Petition for Writ of Certiorari — Brent Edward Clark, Petitioner v. Vibeke Dankwa

Supreme Court briefApr 11, 2024

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APPENDIX TABLE OF CONTENTS

Opinions and Orders

Appendix 1.

Per Curiam Opinion, U.S. Court of Appeals

for the Fourth Circuit (October 26, 2023)....... la

Appendix 2.

Order Dismissing Case, U.S. District Court

for the Northern District of West Virginia

Wheeling (January 19, 2023)........................

Appendix 3.

Order Striking Expert, Granting Summary

Judgment and Imposing Sanctions

(November 28, 2022)........ ............................

20a

Rehearing Order

Appendix 4.

Order Denying Petition for Rehearing, U.S.

Court of Appeals for the Fourth Circuit

(January 17, 2024).........................................

29a

Other Documents

Appendix 5.

28 U.S. Code § 2680 - Exceptions

31a

Appendix 6.

Federal Torts Claim Act Complaint, U.S.

District Court for the Northern District of

West Virginia (February 19, 2021)............

34a

APPENDIX TABLE OF CONTENTS (Cont.)

Appendix 7.

Bureau of Prisons Health Services Clinical

Encounter (October 5, 2023)........................

46a

Appendix 8.

Dr. Dankwa Testimony, Transcript Excerpt

(December 18, 2022)......................................

52a

Appendix 9.

Brownback v. King, 592 U.S.

Footnote 8..............................

54a

Appendix 10

Docket History

(2021),

55a

App.la

APPENDIX 1

PER CURIAM OPINION, U.S. COURT OF

APPEALS FOR THE FOURTH CIRCUIT

(OCTOBER 26, 2023)

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRENT CLARK,

Plaintiff - Appellant,

DR. VIBEKE DANKWA,

individually and in her official capacity,

Defendant - Appellee.

No. 23-1300

Appeal from the United States District Court

for the Northern District of West Virginia,

at Wheeling. John Preston Bailey, District Judge.

(5:23-cv-00009-JPB-JPM)

Submitted: August 25, 2023

Decided: October 26, 2023

Before: HARRIS, RUSHING, and HEYTENS,

Circuit Judges.

Affirmed by unpublished per curiam opinion.

Brent Edward Clark, Appellant Pro Se.

App.2a

Unpublished opinions are not binding

precedent in this circuit.

PER CURIAM:

Brent Clark appeals a district court order

dismissing his claims alleging he received inadequate

medical treatment while incarcerated at FCI Morgan

town. Because those claims were barred by a federal

statute, we affirm the district court’s judgment on

alternative grounds. See, e.g., Attkisson v. Holder, 925

F.3d 606, 624 (4th Cir. 2019) (observing that this

Court may affirm the dismissal of a suit “on any

ground supported by the record,” even if it is not the

basis relied upon by the district court (quotation

marks omitted)).

Under the Federal Tort Claim Act’s aptly named

“judgment bar,” a judgment in an action brought

under the FTCA bars all future actions that: (1) arise

out of the same set of facts; and (2) are brought against

the federal employees whose conduct was challenged

in the original suit. 28 U.S.C. § 2676 (“The judgment

in an action under section 1346(b) of this title shall

constitute a complete bar to any action by the claimant,

by reason of the same subject matter, against the

employee of the government whose act or omission

gave rise to the claim.”).

That bar applies here. In 2021, Clark filed an

FTCA action against several federal defendants,

including Dr. Dankwa, arising out of the same set of

facts at issue here. See Complaint, Clark v. United

States, No. 5:21-cv-00027, ECF 1 (N.D. W. Va. Feb. 19,

2021). That suit was resolved on the merits when the

district court entered summary judgment against

App.3a

Clark. See Order, Clark v. United States, No. 5:21-cv00027, ECF 168 (N.D. W. Va. Nov. 28, 2022). Given

that dismissal, any future claims arising out of those

facts—whether brought under state or federal law—

were barred. See Unus v. Kane, 565 F.3d 103, 121-22

(4th Cir. 2009) (discussing the FTCA’s judgment bar).

Accordingly, we affirm the dismissal of Clark’s

claims. We also deny Clark’s pending motion for a stay

pending appeal and his motion to remand the case to

state court. Finally, we dispense with oral argument

because the facts and legal contentions are adequately

presented in the materials before this court and

argument would not aid the decisional process.

SO ORDERED.

App.4a

APPENDIX 2

ORDER DISMISSING CASE,

U.S. DISTRICT COURT FOR THE NORTHERN

DISTRICT OF WEST VIRGINIA WHEELING

(JANUARY 19, 2023)

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF

WEST VIRGINIA WHEELING

BRENT CLARK,

Plaintiff,

DR. VIBEKE DANKWA,

individually and in her official capacity,

Defendant.

Civil Action No. 5:23-CV-9

Before: John Preston BAILEY,

United States District Judge.

ORDER DISMISSING CASE

Pending before this Court on initial review is

Brent Clark’s complaint against Dr. Vibeke Dankwa

[Doc. 1-2]. For the reasons stated below, this case will

be dismissed.

On December 27, 2022, plaintiff Brent Clark filed

an Amended Complaint in the Circuit Court of

App.5a

Monongalia County, West Virginia, alleging that Dr.

Dankwa, a physician employed by the Bureau of Prisons,

provided inadequate medical care in volation of the

Eighth Amendment to plaintiff while he was an

inmate at FCI Morgantown.

This case was removed to this Court on January 12,

2023. The Notice of Removal contains the following

language:

Plaintiff brought the underlying state court

civil action against the Defendant, an

employee or officers of the United States and

the Federal Bureau of Prisons, in official

and/or individual capacity, for or relating to

acts under color of such office. Specifically,

Plaintiff alleges that the Defendant violated

his Eighth Amendment right to be free from

cruel and unusual punishment by, inter alia,

providing inadequate medical care in or

about December 2018 while he was

designated to FCI Morgantown.

Pursuant to 28 U. S. C. § 1442(a)(1), a civil

action that is commenced in a state court and

that is against or directed to the United

States or any agency thereof or any officer

(or any person acting under that officer) of

the United States or of any agency thereof,

in an official or individual capacity, for or

relating to any act under color of such office

may be removed by them to the district court

of the United States for the district and

division embracing the place wherein it is

pending.

[Doc. 1 at 2].

App.6a

Inasmuch as this case is a suit for damages

against a federal actor acting in violation of the

Constitution, it is a Bivens type action. Bivens v. Six

Unknown Agents of Federal Bureau of Narcotics, 403

U.S. 388 (1971).

At the outset, this Court notes that the recent

Supreme Court case of Egbert v. Boule, 142 S.Ct. 1793

(2022) “all but closed the door on Bivens remedies.”

Dyer v. Smith, 2022 WL 17982796, at *3 (4th Cir. Dec.

29, 2022).

In Bivens, the Court held that it had

authority to create “a cause of action under

the Fourth Amendment” against federal

agents who allegedly manacled the plaintiff

and threatened his family while arresting

him for narcotics violations. 403 U.S. at 397.

Although “the Fourth Amendment does not

in so many words provide for its enforcement

by an award of money damages,” id., at 396,

91 S.Ct. 1999, the Court “held that it could

authorize a remedy under general principles

of federal jurisdiction,” Ziglar, 582 U.S., at

___, 137 S.Ct., at 1854 (citing Bivens, 403

U.S. at 392, 91 S.Ct. 1999). Over the

following decade, the Court twice again

fashioned new causes of action under the

Constitution—first,

for

former

congressional staffer’s Fifth Amendment sexdiscrimination claim, see Davis v. Passman,

442 U.S. 228 (1979); and second, fora federal

prisoner’s inadequate-care claim under the

Eighth Amendment, see Carlson v. Green,

446 U.S. 14 (1980).

Egbert v. Boule, 142 S.Ct. 1793, 1802 (2022).

