Petition for Writ of Certiorari — Serra v. Picardo

: | ib Supreme Court, U.S,

85-210] FILED

JUN 23 1968

JOSEPH F. SPANIOL, JR,

CLERK

No.

In eihatniai Court of the Anited States

OCTOBER TERM, 1985

JOSE SERRA, PETITIONER

Vv.

PAUL A. PICARDO, AND ROBERT

ELSEA, RESPONDENTS

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

David R. Irvin

Bulleit, Kinkead, Irvin & Reinhardt

1500 First National Building

167 West Main Street

Lexington, Kentucky 40507

(606) 233-3550

Attorney for Petitioner

)

In the Supreme Court of the Anited States

OCTOBER TERM, 1985

No.

JOSE SERRA, PETITIONER

VU.

PAUL A. PICARDO, AND ROBERT

ELSEA, RESPONDENTS

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Jose Serra petitions for a writ of certiorari to

review the judgment of the United States Court of

Appeals for the Sixth Circuit in this case.'

'The parties in the courts below included the United States

of America. In the Court of Appeals, however, both the direct

appeal of the United States of America and the cross appeal of

the petitioner against the United States of America were voluntar-

ily dismissed, and the caption contains the names of all remaining

parties to the case.

il

QUESTION PRESENTED FOR REVIEW

Does a judgment for compensatory damages

against the United States for the denial of medical care

needed by a federal prisoner, in an action brought

under the Federal Tort Claims Act, bar a simultaneous

award of punitive damages in a Bivens-type claim,

against individual government employees whose viola-

tions of the prisoner’s Eighth Amendment protection

from cruel and unusual punishment were substantial

causes of the prisoner’s injuries?

feeen

ill

TABLE OF CONTENTS

Page

ccs. cece cccceccee... i

Question Presented for Review ................ ii

Seren... !................... ili

Table of Authorities ......................... iv

vce cece saccecea., 1

Jurisdiction of this Court ...................... 1

Constitutional and Statutory Provisions

EE 1

Statement of the Case ........................ 2

ee. ce ee cence cncn. 5

rr 8

Ne, ase cc eccee. la-35a

Opinion of the Court of Appeals......... la-9a

Judgment of the Court of Appeals ..... 10a-lla

Memorandum Opinion of the District

a 12a-22a

Complaint in District Court .......... 23a-33a

Stipulation Between United States

eed ic ves cs sass. 34a-35a

iv

TABLE OF AUTHORITIES

CASES: Page

Bivens v. Six Unknown Named Agents,

OS UG. BB1 CHOTA wos oe os cine ce cence ec eceene 5

Carlson v. Green,

446 U.S. 14 (1980) .... 2 ee ee cee rere eeees 5

Henderson v Bluemink,

511 F.2d 399, 404 (DC. Cir. ER eS iy ok ata cles 6

Moon v. Price,

913 F.2d 794 (5th Cir. 1954) .......------++-- 6

CONSTITUTIONAL PROVISION:

US. Constitution, Amendment VIII .......-.---. 1

STATUTES:

28 U.S.C. § 134G6(D) 2. 0. 2 2 oe cece cere e ences. 1

, Bip Lome oy, spear Sages a soe, 2

OPINIONS BELOW

The opinion of the court of appeals (Appendix,

infra, pages la-9a) is reported at 786 F.2d 237. A

memorandum opinion and order was entered by the

trial court at the conclusion of the case. That opinion

is not published but is reprinted in the appendix hereto

(Appendix, infra, pages 12a-22a).

JURISDICTION OF THIS COURT

The judgment of the court of appeals (Appendix,

infra, page 10b) is not dated but was entered on March

24, 1986. The jurisdiction of this Court is invoked under

28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. The Eighth Amendment to the United States

Constitution provides:

Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishment

inflicted.

2. 28 U.S.C. 1346(b) provides in relevant part:

(The district courts * * * shall have exclusive juris-

diction of civil actions on claims against the United

States, for money damages, * * * for injury or loss

of property, or personal injury or death caused by

the negligent or wrongful act or omission of any

2

employee of the Government while acting within

the scope of his office or employment, under cir-

cumstances where the United States, if a private

person, would be liable to the claimant in accor-

dance with the law of the place where the act or

omission occurred.

3. 28 U.S.C. § 2676 provides:

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 sub-

ject matter, against the employee of the govern-

ment whose act or omission gave use to the claim.

STATEMENT OF THE CASE

Jose Serra has a long history of peripheral vascular

disease. In 1975, he lost his left leg to the disease,

and since that time arterial blood flow to his left stump

and right extremity has been maintained through a

dacron inverted “Y” aorto-femoral bypass graft. On the

morning of June 2, 1983, while Serra was a prisoner

in the Federal Correctional Institution at Lexington,

Kentucky, that graft occluded, effectively interrupting

arterial blood flow to both of his extremities below the

point of occlusion. Despite a series of telephone calls

to the institution, from Serra’s attorneys, physician

and family members, institution authorities left Serra

in the prison infirmary, with his right leg elevated for

‘a period of approximately thirty hours before transfer-

ring him to the University of Kentucky Medical Center

3

for surgical intervention. Although a surgical catheteri-

zation of the graft, done on June 3, 1983, at the medical

center was successful in restoring arterial blood flow

to the right leg, by that time the muscle compartment

of the lower right leg was irreversibly ischemic, requir-

ing amputation of the right leg just below the knee.

No attempt was made at the medical center to restore

arterial blood flow to Serra’s left stump.

Serra brought this action in the United States Dis-

trict Court for the Eastern District of Kentucky assert-

ing a claim against the United States, under the Fed-

eral Tort Claims Act, and demanding compensatory

damages for the injuries which he sustained by reason

of the failure of officers and employees io provide him

with timely medical treatment. He also asserted a sepa-

rate Bivens-type claim for punitive damages only

against Paul A. Pichardo, a prison doctor, and Robert

Elsea, the warden, contending that their failure to

timely respond to his serious medical needs was the

result of their deliberate indifference to those needs.

Federal jurisdiction was asserted pursuant to 28 U.S.C.

§ 1346(b) and 28 U.S.C. § 1331. (Appendix, infra,

pages 23a-33a.)

The United States stipulated in the district court

that it was liable to Serra because of the failure of its

employees to provide timely treatment, and reversed

for trial only the question of the dollar amount which

would adequately compensate Serra for his injuries.

(Appendix, infra, pages 34a-35a. )

4

At the trial of the action, the district court directed

a verdict in favor of Elsea and submitted the remaining

factual issues to ajury which sat in an advisory capacity

as to the FTCA claim and as the trier of facts as to the

claim against Pichardo. That jury returned an advisory

verdict in favor of Serra in the amount of $625,000 in

compensatory damages for his FCTA claim and a bind-

ing verdict in the amount of $15,000 in punitive dam-

ages for Serra’s Bivens-type claim against Pichardo.

Judgment was entered accordingly, and the United

States and Pichardo appealed to the United States

Court of Appeals for the Sixth Circuit. Serra cross ap-

pealed as to amount of the award against the United

States and as to the granting of a directed verdict in

favor of Elsea.

