Blank v. United States of America

U.S. DISTRICT

; (

NORTHERN DISTRICT OL □□□□

IN THE UNITED STATES DISTRICT COURT FILED

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION SEP

~ 3 2024

TRAVIS BLANK, § CLERK, US. DISTRICF COURT

§ By

Plaintife£, 5 Deputy

§

vs. § NO. 4:20-CV-096-A

§

UNITED STATES OF AMERICA, §

ET AL.,

§

Defendants. §

MEMORANDUM OPINION AND ORDER

- Came-on for consideration the motion of defendants Aminia

Baruti (“Baruti”} and Charles Eilert ({“Eilert”) for summary

judgment and the motion of United States for partial summary

judgment. The court, having considered the motions, the response

of plaintiff, Travis Blank, the record, and applicable

authorities, finds that the motion of Baruti and Eilert should

be granted and that the motion of United States should be

granted in part.

1.

Background

The operative pleading is plaintiff's third amended

complaint filed June 16, 2021. Doc.’ 89. In it, plaintiff asserts

claims against United States under the Federal Tort Claims Act,

28 U.S.C. 8§ 1346(b), 2671-80 (“FTCA”), and claims against

'The“Doc, _” reference is to the number of the item on the docket in this action.

Baruti and Eilert under Bivens v. Six Unknown Named Agents of

the Federal Bureau of Narcotics, 403 U.S. 288 {1971). The court

has dismissed plaintiff’s claims for declaratory judgment, for

retaliation under the First Amendment, and for intentional

infliction of emotional distress. Doc. 79.

Plaintiff, a former inmate of the Federal Medical Center

Fort Worth (*FMC”), has filed numerous lawsuits while

incarcerated.” This lawsuit concerns his treatment from 2017 to

2019, His complaints focus on untreated neck and back pain, an

untreated infection, being placed in solitary confinement for

refusing to take a certain medication, and delay in surgery.

Doc, 89.

II.

Grounds of the Motions

Baruti and Eilert, doctors who treated plaintiff, assert

that they are each entitled to qualified immunity and that the

claims against them must be dismissed.*? Doc. 93. United States

seeks judgment that plaintiff take nothing on his claims for

which he cannot provide expert testimony and on claims that

accrued more than two years before he submitted his

? See Nos, 3:11-CV-1327-K, 4:12-CV-052-A, 4:14-CV-502-0, 4:15-CV-098-0, 4:16-CV-056-A, 4:16-CV-465-0,

4:}7-CV-609-A, and 4:19-CV-577-O, all filed in this district.

Baruti and Eilert also contend that at least some of plaintiffs claims against them are barred by limitations. The

court need not reach this ground of their motion. (Oddly, Baruti does not allege that claims against her accruing on

or before October 30, 2018, are barred by res judicata. See No. 4:17-CV-609-A, Doe, 117.)

administrative claim under the FTCA or that were not included in

his administrative claim. Doc. 95.

Til.

Applicable Summary Judgment Principles

Rule 56{(a) of the Federal Rules of Civil Procedure provides

that the court shall grant summary judgment on a claim or

defense if there is no genuine dispute as to any material fact

and the movant is entitled to Judgment as a matter of law. Fed.

R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

247 (1986). The movant bears the initial burden of pointing out

to the court that there is no genuine dispute as to any material

fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986).

The movant can discharge this burden by pointing out the absence

of evidence supporting one or more essential elements of the

nonmoving party's claim, “since a complete failure of proof

concerning an essential element of the nonmoving party's case

necessarily renders all other facts immaterial.” Id. at 323.

Once the movant has carried its burden under Rule 56(a),

the nonmoving party must identify evidence in the record that

creates a genuine dispute as to each of the challenged elements

of its case. Id. at 324; see also Fed. R. Civ. P. 56(c) (“A party

asserting that a fact .. . is genuinely disputed must support

the assertion by... citing to particular parts of materials

in the record ... .”"). I£ the evidence identified could not

lead a rational trier of fact to find in favor of the nonmoving

party as to each essential element of the nonmoving party's

case, there is no genuine dispute for trial and summary judgment

is appropriate. Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587, 597 (1986). In Mississippi Prot. &

Advocacy sys., inc. v. Cotten, the Fifth Circuit explained:

Where the record, including affidavits,

interrogatories, admissions, and depositions could

not, as a whole, lead a rational trier of fact to find

for the nonmoving party, there is no issue for trial.

