# Appendix — Bellecourt v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0594%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1994 - **Citation:** 510 U.S. 1109 ## Text 93-622 Rae Ae OCT 18 1993 OFFICE OF IKE CLERK No. 92-1818 IN THE SUPREME COURT OF THE»UNITED-..STATES. October Term 1993 CLYDE BELLECOURT, Petitioner, vs. UNITED STATES OF AMERICA, FEDERAL BUREAU OF PRISONS, J. MICHAEL QUINLAN, THE FEDERAL MEDICAL CENTER, ROCHESTER, MINNESOTA, DR. MICHAEL TRUJILLO, CLIFF FRIESE, PETER CARLSON, DR. ALAN WYNNE, AND SARAH URRISTE, Respondents, APPENDIX TO PETITIONER’S PETITION FOR WRIT OF CERTIORARI LARRY B. LEVENTHAL, ESQ. Counsel of Record for Clyde H. Bellecourt Suite 420 ~- Sexton Building 529 South Seventh Street Minneapolis, Minnesota 55415 Telephone: (612) 333-5747 Douglas Hall 808 Franklin Avenue East Minneapolis, Minnesota 55404 PUBLISHER'S NOTE: THE FOLLOWING PAGES WERE UNAVAILABLE FOR FILMING: Aq- 30, 34, (04 No. 92-1818 IN THE SUPREME COURT OF THE UNITED STATES October Term 1993 CLYDE BELLECOURT, Petitioner, vs. UNITED STATES OF AMERICA, FEDERAL BUREAU OF PRISONS, J. MICHAEL QUINLAN, THE FEDERAL MEDICAL CENTER, ROCHESTER, MINNESOTA, DR. MICHAEL TRUJILLO, CLIFF FRIESE, PETER CARLSON, DR. ALAN WYNNE, AND SARAH URRISTE, Respondents, APPENDIX TO PETITIONER’S PETITION FOR WRIT OF CERTIORARI —_>— LARRY B. LEVENTHAL, ESQ. —- Counsel of Record for Clyde H. Bellecourt Suite 420 - Sexton Building 529 South Seventh Street Minneapolis, Minnesota 55415 Telephone: (612) 333-5747 Douglas Hall 808 Franklin Avenue East Minneapolis, Minnesota 55404 APPENDIX TABLE OF CONTENTS Order of May 14, 1993 Order of July 19, 1993 - Denial of Petition Order of Judge David S. Doty February 10, 1992 — Complaint ...... Medical Records ........ Interview of Alan Wynne . Affidavit of Clyde Bellecourt Affidavit of Margaret Penn .. Affidavit of Lynn Solberg Affidavit of Larry B. Leventhal Affidavit of Expert Review Affidavit of Identification a Deposition of Juli W. Alba Deposition of Dr. Daniel Foster Deposition of John Chreno.. . PAGE 105 192 233 285 297 303 312 331 333 346 351 387 Affidavit of Ray Howe ...... 399 Supplemental Affidavit of Eyam SOLbO@rg « «2 -e ese ce $02 Supplemental Affidavit of Larry B. Leventhal ...... 405 UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT Nos. 92-1818/2002 Clyde H. Bellecourt, Appellant/ Cross~appellee, Vv. United States of America; Federal Bureau of Prisons; J. Michael Quinlan, Director of Federal Prisons, Washington, D.C., in his official capacity; Federal Medical Center, Rochester, Minnesota, a division of the Federal Bureau of Prisons; Peter Carlson, Warden, Federal Medical Center, Rochester, Minnesota, in his official capacity; Dr. Michael Trujillo, Medical Director, Federal Medical Center, Rochester, Minnesota, in his +e eee ee eee eee EEE UU Ul ll Oe Appeals from the United States District Court for the District of Minnesota official capacity; Cliff Friese, Lieutenant, Federal Medical Center, Rochester, Minnesota, in his official and individual capacities; Dr. Alan Wynne, Resident Physician, in his individual capacity and his official capacities as resident physician for Mayo Foundation and as an employee of the Federal Medical Center, Rochester, Minnesota; Sarah Urriste, Physicians’ Assistant, in her individual capacity and in her official capacities as Physicians’ Assistant for Mayo Foundation and as an employee of the Federal Medical Center, Rochester, Minnesota, Appellees/ Cross~appellants. + * £ 4 ££ + FF FF HH HH HH HEE EE RR Submitted: December 16, Filed: May 14, 1993 1992 Before McMILLIAN, BOWMAN and LOKEN, Circuit Judges. McMILLIAN, Circuit Judge. Clyde H. Bellecourt appeals from an order entered in the United States District Court for the District of Minnesota’ granting Summary judgment to appellees in favor of the federal appellees’ and appellee Dr. Alan Wynne on his civil rights claims and in favor of 'The Honorable David Ss. Doty, United States District Judge for the District of Minnesota. *The federal appellees were the United States, the Federal Bureau of Prisons, J.Michael Quinlan (the director of the Federal Bureau of Prisons), the Federal Medical Center at Rochester, Minnesota, and certain individual staff members at the Federal Medical Center at Rochester-- medical director Dr. michael Trujillo, prison officer Cliff Friese, warden Peter Carlson, and physician’s assistant Sarah Urriste. Dr. Wynne on his state medical malpractice Claim and dismissing his Federal Tort Claims Act (FTCA) clain. Bellecourt v. United States, No. 4-89-828, slip op. at 1 (D. Minn. Feb. 10, 1992) (Bellecourt). For reversal appellant argues the district court erred in (1) finding he did not properly present his FTCA claim to the appropriate federal agency, (2) finding the federal appellees and Dr. Wynne were not deliberately indifferent to his serious medical needs and the federal