Ultimately, the United States and Serra each dis-

missed their respective appellate claims against the

other, leaving for appellate resolution only the defenses

asserted by Pichardo and Serra’s claim that the district

court improperly directed a verdict in favor of Elsea.

The United States Court of Appeals for the Sixth

Circuit accepted the argument of Pichardo and Elsea

that Serra’s judgment for compensatory damages

against the United States under the FTCA absolutely

bars his claim for punitive damages against them as

individuals for any violations of his constitutional

rights. On that basis, the court below affirmed the

directed verdict in favor of Elsea and reversed the

judgment against Pichardo, without considering any

cere

5

of the other appellate issues. (Appendix, infra, page

Ya).

ARGUMENT

This‘casé presents an important question concern-

ing the application of the principles announced in

Bivens v. Six Unknown Named Agents, 403 U.S. 388

(1971) and Carlson v. Green, 446 U.S. 14 (1980). The

court of appeals has held that an injured party who

pursues and obtains compensatory relief under the

Federal Tort Claims Act (“FTCA”) is barred from simul-

taneously pursuing relief in the form of punitive dam-

ages against individual officials whose deliberate

violation of the injured party’s constitutional rights

were causal factors in his injury. The decision below

ignores the teachings of Carlson v. Green, found at 446

U.S. 20 that

{Victims of the kind of intentional wrongdoing al-

leged in this complaint shall have an action under

FTCA against the United States as well as a Bivens

action against the individual officials alleged to

have infringed their constitutional rights.

In effect, the Department of Justice has achieved

for its employees, in the court of appeals below, sub-

stantially the same result which this Court refused to

sanction in Carlson v. Green. In that case, the Solicitor

General, acting on behalf of individual employees of

the Department of Justice who occupied roles very

eT

6

similar to those of Pichardo and Elsea in this case,

sought and was granted a writ of certiorari to review

the decision of the United States Court of Appeals for

the Seventh Circuit which held that the existence of a

limited FTCA remedy does not preclude the existence

of a Bivens-type right ef action for injuries resulting

from Eighth Amendment violations. Upon substantive

consideration, hcwver, this Court rejected the argu-

ments of the pr. o| Seials, and held that the differ-

ences in the nature v! the respective remedies, coupled

with the differr | . «poses which they serve and a

reasonably appa: °n' congressional intention that the

remedies should © exist, precludes relegation of the

victime exclusi" .) the FTCA remedy. 446 U.S. 20-

23.In Carlson — . reen, the applicability and effect, if

any, of ..C. © 2F77 were not addressed.

By uv. erpr* 5 28 U.S.C. § 2676 to require a plain-

tiff to elect be ween a Bivens action or an FTCA suit

the court of appeals ignored an essential premise of

Carlson v. Green, that the FTCA remedy alone is in-

adequate, and adopted a view of § 2676 that is both

unreasonably restrictive and in conflict with the deci-

sions of other courts. As recognized in cases such as

Moon v. Price, 213 F.2d 794 (5th Cir. 1954) and Hender-

son v. Bluemink, 511 F.2d 399, 404 (D.C. Cir. 1974),

the purpose of 28 U.S.C. § 2676 is to insure that a

plaintiff receive only one complete satisfaction for a

single injury. Stated differently, § 2676 assures only

that, to the extent that the United States has ulti-

ee ene

ee |

7

mately assumed and satisfied the individual tort liabil-

ity of an employee, the employee will be relieved of

that liability.

In the instant case, Serra sought only one complete

recovery, l.e. actual damages from the United States

for the loss of his leg and punitive damages from

Pichardo and Elsea for their deliberate indifference to

his serious medical needs. He has been left, however,

with exactly that which Carlson v. Green held to be

inadequate, and the individuals whose deliberate con-

duct contributed to his injuries have been shielded from

answering in punitive damages for their infringement

of Serra’s constitutional rights.

The provisions of 28 U.S.C. § 2676 and the teach-

ings of Carlson v. Green are drawn into apparent con-

flict by the holding of the court of appeals. Moreover,

that holding has the unseemly effect of requiring a

litigant to forego redress for a violation of a constitu-

tionally protected right as a condition of pursuing a

parallel and complementary statutory remedy. The bar

statute and the teachings of Carlson v. Green can and

should be harmonized, however, so as to achieve a

result which does violence to neither and which is con-

sistent with the interpretations given to the statute by

the Fifth and District of Columbia Circuits as cited

above.

8

CONCLUSION

The Court should grant this petition and ulti-

mately consider whether or not, in light of its previous

decision in Carlson v. Green, the provisions of 28 U.S.C.

§ 2676 should be applied so as to preclude an injured

plaintiff from simultaneously recovering compensatory

damages from the United States pursuant to an FTCA

claim and punitive damages from individual govern-

ment employees to a Bivens claim.

Respectfully submitted,

L,,

Lu Lt i {i

David R. Bills

Bulleit, Kinkead, Irvin & Reinhardt

1500 First National Building

Lexington, Kentucky 40507

(606) 233-3550

Attorney for Petitioner

APPENDIX

A hE ORR AR A

la

RECOMMENDED FOR FULL TEXT PUBLICATION

See, Sixth Circuit Rule 24

Nos. 84-6103 & 84-6122

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Jost SERRA,

Plaintff-Appellee,

Cross-Appellant,

ON APPEAL from the

United States District

PatL A. PICHARDO. ’ Court for the Eastern

Defendant-Appellant, District of Kentucky.

Cross-Appellee, ;

¥.

ROBERT ELSEA,

Defendant-Cross-Appellee.

Decided and Filed March 24, 1986

Before: KENNEDY and CONTIE, Circuit Judges; and

GIBSON,” District Judge.

KENNEDY, Circuit Judge. Plaintiff, formerly a federal

prisoner, sued the United States and two individuals—a

prison doctor and the warden—alleging negligence and delib-

erate indifference to plaintiffs medical meeds. Plaintiff

*Honorable Benjamin F. Gibson, United States District Judge for

the Western District of Michigan, sitting by designation.

2a

obtained a judgment for compensatory damages from the

United States (for negligence) and for punitive damages from

the doctor, Paul Pichardo (for deliberate indifference). The

District Court directed a verdict in favor of the warden, Rob-

ert Elsea. Dr. Pichardo appeals the judgment against him on

the ground, among others, that the judgment entered against

the United States on plaintiff's Federal Tort Claims Act, 28

U.S.C. §§ 2671-80, claim bars plaintiffs Bivens action, see

Bivens v. Six Unknown Named Agents of Fed. Bureau of Nar-

cotics, 403 U.S. 388 (1971), against himself (or the warden)."

Plaintiff cross-appeals the court’s decision to direct a verdict

in favor of the warden and also cross-appeals the court’s

refusal to admit evidence of prior acts to show that the war-

den knew he could not trust the judgment of Dr. Pichardo.

We agree with Dr. Pichardo that under the FTCA, plaintiff's

judgment against the United States on the negligence claim

bars his Bivens actions against the individual! defendants.