App.7a

Over the past 42 years, however, the Supreme

Court has declined twelve (12) times to imply a similar

cause of action for other alleged constitutional violations.

See Chappell v. Wallace, 462 U.S. 296 (1983); Bush v.

Lucas, 462 U.S. 367 (1983); United States v. Stanley,

483 U.S. 669 (1987); Schweiker v. Chilicky, 487 U.S.

412 (1988); FDIC v. Meyer, 510 U.S. 471; Correctional

Services Corp. v. Malesko, 534 U.S. 61 (2001); Wilkie

v. Robbins, 551 U.S. 537 (2007); Hui v. Castaneda, 559

U.S. 799 (2010); Minneci v. Pollard, 565 U.S. 118

(2012); Ziglar v, Abbasi, 582 U.S.__ , 137 S.Ct. 1843

(2017); Hernandez v. Mesa, 589 U.S.__ , 140 S.Ct. 735

(2020); and Egbert v. Boule, 142 S.Ct. 1793, 1799-800

(2022).

The Court, rather that dispensing with Bivens

and its progeny altogether, has emphasized that a

cause of action under Bivens is a “disfavored judicial

activity.” Egbert, 142 S.Ct. at 1803 (citing Ziglar, 582

., 137 S.Ct., at 1856-1857 (internal

U.S., at

quotation marks omitted); Hernandez, 589 U.S., at

__ , 140 S.Ct., at 742-743 (internal quotation marks

omitted)).

In Egbert, the Supreme Court once again tiptoed

around the ultimate issue — whether there is any

remaining validity in the Bivens doctrine, while

fashioning a standard which indicates that the Bivens

action no longer exists.

In Egbert, the Court referenced the two part test

for determining whether a Bivens type cause of action

exists:

To inform a court’s analysis of a proposed

Bivens claim, our cases have framed the

inquiry as proceeding in two steps. See

App.8a

Hernandez, 589 U.S., at

, 140 S.Ct., at

742-743. First, we ask whether the case

presents “a new Bivens context”—i.e., is it

“meaningful [ly]” different from the three cases

in which the Court has implied a damages

action. Ziglar, 582 U.S., at---- , 137 S.Ct., at

1859-1860. Second, if a claim arises in a new

context, a Bivens remedy is unavailable if

there are “special factors” indicating that the

Judiciary is at least arguably less equipped

than Congress to “weigh the costs and

benefits of allowing a damages action to

, 137 S.Ct.,

proceed.” Ziglar, 582 U.S., at

at 1858 (internal quotation marks omitted). If

there is even a single “reason to pause before

applying Bivens in a new context,” a court

may not recognize a Bivens remedy.

Hernandez, 589 U.S., at

., 140 S.Ct., at

743.

Egbert, 142 S.Ct. at 1803.

In Egbert, the Supreme Court, without saying as

much, appears to have significantly modified the twostep Ziglar test:

While our cases describe two steps, those

steps often resolve to a single question:

whether there is any reason to think that

Congress might be better equipped to create

a damages remedy. For example, we have

explained that a new context arises when

there are “potential special factors that

previous Bivens cases did not consider.”

, 137 S.Ct., at 1860.

Ziglar, 582 U.S., at

And we have identified several examples of

new contexts—e.g., a case that involves a

App.9a

“new category of defendants,” Malesko, 534

U.S. at 68, 122 S.Ct. 515; see also Ziglar, 582

U.S., at

,137 S.Ct., at 1876—largely

because they represent situations in which a

court is not undoubtedly better positioned

than Congress to create a damages action.

We have never offered an “exhaustive”

accounting of such scenarios, however,

because no court could forecast every factor

that might “counsefl] hesitation.” Id., at__ ,

137 S.Ct., at 1880. Even in a particular case,

a court likely cannot predict the “systemwide”

consequences of recognizing a cause of action

under Bivens. Zigtar, 582 U.S., at

, 137

S.Ct., at 1858. That uncertainty alone is a

special factor that forecloses relief. See

Hernandez v. Mesa, 885 F.3d 811, 818 (C.A.5

2018) (en Banc) (“The newness of this ‘new

context’ should alone require dismissal”).

Egbert, 142 S.Ct. at 1803-04.

The question left unanswered is whether the

“single question” test removes the issue of whether

the cause of action is a new context. This Court

believes that it does for several reasons.

First, the Egbert decision notes that the Court

has “come ‘to appreciate more fully the tension

between’ judicially created causes of action and ‘the

Constitution’s separation of legislative and judicial

power,’ Hernandez, 589 U.S., at

, 140 S.Ct., at 741.

At bottom, creating a cause of action is a legislative

endeavor. Courts engaged in that unenviable task

must evaluate a ‘range of policy considerations ... at

least as broad as the range ... a legislature would

consider.’ Bivens, 403 U.S. at 407 (Harlan, J., concurring

App.lOa

in judgment); see also post, at 1809 -1810 (GORSUCH,

J., concurring in judgment).” Egbert, 142 S.Ct. at

1802.

Second, the Court states that “a plaintiff cannot

justify a Bivens extension based on ‘parallel circum

stances’ with Bivens, Passman, or Carlson unless he

also satisfies the ‘analytic framework’ prescribed by

the last four decades of intervening case law.” Id., at

1809.

Third, the Egbert Court notes that it has

indicated that if it were called to decide Bivens today,

it would decline to discover any implied causes of

action in the Constitution. Id. (citing Ziglar, 582 U.S.,

at _, 137 S.Ct., at 1855).

Finally, and most importantly, Justice Gorsuch’s

concurring opinion indicates such.

In his concurrence, Justice Gorsuch starts with

the statement that “Our Constitution’s separation of

powers prohibits federal courts from assuming

legislative authority. As the Court today acknowledges,

Bivens v. Six Unknown Fed. Narcotics Agents, 403

U.S. 388 (1971), crossed that line by ‘implying]’ a new

set of private rights and liabilities Congress never

ordained. Ante, at 1802 - 1803; see also Alexander v.

Sandoval, 532 U.S. 275, 286 (2001); Nestle USA, Inc.

v. Doe, 593 U.S.

, 141 S.Ct. 1931, 1942-1943 (2021)

(GORSUCH, J., concurring).” Egbert, 142 S.Ct. at

1809 (Gorsuch, J., concurring).

Justice Gorsuch adds:

Recognizing its misstep, this Court has

struggled for decades to find its way back.

Initially, the Court told lower courts to follow

App.lla

a “two ste[p]” inquiry before applying Bivens

to any new situation ... At the first step, a

court had to ask whether the case before it

presented a “new context” meaningfully

different from Bivens ... At the second, a court

had to consider whether ‘special factors’ “

counseled hesitation before recognizing a

new cause of action . . . But these tests soon

produced their own set of questions: What

distinguishes the first step from the second?

What makes a context “new” or a factor

“special”? And, most fundamentally, on what

authority may courts recognize new causes

of action even under these standards?

Today, the Court helpfully answers some of

these lingering questions. It recognizes that

our two-step inquiry really boils down to a

“single question”: Is there “any reason to

think Congress might be better equipped”

than a court to ‘“weigh the costs and benefits

of allowing a damages action to proceed’”?;

see Ziglar v. Abbasi, 582 U.S. 120, 137 S.Ct.

1843, 1858. But, respectfully, resolving that

much only serves to highlight the larger

remaining question: When might a court ever

be “better equipped” than the people’s

elected representatives to weigh the “costs

and benefits” of creating a cause of action?

