Dr. Edward Linkner or Dr. Daniel Kaul as experts” in the case. (Dkt. 78-4 at 1.)

         A more detailed account of the facts and background of this case are included in the R&R (Dkt. 81) and are incorporated by reference and adopted here. In the R&R, the Magistrate Judge found plaintiff's claim was properly considered as a medical malpractice claim rather than, as plaintiff argued, an ordinary negligence claim, and because plaintiff did not name any expert witnesses who could establish the appropriate standard of care relevant to plaintiff's medical needs, as a matter of law, plaintiff could not sustain the medical malpractice claim. (Dkt. 81 at 13- 14.)

         II. Legal Standard

         A magistrate judge's report and recommendation is made pursuant to 28 U.S.C. § 636(b)(1). “[T]his recommendation has no presumptive weight, ” and the district judge “has the responsibility of making the final determination.” Patrick Collins, Inc. v. John Does 1-21, 286 F.R.D. 319, 320 (E.D. Mich. 2012). If a party objects to part or all of the R&R, the district judge must review de novo those parts to which the party has objected. Lardie v. Birkett, 221 F.Supp.2d 806, 807 (E.D. Mich. 2002); Fed.R.Civ.P. 72(b)(3). De novo review “entails at least a review of the evidence that faced the Magistrate Judge.” Lardie, 221 F.Supp.2d at 807. After reviewing an R&R, a court may “accept, reject, or modify the findings or recommendations.” Id.

         III. ...

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