United States District Court, D. Hawaii
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
C. Kay Sr. United States District Judge.
reasons set forth below, the Court GRANTS Defendant the
United States of America's Motion for Summary Judgment,
ECF No. 44.
William Coward (“Plaintiff”) has been
experiencing vision loss since September 2010 and has been
diagnosed with various eye conditions, including Glaucoma,
Central Vein Occlusion, Cystoid Macular Edema, and Cataracts.
Defendant United States' Concise Statement of Facts
¶ 2, ECF No. 45 (“U.S. CSF”). Plaintiff was
prescribed eye medications in order to treat his glaucoma and
reduce eye pressure, including Cosopt (Dorzolamide) and
Lumigan. Declaration of Jennifer Ringwood, Attach 1-009,
5, 2011, Plaintiff entered the custody of the Bureau of
Prisons (“BOP”) at the Federal Detention Center
of Honolulu (“FDC Honolulu”) to begin serving a
prison sentence. U.S. CSF ¶ 1. He was prescribed Cosopt
upon incarceration. U.S. CSF ¶ 7. After a June 13, 2011
office visit, he was also prescribed Latanoprost (Xalatan),
but the prescribing doctor noted after a July 22, 2011 visit
that no medications had apparently been initiated and
repeated the prescriptions for Cosopt and either Xalatan or
its pharmaceutical equivalent Lumigan. See Vickers
Attach 2-009 to 2-014. On August 31, 2011, Plaintiff was
transferred from FDC Honolulu to a Residential Reentry
Center, after which he did not have any medical visits with
or otherwise receive new treatment from a BOP medical
provider. U.S. CSF ¶ 9. Plaintiff was released to home
confinement on December 12, 2011 and completed his sentence
on January 3, 2012. Id. ¶ 10.
the time his sentence ended, Plaintiff filed an
administrative claim with the BOP alleging that the medical
staff at FDC Honolulu was negligent in failing to administer
prescribed medications to him until July 2011, which
allegedly caused partial vision loss in both eyes.
Plaintiff's Concise Statement of Facts ¶ 7, ECF No.
51 (“Pl. CSF”); U.S. CSF ¶ 11; Vickers
Attach 2-002. The BOP denied this claim on January 20, 2016.
U.S. CSF ¶ 11.
filed his complaint in federal court on May 31, 2016. Compl.,
ECF No. 1. The government filed its motion for summary
judgment on April 19, 2017. ECF No. 44
(“Motion”). Plaintiff filed his opposition on
July 14, 2017. ECF No. 54 (“Opp.”). The
government filed its reply on July 21, 2017. ECF No. 55
(“Reply”). On July 24, 2017, Plaintiff amended
his concise statement of facts to specifically dispute
portions of the government's statement of
facts. ECF No. 56. (“Pl. Am. CSF”).
Court held a hearing on the government's Motion on
Wednesday, August 9, 2017.
judgment is proper where there is no genuine issue of
material fact and the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(a). Federal Rule of Civil
Procedure (“Rule”) 56(a) mandates summary
judgment “against a party who fails to make a showing
sufficient to establish the existence of an element essential
to the party's case, and on which that party will bear
the burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); see also
Broussard v. Univ. of Cal., 192 F.3d 1252, 1258 (9th
party seeking summary judgment bears the initial burden of
informing the court of the basis for its motion and of
identifying those portions of the pleadings and discovery
responses that demonstrate the absence of a genuine issue of
material fact.” Soremekun v. Thrifty Payless,
Inc., 509 F.3d 978, 984 (9th Cir. 2007) (citing
Celotex, 477 U.S. at 323); see also Jespersen v.
Harrah's Operating Co., 392 F.3d 1076, 1079 (9th
Cir. 2004). “When the moving party has carried its
burden under Rule 56[(a)] its opponent must do more than
simply show that there is some metaphysical doubt as to the
material facts [and] come forward with specific facts showing
that there is a genuine issue for trial.”
Matsushita Elec. Indus. Co. v. Zenith Radio, 475
U.S. 574, 586-87 (1986) (citation and internal quotation
marks omitted); see also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986) (stating that a party
cannot “rest upon the mere allegations or denials of
his pleading” in opposing summary judgment).
issue is ‘genuine' only if there is a sufficient
evidentiary basis on which a reasonable fact finder could
find for the nonmoving party, and a dispute is
‘material' only if it could affect the outcome of
the suit under the governing law.” In re
Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing
Anderson, 477 U.S. at 248). When considering the
evidence on a motion for summary judgment, the court must
draw all reasonable inferences on behalf of the nonmoving
party. Matsushita Elec. Indus. Co., 475 U.S. at 587;
see also Posey v. Lake Pend Oreille Sch. Dist. No.
84, 546 F.3d 1121, 1126 (9th Cir. 2008) (stating that
“the evidence of [the nonmovant] is to be believed, and
all justifiable inferences are to be drawn in his
favor”) (internal citation and quotation omitted).
Plaintiff's Claim and the Parties
claims that BOP staff negligently failed to administer
prescribed eye medications to him which resulted in vision loss,
in violation of its statutory duty under 18 U.S.C. §
4042(a)(2) to provide the safekeeping and care of inmates.
Compl. ¶¶ 8-10, ECF No. 1; Pl. CSF ¶¶
4-5; 18 U.S.C. § 4042(a)(2) (the BOP shall
“provide suitable quarters and provide for the
safekeeping, care, and subsistence of all persons charged
with or convicted of offenses against the United States, or
held as witnesses or otherwise”). This claim arises
under the Federal Tort Claims Act (“FTCA”), which
establishes federal jurisdiction over civil suits for money
damages against the United States for
injury or loss of property, or personal injury or death
caused by the negligent or wrongful act or omission of any
employee of the Government while acting within the scope of
his office or employment, under circumstances where the
United States, if a private person, would be liable to the
claimant in accordance with the law of the place where the
act or omission occurred.
28 U.S.C. § 1346(b)(1); Compl. ¶ 2, ECF No. 1.
order to assert his FTCA claim, Plaintiff must show that
Hawaii would recognize a cause of action in negligence
against a private individual for the conduct alleged. See
Boltv. United States, 509 F.3d 1028, 1031 (9th
Cir. 2007) (“As the party seeking federal jurisdiction,
Bolt must therefore demonstrate that Alaska law would
recognize a cause of action in negligence against a private
individual for like conduct.”). Plaintiff contends that
his claim is merely one of simple negligence, rather than
medical malpractice. See Opp. at 4. However, as the
government notes, this is a distinction without a difference
here. Reply at 11. “[M]edical malpractice cases have
been predicated on the negligent failure of a physician or
surgeon to exercise the requisite degree of skill and care in
treating or operating on a patient.”Bernard v.
Char, 79 Haw. 371, 377, 903 P.2d 676, 682 (Haw. Ct. App.
1995), aff'd79 Haw. 362, 903 P.2d 667 (1995).
Plaintiff's claim that BOP staff “fail[ed] to take
care of the inmate even after they were told what he needed,
” see Opp. at 4, is thus merely a claim for
negligent failure to treat. See id. at 6 (noting
expert opinion that “[t]he failure to properly treat
Plaintiff's eye condition, glaucoma, while he was
incarcerated damaged his optic nerve”). ...