It seems to me that to ask the question is to

answer it. To create a new cause of action is

to assign new private rights and liabilities—

a power that is in every meaningful sense an

act of legislation. See Sandoval, 532 U.S. at

, 141 S.Ct.,

286-287; Nestle, 593 U.S., at

App.l2a

at 1942-1943 (GORSUCH, J., concurring);

Jesner v. Arab Bank, PLC, 584 U.S. —,—

—, 138 S.Ct. 1386,1392 (2018) (GORSUCH,

J., concurring in part and concurring in

judgment). If exercising that sort of authority

may once have been a “ ‘proper function for

common-law courts’ “ in England, it is no

longer generally appropriate” ‘for federal

tribunals i a in a republic where the people

elect representatives to make the rules that

govern them. Sandoval, 532 U.S. at 287.

Weighing the costs and benefits of new laws

is the bread and butter of legislative

committees. It has no place in federal courts

charged with deciding cases and controversies

under existing law.

Instead of saying as much explicitly, however,

the Court proceeds on to conduct a casespecific analysis. And there I confess diffi

culties. The plaintiff is an American citizen

who argues that a federal law enforcement

officer violated the Fourth Amendment in

searching the curtilage of his home. Candidly,

I struggle to see how this set of facts differs

meaningfully from those in Bivens itself. To

be sure, as the Court emphasizes, the episode

here took place near an international border

and the officer’s search focused on violations

of the immigration laws. But why does that

matter? The Court suggests that Fourth

Amendment violations matter less in this

context because of “likely” national-security

risks ... So once more, we tote up for ourselves

the costs and benefits of a private right of

App.l3a

action in this or that setting and reach a

legislative judgment. To atone for Bivens, it

seems we continue repeating its most basic

mistake.

Of course, the Court’s real messages run

deeper than its case-specific analysis. If the

costs and benefits do not justify a new Bivens

action on facts so analogous to Bivens itself,

it’s hard to see how they ever could. And if

the only question is whether a court is

“better equipped” than Congress to weigh

the value of a new cause of action, surely the

right answer will always be no. Doubtless,

these are the lessons the Court seeks to

convey. I would only take the next step and

acknowledge explicitly what the Court

leaves barely implicit. Sometimes, it seems,

“this Court leaves a door ajar and holds out

the possibility that someone, someday might

walk through it” even as it devises a rule that

ensures “no one . . . ever will.” Edwards v.

, 141 S.Ct. 1547,

Vannoy, 593 U.S.

1566 (2021) (GORSUCH, J., concurring). In

fairness to future litigants and our lower

court colleagues, we should not hold out that

kind of false hope, and in the process invite

still more “protracted litigation destined to

yield nothing.” Nestle, 593 U.S., at

, 141

S.Ct., at 1943 (GORSUCH, J., concurring).

Instead, we should exercise “the truer

modesty of ceding an ill-gotten grin,” ibid.,

and forthrightly return the power to create

new causes of action to the people’s repre

sentatives in Congress.

App.l4a

142 S.Ct. 1809-1810 (Gorsuch, J., concurring).

Based upon the foregoing, this Court believes that

the Bivens type of action is no longer viable, whether

a new context or not. It is clear, however, that those

on the Fourth Circuit do not agree. In the two Fourth

Circuit cases decided since Egbert, the Fourth Circuit

has applied the “two-step new context test.” See Tate

v. Harmon, 54 F.4th 839 (4th Cir. 2022) and Dyer v.

Smith, 2022 WL 17982796 (4th Cir. Dec. 29, 2022).

Accordingly, this Court will address the two Ziglar

factors.

The first factor is whether the proffered cause of

action constitutes a new context under Bivens. “In

determining whether a case presents a new Bivens

claim, ‘a radical difference is not required’ to make a

case meaningfully different from the three cases in

which the Court has recognized a Bivens remedy. TunCos [u. Perrotte], 922 F.3d [514,] at 523 [(4th Cir.

2019)]. The Supreme Court has explained:

A case might differ in a meaningful way

because of the rank of the officers involved;

the constitutional right at issue; the

generality or specificity of the official action;

the extent of judicial guidance as to how an

officer should respond to the problem or

emergency to be confronted; the statutory or

other legal mandate under which the officer

was operating; the risk of disruptive intrusion

by the Judiciary into the functioning of other

branches; or the presence of potential

special factors that previous Bivens cases

did not consider.

App.l5a

Ziglar, 137 S.Ct. at 1860.” Dyer, 2022 WL 17982796,

at *3.

This Court joins two other district court cases

from the Fourth Circuit which found that a case

involving chronic, non-emergent, non fatal medical

treatment is a different context than that found in

Carlson, which involved an emergency resulting in

death. See Washington v. Federal Bureau of Prisons,

2022 WL 3701577 (D.S.C. Aug. 26, 2022) (Hendricks,

J.) and McNeal v. Hutchinson, 2022 WL 17418060

(D.S.C. Sept. 19, 2022) (Baker, M.J.), report and

recommendation adopted, 2022 WL 16631042 (D.S.C.

Nov. 2, 2022) (Anderson, J.).

Inasmuch as this case presents a new context,

this Court “must proceed to the ‘second step and ask

whether there are any special factors that counsel

hesitation about granting the extension’ of Bivens.

Hernandez, 140 S.Ct. at 743 (cleaned up). And if there

is ‘reason to pause before applying Bivens in a new

context or to a new class of defendants,’ the request to

extend Bivens should be rejected. Id. Moreover, the

Court has directed that the ‘special factors’ inquiry

must center on ‘separation-of-powers principles.’ Id.

(quoting Ziglar, 137 S.Ct. at 1857). As the Court

explained:

We thus consider the risk of interfering with

the authority of other branches, and we ask

whether ‘there are sound reasons to think

Congress might doubt the efficacy or

necessity of a damages remedy,’ and

‘whether the Judiciary is well suited, absent

congressional action or instruction, to

. consider and weigh the costs and benefits of

allowing a damages action to proceed.’”

App.l6a

Tate v. Harmon, 54 F.4th 839, 844-45 (4th Cir. 2022).

“As the Egbert Court noted:

The Bivens inquiry does not invite federal

courts to independently assess the costs and

benefits of implying a cause of action. A court

faces only one question: whether there is any

rational reason (even one) to think that

Congress is better suited to weigh the costs

and benefits of allowing a damages action to

proceed.”

Id. at 848 (emphasis in original) (quoting Egbert, 142

S.Ct. at 1805 (cleaned up)).

“In considering the special factors, we evaluate

‘whether Congress might doubtthe need for an implied

damages remedy,’ Tun-Cos, 922 F.3d at 525 (emphasis

in original), or if there is ‘reason to pause’ before

extending Bivens to new contexts, Hernandez v. Mesa,

U.S.

, 140 S.Ct. 735, 743 (2020). “‘A single

sound reason to defer to Congress” is enough to

require a court to refrain from creating [a damages]

remedy.’ Egbert, 142 S.Ct. at 1803 (quoting Nestle

U.S.

USA, Inc. v. Doe,

, 141 S.Ct. 1931, 1937

(2021) (plurality opinion)). Put another way, “the most

important question is who should decide whether to

provide for a damages remedy, Congress or the

courts?’” Egbert, 142 S.Ct. at 1803 (quoting

Hernandez, 140 S.Ct. at 750). ‘If there is a rational

reason to think that the answer is Congress - as it will

be in most every case . . . —no Bivens action may lie,’

Egbert, 142 S.Ct. at 1803 (internal citation omitted).”

Dyer, 2022 WL 17982796, at *4.

“While the Supreme Court has not provided a

comprehensive list of special factors, courts are

App.l7a

instructed to consider 'whether the Judiciary is well

suited, absent congressional action or instruction, to

consider and weigh the costs and benefits of allowing a

damages action to proceed.’ Ziglar, 137 S.Ct. at 1858.