929 F.2d 1054, 1058 (5th Cir. 1991).

The standard for granting a motion for summary judgment is

the same as the standard for rendering judgment as a matter of

law.* Celotex Corp., 477 U.S. at 323. If the record taken as a

whole could not lead a rational trier of fact to find for the

non-moving party, there is no genuine issue for trial.

Matsushita, 475 U.S. at 597; see also Mississippi Prot. &

Advocacy Sys., 929 F.2d at 1058.

The mere existence of some alleged factual dispute between

the parties will not defeat an otherwise properly supported

4In Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (Sth Cir. 1969)

(en banc), the Fifth Circuit explained the standard to be applied in

determining whether the court should enter judgment on motions for

directed verdict or for judgment notwithstanding the verdict.

motion for summary judgment. Anderson, 477 U.S. at 247-48.

Moreover, "[w]hen 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." Scott v. Harris, 550 U.S. 372, 380 (2007).

Although the court must resolve all factual inferences in

favor of the nonmovant, the nonmovant cannot manufacture a

disputed material fact where none exists. Albertson v. T.J.

Stevenson & Co,, 749 F.2d 223, 228 (5th Cir. 1984). He cannot

defeat a motion for summary judgment by submitting an affidavit

or declaration that contradicts, without explanation, his

earlier sworn Geposition. Cleveland v. Policy Mgmt. Sys. Corp.,

526 U.S. 795, 806 (1999); S.W.S. Hrectors, Inc. v. Infax, Inc.,

72 F.3d 489, 495 (5th Cir. 1996); Albertson, 749 F.2d at 228,

Nor can he rely on conclusory allegations unsupported by

concrete and particular facts. Duffy v. Leading Edge Prods.,

Inc., 44 F.3d 308, 312 (Sth Cir. 1995).

IV.

Undisputed Facts

The record establishes the following undisputed facts:

Plaintiff arrived at FMC in February 2012. Doc. 99 at 053.

He suffered from a number of preexisting conditions including

Crohns’ Disease that was not well-managed, id. at 064-66, and

neck pain and spine issues that had previously required a C3-C4

anterior cervical discectomy and fusion. Id. at 195-97.

Beginning in September 2012, plaintiff was prescribed opioid

pain medications of varying types and dosages for chronic neck

pain. See, e.g., id. at 067-68. By July 2014, he was taking 60

mg daily morphine sulfate sustained release. Id. at 069.

In August, 2016, plaintiff was diagnosed by a

gastroenterologist with opiate induced constipation. Doc. 99 at

072. He told an outside provider that he did not want to take

narcotics, Id. at 071. Plaintiff was told to drink more fluids

and eat more fiber and was prescribed numerous medications to

alleviate the constipation. Id. at 072-75. In December 2016,

plaintiff agreed to a plan to be weened off morphine. Id. at

O78, 085, 091, 092; Doc. 109 at O51.

On April 24, 2017, plaintiff told Baruti that he was still

experiencing constipation and was in pain. She noted that he

used topical lidocaine and had been approved for Flexeril to

help with pain. Doc, 99 at 082. On April 26, plaintiff again saw

Baruti and she prescribed new pain medications. Id. at 087-88.

Plaintiff had an MRI in duly 2017, which was relatively

unremarkable according to an outside orthopedic specialist. Id.

at 120. On September 18, 2017, Baruti referred plaintiff to a

gastroenterologist for follow-up regarding constipation and

pain. Id. at 132. On September 27, 2017, Baruti noted that

plaintiff was already scheduled for physical therapy and that

she would refer him to psychology to evaluate other modalities

to effectively minimize his chronic pain. Id. at 097. She also

referred him to pain management. Id. at 096. On October 23,

2017, Baruti examined plaintiff and, noting his various

complaints, referred him to neurosurgery.*® Id. at 093, 095,°

Plaintiff refused the psychology consultation. Id. at 098.