Thus it is unnecessary to address the other issues.

Plaintiff was incarcerated at the Federal Correctional Insti-

tution in Lexington, Kentucky. He has suffered from athero-

sclerosis, a form of progressive cardiovascular disease. since

1971. He underwent an aortal-femoral bypass graft in Hous-

ton, Texas. in 1975, but still had to have the left leg ampu-

tated above the knee later that year. After the graft. plainuff

faced the possibility of an obstruction of the graft that would

reduce circulation to the right leg and the left stump.

On the morning of June 2, 1983, plaintiff noticed a

decrease in his femoral pulse, and, knowing it was a sign of

an obstructed bypass graft, reported to the FCI clinic for

treatment. The examining physician’s assistant diagnosed a

possible arterial occlusion and referred plaintiff to Dr.

Pichardo. Plaintiff alleged that Dr. Pichardo’s handling of

1Dr. Pichardo also asserts that there is insufficient evidence to sup-

port a verdict of deliberate indifference and that his conduct falls

within the scope of activity protected by qualified immunity.

3a

the condition that day and into the next morning constituted

deliberate medical indifference, in violation of the eighth

amendment, and caused an otherwise unnecessary amputa-

tion of plaintiff's right leg. Plaintiff also complained that the

warden was deliberately indifferent to his medical needs.

Finally, plaintiff sought compensatory damages from the

United States under the FTCA for the negligence of the doc-

tor and the warden.

At tral. the United States stipulated to the negligence of

its officers and employees, thus admitting liability under the

FTCA and limiting the dispute on that claim to the amount

of damages. The jury that was impaneled to try the Bivens

claim against the two individuals also served as an advisory

jury on the FTCA claim. The jury returned a verdict of

$15,000 in punitive damages against Dr. Pichardo and an

advisory verdict of $625,000 as compensatory damages

against the United States. The judge adopted the advisory

verdict. The United States’ appeal and a cross-appeal by

plaintiff of the FTCA verdict have been voluntarily dis-

missed.

We turn then to the question of whether a plaintiff's actions

against individual defendants on Bivens claims are barred

after he obtains a judgment against the government on a

FTCA claim. when each claim arises out of the same acts

and events. The relevant statutory provision is 28 U.S.C.

§ 2676.

§ 2676. Judgment as bar

The judgment in an action under section | 346(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.

Defendants argue that, because plaintiff has obtained a judg-

ment against the United States (under section 1346(b)), he

is completely barred from pursuing any action against defen-

4a

dants for claims based on the acts or omissions that gave rise

to the successful claim against the government. Plaintiff

argues that section 2676 only bars him from bringing an

action against defendants on the same claim that he success-

fully asserted against the government. Thus, since the claim

against the government (negligence of the government's

employees) is different from the claim against the individual

defendants (constitutional violations committed by the

employees), section 2676 does not apply.

The first step in determining the meaning of a statute is

to look at the language Congress used. Although Congress

could have stated more clearly the intended application of

section 2676 to a situation such as this one, its choice of broad

language indicates that it desired to do more than merely bar

a plaintiff from bringing a subsequent identical action on the

same claim. The section states that a judgment against the

United States shall constitute a “complete” bar to “any”

action by the claimant against the employee whose act or

omission gave rise to the claim.” The only limitation on the

scope of this bar is that the actions arise “by reason of the

same subject matter.” Thus, our decision in this case depends

on whether “by reason of the same subject matter” means

(a) “on the same claim” or (b) “arising out of the same

actions, transactions, or occurences.”

Perhaps the best guide to the meaning of “by reason of the

same subject matter” is the language found in another section

of the FTCA, 28 U.S.C. § 2672. dealing with the conse-

quences of accepting a settlement from the government. It

reads:

The acceptance by the claimant of any such

award, compromise, or settlement shall be final and

2although it is not clear whether “the claim” refers to the original

claim or the one being asserted in the second action (1.¢., the one poten-

tially barred), the reach of the section docs not appear to be affected

by that ambiguity.

?

f

5a

conclusive on the claimant, and shall constitute a

complete release of any claim against the United

States and against the employee of the government

whose act or omission gave rise to the claim, by rea-

son of the same subject matter.

Because this section mandates that the acceptance of a settle-

ment shall constitute a complete release of “any” claim

against the employee (or the United States) by reason of the

same subject matter, it is clear that the words “by reason of

the same subject matter” were not intended to limit the scope

of the release to the very claim that was settled. If that were

Congress’ intent, it surely would not have used the words

“any claim.”* We conclude that Congress intended that the

phrase “by reason of the same subject matter” be given the

same interpretation in section 2676.

At least one district court agrees that “the same subject

matter” is not limited to “the same claim or cause of action.”

In Armstrong v. Vogel, 424 F. Supp. 445 (D.S.C. 1977), plain-

tiff sued a United States Navy physician for injury resulting

from an emergency operation performed by the doctor. Plain-

tiff had previously instituted a suit against the United States,

3The legislative history of the FTCA provides Virtually no guidance

on this issue. Defendants invoke certain purposes of the Act, such as

protecting government employees from the burden of litigation and

personal liability. But the Act does not prevent a plaintiff from suing

a government employee, so long as no judgment has been entered

against the United States ina FTCA suit. (The only exception involves

suits for injury or damage resulting from a government employee's

operation of a motor vehicle. See 28 U.S.C. § 2679.) Even the language

quoted by defendants from the Committee Reports reveals the incom-

plete nature of the Act's protection of employees from liability.

It is yust and desirable that the burden of redressing wrongs

of this character be assumed by the Government alone, within

limits, leaving the employee at fault to be dealt with under

the usual disciplinary controls.

S. Rep. No. 1196, 77th Cong. 2d Sess. 5 (1942) (referring to the effect

of settlements) (emphasis added).

6a

under the FTCA, seeking damages due to the alleged negli-

gence of certain agents and employees of the United States

(including the doctor) in performing the emergency opera-

tion. As a result of pre-trial negotiations, a Stipulation for

Settlement was executed, resulting in a consent Order for

Judgment being entered by the district court. In the action

against the doctor, the doctor moved to dismiss based on sec-

tion 2676. Plaintiff responded that the action was based, not

on the negligence of the doctor, but rather on an alleged

assault and battery, premised on allegations that the doctor

had procured plaintiff's uninformed consent by making mis-

representations. Plaintiff noted that such a claim could not

have been brought as part of the FTCA action.‘

The court in Armstrong held that the action against the doc-

tor arose “by reason of the same subject matter” as the action

plaintiff originally brought under the FTCA. It noted that the

damages alleged arose from the same operation and thus orig-

inated from the same subject matter as the previous action.

The court emphasized that its duty was to look to “the sub-

stance of the claim” rather than the language with which it

is set forth. /d. at 447.°

The same court also addressed this issue in Andrews v. Gee,

$99 F. Supp. 251 (D.S.C. 1984). In Andrews, plaintiffs, hus-

band and wife, sued a Navy physician’s assistant for damages

arising out of acts of sexual intimacy allegedly committed

by the defendant with the wife. The husband sought damages

“Awarding punitive damages against the United States pursuant to

a FTCA claim is precluded by 28 U.S.C. § 2674. Further. 28 U.S.C

§ 2680(h) generally precludes the waiver of sovereign immunity for

intentional torts of governmental officials, except for intentional torts

committed by federal law enforcement officers.