Courts are also instructed to look to whether ‘there is

an alternative remedial structure present in a certain

case.’ Id. An alternative remedy weighs against

recognizing a new Bivens claim even if it is less

effective than the damages that would be available

under Bivens and is not expressly identified by

Congress as an alternative remedy. Id.; Egbert, 142

S.Ct. at 1804, 1807.” Id.

Other factors to be considered include ‘“economic

and governmental concerns,’ ‘administrative costs,’

and the ‘impact on governmental operations

systemwide.’ Ziglar, 582 U.S., at

•, 137 S.Ct., at

1856, 1858. Unsurprisingly, Congress is ‘far more

competent than the Judiciary’ to weigh such policy

considerations. Schweiker, 487 U.S. at 423. And the

Judiciary’s authority to do so at all is, at best,

uncertain. See, e.g., Hernandez, 589 U.S., at

, 140

S.Ct., at 742.” Egbert, 142 S.Ct. at 1802-03.

The Egbert Court made it clear that “a court may

not fashion a Bivens remedy if Congress already has

provided, or has authorized the Executive to provide,

‘an alternative remedial structure.’ Ziglar, 582 U.S.,

at, 137 S.Ct., at 1858; see also Schweiker, 487 U.S.

at 425. If there are alternative remedial structures in

place, ‘that alone,’ like any special factor, is reason

enough to ‘limit the power of the Judiciary to infer a

new Bivens cause of action.’ Ziglar, 582 U.S., at------,

137 S.Ct., at 1858.” Id. at 1804.

In Correctional Services Corp. v. Malesko, 534

U.S. at 74, the Court held that Bivens type relief is

App.l8a

unavailable to federal prisoners because they could,

among other options, file grievances through the

Administrative Remedy Program. See also Egbert, 142

S.Ct. at 1806. This holding alone would appear to bar

any Bivens type action brought by a federal prisoner.

A further reason not to find a Bivens type remedy

is that it “risks transforming the courts into an ad hoc

medical review board tasked with deciding, with little

to no judicial guidance, which medical errors, if any,

cross the threshold into constitutional injury.” See

Washington v. Fed. Bureau of Prisons, 2022 WL

3701577, at *5 (D.S.C. Aug. 26, 2022) (Hendricks, J.).

The above factors provide a myriad of reasons to

hesitate extending Bivens to this case. Accordingly,

this Court finds that there is no viable cause of action

under Bivens and its progeny, requiring dismissal.

Even if this type of claim were still valid, Mr.

Clark’s claims against Dr. Dankwa are clearly barred

by the applicable statute of limitations, which in West

Virginia is two (2) years. Inasmuch as Mr. Clark left

FCI Morgantown in February of 2019, his claims are

clearly barred.

For the foregoing reasons, this action is

DISMISSED.

The Clerk is hereby DIRECTED to STRIKE the

above-styled case from the active docket of this Court.

It is so ORDERED.

The Clerk is directed to transmit copies of this

Order to all counsel of record herein and to mail a copy

to the pro se plaintiff.

App.l9a

DATED: January 19, 2023.

/s/ John Preston Bailey______

United States District Judge

App.20a

APPENDIX 3

ORDER STRIKING EXPERT, GRANTING

SUMMARY JUDGMENT AND IMPOSING

SANCTIONS

(NOVEMBER 28, 2022)

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF

WEST VIRGINIA WHEELING

BRENT CLARK,

Plaintiff,

UNITED STATES OF AMERICA,

Defendant.

Civil Action No. 5:21-CV-27

Before: John Preston BAILEY,

United States District Judge.

ORDER STRIKING EXPERT,

GRANTING SUMMARY JUDGMENT AND

IMPOSING SANCTIONS

Pending before this Court are Plaintiffs pro se

Motion for Summary Judgment to Determine Liability

[Doc. 125], filed September 19, 2022, Defendant’s

Motion for Summary Judgment [Doc. 126], filed

September 22, 2022, Defendant’s Motion to Strike

App.21a

Plaintiffs Expert Disclosure and Motion for Summary

Judgment and Sanctions [Doc. 149], Plaintiffs pro se

Motion for Leave to Supplement Pursuant to Rule 26(e)

[Doc. 155], filed November 14, 2022, and Defendant’s

Motions in Limine [Doc. 163], filed November 21,

2022.

This Court will first turn its attention to the issues

surrounding the expert witness. The Government

previously filed Defendant’s Motion to Strike Plaintiffs

Expert Disclosure and Motion for Summary Judgment

[Doc. 101] based upon insufficiencies in plaintiffs expert

report. Thereafter, plaintiff filed a Supplemental

Medical Expert Disclosure [Doc. 105] and a Motion for

Leave to Supplement Medical Expert Disclosure [Doc.

107]. Over the Government’s objections, this Court

granted the plaintiffs Motion for Leave to to Supple

ment Medical Expert Disclosure and denied the

Government’s Motion to Strike Plaintiffs Expert

Disclosure and Motion for Summary Judgment [Doc.

114].

The Government now seeks to exclude the plain

tiffs expert report based upon later gained information

— primarily obtained during the deposition of

plaintiffs expert, Dr. Wong, and from documents

obtained after the deposition.

Based upon the information obtained, the

following is clear:

1. This is a medical malpractice action brought

under the Federal Tort Claims Act by Brent Clark, a

former medical doctor and federal inmate, based upon

treatment received at FCI Morgantown.

2. The Supplemental Medical Expert Disclosure

[Doc. 105] was wholly written by Mr. Clark and

App.22a

submitted to Dr. Wong on July 13. Dr. Wong merely

signed the report and returned it to Mr. Clark for

mailing to the Clerk’s office on July 16, 2022. Dr.

Wong did not change a word of what was sent to him.

3. Despite the foregoing, Dr. Wong testified at his

deposition, under oath, that he created the

Supplemental Medical Expert Disclosure. [Doc. 150-5

at 4].

4. When asked if he “ma[d]e the first draft of [the

Supplemental Medical Expert Report],” Dr. Wong

responded, “I did not produce the draft, no.” [Id.].

5. When asked to clarify why he said he “created”

the draft, Dr. Wong responded, “I made additions and

changes to it and made sure that the final one

reflected what I truly thought.” [Id.].

6. When asked how much of the draft he

changed, Dr. Wong responded, “60%, 70%.” [Id.].

7. When asked as to the difference, Dr. Wong

responded, “In terms of words were changed, things

were taken out, that kind of thing.” [Id. at 5].

8. It was evident during the deposition that Dr.

Wong had little command of the facts of the instant

case or the relevant medical records. Dr. Wong

frequently could not identify with specificity which

records he relied upon in forming his opinions or

which records were provided to him. Given his clear

lack of knowledge of the case and his disclosed

opinions, he made a number of admissions fatal to

plaintiffs case, only to later immediately yield to

plaintiffs prompting during re-direct.

9. The email which sent the final supplemental

report includes the following: “The only new information

App.23a

that you have not already reviewed for the above past

statements is the enclosed pdf of 5 pages. It is the New

Orleans Criteria and CDC guidelines for CT scan

eligibility for traumatic brain injury and a journal

publication from the NIH with mortality rates for

treated versus untreated subarachnoid hemorrhage

patients that I’ve incorporated into this combined

report.” [Doc. 150-14].

10. Despite the fact that Dr. Wong had not seen

the referenced material, the same was included as his

opinions in the final supplemental report.

The facts of this case are hauntingly similar to

the facts in the case of In re Jackson Natl. Life Ins.

Co. Premium Litigation, 1999 WL 33510008 (W.D.

Mich. Sept. 29,1999) (Scoville, M.J.), affirmed by 2000

WL 33654070 (W.D. Mich. Feb. 8, 2000) (McKeague,

J.), in which the purported expert witness had not

prepared the expert witness report in violation of Fed.

