McQueen v. United States

TERRELL MCQUEEN, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

No. 9:19-CV-998 (TJM/CFH)

United States District Court, N.D. New York

June 29, 2021

Terrell McQueen Plaintiff pro se

Office of United States Attorney James T. Foley U.S. Courthouse KAREN FOLSTER LESPERANCE, ESQ. Assistance United States Attorney Attorney for Defendant

REPORT-RECOMMENDATION AND ORDER ^[1]

CHRISTIAN F. HUMMEL U S MAGISTRATE JUDGE

Plaintiff pro se Terrell McQueen (“plaintiff”), an inmate currently in the custody of the Federal Bureau of Prisons (“BOP”), brings this action for medical malpractice under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq. against the United States, alleging that Nurse Practitioner Kimberly Sorrell (“N.P. Sorrel”), who was, at all relevant times, employed by the BOP, acted negligently by (1) prescribing plaintiff acne medication without warning him of its potential side effects; and (2) unnecessarily delaying surgical procedures to repair a detached retina in plaintiff's right eye and retina holes in plaintiff's left eye. See Dkt. No. 1-2 at 7 ¶ 24; Dkt. No 1 (“Compl.”) at 4, 6.^[2]Presently pending before the Court is defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”). See Dkt. No. 47. Plaintiff filed a response in opposition to defendant's motion, see Dkt. No. 56, and defendant filed a reply. See Dkt. No. 57. For the reasons that follow, it is recommended that defendant's motion for summary judgment be granted in its entirety and plaintiff's Complaint be dismissed.

I. Background

The facts are reviewed in the light most favorable to plaintiff as the non-moving party. See subsection III., infra. At all relevant times, plaintiff was in the custody of the BOP.

A. Plaintiff's Recitation of the Facts and Causes of Action

Plaintiff states that, on or about November 21, 2016, while incarcerated at Ray Brook Correctional Institution (“Ray Brook”), he visited Health Services, where Nurse Sorrell provided him with medical attention for a recurring breakout of sores on his face and body. See Dkt. No. 1-1 at 2 ¶¶ 5, 6. N.P. Sorrell “noted that [p]laintiff had follicular lesions on his” head, face, and neck, for which she prescribed plaintiff with Sulfamethoxazole/Trimeth 800-160mg. See id. at ¶ 6. Plaintiff states that “[t]his was the first time that [N.P.] Sorrell[] had prescribed this medication to [him].” Id. Plaintiff contends that N.P. “Sorrell[] did discuss the new medication with [him] but failed to mention any of the dangerous side-effects of th[e] medication.” Id. On July 7, 2017, plaintiff again visited Health Services at Ray Brook for his “recurrent skin infection, ” where N.P. Sorrell “prescribed Sulfamethoxazole/Trimeth 800-160mg for the second time.” Id. at 4 ¶ 11. Plaintiff avers that N.P. “Sorrell[] once again failed to explain to [him] the potential dangerous side-effects which might occur while taking this medication.” Id.

On November 28, 2017, several days after plaintiff fell and hit his head during a basketball game, plaintiff visited Health Services at Ray Brook where Nurse Sorrell provided him with medical attention for “blurred vision.” Dkt. No. 1-1 at 4 ¶ 12. Plaintiff states that he “initially though he was ok” after falling and hitting his head, but “find[ing] that his vision was blurred to the point he could barely see . . . . [p]rompted him to visit [H]ealth [S]ervices.” Id. “At this point, ” plaintiff argues, he “was still unaware that the medication he had been prescribed was capable of causing the vision problems which he was associating to [sic] falling while playing basketball.” Id. On December 12, 2017, N.P. Sorrell treated plaintiff for “decreased vision after a head contusion.” Id. at ¶ 13. Plaintiff avers that, N.P. “Sorrell[] stated to [p]laintiff during this visit that in order to save money for Ray Brook, [p]laintiff was going to be reassigned to a CARE 2.” Id. According to plaintiff, N.P. Sorrell “attempted to justify this reassignment by stating that there [we]re no [ophthalmologists located at or near Ray Brook.” Id. Plaintiff also alleges that N.P. Sorrel “stated that [p]laintiff needed emergency care for the injury to his eye but did not attempt to locate proper care near Ray Brook.” Id. Plaintiff posits that, in her exam notes, N.P. Sorrell “state[d] that [p]laintiff required further evaluation for decreased vision after head contusion.” Id. at 4-5 at ¶ 13.