‘The court did note that the damages sought were identical in both

cases. Armstrong is not distinguishable on this point, though, because,

as was true in this case, plaintiff in Armstrong would have been entitled

to punitive damages had she made out her assault and battery claim.

See e.g, Crim v Shirer, 278 S.C. 639, 300 S.E.2d 731 (1985).

Ta

for alienation of affection, loss of consortium and intentional!

infliction of emotional distress. The wife claimed that she

was injured by negligent, careless and wanton and reckless

treatment, and also sought damages for intentional infliction

of emotional distress and false imprisonment. In a previous

FTCA action against the United States, the court found that

the assistant had engaged in sexual relations with the wife

while she was under his care and that, as a result, she suffered

chronic depression and confusion about her self-worth. The

court also found irrevocable damage to the marriage. Judg-

ment was entered in the amount of $100,000. Andrews »

United States, 548 F. Supp. 603 (D.S.C. 1982). The Court

of Appeals for the Fourth Circuit affirmed, 732 F.2d 366 (4th

Cir. 1984), noting that it did not matter that the assistant

was not promoting his employer’s interest at the time of his

wrongdoing: the gravamen of plaintiffs’ complaint was negli-

gent supervision by one of the Navy doctors.

The court in the private suit against the assistant dismissed

the complaints, relying on Armstrong. It noted that the dam-

ages sought by plaintiffs arose from the same actions towards

the wife as those that defined the FTCA case and judgment.®

Both causes of action centered upon the same unfortunate

result—the disruption of the marital relationship. Andrews.

599 F. Supp. at 253.’

In the instant case, an examination of the substance of the

Bivens ciaims reveals that they arise from the same actions

toward plaintuff by defendants as those thatdefined the FTCA

case. The Bivens claims and the FTCA claim focus on the

®As was the case in Irmistrong, the court was uninfluenced by the

fact that punitive damages would have been available in the private

sult, see e.g., Ford v Hutson, 276 8.C. 157, 276 S.F.2d 776 (1981) Gin

tentional infliction of emotional distress).

’The court also held that it did not matter that the assistant was act-

ing Outside the scope of his employment, because state law precluded

plaintiffs from having more than one satisfaction for the same wrong

Andrews, 599 F. Supp. at 254.

8a

acts and omissions of the doctor and the warden with respect

to the treatment of plaintiff on June 2 and 3, 1983. The only

difference between the claims is that the Bivens claims

involve an examination of the intent of the defendants. Fur-

thermore, each of the claims centers upon the same injury

to plaintiff's leg.

Plaintiff argues that the Court’s decision in Carlson v

Green, 446 U.S. 14 (1980), supports his interpretation of sec-

tion 2676. In Carlson, the Court held that a Bivens remedy

is available to a plaintiff even though plaintiff's allegations

also could have supported a suit against the United States

under the FTCA. But the instant case, unlike Car/son, deals

with the effect of a FTCA judgment on a plaintiff's power

to continue to pursue a Bivens remedy. As noted above, the

scope of that power is defined and limited by a section of

the FTCA that the Court in Carlson had no occasion to

address.®

Finally, it is inconsequential that the claims were tned

together in the same suit and that the judgments were entered

simultaneously. See Aetna Cas. & Sur. Co. v. United States

$70 F.2d 1197. 1201 (4th Cir.) (“a judgment against the

United States would automatically bar the entry of any con-

temporaneous or subsequent judgment against [the govern-

ment employees]”), cert. denied, 439 U.S. 821 (1978), Gilman

v United States, 206 F.2d 846, 848 (9th Cir. 1953) (“the

moment judgment was entered against the Government, then

by virtue of § 2676... the employee was no longer primarily

answerable to the claimant.—he was no longer answerable

at ali”) (footnote omitted). aff'd. 347 U.S. 507 (1954), United

States v. Lushbough, 200 F.2d 717, 721 (8th Cir. 1952) (“The

®F urthermore. to the catent that the Court based its decision on the

FTCA and its legislative history. at lamited its focus to a newly enacted

section dealing with the avaslabulsty of suits against the United States

for intentional torts committed by federal law enforcement officers

28 USC. § 2680th). Carlson. 446 US. at 20

9a

District Court, having awarded a judgment in favor of [plain-

tiff] in his action against the United States, could not in the

face of the explicit provisions of the Act [section 2676] order

judgment against [the government employee] in favor of

[plaintiff] in the same action.”).

Accordingly, we hold that plaintiff's judgment against the

United States bars his actions against the individual defen-

dants. The directed verdict in favor of Elsea is affirmed. The

judgment against Dr. Pichardo is reversed. The action is

remanded to the District Court with directions to enter judg-

ment in favor of Dr. Pichardo.

EEE

10a

FILED

MAR 24 1986

JOHN P. HEHMAN, Clerk

UNITED STATES COURT OF APPEALS

For the Sixth Circuit

No. 84-6103/6122

JOSE SERRA, Plaintiff-Appellee,

Cross Appellant,

Vv.

PAUL A. PICHARDO, Defendant-Appellant

Cross Appellee,

ROBERT ELSEA, Defendant-Cross Appellee.

JUDGMENT

Before: KENNEDY and CONTIE, Circuit Judges; and

GIBSON, District Judge.

ON APPEAL from the United States District Court

for the Eastern District of Kentucky.

THIS CAUSE came on to be heard on the record

from the said District Court and was argued by counsel.

ON CONSIDERATION WHEREOF , It is now here

ordered and adjudged by this court that the judgment

of the said District Court in this case be and the same

is hereby affirmed in part, reversed in part, and the

case is remanded consistent with this opinion.

Each party is to bear its own costs on appeal.

lla

ENTERED BY ORDER OF THE COURT

John P. Hehman, Clerk

/s/ John P. Hehman

Clerk

Issued as Mandaie: 4/15/86

COSTS: $91.00

i $

| re $

A True Copy.

Attest:

/s/ Michelle N. Marr

Deputy Clerk

12a

Eastern District of Kentucky

FILED

DEC 13 1984

At Catlettsburg

Leslie G. Whitmer

Clerk, U.S. District Court

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

LEXINGTON

CIVIL ACTION NO. 84-28

JOSE SERRA, PLAINTIFF,

VS. MEMORANDUM OPINION

AND ORDER

UNITED STATES OF AMERICA,

ET AL., DEFENDANTS.

This is an action for medical malpractice brought

against the United States under the Federal Tort

Claims Act, 28 U.S.C. §2671 et seq., for injuries suffered

while the plaintif was incarcerated at the Federal Cor-

rectional Institution in Lexington, Kentucky. The

United States stipulated negligence and the only issue

submitted to the Court is one of compensatory damages

under the Act.