R. Civ. P. 26(a)(2) and the expert testified untruthfully

concerning the authorship of the report, and the

attempts by defense counsel were unjustifiably

impeded. The court in that case precluded the

plaintiffs from presenting the purported expert’s

testimony at trial.1

1 Other courts have discounted expert testimony when experts

merely express the opinions of the lawyers who hired them. See,

e.g., C. Baxter Inti. Inc. v. McGaiv, Inc., 1996 WL 145778, at *4

(N.D. III. 1996), affd in part and rev’d in part on other grounds,

149 F.3d 1321 (Fed. Cir. 1998) (Court disregarded an expert

report because the expert did not independently prepare his

report); Marbled Murrelet v. Pacific Lumber Co., 880 F.Supp.

1343, 1365 (N.D. Cal. 1995), affd, 83 F.3d 1060 (9th Cir.1996)

(Finding that the expert’s testimony lacked objectivity and

credibility where it appeared to have been crafted by attorneys);

App.24a

In this case, based upon the fact that the report

contains the plaintiffs own opinions rather than Dr.

Wong’s, as evidenced by the reference to articles that

Dr. Wong had not even seen and Dr. Wong’s blatant

falsifications under oath, this Court will exclude Dr.

Wong and his opinions as tainted.

In response, the plaintiff argues that the

plaintiffs 6/5/2022 expert disclosure is sufficient. This

argument overlooks the fact that Dr. Wong and all of

his opinions are excluded due to the taint.

The Federal Tort Claims Act (“FTCA”), 28 U. S.

C. §§2671-2680, is the exclusive money damages

remedy for negligent acts or omissions of federal

government employees acting within the scope of their

employment. See 28 U. S. C. § 2679. The FTCA operates

as a limited waiver of sovereign immunity. See

Medina v. United States, 259 F.3d 220, 223 (4th Cir.

2001). It does not create new causes of action, but

merely allows the United State's to be sued and held

liable in tort in the same respect as a private person

under the law of the place where the act occurred.” id.

at 223; 28 U.S.C. § 1346(b)(1). Because the alleged

negligent acts occurred in West Virginia, the sub

stantive law of West Virginia controls. See Eichelberger v. United States, 2006 WL 533399 (N.D. W.Va.

Mar. 3, 2006) (Keeley, J.).

Occulto v. Adamar of N.J., Inc., 125 F.R.D. 611, 616 (D. N.J.

1989) (Noting that an expert cannot simply be an alter ego of the

attorney who will be trying the case); Manning v. Crockett, 1999

WL 342715, at *3 (N.D. III. May 18, 1999) (“Allowing an expert

to sign a report drafted entirely by counsel without prior

substantive input from an expert would read the word ‘prepared’

completely out of the rule.”).

App.25a

In West Virginia, medical malpractice litigation

is controlled by the Medical Professional Liability Act

(“MPLA”), W.Va. Code § 55-7B-1 et seq. (2015 Repl.

Vol.). Section 3 of the MPLA establishes the elements

of proof necessary to sustain a medical malpractice

claim: (1) the health care provider failed to meet the

standard of care; and (2) such failure was a proximate

cause of the injury or death. See W.Va. Code § 55-7B3(a). Proximate cause is generally understood to be

the last negligent act contributing to the injury and

without which the injury would not have occurred. See

Sexton v. Grieco, 216 W.Va. 714, 613 S.E.2d 81 (2005).

The MPLA also establishes the proof required

fora ‘loss of chance” claim. Under such a theory, a

plaintiff must establish, to a reasonable degree of

medical probability, that had the accepted standard of

care been afforded the patient, there was greater than

a 25 percent chance of improvement, recovery, or

survival. See W.Va. Code. § 55-7B-3(b).

Plaintiffs in a medical malpractice case bear the

burden of proving that negligence and lack of skill on

the part of the medical provider proximately caused

the injury suffered. See Farley v. Shook, 218 W.Va.

680, 629 S.E.2d 739 (2006). Expert testimony is

usually required to meet that burden. See Bellomy v.

United States, 888 F.Supp. 760, 763-64 (S.D. W.Va.

1995) (Haden, C.J.). Where a plaintiff does not produce

expert testimony to show that a medical provider

deviated from the standard of care, and the deviation

caused the injury complained of, the defending party

is entitled to summary judgment. Harrison v. United

States, 2009 WL 36545 (S.D. W.Va. Jan. 6, 2009)

(Copenhaver, J.); Sharpe v. United States, 230 F.R.D.

452 (E.D. Va. 2005) (Freidman, J.).

App.26a

With few exceptions not applicable here, the

MPLA also requires expert testimony. It provides that

the applicable standard of care and a defendant’s

failure to meet the standard of care, if at issue, “shall

be established ... by the plaintiff by testimony of one

or more knowledgeable, competent expert witnesses if

required by the court.” W.Va. Code § 55-7B-7(a); see

also Neary v. Charleston Area Med. Ctr., 194 W.Va.

329, 460 S.E.2d 464 (1995) (per curiam) (General rule

in medical malpractice cases is that negligence can be

proved only by expert witnesses).

The exclusion of Dr. Wong as an expert witness

leaves the plaintiff with no expert to validate his

claims. And it is far too late to allow the plaintiff to

obtain a substitute. Expert disclosures were due June

24, 2022; discovery was completed September 9; the

pretrial order is due December 5; the pretrial is set for

December 19 with the trial set for January 10. Due to

the plaintiffs involvement in this sham expert, this

Court is loath to continue the matter.

Accordingly, the Government is entitled to sum

mary judgment on the plaintiffs claims.

With regard to the issue of sanctions, Rule 15 of

the Local Rules of Prisoner Litigation states that “pro

se prisoner litigants are subject to sanctions that

include, but are not limited to, those available to the

Court under Rule 11 of the Federal Rules of Civil

Procedure for the submission of false, improper or

frivolous filings in the Court.” Here, as shown above,

the plaintiff, in multiple signed pleadings, violated

Fed. R. Civ. P. 11(b) by misrepresenting to the Court

his own conduct and his retained expert’s conduct

regarding preparation and transmission of the Supple-

App.27a

mental Report. Further, the plaintiffs conduct is sanctionable under Fed. R. Civ. P. 37(c) because he failed to

provide information as required by Fed. R. Civ. P. 26(a),

necessitating the United States’ deposition of his

retained expert and subsequent Motion to Compel

Discovery. An appropriate sanction in this case,

notwithstanding exclusion of the retained expert, is

payment of the reasonable expenses caused by the

plaintiffs failure to disclose the draft report.

Dr. Wong’s deposition occurred on September 7,

2022, and Dr. Wong provided the undersigned with an

invoice in the amount of $5,000.04 ($833.34/hour) for

his deposition testimony. During the deposition, the

United States obviously discovered that Dr. Wong did

not prepare the supplemental report, thus necessit

ating the pending motion, as well as the Motion to

Compel Discovery. In addition to taking Dr. Wong’s

deposition, the plaintiffs deceitful conduct caused the

United States to incur $1,500.00 in costs for further

review of the supplemental report by its expert

neurologist, Dr. Matthew Smith.

Accordingly, this Court will impose sanctions in

the amount of $6,500.04 for violating Fed. R. Civ. P.

11 and Fed. R. Civ. P. 37 and causing the United

States to sustain unnecessary litigation costs.