In January 2018, plaintiff was seen by a neurologist who

recommended an increase in Flexeril and follow-up with

neurosurgery following an MRI. Doc. 109 at 134-35. On February

15, 2018, plaintiff was seen by an outside pain specialist and

reported that his symptoms were moderate and that his morphine

had been discontinued due to interference with his Crohn’s

Disease. Id. at 118. In March, Baruti requested a new pain

Management consultation for cervical injections, noting that

> The reply and appendix in support thereof filed by defendants reflect that, beginning in December 2017, FMC tried

fo obtain an appointment for plaintiff with the neurosurgery clinic. Doc. 115 at 024, After repeated requests, the

clinic asked for a current MRI of the spine. Id, at 022-24. On January 24, 2018, the radiology report was sent, Id. at

619. The MRI was unremarkable. Doc, 99 at 109, A doctor at the neurosurgery clinic reviewed it and said that

plaintiff needed to be referred to pain management as he was “non operative and just needs pain management.” Doc.

115 at 014-15. Baruti was asked to cancel the consultation but refused unless she could get something in writing

confirming that plaintiff was not.a surgical candidate, Id. at 010, 014. The court recognizes that plaintiff contends

that the evidence submitted with the reply should not be considered. Doc, 117. The court need not and does not rely

on this evidence in finding that the motion of Baruti and Eilert should be granted. The court simply includes this as a

reasonable explanation for why the medical records appear as they do.

6 The remaining pages of this encounter are found in Doc, 109 at 071-74, 076.

plaintiff was awaiting a neurosurgery consultation.’ Doc. 109 at

065. On August 13, 2018, plaintiff received the injections, Doc.

99 at 105. On September 14, 2018, plaintiff had an MRI that

indicated that his neck condition had worsened. Id. at 136-37.

He was scheduled to see neurosurgery on October 11, 2018. Id. at

138. On October 24, 2018, Eilert referred plaintiff for a

neurology consult. Id. at 123. On December 14, 2018, plaintiff

again complained of pain and was prescribed additional

medication, Id. at 090, 100. On January 22, 2019, the

neurosurgeon recommended removal of C3-C4 cervical hardware and

C4-C5 ACDF.* Id. at 139. Ata sick call encounter on February 8,

2019, plaintiff inquired whether he would be able to have the

recommended surgery before being released from incarceration in

July 2019, Id. at 108. On March 6, 2019, the pain management

provider noted that plaintiff had obtained 80% relief for 2

months following the injections in August 2018 but pain had

returned. Id. at 107. On March 19, 2019, plaintiff was seen

again by an outside neurologist, who noted that surgery was

planned and that there was no new diagnosis. Id. at 127. On May

1, 2019, plaintiff had surgery to remove the hardware as

? Plaintiff had complained that his pain management specialist recommended a different type of injection for his

neck, He also complained that he had been denied pain medication. Baruti disputed that she had denied him pain

medication. Rather, she understood that he did not want to take narcotics. Doc. 109 at 064.

§ The newrosurgeon’s report notes all of the treatments tried. Doc. 99 at 106.

recommended. Id. at 134.

Plaintiff was released from incarceration in July 2019. He

is not suffering any neck issues, pain, or symptoms and his

Crohn's Disease is well managed. Doc. 99 at. 198. He is not

taking any narcotic pain medication. Id. at 199.

Vv.

Analysis

A. Bivens Claims

Federal officials are entitled to qualified immunity unless

they viclate a statutory or constitutional right that was

clearly established at the time of the challenged conduct. Doe

v. Robertson, 751 F.3d 383, 387 (5th Cir. 2014}. The doctrine

protects those whose actions could reasonably have been believed

to be legal and “all but the plainly incompetent or those who

knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341

(1986). Evaluating qualified immunity is a two-step process:

First, the court considers whether the official's alleged

conduct violated a federal right. Robertson, 751 F.3d at 387.

Second, the court considers whether the right in question was

clearly eStablished at the time of the violation, such that the

official was on notice of the unlawfulness of his or her

conduct. Alexander v. City of Round Rock, 854 F.3d 298, 303 (5th

Cir. 2017). The court has the discretion to determine which

prong of the test to address first. Morgan v. Swanson, 659 F.3d

359, 3721 (Sth Cir. 2011) (en banc}. The burden is on the

plaintiff to rebut the defense by establishing a genuine fact

issue as to whether the official’s conduct violated clearly

established law. Brown v. Callahan, 623 F.3d 223, 253 (5th Cir.

2010).

Here, plaintiff alleges that Baruti and Hilert violated

clearly established law by acting with deliberate indifference

to his medical needs. The Eighth Amendment's proscription of

cruel and unusual punishments obligates the government to

provide medical care for those whom it is punishing by

incarceration. Estelie v. Gamble, 429 U.S. 937, 103 (1976).