Plaintiffs complaint further alleged claims for

punitive damages against Warden Robert Elsea and

Dr. Paul Pichardo. Bivens v. Six Unknown Federal Nar-

cotics Agents, 403 US 388 (1970). The jury that was

impaneld to try the Bivens claims was also used by the

13a

Court as an advisory jury on the FTCA damage claims.

Fed.R.Civ.P. 39(c). At the close of the evidence the

motion ot Warden Elsea for directed verdict was sus-

tained. The jury returned an advisory verdict of

$625,000 for the plaintiff against the United States on

the FTCA claims and a dispositive verdict for $15,000

as punitive damages against Dr. Pichardo.

The jury further advised the Court with a verdict

upon the FTCA claims as follows:

We, the Jury, find for Jose Serra against the

United States of America, and award him the fol-

lowing compensatory damages:

(a) Medical Expenses, not to exceed

however the sum of $500,000 $120,000

(b) Attendant care expenses, not to

exceed however the sum of

$500,000 $ 5,000

(c) Permanent impairment of ability

to earn money, not to exceed how-

ever the sum of $2,000,000 $400,000

(d) Mental anguish and suffering not

to exceed however the sum of

$10,000,000 $ 10,000

(e) Physical pain and suffering not

to exceed the sum of $7,000,000 $ 90,000

TOTAL $625,000.00

This 9th day of November, 1984.

/s/ Bobbie Spaulding

Foreperson

a

l4a

I. BACKGROUND

The plaintiff, Jose Serra, was born in Cuba in 1931

and immigrated to the United States in August of 1959.

He was employed by a plastics company, and regularly

traveled Central and South America selling plastic pel-

lets used in the manufacture of phonograph records.

After his conviction, for unspecified Federal charges,

the plaintiff was incarcerated at the Federal Correc-

tional Institution in Lexington, Kentucky.

He now resides in Miami, Florida with his wife

and four children.

The plaintiff has suffered from atherosclerosis, a

form of progressive cardiovascular disease, since 1971.

An aortal-illiac graft performed in Miami to maintain

circulation in the legs was unsuccessful, and in 1975

the plaintiff consulted Dr. Michael DeBakey’s surgical

group in Houston, Texas. An aortal-femoral bypass

graft was done in Houston but, unfortunately, the pro-

cedure was not a complete success for plaintiffs left

leg was amputated above the knee later on that year.

This condition required constant monitoring because

of the possibility of the development of an obstruction

of the graft that would reduce the circulation of blood

to the right leg as well as to the left stump.

On the morning of June 2, 1983, while a prisoner

at FCI in Lexington, Kentucky, the plaintiff noticed a

decrease in his femoral pulse. He knew that this was

a sign of an obstructed bypass graft and reported to

the FCI clinic for treatment. The examining physician’s

15a

assistant diagnosed a possible arterial occlusion and

referred the plaintiff to defendant Dr. Paul Pichardo

for further evaluation and treatment. The physician’s

assistant assured the plaintiff that although the prison

hospital facilities were not adequate for the type of

surgery that might be required to remove an occlusion,

the plaintiff could be transported to the Albert B. Chan-

dler Medical Center at the University of Kentucky, a

very few miles distant.

The plaintiff explained his medical history to Dr.

Pichardo and expressed the fears of serious complica-

tions, including the loss of his remaining leg, if im-

mediate treatment was not given. On June 2, Dr.

Pichardo also received a number of frantic long distance

telephone calls from worried family members and attor-

neys in Florida requesting immediate consultation

with a vascular specialist. Dr. Pichardo failed to

acknowledge an emergency, declined to send the plain-

tiff to the U.K. Medical Center in Lexington, Kentucky,

and instead ordered bed rest and elevation of the right

leg in an effort to reduce swelling.

During the night of June 2, the plaintiff experi-

enced severe pain in his leg and was unable to move

his toes. The nurse called Dr. Pichardo at home and

informed him of the plaintiffs condition. Dr. Pichardo

prescribed a mild sedative.

By the morning of June 3, the plaintiffs leg was

cold, swollen and cyanotic. Dr. Pichardo arranged an

examination at the U.K. Medical Center’s vascular

16a

clinic, and the plaintiff was admitted to the U.K. Med-

ical Center at 11:20 a.m. After an angiogram revealed

the location of the occlusion in the bypass graft, a

balloon catheter was used to remove the obstruction.

Although this surgical procedure was successful, it

came too late to restore full circulation. The plaintiffs

right leg was amputated above the knee on June 5,

1983.

Before trial, ordinary negligence was stipulated by

the parties, in that the delay of proper treatment was

the proximate cause of the amputation. It was further

stipulated that plaintiff can no longer ambulate.

II. FINDINGS OF FACT

1. The Court finds that the plaintiff has incurred,

and will continue to incur, expenses relating to his

medical and personal needs’ as a direct result of the

United States’s negligence. The testimony of Dr. Paul

Nichols, an orthopedic surgeon familiar with the needs

of amputees, established that a patient with plaintiffs

medical history has a life expectancy of ten to fifteen

years. The plaintiff has a good chance of medical stabil-

ity for the first part of this period. In seven to ten years,

however, he will begin to experience complications that

will necessitate 10 to 14 hospital stays, including

'These personal needs were described in the evidence as being

wheelchairs, vans with hydraulic lifts, renovations to his resi-

dence, attendants, etc.

17a

additional surgery, at an estimated cost of $6,200 to

$10,000 for each stay.

Dr. Nichols also testified that the plaintiff will

incur other expenses that naturally flow from being

severely handicapped, including $2,000 for a wheel-

chair, $14,500 for a van and $8,500 for modifications

to the van that would allow its operation by a handicap-

ped driver. Each of these items has an expected useful

life of about 5 years, requiring replacement at least

once and possibly twice over the plaintiffs expected

lifespan.

Although the purchase and use of these items will

increase the plaintiffs mobility, some attendant care

will still be required, particularly in the last years of

the plaintiffs life. The opinion of Dr. Nichols was that

an attendant will continue to be required for one or

two hours per day for the next 5 to 7 years with an

increasing need for attendant care thereafter. The

plaintiff is currently paving $250 per week for an atten-

dant working 12 hours per day, 5 days per week.

Donald Rochester, an architect, testified that cer-

tain modifications to the plaintiffs home will be re-

quired to accommodate the plaintiffs handicap. A

number of doorways and halls, currently too narrow

to accommodate passage of a wheelchair, will have to

be widened. The bathroom and kitchen will have to

undergo extensive remodeling to facilitate their use by

a handicapped individual. Landings and ramps must

also be installed.

18a

heal tame Ban Se

Although the Court finds these modifications to be

necessary, it finds Mr. Rochester’s $60,000 cost esti- |

mate for the modifications and for $20,000 to restore )

the property, to be barely credible. Mr. Rochester was |

unable on cross examination to provide a convincing |

explanation of these estimated construction costs. |

The findings in regard to the foregoing items of

special damage must be tempered by the finding that

the plaintiff would have incurred many, if not all, of

these expenses at some time in the future regardless

of the defendants’ negligence. Dr. Nichols, the plain-

tiffs own medical expert, testified that the natural

progression of the plaintiffs underlying cardiovascular

disease would have eventually required the amputation

of the right leg. Precisely when this would be required

could not be presently predicted, since the doctor opined

that the plaintiff had already “beaten the medical

statistics.”

se Wate I AANA ERA AEIID Deed tome tes we we

nance Sa

When the Court compares the history of the graft

and the first amputation to the onset of symptoms on

June 2, 1983, pointing to the occlusion of the graft, it

would seem that the probabilities were that the second

amputation was about to happen sooner rather than

later and finds the sum of $125,000, to fairly compen-

sate him for his various items of special damage.

