# Blank v. United States of America

> District Court, N.D. Texas · September 3, 2021

URL: https://www.frixlaw.com/law-library/cases/10450532

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** September 3, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10450532. Public record. Not legal advice.