For the reasons stated above:

1. Defendant’s Motion to Strike Plaintiffs Expert

Disclosure and Motion for Summary Judgment and

Sanctions [Doc. 149] is GRANTED;

2. Plaintiff is precluded from offering any

testimony or exhibits authored by Dr. Wong;

App.28a

3. The defendant is GRANTED summary judg

ment and the case will be DISMISSED WITH PRE

JUDICE and STRICKEN from the active docket of

this Court;

4. Sanctions are hereby imposed upon the

plaintiff in the amount of $6.500.04:

5. Plaintiffs pro se Motion for Leave to

Supplement Pursuant to Ruler 26(e) [Doc. 155] is

DENIED;

6. Plaintiffs pro se Motion for Summary Judgment

to Determine Liability [Doc. 125], Defendant’s Motion

for Summary Judgment [Doc.126], and Defendant’s

Motions in Limine [Doc. 163] are DENIED AS MOOT.

It is so ORDERED.

The Clerk is directed to transmit copies of this

Order to all counsel of record herein.

DATED: November 28, 2022.

/s/ John Preston Bailey

United States District Judge

App.29a

APPENDIX 4

ORDER DENYING PETITION FOR

REHEARING, U.S. COURT OF APPEALS

FOR THE FOURTH CIRCUIT

(JANUARY 17, 2024)

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRENT CLARK,

Plaintiff - Appellant,

DR. VIBEKE DANKWA,

individually and in her official capacity,

Defendant - Appellee.

No. 23-1300

(5:23-cv-00009-JPB-JPM)

Before: Nwamaka ANOWI, Clerk.

ORDER

The court denies the petition for rehearing and

rehearing en banc. No judge requested a poll under

Fed. R. App. P. 35 on the petition for rehearing en banc.

App.30a

Entered at the direction of the panel: Judge

Harris, Judge Rushing, and Judge Heytens.

For the Court

/s/ Nwamaka Anowi

Clerk

App.31a

APPENDIX 5

28 U.S. CODE § 2680 - EXCEPTIONS

The provisions of this chapter and section 1346(b)

of this title shall not apply to—

(a) Any claim based upon an act or omission of

an employee of the Government, exercising

due care, in the execution of a statute or

regulation, whether or not such statute or

regulation be valid, or based upon the

exercise or performance or the failure to

exercise or perform a discretionary function

or duty on the part of a federal agency or an

employee of the Government, whether or not

the discretion involved be abused.

(b) Any claim arising out of the loss, mis

carriage, or negligent transmission of letters

or postal matter.

(c)

Any claim arising in respect of the assess

ment or collection of any tax or customs duty,

or the detention of any goods, merchandise,

or other property by any officer of customs or

excise or any other law enforcement officer,

except that the provisions of this chapter and

section 1346(b) of this title apply to any

claim based on injury or loss of goods,

merchandise, or other property, while in the

possession of any officer of customs or excise

or any other law enforcement officer, if—

(1) the property was seized for the purpose

of forfeiture under any provision of

Federal law providing for the forfeiture

of property other than as a sentence

App.32a

imposed upon conviction of a criminal

offense;

(2) the interest of the claimant was not

forfeited;

(3) the interest of the claimant was not

remitted or mitigated (if the property

was subject to forfeiture); and

(4) the claimant was not convicted of a

crime for which the interest of the

claimant in the property was subject to

forfeiture under a Federal criminal

forfeiture law. [ 1]

(d) Any claim for which a remedy is provided by

chapter 309 or 311 of title 46 relating to

claims or suits in admiralty against the

United States.

(e) Any claim arising out of an act or omission of

any employee of the Government in

administering the provisions of sections 1-31

of Title 50, Appendix. [2]

(f)

Any claim for damages caused by the

imposition or establishment of a quarantine

by the United States.

(g) Repealed. Sept. 26, 1950, ch. 1049, § 13 (5),

64 Stat. 1043.]

(h) Any claim arising out of assault, battery,

false imprisonment, false arrest, malicious

prosecution, abuse of process, libel, slander,

misrepresentation, deceit, or interference

with contract rights: Provided, That, with

regard to acts or omissions of investigative

App.33a

or law enforcement officers of the United

States Government, the provisions of this

chapter and section 1346(b) of this title shall

apply to any claim arising, on or after the

date of the enactment of this proviso, out of

assault, battery, false imprisonment, false

arrest, abuse of process, or malicious pros

ecution. For the purpose of this subsection,

“investigative or law enforcement officer”

means any officer of the United States who

is empowered by law to execute searches, to

seize evidence, or to make arrests for

violations of Federal law.

(i)

Any claim for damages caused by the fiscal

operations of the Treasury or by the

regulation of the monetary system.

(J) Any claim arising out of the combatant

activities of the military or naval forces, or

the Coast Guard, during time of war.

(k) Any claim arising in a foreign country.

(l)

Any claim arising from the activities of the

Tennessee Valley Authority.

(m) Any claim arising from the activities of the

Panama Canal Company.

(n) Any claim arising from the activities of a

Federal land bank, a Federal intermediate

credit bank, or a bank for cooperatives.

App.34a

APPENDIX 6

FEDERAL TORTS CLAIM ACT COMPLAINT,

U.S. DISTRICT COURT FOR THE NORTHERN

DISTRICT OF WEST VIRGINIA

(FEBRUARY 19, 2021)

IN THE UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF WEST VIRGINIA

BRENT CLARK,

UNITED STATES OF AMERICA.

Civil Action No.: 5:21cv27

FEDERAL TORTS CLAIM ACT COMPLAINT

Jurisdiction

The Court has jurisdiction over this action

pursuant to: Title 28 U.S.C. Section 2671, et seq.

(FICA) and Title 28 U.S.C. Section 1346(b)(1).

II. Plaintiff

In Item A below, place your full name, inmate

number, place of detention, and complete mailing

address in the space provided.

A. Your full name: Brent Clark

Inmate No.: 38405068

Address: 946 William Penn Court

App.35a

Pittsburgh, PA. 15221

III. Place of Present Confinement

Name of Prison/Institution: Home confinement

via The Renewal Center

A. Is this where the events concerning your

complaint took place?

If you answered “NO,” where did the events

occur?

FCI Morgantown

Post office box 1000

Morgantowk, West Virginia 26507

IV. Previous Lawsuits

A. Have you filed other lawsuits in state or

federal court dealing with the same facts involved in

this action?

B. If your answer is “YES”, describe each lawsuit

in the space below. If there is more than one lawsuit,

describe additional lawsuits using the same format on

a separate piece of paper which you should attach and

label: “IV PREVIOUS LAWSUITS”

Parties to this previous lawsuit:

Plaintiff(s): N/A

Defendant(s): N/A

Court: N/A

App.36a

(If federal court, name the district; if state

court, name the county)

Case Number: N/A

Basic Claim Made/Issues Raised: N/A

Name of Judge(s) to whom case was

assigned: N/A

Disposition: N/A

(For example, was the case dismissed?

Appealed? Pending?)

Approximate date of filing lawsuit: N/A

Approximate date of disposition. Attach

copies: N/A

C. Did you seek informal or formal relief from the

appropriate administrative officials regarding the

acts complained of in Part B? N/A

Yes

D. If your answer is ‘YES,” briefly describe how

relief was sought and the result. If your answer is

“NO,” explain why administrative relief was not

sought.

N/A

E. Did you exhaust ALL available administrative

remedies?

Yes

N/A

App.37a

F. If your answer is “YES,”, briefly explain the

steps taken and attach proof of exhaustion. If your

answer is “NO,” briefly explain why administrative

remedies were not exhausted.

N/A

G. If you are requesting to proceed in this action

in forma pauperis under 28 U.S.C. § 1915, list each

civil action or appeal you filed in any court of the

United States while you were incarcerated or detained

in any facility that was dismissed as frivolous,

malicious, or for failure to state a claim upon which

relief may be granted. Describe each civil action or

appeal. If there is more than one civil action or appeal,

describe the additional civil actions or appeals using

the same format on a separate sheet of paper which

you should attach and label “G. PREVIOUSLY

DISMISSED ACTIONS OR APPEALS”

Parties to previous lawsuit: N/A

Plaintiff(s):

Defendant(s):

Name and location of court and case number:

N/A

Grounds for dismissal:

frivolous

malicious

failure to state a claim upon which relief may

be granted N/A

Approximate date of filing lawsuit: N/A

Approximate date of disposition: N/A

App.38a

V. Administrative Remedies Pursuant to the

FTCA

A. Did you file an FTCA Claim Form (SF-95), or

any other type of written notice of your claim, with the

appropriate BOP Regional Office?