Whether Baruti and Eilert violated the Bighth Amendment also

involves a two-step inquiry. First, pliaintiff must show that he

was exposed to “a substantial risk of serious harm.” Spikes v.

McVea, F.3d, 2021 WL 3525026, at *4 (Sth Cir. Aug. 11,

2021) (quoting Gobert v. Caldwell, 463 F.3d 339, 345 (Sth Cir.

2006)). Second, he must show that “prison officials acted or

failed to act with deliberate indifference to that risk.” Id.

(quoting Gobert, 463 F.3d at 345-46). This is a test of

subjective recklessness, i.e., a prison official acts with

deliberate indifference only if he knows that the inmate faces a

substantial risk of serious bodily harm and he disregards that

10

risk by failing to take reasonable measures to abate it. Farmer

v. Brennan, 511 U.S. 825, 839-40 (1994); Gobert, 463 F.3d at

346,

Unsuccessful medical treatment, acts of negligence, or

medical malpractice do not constitute deliberate

indifference, nor does a prisoner’s disagreement with

his medical treatment, absent exceptional

circumstances. Furthermore, the decision whether to

provide additional treatment is a classic example of a

matter for medical judgment, A showing of deliberate

indifference requires the prisoner to submit evidence

that prison officials refused to treat him, ignored

his complaints, intentionally treated him incorrectly,

or engaged in any similar conduct that would clearly

evince a wanton disregard for any serious medical

needs.

Gobert, 463 F.3d at 346 (internal quotations and citations

omitted). For example, wanton disregard may be evidenced by a

doctor's decision to administer easier and less efficacious

treatment without exercising medical judgment or by delaying

treatment for non-medical reasons. Estelle, 429 U.S. at 104 &

nm.1d,

The burden is on plaintiff to overcome the qualified

immunity defense. Brown, 623 F.3d at 253. But plaintiff makes no

response to Bilert’s contention that he is entitled to qualified

immunity. Doc. 108. He does not point to any summary judgment

evidence to raise a genuine fact issue as to Hilert‘’s care or

lack thereof. In fact, the court cannot discern any evidence to

support the allegation that Eilert was deliberately indifferent

11

to plaintiff’s serious medical needs. Accordingly, Eilert is

entitied to judgment that plaintiff take nothing on his claims

against Hilert.

As for Baruti, plaintiff relies on little but his own

conclusory statements. Doc. 109 at 148-50, qq 2-9. The medical

records that have been provided reflect that, whether she

personally saw plaintiff or not,’ Baruti reviewed his ongoing

treatment by other providers. See, e.g., Doc. 99 at 079, 082-83,

089, O87-88, 132, 697, 096, 093, 095, 098, 111, 117, 143, 106,

139; Doc, 109 at 045, 057-59, 069, 135, 065, 064, 142, 130-31,

133, 113.79 She prescribed medications and other treatments and

referred plaintiff to specialists to try to control his pain.

See, @.g., Doc. 99 at 099, 101, 102, 097, 096, 095, 100, 106

{summarizing treatments tried). As plaintiff admits, the medical

records do not reflect that Baruti refused to treat him. Id. at

194. Plaintiff’s expert testified that he was unable to find any

evidence of intentional harm or staff refusing to treat

plaintiff. Id. at 019-022. The expert further noted that

plaintiff frequently had disagreements about the course of his

medical care, Id. at 022, 098 {refusing a psychology

3 See Gobert, 463 F.3d at 350 .35 (continued personal treatment by a treating physician is not constitutionally

poaes are cited in chronological order. The court had to create its own sequence of medical records because

the parties did not bother to put them in order. The court further notes that the randomness and incompleteness of the

records appears to have led the parties to misrepresent facts allegedly contained in the medical records.

12

consultation for pain management), 108 (stopped taking pain

medication due to weight gain}, 092 {refused to explain why he

was not taking prescribed medication). The contention that

Baruti cut off plaintiff's morphine then refused to treat him is

belied by the record. Id. at 071, 075, 070, 085, 132, 091, 093;

Doc. 109 at 044, 051, 060; Doc. 115 at 007-26. She tried a

number of modalities that were not successful, but ultimately

the surgery was. In sum, the record reflects a disagreement

about recommended medical treatment and not deliberate

indifference. See, e.g., Petzold v. Rostollan, 946 F.3d 242 (5th

Cir. 2019).