appellees did not discriminate against him o the basis of race or political affiliation in providing medical treatment Or in making work assignments, and (3) finding he did not comply with certain State law requirements for filing a medical malpractice claim. For the reasons discussed below, we affirm the Order of the district court. Given our disposition of the appeal (No. 92-1818), we do not reach the merits of Dr. Wynne’s self-styled cross-appeal (No. 92-2002) and accordingly dismiss that appeal as moot. I. Appellant, a former inmate of the Federal Medical Center at Rochester, Minnesota (FMC), serving a five-year term for distribution of LSD, on September 16, 1987, at about 12:30 a.m., complained of chest pains. Dr. Wynne, the doctor on duty, physically examined appellant and diagnosed him as having indigestion and gastritis. Dr. Wynne gave appellant an antacid and left after the antacid appeared to relieve appellant’s pain, advising him to notify an officer if he needed further attention. An officer checked on appellant very hour throughout the night and found appellant Sleeping. Appellant did not request further medical assistance. Appellant appeared for sick call the next morning where an EKG was run and blood was drawn. The EKG showed that a heart attack had occurred earlier that morning, but was not occurring while he was in the clinic. Appellant Subsequently reported for a scheduled dental appointment in the Outpatient clinic. Appellant filed suit September 18, 1989, against the federal appellees and Dr. Wynne, seeking damages’. for physical injury, emotional injury, pain and suffering, medical malpractice, and unlawful discrimination. Appellant contended the collective acts and omissions of the federal appel S and Dr. Wynne constituted negligence, medica] malpractice, and deliberate and wilfu] indifference to his health and safety resulting in the unnecessary and wanton infliction of physical injury, permanent heart damage, pain and suffering. Appellant also alleged a FTCA clain. The district court granted the federal appellees’ motion for dismissal of appellant’s FTCA clain, granted the federal appellees’ and Dr. Wynne’s motions for summary judgment on appellant’s civil rights claims, and granted Dr. Wynne’s motion for summary judgment on appellant’s medical malpractice claim. The district court found Dr. Wynne to be an independent contractor rather than a federal employee and as such, the district court stated Dr. Wynne was not an appropriate party to the FTCA claim but was for the civil rights and medical malpractice claims. Bellecourt, slip op. at 6. The district court found appellant had not properly presented his FTCA claim because he did not prove his "request for administrative remedy" had been actually received. Id. at 9. Regarding appellant’s civil rights claims, the district court found appellant did not prove deliberate indifference on behalf of the federal appellees or Dr. Wynne. Id. at 24. Appellant’s state law medical malpractice claim was dismissed because he failed to Satisfy the expert affidavit requirements of Minn. Stat. § 145.682 and because he did not demonstrate excusable neglect for not doing so. Id. at 25-37. This appeal and cross-appeal followed. II. In reviewing the district court’s grant of summary judgment for the federal appellees and Dr. Wynne, we examine the facts in the light most favorable to appellant. Our standard of review is de novo. Fed. R. Civ. P. 56(c); see, e.q., Celotex Corp. v. Catrett, 477 U.S. 3 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986); St. Paul Fire & Marine Ins. Co. v. Federal Deposit Ins. Corp., 968 F.2d 695, 699 (8th Cars 1992); Get Away Club, ioe, Coleman, 969 F.2d 664, 666 (8th Cir. 1992). With regard to the FTCA claim, the district court granted the federal appellees’ motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1), for lack of jurisdiction. Because jurisdiction is a threshold issue for the _ court, the district court has "broader power to decide its own right to hear the case than it has when the merits of the case are reachec." Osborn v. United States, 918 F.2d 724, 729 (8th Cir. 1990). In the present case, the attack on jurisdiction was factual and this court must review the district court’s findings under’ the clearly erroneous standard. Id. at 730. Appellant first contends the district court erroneously dismissed his FTCA claim against the federal appellees for inadequate presentment because he failed to show the federal appellees actually received his administrative claim. Appellant argues the district court improperly placed the burden of proving presentment on him and failed to follow the rule that a letter when placed in the mail is presumed to be delivered and received. The presumption of receipt can be rebutted by evidence of non-receipt, which appellant argues should have been required of the federal appellees. The federal appellees argue that appellant failed to comply with jurisdictional requirements of the FTCA and did not use the appropriate forms for filing an administrative claim. The FTCA is a limited waiver of sovereign immunity which requires compliance with the conditions enacted by Congress. These conditions are construed Narrowly and include the requirement that before filing an FTCA action the claimant "present" an administrative claim requesting a sum certain in damages to the appropriate federal agency and that the claim be finally denied. 