Yes

B. If your answer is ‘YES,” answer the questions

below:

Identify the type of written claim you filed:

SF-95

Date your claim was filed: 12/9/2019

Amount of monetary damages you requested

in your claim: $ 14,540,000

If you received a written Acknowledgment of

receipt of your claim from the BOP, state the:

Date of the written acknowledgment:

12/11/2019

II.

Claim Number assigned to your claim:

TRT-MXR-2020-01789

C. If your claim involves individuals who are

employed by government agencies other than the

BOP, did you file an FTCA Claim Form (SF-95). or any

other type of written notice of your claim with the

appropriate government agencies?

Yes

N/A

App.39a

D. If your answer is “YES,” answer the questions

below:

Identify the specific government agency or

agencies, including the addresses, where you

filed notice of your claim: NA

Identify the type of written claim(s) you

filed: N/A

Date your claim(s) were filed: N/A

Amount of monetary damages you requested

in your claim(s): N/A

If you received a written Acknowledgment of

receipt of your claim(s), state the:

Date of the written Acknowledgment:

N/A

II.

Claim Number assigned to your claim:

N/A

E. If the BOP (or other government agency that

received notice of your claim) either denied your claim

or offered you a settlement that you did not accept,

please state whether you requested reconsideration of

your claim.

Yes

If you answered “YES,” state the:

Date you requested reconsideration:

7/20/2020

II. Date the agency acknowledged receipt

of your request for reconsideration:

7/30/2020

App.40a

VI. Statement of Claim

State here, as BRIEFLY as possible, the facts of

your case. You must include allegations of specific

wrongful conduct as to EACH and EVERY federal

employee about whom you are complaining. Describe

exactly what each federal employee did. Include also

the names of other persons involved, dates, and places.

Do not give any legal arguments or cite any cases or

statutes. If you intend to allege a number • of related

claims, you must number and set forth each claim in a

separate paragraph. UNRELATED CLAIMS _MUST

BE RAISED IN A SEPARATE CIVIL ACTION NO

MORE THAN FIVE (5) TYPED OR TEN (10)

LEGIBLY PRINTED PAGES MAY BE ATTACHED

TO THIS COMPLAINT (LR PL 3.4.4)

CLAIM 1: Medical negligence due to the

deviation from the standard of care for head injury.

Supporting Facts: The federal employees named

below failed to provide any medically necessary,

standard of care, medical treatment, follow-up care

and supervision of subordinates whatsoever, 12/18/

2018 thru 2/26/2019 for the plaintiffs head injuries

that occurred 12/17/2018 and 2/19/2018 while housed

in the Special Housing Unit at FCI Morgantown,

according to the medical record.

Identify each federal employee whose actions

form a basis for this claim, and state the name of the

federal agency that employs each such individual:

Doctor Vibeke Dankwa - Bureau of Prisons

Physician Assistant Patricia Corbin - Bureau of

Prisons

App.41a

With respect to each employee you have named

above, state whether this individual was acting within

the scope of his or her official duties at the time these

claims occurred?

Yes

If your answer is ‘YES,” please explain: Each of

the above were performing official duties as federal

employees at FCI Morgantown in the roles of

physician and physician’s assistant.

CLAIM 2: Tort claim of patient abandonment.

The plaintiffs medical care was unilaterally terminated

by Doctor Dankwa and Physician Assistant Corbin

when there was still a need of care without proper

notice to the plaintiff.

Supporting Facts: The plaintiffs medical records,

12/18/2018 thru 2/26/2019 reveal no treatment

whatsoever by Doctor Dankwa or Physician Assistant

Corbin for the plaintiffs head injuries that occurred

12/17/2018 and 12/19/2018. The above defendants

failed to arrange for the plaintiffs continuing need of

care by another appropriately skilled provider.

Identify each federal employee whose actions

form a basis for this claim, and state the name of the

federal agency that employs each such individual:

Doctor Vibeke Dankwa - Bureau of Prisons

Physician Assistant Patricia Corbin - Bureau of

Prisons

With respect to each employee you have named

above, state whether this individual was acting within

App.42a

the scope of his or her official duties at the time these

claims occurred?

Yes

If your answer is ‘YES,” please explain: At the

time of abandonment the defendants were acting as

attending physician and physician assistant to the

plaintiff at FCI Morgantown.

CLAIM 3: Loss of chance theory of liability.

Supporting Facts: The health care providers failed

to follow the accepted standard of care for the treatment

of head injury which deprived the plaintiff of a greater

than 25% chance of an improved recovery and

increased the risk of harm to the plaintiff.

Identify each federal employee whose actions

form a basis for this claim, and state the name of the

federal agency that employs each such individual:

Doctor Vibeke Dankwa-Bureau of Prisons

Physician Assistant Patricia Corbin-Bureau of

Prisons

With respect to each employee you have named

above, state whether this individual was acting within

the scope of his or her official duties at the time these

claims occurred?

Yes

If your answer is ‘YES,” please explain:

App.43a

Each of the above were performing official duties

as federal employees at FCI Morgantown in the roles

as physician and physician assistant.

CLAIM 4: N/A

Supporting Facts: N/A

Identify each federal employee whose actions

form a basis for this claim, and state the name of the

federal agency that employs each such individual: N/A

With respect to each employee you have named

above, state whether this individual was acting within

the scope of his or her official duties at the time these

claims occurred?

Yes

If your answer is ‘YES,” please explain: N/A

CLAIM 5: N/A

Supporting Facts: N/A

Identify each federal employee whose actions

form a basis for this claim, and state the name of the

federal agency that employs each such individual: N/A

With respect to each employee you have named

above, state whether this individual was acting within

the scope of his or her official duties at the time these

claims occurred?

Yes

If your answer is YES,” please explain: N/A

App.44a

VII. Injury

Describe BRIEFLY and SPECIFICALLY how

you have been injured or your property damaged and

the exact nature of your damages. The plaintiff has

sustained the injuries of cognitive memory loss and

seizure due to the defendant’s failure to adhere to the

standard of care for head injury. The above led to no

detection and thus no treatment of brain injuring

bleeding in the brain of the plaintiff. The plaintiff

sustained the psychiatric injury of post-traumatic

stress disorder when he received no treatment what

soever for life threatening sequela of head injuries

12/17/201 and 12/19/2018.The plaintiff has left

shoulder dysfunction as a result of inadequate medical

care.

VIII.

Relief

State BRIEFLY and EXACTLY what you want

the Court to do for you. Make no legal arguments. Cite

no cases or statutes.

The plaintiff desires the Court to make the

plaintiff whole for the omissions of governmental

employees to the same extent a private individual

would be in like circumstances. Because the plaintiff

has sustained permanent harm and is unable to

return to his trained professions as a medical doctor

and professor of medicine, the plaintiff desires to

recover compensatory economic and non-economic

damages, future cost of custodial care and health care.

App.45a

DECLARATION UNDER PENALTY OF

PERJURY

The undersigned declares under penalty of

perjury that he/she is the plaintiff in the above action,

that he/she has read the above complaint and that the

information contained in the complaint is true and

accurate. Title 28 U.S.C. § 1746; 18 U.S.C. § 1621.