Further, plaintiff has not come forward with any case

sufficient to establish that a doctor acting under circumstances

like those of this case was held to have violated the

Constitution. Cope v. Cogdill, 3 F.4th 198, 205 (5th Cir. 2021).

Broad general propositions are not enough to overcome qualified

immunity. Id. Rather, plaintiff must show that the violative

nature of the particular conduct is clearly established.

Mullenix v. Luna, 577 U.S. 7, 12 (2015). Plaintiff must show

that the law so clearly and unambiguously prohibited Baruti’s

conduct that every reasonable officer would understand that what

she was doing violated the law. Wyatt v. Fletcher, 718 F.3d 496,

503 {Sth Cir. 2013). His reference to Easter v. Powell, 467 F.3d

13

459 (Sth Cir, 2006}, is plainly insufficient. In Easter, a

prison doctor prescribed nitroglycerin for an inmate with a

documented history of serious heart problems. A nurse refused to

provide the nitroglycerin when the inmate presented with chest

pain. By the time another medical professional gave the inmate

the nitroglycerin, four hours later, the blood vessels in his

left eye had burst, causing it to fill with blood. This is not a

case where Baruti refused to follow a prescribed course

treatment. Rather, the pertinent issues include whether Baruti

was required to prescribe opioids as plaintiff demanded, whether

she could rely on the recommendations of specialists to whom she

referred plaintiff, and whether she can be held liable for the

delays caused by others in obtaining medical care for plaintiff.

Without a case addressing similar facts or circumstances,

plaintiff cannot show that Baruti’s conduct clearly amount to

deliberate indifference that violated the Constitution.

B. Tort Claims

United States says that it should be granted judgment on

plaintiff’s claims concerning (1) treatment of an infection in

May 2017, Doc. 89 at 53-58, (2) placement of plaintiff in

medical isolation after he was identified as a close contact of

a scabies outbreak and refused to take the prescribed treatment,

id. 4 59-61, 80, 87, and (3) negligent delay in a neurosurgery

14

appointment that delayed surgery, id. 35-37. United States

also says that any claim that was not timely presented or

exhausted should be dismissed. Doc. 96 at 7-8,

Plaintiff recognizes that tort claims must be presented to

the appropriate agency within two years of accrual. Trinity

Marine Prods., Inc. v. United States, 812 F.3d 481, 487 (5th

Cir. 2016). The court does not interpret plaintiff's third

amended complaint to be alleging any claims based on conduct

that occurred before January 17, 2017, two years prior to

receipt by the government of his administrative claim.

United States argues that plaintiff cannot pursue claims

based on facts that occurred after he filed his administrative

claim. Izen v. Catalina, 398 F.3d 363, 367 (5th Cir. 2005);

McAfee v. Fifth Circuit Judges, 884 F.2d 222-23 (5th Cir. 1989).

The statutory purpose of requiring an administrative claim is to

give the government an opportunity to expedite faix settlement

of claims and avoid unnecessary court congestion. Rise v. United

States, 630 F.2d 1068, 1071 (Sth Cir. 1980). The claimant must

provide facts sufficient to allow his claim to be investigated.

Cook v. United States, 978 F.2d 164, 166 (5th Cir. 1992). Here,

plaintiff included as a basis for his tort claim “delayed access

to hospital and other doctors.” Doc. 109 at 077. In his detailed

account of his injury, plaintiff recited that on March 2, 2018,

15

he was told to wait for his neurosurgeon appointment that had

been approved, but he was still waiting, more than nine months

later, at the time he filed his claim. Id. at 094-095. Plaintiff

gave notice of sufficient facts to enable the government to

investigate his delay of surgery claim.™* He did not give, nor

could he have given, notice, however, of alleged harm occurring

as a result of Hilert’s failure to give him pain medication

following surgery on May 1, 2019. That claim is unexhausted and

cannot be pursued here.

As for the substance of plaintiff’s claims, United States

argues that plaintiff cannot proceed with the three enumerated

claims because he lacks expert testimony to establish them.

Under the FTCA, federal courts apply the law of the state where

the alleged negligence occurred. Richards v. United States, 369

U.S. 1, 10 (1962). Under Texas law, treating physicians owe a

duty to exercise that degree of care which a general

practitioner of ordinary prudence and skill,. practicing in the

community or similar community, would have exercised in the same

or similar circumstances. Edwards v. United States, 519 F.2d

1137, 1139 {Sth Cir. 1975). The plaintiff bears the burden of

proving {1) the physician's duty to act according to an.