'Plaintiff indicates that, on or about December 12, 2017, he “arrived at Canaan Correctional Institution (“Canaan”) where he was not seen again for the ongoing progression of vision loss which [he] was suffering.” Dkt. No. 1-1 at ¶ 14. On or about January 31, 2018, plaintiff was transferred from Canaan to Hazelton Correctional Institution (“Hazelton”), where he engaged in a counseling session with nonparty Physician Assistant Amy Armel (“P.A. Armel”) to bring PA Armel “up-to-date on [his] condition.” Id. at ¶ 15. On February 20, 2018, nonparty Jennifer Sommer, O.D. (“Dr. Sommer”), “noted that [p]laintiff was seeing ‘floaters' and was seen shortly after injury vitreous hem was noted.” Id. at ¶ 16. Plaintiff states that P.A. Armel “noted that [p]laintinff had a retinal tear with detachment-long standing, and scheduled an off-site examine [sic] be done at West Virginia Eye Institute on [February 21, 2018, ] for an emergency consultation and exam, ” which plaintiff attended on that date. Id. at ¶¶ 16, 17.

On February 26, 2018, plaintiff visited the “Ruby Eye Institute where[] doctors scheduled a vitrectomy posterior with scleral buckle, endo diode laser therapy, placement of silicone oil, indirect retina with diode laser.” Dkt. No. 1-1 at 5 ¶ 18. “Plaintiff was . . . scheduled to return the next day for surgery.” Id. On February 27, 2018, plaintiff underwent “bilateral laser surgery for eyes. Plaintiff had a retinal detachment of the right eye and left eye retinal hole.” Id. at 6 ¶ 19. Plaintiff states that, as of March 10, 2019, he was “still waiting for the second surgery which he needs in order to fix his other eye. This is the same eye which [N.P.] Sorrell[] missed during [his] visits to [H]ealth [S]ervices while housed at Raybrook [sic] because [she] was more interested in saving Raybrook [sic] money than she was in getting [him] the proper emergency care . . . he needed.” Id. at ¶ 21.

Plaintiff states that, on May 1, 2018, he “filed a Personal Injury/Property Tort Claim form with the Mid-Atlantic Regional Office, ” which that office received on May 10, 2018. Dkt. No. 1-1 at 7-8 ¶ 23. Plaintiff avers that BOP personnel responded to this “Administrative Claim No. TRT-NER-2018-04655 . . . on November 1, 2018, ” and that he received that response on November 17, 2018. Id

Plaintiff contends that N.P. Sorrell's “statement that she was not going to schedule [him] for an emergency visit with an [o]phthamologist in order to save Raybrook [sic] money on their budget, and instead, were going to ship [him] to another institution, constitutes negligence . . . on the part of [N.P.] Sorrell[] . . . .” Dkt. No. 1-1 at ¶ 22. Further, plaintiff avers that he “would not have suffered long-term damage in his right eye if he had been seen for the emergency consult with the [ophthalmologist by [N.P.] Sorrell[.]” Id. at 7 ¶ 24. Moreover, plaintiff states that, because of N.P. Sorrell's decision to transfer him to another correctional institution rather than send him to an ophthalmologist directly from Ray Brook, he “received only one of th[e] much needed [eye] surgeries.” Id. at ¶ 25.

Liberally construed, plaintiff asserts causes of action for medical malpractice under the FTCA against defendant based on Nurse Sorrell's alleged negligent acts of (a) failing to inform plaintiff of the potential side effects of Sulfamethoxazole/Trimeth; and (b) unnecessarily delaying the surgical procedure to repair a detached retina in plaintiff's right eye and retinal holes, which resulted in plaintiff suffering “long-term damage.” Dkt. No. 1-1 at 7 ¶ 24; see Dkt. No. 1 (“Compl.”) at 1, 4, 6.

II. Present Motion

A. Defendants' Arguments and Evidence in Support of Motion for Summary Judgment

1. Exhaustion of Administrative Remedies

Defendant first contends that, insofar as plaintiff's Complaint may be construed as asserting a claim for negligent delay in treatment such claim must be dismissed for failure to exhaust administrative remedies, because plaintiff did not raise that claim in the administrative claim he filed with the Mid-Atlantic Regional Office on Standard Form 95 (“SF-95”). See Dkt. No. 47-2 at 11-12; see Dkt. No. 47-14 at 1-7. Defendants note that a plaintiff may not file a claim against the United States pursuant to the FTCA “‘unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency.'” Dkt. No. 47-2 at 11 (quoting 28 U.S.C. § 2675(a)). Defendants aver that “the only claim presented by [plaintiff's] SF-95 was the allegation that [Nurse] Sorrell failed to warn him of the side effects of his acne medication.” Id.

Further defendants contend that “BOP's tort claim investigation was limited to” plaintiff's claim that Nurse Sorrell failed to warn him of the side effects of Sulfamethoxazole/Trimeth DS 800-160mg. Dkt. No. 47-2 at 11. In support of this contention, defendants cite the declaration of Patrick Ward (“Ward”), a Supervisory Attorney employed by United States Department of Justice, Bureau of Prisons, at the Federal Medical Center in Devens, Massachusetts. See id.; Dkt. No. 47-13 at 1 ¶ 1. Ward stated that the Mid-Atlantic Regional Counsel's Office received plaintiff's SF-95 administrative tort claim on May 10, 2019, which it then transferred to the...