2. The Court further finds that the plaintiff has

suffered extreme physical pain and mental anguish as

a result of the defendants’ negligence. The plaintiff had

been trained to take the pulse in his leg, and on June

- ee eee ene ty

a |

19a

2, 1983, he understood the significance of a dminished

pulse. Having lost his left leg to the ravages of the

disease, he quite rightly feared the result of inadequate

medical attention. The evidence also supports a finding

of physical and mental pain and anguish, including the

pain brought about by the required surgery and con-

tinuing pain in the future brought about by the resul-

tant diminished blood flow in the plaintiffs stump.

Hospital records introduced into evidence by both the

plaintiff and the defendants clearly reflect that the

plaintiff suffered considerable pain as a result of the

delay in receiving proper medical treatment, and the

Court finds that in this regard, the plaintiff has been

damaged in the sum of $100,000.

3. The Court finds that the plaintiff is totally and

permanently disabled and cannot return to his former

occupation. Although the plaintiff introduced a letter

containing an offer of employment at about the time

he was to enter Federal custody and estimated that he

could have earned as much as $50,000 per year, employ-

ment records revealed the following earned incomes:

CALENDAR YEAR EARNINGS

1978 $20,700

1979 $23,850

1980 $25,750

1981 $24,075

The Court finds that the plaintiff would have earned

$400,000, but for the negligence of the defendants.

20a

4. Warden Elsea also received long distance tele-

phone calls from plaintiffs family on the morning of

June 2, 1983, putting him on notice that Serra was in

the prison hospital with a dangerous medical problem

and was not getting proper treatment.

5. The Warden did not ignore those calls. He con-

ferred with Dr. Pichardo—advised that no emergency

existed and that the staff would be capable of dealing

with the problem. There were more than three such

consultations with the staff.

6. During the night of June 2-3, 1983, when Serra

became acutely distressed, the duty nurse telephoned

the doctor for orders. It was not contended that the

Warden was so advised.

7. On the morning of June 3, 1983, and when Dr.

Pichardo first recognized an emergency to exist and

arrangements were made to move Serra to U.K. Hospi-

tal, the Warden signed the papers, prepared by his

staff, for Serra’s removal from the prison. In this

regard, Dr. Pichardo’s testimony completely exoner-

ated the Warden of any indifference or inaction.

8. A Bivens claim against an individual cannot be

invoked vicariously. What Dr. Pichardo knew, or should

have known; and Dr. Pichardo’s failure to act in a

timely manner — cannot be imputed to Warden Elsea.

Ill. CONCLUSIONS OF LAW

1. The terms of the Federal Tort Claims Act

require that compensatory damages be measured

Ot eter a 7

en ee ee re ee

ee diree 2+ >

2la

according to the law of the state where the events caus-

ing the darnage occurred. 28 U.S.C. §2674. Under Ken-

tucky law, the plaintiff should be awarded such sums

of money as would fairly compensate him for his dam-

ages. See e.g. Palmore, Kentucky Instructions to Juries,

§16.31. The jury advised an award for a total sum of

$125,000, as reasonable compensation for his medical,

surgical, attendant care and other personal needs. This

Court concludes that this sum is adequate to meet those

needs caused by the negligence of the defendants.

2. Kentucky law allows the recovery of damages

for emotional (mental) suffering when that suffering

is related to a physical injury. Hetrick v. Willis, 439

S.W.2d 942 (Ky. 1969). The emotional trauma found

in this case is clearly related to the loss of the plaintiffs

right leg. The plaintiff, having lost one leg to his dis-

ease, knew and fully appreciated the consequences of

a delay in obtaining medical treatment. He must also

live with the knowledge that the amputation of his

right leg on June 5, 1983 would not have occurred but

for the negligence of the defendants.

The common practice in the Commonwealth of

Kentucky is for the jury to award damages for physical

pain and mental disturbance or suffering as one lump

sum. City of Paducah v. Brunnhoper, 135 S.W.2d 413

(Ky. 1939) and see Palmore, Kentucky Instructions to

Juries, §16.31. The jury’s combined award of $100,000

for physical and mental pain and suffering is fully sup-

ported by the evidence and the Court concludes that the

Z2Za

plaintiff was damaged in the amount of $100,000, for

mental and physical pain and suffering, past and

future.

3. The jurv further advised an award of $400,000

for plaintiff's lost ability to earn money. Based on the

findings that the plaintiff could have earned at least

$25,750 per vear (and $50,000 annually on the topside)

but for the negligence of the defendants, the Court

concludes that the sum of $400,000, will reasonably

compensate him.

4. The Court concludes that there was insufficient

evidence to suggest that defendant Elsea was aware

of, and wilfully ignored or was indifferent to, plaintiffs

medical needs that would entitle him to any award for

punitive damages from the Warden. Bivens, supra.

A judgment in conformity with these findings and

conclusions and with the verdict of the jury returned

on November 9, 1984, shall be entered this day.

This 12th day of December, 1984.

/s/ Henry R. Wilhoit, Jr.

HENRY R. WILHOIT, JR., Judge

23a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

LEXINGTON

JOSE SERRA PLAINTIFF

V. COMPLAINT NO.

UNITED STATES OF AMERICA;

PAUL A. PICHARDO AND

ROBERT ELSEA DEFENDANTS

| ae *_ s_ * & 4

Comes now the plaintiff, by counsel, and for his

complaint herein states as follows:

INTRODUCTION

1. This is an action brought for the assertion of

two separate but related claims for relief.

2. The First Claim for Relief is against the United

States pursuant to the provisions of 28 U.S.C. §2671,

et seq., for personal injury caused by the negligent and

wrongful acts and omissions of employees of the Gov-

ernment while acting within the scope of their office

and employment.

3. The Second Claim for Relief is a direct action

against Paul A. Pichardo and Robert Elsea, individu-

ally, for intentional violations of the plaintiffs constitu-

tional rights, including his right, as guaranteed by the

Eighth Amendment to the Constitution, of the United

States to be free from cruel and unusual punishment.

24a

PARTIES

4. The plaintiff, Jose Serra, is a citizen of the

United States, whose residence is in Coconut Grove,

Florida, and who at the time of all acts and omissions

of which complaint is made herein was a federal pris-

oner, committed to the custody of the Attorney General

of the United States by virtue of a judgment of the

United States District Court for the Southern District

of Florida.

5. The United States of America has assumed lia-

bility pursuant to 28 U.S.C. §2674, except for interest

prior to judgment and for punitive damages, for those

acts and omissions of which more particular complaint

is made in the First Claim for Relief as alleged herein-

below.

