Rueben v. Outlaw et al, No. 2:2013cv00033 - Document 72 (E.D. Ark. 2014)

Court Description: ORDER adopting 66 Proposed Findings and Recommendations as modified and declining in part. Hammer's 44 Motion for Summary Judgment is granted. Defendants' 50 Motion for Summary Judgment is denied without prejudice as to the United Sta tes and otherwise granted. Rueben's claims against Outlaw, Heuett, Resto, Graham, Rios, Langley, Miller, Wingo, and Hammer are dismissed with prejudice. Rueben's medical-malpractice claim against the United States remains. Further recommendation requested. Signed by Judge D. P. Marshall Jr. on 7/8/2014. (jak)
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Rueben v. Outlaw et al Doc. 72 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS EASTERN DIVISION MAURICIO RUEBEN, Reg. #59216-079 v. PLAINTIFF No. 2:13-cv-33-DPM-JTK T. C. OUTLAW, Warden, FCI-Forrest City; D. W. HEUETT, Assistant Warden, FCIForrest City; WILLIAM RESTO, Clinical Director, FCI-Forrest City; MARY E. GRAHAM, Health Services Administrator, FCI-Forrest City; JEFFREY HAMMER, Physician Assistant, FCI-Forrest City; MISTY RIOS, Registered Nurse, FCI-Forrest City; RHONDA LANGLEY, Registered Nurse, FCI-Forrest City; R. M. MILLER, Registered Nurse, FCI-Forrest City; MICHELLE WINGO, Physician Assistant, FCI-Forrest City; and UNITED STATES OF AMERICA DEFENDANTS ORDER Opposed recommendation, NQ 66, mostly adopted as modified and declined in part. FED. R. Crv. P. 72(b)(3). 1. Rue ben's claims for damages against all individual defendants in their official capacities are barred by sovereign immunity. 2. Rios and Resto are absolutely immune from suit under the Public Health Service Act. 42 U.S.C. ยง 233(a). Dockets.Justia.com 3. Rue ben's claims against Outlaw, Heuett, and Graham fail as a matter of law. Rueben doesn't allege that they were personally involved in his medical treatment; and defendants can't be held liable in a Bivens action based only on their supervisory positions. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). 4. Wingo and Hammer, Rue ben's treating physicians, are entitled to qualified immunity. Wingo treated Rueben once before his hospitalization; she reviewed his lab results with him and prescribed medication. Hammer saw Rue ben at least five times across three months, both before and after he was hospitalized. Hammer prescribed Rue ben medication, ordered tests, and directed that he be transferred to an outside medical center for treatment. Neither Wingo nor Hammer were deliberately indifferent to Rue ben's medical needs. Estate of Rosenberg by Rosenberg v. Crandell, 56 F.3d 35,37 (8th Cir. 1995). 5. Langley and Miller are entitled to qualified immunity. Rueben says that they were deliberately indifferent to his medical needs because they booked him a later appointment three times. The record shows that Rue ben was treated for leg pain on multiple occasions in the spring of 2012. Langley and Miller were following BOP's triage protocol. The record doesn't indicate that Langley or Miller knew of, or disregarded, an excessive risk. -2- 6. As to the United States, the recommendation is this: grant summary judgment based on Rue ben's failure to provide expert testimony, as required by the Arkansas Medical Malpractice Act. Rueben objects, arguing that the Court denied his motion to appoint an expert several months ago. NQ 71 at 7, NQ 47, & NQ 56. This issue needs further development. E.g., Spann v. Roper, 453 F.3d 1007, 1009 (8th Cir. 2006) (per curiam). The Court returns this claim to Judge Kearney, who is more familiar with the record. Is enough evidence present to justify revisiting the motion for an expert, and granting it, at least for an evaluation of Rue ben's allegations? The Court is not directing that this be done, but only that it be reconsidered. If this case is different than Spann, the differences need explaining. The Court would also benefit from Judge Kearney's further analysis about when an expert should be appointed. * * * Hammer's motion for summary judgment, NQ 44, is granted. Defendants' motion for summary judgment, NQ 50, is denied without prejudice as to the United States and otherwise granted. Rue ben's claims against Outlaw, Heuett, Resto, Graham, Rios, Langley, Miller, Wingo, and Hammer are dismissed with prejudice. Rue ben's medical-malpractice claim against the United States remains. Further recommendation requested. -3- So Ordered. D.P. Marshall Jr. United States District Judge -4-