One could reasonably conclude that investigation of this claim resulted in plaintiff having surgery before his

release from incarceration.

16

applicable standard of care, (2) a breach of that standard of

care, (3) injury, and (4) causation. Hannah v. United States,

523 F.3d 597, 601 (5th Cir. 2008). Standard of care is the

threshold issue and must be established by expert testimony

unless the mode or form of treatment is a matter of common

knowledge or-is within the experience of a lay person. Id., 523

F.3d at 601-02; Quijano v, United States, 325 F.3d 564, 567 (5th

Cir. 2003). Expert testimony is also required to establish that

the breach proximately caused the harm suffered by the

plaintiff. Guile v. United States, 422 F.3d 221, 225 (5th Cir.

2005); Garza v. Levin, 769 S.W.2d 644, 646 (Tex. App.--Corpus

Christi 1989, writ denied). □

Plaintiff apparently recognizes that he cannot prevail on

the claim arising out of the treatment of his infection in May

of 2017, as he makes no response to that argument. As for the

second claim, plaintiff says that his placement in isolation for

declining to take medication is not a medical malpractice claim

requiring expert testimony. The first part of the claim—being

placed in isolation for declining to take medication-was

punishment unrelated to medical treatment. And, the second part

of his claim—denying him medication, use of his prescribed

medical mattress and pillow, and canceling a scheduled

17

appointment—is within the ordinary experience of laymen and does

not require expert testimony. Doc. 108 at 27-28.

As for the first part of the isolation claim, plaintiff

denies having had contact with someone who had scabies. He does

not dispute, however, that prison authorities believed he had

been in contact with such a person. As a result, plaintiff was

ordered to take Ivermectin, which he refused to do. He was

ordered to be isolated so that he would not infect other

prisoners. He has not raised a genuine fact issue as to whether

the determination that he had been exposed was negligent. In any

event, plaintiff's medical classification and designation fall

within the discretionary function exception to the FTCA. Blank

v. United States, 713 F. App'x 400, 401 (5th Cir, 2018). Being

placed in isolation is not a claim that can be pursued.

As for the second part of the isolation claim, the court

agrees that plaintiff does not require expert testimony to

establish that he suffered harm when he was denied prescribed

medications and his medical mattress and pillow and a medical

appointment was cancelled simply because he was placed in

isolation. A lay person would know that medications are

prescribed and appointments are made for a reason. See Coleman

v. United States, 912 F.3d 824, 829 (Sth Cir. 2019).

18

Accordingly, plaintiff should be allowed to proceed with this

claim.

As for the third claim, plaintiff says that there is expert

testimony to establish the standard of care and causation. Doc.

108 at 28-29. However, the evidence he cites does not support

this contention. Although defendants’ own expert testified that

a delay of fifteen months in seeing a neurosurgeon would not be

an acceptable practice for him, he did not opine about the

standard in a prison setting. Doc. 109 at 036. More importantly,

there is no expert testimony to establish causation of harm,

which would clearly be required here. Therefore, plaintiff

cannot proceed with his claim that he suffered harm as a result

of the delay in receiving surgery.

VI.

order

For the reasons discussed herein,

The court ORDERS that the motion of Baruti and Hilert for

summary judgment be, and is hereby, granted; that plaintiff take

nothing on his claims against them; and, that such claims be,

and are hereby, dismissed with prejudice.

The court further ORDERS that United States’ motion for

partial summary judgment be, and is hereby, granted in part, and

plaintiff's claims for being placed in isolation, for harm

19

arising out of Bilert’s alleged failure to provide pain

medication following surgery on May 1, 2019, and for harm

arising out of the delay in his surgery be, and are hereby,

dismissed, The only claims remaining to be tried as to United

States are for (1) medical malpractice concerning alleged

inadequate opioid medications for plaintiff's chronic pain, as

alleged in his third amended complaint, Doc. 96, 44 87 & 88, and

(2) injury, if any, suffered by plaintiff as a result of being

denied his medical mattress, pillow, and medications, and the

cancellation of an appointment while he was in isolation, Id.

{4 60, 80, 87.

The court determines that there is not just reason for

delay in, and hereby directs, entry of final judgment as to the

dismissal of the claims against Baruti and Eilert.

SIGNED September 3, 2021. et

ee

J Jp) L 4 )

spo MCBRYDE

S@hior United States District J dge

20