6. The defendant, Paul A. Pichardo, is, and was

at the time of all acts and omissions of which complaint

is made herein employed by the Government as a staff

physician of the Federal Bureau of Prisons, at the Fed-

eral Correctional Institution at Lexington, Kentucky.

7. The defendant, Robert Elsea, is, and was at the

time of all acts and omissions of which complaint is

made herein, empioyed by the Government as a warden

for the Federal Bureau of Prisons at the Federal Cor-

rectional Institution at Lexington, Kentucky.

Vn

25a

JURISDICTION AND VENUE

8. This Court has jurisdiction over the First Claim

for Relief as alleged hereinbelow, by virtue of the pro-

visions of 28 U.S.C. §1346(b).

9. All acts and omissions of which complaint is

made herein occurred in Lexington, in the Eastern Dis-

trict of Kentucky, and venue of the First Claim for

Relief lies in this Court pursuant to the provisions of

28 U.S.C. §1402(b).

10. On or about July 15, 1983, the plaintiff pre-

sented the claim which is the subject of the First Claim

for Relief to the Federal Bureau of Prisons, the approp-

riate federal agency, and presentation of that claim

was acknowledged by the Federal Bureau of Prisons

on July 22, 1983. A copy of the claim and a copy of the

letter from the Federal Bureau of Prisons acknowledg-

ing presentation of said claim are attached hereto,

marked as Exhibits “A” and “B”, respectively, and are

incorporated herein by reference. Said agency failed to

make any disposition of the aforesaid claim within six

(6) months after it was filed, and the plaintiff has com-

plied with all of the prerequisites set out in 28 U.S.C.

§2675(a) to the institution of the First Claim for Relief.

11. This Court has original jurisdiction of the

second claim for relief, as a civil action arising under

the Constitution of the United States, pursuant to 28

U.S.C. §1331.

The defendants, Paul A. Pichardo and Robert

Elsea, and each of them reside in the Eastern Judicial

26a

District of Kentucky; the second claim for relief arose

within the Eastern Judicial District of Kentucky and

venue of the second claim for relief lies in this Court

pursuant to the provisions of 28 U.S.C. §1391(b).

FIRST CLAIM FOR RELIEF

13. The plaintiff has a long history of atherosclero-

tic cardiovascular disease. Since 1971 he has under-

gone a series of artery bypass surgical procedures to

improve the flow of blood to his lower extremities. On

July 7, 1975, he reuired an amputation of the leit leg

above the knee. From 1975 until October 5, 1982,

through a program of regular medical treatment, which

included sustained maintenance dosages of a medica-

tion called persantine, the plaintiffs condition was

maintained in a stable manner, and during that period

of time, and continuing until June 2, 1983, the plaintiff

was able to ambulate through the use of a left above

the knee prosthesis. During the aforesaid period of

time, and until June 2, 1983, the primary flow of blood

to the plaintiffs lower extremities was maintained

through a bifurcated bypass graft, which connected his

abdominal aorta to his left and right common femoral

arteries. At all times relevant to this complaint, the

United States and its agents and employees, including

PaulA. Pichardo were fully aware of all of the following.

14. From October 5, 1982, until June 3, 1983, the

plaintiff was confined by the Attorney General of the

United States in the Federal Correctional Institution

at Lexington, Kentucky.

27a

15. During the time period aforesaid, Robert Elsea

was the agent and employee of the United States hav-

ing responsibility for the care, maintenance and well-

being of the plaintiff.

16. During the time period aforesaid, Paul A.

Pichardo was the agent and employee of the United

States having direct and immediate responsibility for

providing medical care and treatment to the plaintiff.

17. During the time period aforesaid, from October

5, 1982, until June 3, 1983, in spite of repeated requests

by the plaintiff therefor, the United States, acting

through its agents and employees, failed to provide,

except for a single one month supply of persantine, any

significant treatment whatsoever for the plaintiff's vas-

cular disease.

18. At approximately 7:00 a.m. on June 2, 1983,

the plaintiff became aware that he was suffering from

an occlusion of his arterial bypass graft and that his

femoral artery pulses were substantially diminished.

At approximately 8:00 a.m. on June 2, 1983, the plain-

tiff was seen at the medical clinic of the Federal Correc-

tional Institution at Lexington, Kentucky, by a physi-

cian’s assistant, one Stephen Gipe, who confirmed the

plaintiffs conclusions and who confirmed to the plain-

tiff that he should be immediately removed from the

Federal Correctional Institution to a medical facility

having the capacity to surgically correct the occlusion

of the plaintiffs bypass graft.

28a

19. At approximately 10:00 a.m. on June 2, 1983,

the plaintiff was admitted “for observation” to the hos-

pital facility at the Federal Correctional Institution,

and was kept in that facility for approximately 24

hours, or until approximately 10:00 a.m. on June 3,

1983.

20. During the day of June 2, 1983, the plaintiff

repeatedly requested to agents and employees of the

United States, including Paul A. Pichardo, that he be

immediately removed to a medical institution having

the capacity to adequately treat, including by surgical

intervention, the occlusion of his graft. During the day

of June 2, 1983, agents and employees of the United

States, including Paul A. Pichardo and Robert Elsea,

were repeatedly warned, by attorneys, physicians, and

members of the plaintiff's immediately family, that the

plaintiffs condition presented a medical emergency,

that immediate medical intervention was needed, and

that delay in medical treatment would cause the plain-

tiff to lose his last remaining leg.

20. During the period from 8:00 a.m. on June 2,

1983, until 10:30 a.m. on June 3, 1983, the United

States, through its agents and employees, and in spite

of the knowledge and warnings alleged previously

herein, failed and refused to provide any medical treat-

ment whatsoever, for the occlusion of the plaintiffs

bypass graft, and Paul A. Pichardo issued, in his cap-

acity as an agent and employee of the United States,

medical orders directing that the plaintiffs right leg

be kept elevated.

29a

21. As the said Paul A. Pichardo then and there

well knew, the effect of his medical order was not to

treat or aid the plaintiffs medical condition but, rather,

to further reduce the arterial blood flow in the plaintiff's

right leg and to thereby exacerbate the effect of the

occlusion of the plaintiffs arterial bypass graft.

22. On June 3, 1983, at approximately 11:00 a.m.,

the plaintiff was finally transferred to the University

of Kentucky Medical Center, where, by surgical inter-

vention, physicians were able to successfully restore

the fiow of arterial blood to the plaintiffs right leg.

23. As a direct,and proximate result of the acts

and omissions of which complaint is made herein, in-

cluding the unwarranted delay of the United States,

its agents and employees in providing the plaintiff with

surgical intervention for the occlusion of his arterial

bypass graft and in ordering, during the period of such

delay, that his right leg be elevated, the tissues of the

plaintiffs lower right leg were irreversibly damaged

and, on June 5, 1983, the amputation of the plaintiffs

right leg, below the knee, was required.