Executed at Pittsburgh, Pennsylvania on 12/22/

2020

(Location)

(Date)

Illegible

Your Signature

App.46a

APPENDIX 7

BUREAU OF PRISONS HEALTH SERVICES

CLINICAL ENCOUNTER

(OCTOBER 5, 2023)

Inmate Name: CLARK, BRENT

Reg #: 38405-068

Date of Birth: 04/05/1962

Sex: M

Race: BLACK

Facility: MRG

Encounter Date: 12/18/2018 08:18

Provider: Dennison, Richard RN

Unit: Z01

Injury Assessment - Non-work related encounter

performed at Special Housing Unit.

SUBJECTIVE:

INJURY 1 Provider: Dennison, Richard RN

Date of Injury: 12/16/2018 22:00

Date Reported for Treatment: 12/18/2018 08:20

Work Related: No

Work Assignment: SHU

Pain Location: Shoulder-Left

Pain Scale: 4

Pain Qualities: Aching

Where Did Injury Happen (Be specific as to location):

App.47a

SHU range 1 cell 110.

Cause of Injury (Inmate’s Statement of how injury

occurred):

Tripped over mattress on the cell floor and hit

shoulder and head against the wall.

Symptoms (as reported by inmate):

Decrease ROM to left shoulder.

OBJECTIVE:

Temperature:

Date

12/18/2018

Time

08:24 MRG

Fahrenheit

98.1

Celsius

36.7

Location

Oral

Provider

Dennison, Richard RN

Pulse:

Date

12/18/2018

App.48a

Time

08:24

Rate Per Minute

Location

Rhythm

Provider

Dennison, Richard RN

Respirations:

Date

12/18/2018

Time

08:24 MRG

Rate Per Minute

Provider

Dennison, Richard RN

Blood Pressure:

Date

12/18/2018

Time

08:24 MRG

Value

136/92

App.49a

Location

Left Arm

Position

Sitting

Cuff Size

Adult-large

Provider

Dennison, Richard RN

Sa02:

Date

12/18/2018

Time

08:24 MRG

Value(%)

Air

Room Air

Provider

Dennison, Richard RN

Exam:

Musculoskeletal

Shoulder ROM and Tests

Yes: Adduction (Thoracohumeral Group)

App.50a

No. Abduction (Supraspinatus), Abduction and

External Rotation

ASSESSMENT:

Generated 12/18/2018 06:40 by Dennison, Richard RN

Bureau of Prisons-MRG

Initial assessment

Inmate A&Ox3, pupils equal and reactive. Has

decrease in ROM (abduction) left shoulder. No other

injuries noted. Discussed issue with MLP#1 . V.O. Xray left shoulder.

PLAN:

New Radiology Request Orders:

Details

General Radiology-Shoulder-General [Left]

Frequency

One Time

End Date

Due Date

12/21/2018

Priority

Routine

Specific reason(s) for request (Complaints and findings):

Decrease ROM (abduction).

Disposition:

To be Evaluated by Provider

App.51a

Will Be Placed on Callout

Patient Education Topics:

Date Initiated

12/18/2018

Format

Counseling

Handout/Topic

Plan of Care

Provider

Dennison, Richard

Outcome

Verbalizes

Understanding

Copay Required: No

Cosign Required: Yes

Telephone/Verbal Order: No

Completed by

12/18/2018 08:40

Dennison,

Richard

Requested to be cosigned by Dankwa, Vibeke MD.

Cosign documentation will be displayed on the

following page.

Requested to be reviewed by Corbin, Patricia PA-C.

Review documentation will be displayed on the

following page.

App.52a

APPENDIX 8

DR. DANKWA TESTIMONY,

TRANSCRIPT EXCERPT

(DECEMBER 18, 2022)

WOULD YOU AGREE, DR. DANKWA, THAT

THE PATIENT’S MEDICAL — THE PLAIN

TIFFS MEDICAL RECORD FROM FCI

MORGANTOWN, 12-18-2018 THROUGH 2-262019, DEMONSTRATES AFTER TRIAGE BY

NURSE DENNISON 12-18-2018, THAT PLAIN

TIFF DID NOT RECEIVE A PROBLEM

FOCUSED HISTORY AND PHYSICAL EXAM

BY THE PROVIDER?

YOU WANT ME TO GO THROUGH AND

REVIEW THE RECORDS NOW?

YES.

YOU HAVE THEM?

NO. YOU WERE SUPPLIED WITH THOSE

RECORDS.

ALL RIGHT. LET ME JUST LOOK. GIVE

ME JUST A BIT. OKAY. WHAT DATE

WOULD YOU LIKE FOR ME TO START?

STARTING AT 12-18-2018.

12-18, OKAY.

THROUGH 2-26-2019.

THROUGH 2-26-2019. OKAY. OKAY.

BASED ON THE NOTES THAT I HAVE

REVIEWED, NO, I DO NOT SEE THAT.

App.53a

WOULD YOU AGREE BECAUSE THE PLAIN

TIFF DID NOT RECEIVE A NECESSARY AND

STANDARD OF CARE PROBLEM FOCUSED

HISTORY AND PHYSICAL BY PHYSICIAN

ASSISTANT CORBIN OR THE PROVIDER,

THE PLAINTIFF WAS NOT ASSESSED FOR

MEMORY PROBLEMS, AMNESIA OR OTHER

SYMPTOMS DEMONSTRATED HE SUFFERED

CONCUSSION?

App.54a

APPENDIX 9

BROWNBACKv. KING,

592 U.S.___ (2021), FOOTNOTE 8

In cases such as this one where a plaintiff fails to

plausibly allege an element that is both a merit

element of a claim and a jurisdictional element, the

district court may dismiss the claim under Rule

12(b)(1) or Rule 12(b)(6). Or both. The label does not

change the lack of subject matter jurisdiction, and the

claim fails on the merits because it does not state a

claim upon which relief can be granted. However, in

other cases that overlap between merits and

jurisdiction may not exist. In those cases, the court

might lack subject-matter jurisdiction for non-merits

reasons, in which case it must dismiss the case under

just Rule 12(b)(1).

App.55a

APPENDIX 10

DOCKET HISTORY

5:23-cv-00009-JPB-JPM

Clark v. Dankwa

John Preston Bailey, presiding

James P. Mazzone, referral

Date filed: 01/13/2023

Date terminated: 01/19/2023

Date of last filing: 01/25/2024

Doc. No.

Dates

Description

Filed: 01/12/2023

Entered: 01/13/2023

Notice of

Removal

Filed & Entered:

01/13/2023

Notice (Other)

Filed & Entered:

01/13/2023

Notice (Other)

Filed & Entered:

01/17/2023

Return Receipt

Filed & Entered:

01/19/2023

Order

Dismissing Case

Filed & Entered:

01/23/2023

State Court

Papers

Filed & Entered:

01/24/2023

Return Receipt

Filed: 03/17/2023

Entered: 03/20/2023

Terminated:

01/25/2024

Notice of Appeal

App.56a

Filed & Entered:

03/20/2023

Terminated:

01/25/2024

USCA Appeal

Fees

Filed & Entered:

03/20/2023

Terminated:

01/25/2024

Transmission of

Notice of Appeal

and Docket

Sheet to USCA

Filed & Entered:

03/21/2023

Terminated:

01/25/2024

USCA Notice of

Appellate Case

Opening

Filed & Entered:

03/21/2023

Terminated:

01/25/2024

USCA Records

Request

Filed & Entered:

10/26/2023

Terminated:

01/25/2024

USCA Per

Curiam

Filed & Entered:

10/26/2023

Terminated:

01/25/2024

USCA Judgment

Filed & Entered:

12/11/2023

Terminated:

01/25/2024

Stay of Mandate

App.57a

Filed & Entered:

01/17/2024

Terminated:

01/25/2024

USCA Order

Filed & Entered:

01/25/2024

USCA Mandate

Blank Page

Supreme Court

PRESS

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.