24. As a direct and proximate result of the acts

and omissions of the United States, its agents and em-

ployees, as more particularly alleged hereinabove, the

physicians at the University of Kentucky Medical

Center were required, on June 3, 1983, to perform their

surgery in an emergency fashion, and to direct their

attention solely to the restoration of arterial blood flow

to the plaintiffs right leg. As a direct consequence of

30a

this series of events, said physicians were unable to

attempt to restore arterial blood flow to the plaintiffs

left stump, and the plaintiff now has permanently im-

paired arterial blood flow to his left stump.

25. As a direct and proximate result of the acts

and omissions of which complaint is made hereinabove,

the plaintiff is now unable to significantly ambulate

by the use of prostheses, and the plaintiff is now and

will be, for the rest of his life, confined to a wheelchair

and is now permanently and totally disabled.

26. Immediately prior to the acts and omissions

of which complaint is made herein, the plaintiff was

an able bodied man, 52 years of age, and fully capable

of earning income for the support of himself and his

family.

27. As a direct and proximate result of the acts

and omissions of which complaint is made herein, the

plaintiffs present and future capacity to earn income

has been totally destroyed, and he has been thereby

damaged in the amount of $2,000,000.

28. As a direct and proximate result of the acts

and omissions of which complaint is made herein the

plaintiff requires, and will for the rest of life continue

to require, the assistance of employees in meeting his

daily personal needs, which he could, prior to the acts

and omissions of which complaint is made herein, meet

himself, and the plaintiff has been thereby damaged

in the amount of $500,000.

«fel “ike ia OF RT thu a ea eee a

a ota ne Cae

3la

29. As a direct and proximate result of the acts

and omissions of which complaint is made herein, the

plaintiff has incurred and care will continue to incur

for the rest of his life, expenses for medical and treat-

ment and has been thereby damaged in the amount of

$500,000.

30. As a direct and proximate result of the acts

and omissions of which complaint is made herein the

plaintiff has endured and will continue to endure

extreme and excruciating physical pain and suffering

and has been thereby damaged in the amount of

$10,000,000.

31. As a direct and proximate result of the acts

and omissions of which complaint is made herein the

plaintiff has endured, and will continue to endure

extreme mental anguish in suffering, and has been

thereby damaged in the amount of $7,000,000.

SECOND CLAIM FOR RELIEF

32. The plaintiff realleges, reaffirms and reiter-

ates each and every preceding allegation of this com-

plaint, as if set out at length herein.

33. The plaintiff, has, and had at all times relevant

to this complaint, the right, as guaranteed by the

Eighth Amendment to the Constitution of the United

States, to be free from cruel and unusual punishment.

34. The defendant, Paul A. Pichardo, at the time

of the acts and omissions of which complaint is made

32a

herein, including, but not limited to, issuing medical

orders requiring the elevation of the plaintiffs right

leg at a time when the flow of arterial biood to that leg

was already seriously impaired and in refusing and

failing to treat serious medical conditions of the plain-

tiff of which the said Paul A. Pichardo was then and

there fully aware, acted with deliberate indifference to

the plaintiff's serious medical needs and acted with the

willful, intentional and malicious purpose of denying

the plaintiff his constitutional rights, including his

right to be free from cruel and unusual punishment.

35. At the time of the ects and omissions of Robert

Elsea, as more particularly alleged herein, including,

but not limited to, the failure and refusal of the said

Robert Elsea to cause the timely removal of the plair.tiff

from the Federal! Correctional Institution at Lexington,

Kentucky, to a hospital facility at which he could be

surgically v-eated for the occlusion of his arterial

bypass graft, as more particularly alleged herein, and

at a time when the said Robert Elsea had been particu-

larly warned by attorneys, physicians, and immediate

members of the plaintiffs family, that the plaintiffs

condition presented a medical emergency and that

delay in treatment would cause the loss of the plaintiff's

last leg, the said Robert Elsea acted with deliberate

indifference to the plaintiff's serious medical needs and

acted with the willful, intentional and malicious pur-

pose of the denying the plaintiff his constitutional

rights, including the right to be free from cruel and

unusual punishment.

See, vee aa

EET ELAR Rs OA EDGR MO ESE HY

33a

PRAYER

WHEREFORE, the plaintiff respectfully prays as

follows:

1. That he recover compensatory damages from

the United States in the amount of $20,000,000, to-

gether with interest from the date of judgment until

paid, in satisfaction of his First Claim for Relief.

2. That he recover punitive damages in the

amount of $5,000,000 from the defendant, Paul A.

Pichardo, and additional punitive damages in the

amount of $5,000,000 from the defendant, Robert

Elsea, in satisfaction of his Second Claim for Relief.

3. That he have a trial by jury of all issues of fact

raised by his Second Claim for Relief.

4. That he be granted such further, additional and

complete relief as to which he may be entitled in the

premises.

BULLEIT, KINKEAD, IRVIN & REINHARDT

/s/ David R. Irvin

DAVID R. IRVIN

FIFTEENTH FLOOR

FIRST NATIONAL BUILDING

LEXINGTON, KENTUCKY 40507

TELEPHONE: (606) 233-3550

34a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

LEXINGTON

CIVIL ACTION NO.: 84-28

JOSE SERRA, PLAINTIFF

VS. STIPULATIONS

UNITED STATES OF AMERICA,

ET AL., DEFENDANTS

* * * * * * * *

The United States of America and Jose Serra do

hereby stipulate, concerning the issues between them

in this action, as follows:

1. That Plaintiff, Jose Serra, became a federal

prisoner on November 25, 1981, and was later convicted

of a crime punishable by imprisonment for more than

one year. Jose Serra was sentenced to three years and

he remained a federal prisoner until January 22, 1984,

which was his mandatory release date.

2. The defendant, United States of America, has

admitted liability for the injuries sustained by Jose

Serra as a result of the failure of its officers and employ-

ees to timely provide him medical care and treatment

while he was incarcerated in the Federal Correctional!

Institution in Lexington, Kentucky on June 2 and 3,

1983.

3. The injuries sustained by Jose Serra include

the amputation of his right leg below the knee and the

ne ee

LOA RANI a IE See WAL SY

35a

permanent impairment of the arterial blood supply in

his left stump.

4. As a result of the injuries mentioned in Stipu-

lation Nos. 2 and 3, Jose Serra is unable to effectively

use prosthetic devices in order to ambulate.

5. Jose Serra was 52 on June 2, 1983, and is cur-

rently 53 years of age.

6. The actuarial life expectancy of a 53-year-old

male is 22.91 years.

/s/ David R. Irvin

DAVID R. IRVIN

BULLEIT, KINKEAD, IRVIN & REINHARDT

FIFTEENTH FLOOR

FIRST NATIONAL BUILDING

LEXINGTON, KENTUCKY 40507

ATTORNEYS FOR PLAINTIFF

LOUIS DEFALAISE

UNITED STATES ATTORNEY

BY: /s/ Peter M. Davenport

PETER M. DAVENPORT

ASSISTANT UNITED STATES ATTORNEY

P.O. BOX 1490

LEXINGTON, KENTUCKY 40591

ATTORNEY FOR DEFENDANTS