28 U.S.c. § 2675(a). Presentment of an administrative claim is jurisdictional and must be pleaded and proven by the FTCA claimant. See, e@.g., Bailey v. United States, 642 F.2d 344, 347 (9th Cir. 1981); Melo vy. United States, 505 F.2d 1026, 1028-29 (8th Cir. 1974). In the present case it is undisputed that (1) appellant sent a "request for administrative remedy" to the associate warden at FMC; (2) appellant intended to comply with the FTCA despite the use of the incorrect form for a FTCA Claim; (3) the "request for administrative remedy" was not mailed by certified mail; (4) the "request for administrative remedy" was not received by the Federal Bureau of Prisons; and (50 the "request for administrative remedy," although prepared by counsel, did not request money damages. The district court found that appellant failed to establish actual presentment and dismissed the FTCA claim against the federal appellees for lack of jurisdiction, Bellecourt, Slip op. at 9; we hold the district court’s finding was not clearly erroneous. III. Appellant next contends that the district court misapplied the standard for finding Fifth and Eighth Amendment violations and erred in finding the federal appellees and Dr. Wynne were not deliberately indifferent to his serious medical needs and the federal appellees did not discriminate against him on the basis of race or political affiliation in providing medical treatment or in making work assignments. Id. at 17-24. Appellant argues the district court improperly assumed that’ the alleged instances of inattention to his medica] needs amounted to professional decisions constituting proper treatment. Appellant contends the district court erred by not considering the combination of actions by the federal appellees and Dr. Wynne as constituting deliberate indifference. Appellant also alleges the federal appellees violated his due process and equal protection rights because he is a Native American and a_ known political activist who, even though he was over the age of 50, was assigned to work in food service at FMC in violation of FMC policy. In addition, appellant claims medica] treatment at FMC was administered in a discriminatory manner. The federal appellees argue that the district court correctly found that appellant failed to provide specific proof of purposeful discrimination in the provision of medical treatment. They also contend appellant’s conclusory allegation regarding his work assignment is inadequate to prevent entry of summary judgment and in any event appellant has no constitutional right to a particular work assignment in prison. The federal appellees also argue appellant failed to specifically allege prison officials conspired to deprive appellant of equal protection of the laws as required by 42 U.S.C § 1985(3). The district court found the record showed that the federal appellees and Dr. Wynne were not deliberately indifferent to appellant’s serious medical needs. Bellecourt, slip op. at 23. We agree. The fact that Dr. Wynne misdiagnosed the appellant’s condition, that his method of physical examination and treatment may not have followed community standards, or that he disagreed with appellant’s suggested course of treatment does not amount to deliberate indifference in violation of the Eight Amendment. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Smith v. Jenkins, 919 F.2d 90, 93 (8th Cir. 1990); Randall Vv. Wyrick, 642 F.2d 304, 308 (8th Cir. 1981). The district court also found that beyond bare allegations of violations of his civil rights because appellant is a Native American and politically active, appellant provided no facts to support his claims of discrimination or conspiracy. We hold the district court did not err in granting summary judgment in favor of the federal appellees and Dr. Wynne on appellant’s civil rights claims. Iv. Appellant next argues the district court improperly dismissed his pendent state law medical malpractice claim against Dr. Wynne. The district court found that appellant did not present an expert affidavit within the time limits of Minn. Stat. § 145.682,) and failed to ‘The statute has two specific expert affidavit requirements--the first expert affidavit must accompany the service of neil establish excusable neglect; therefore, the district court dismissed the Claim with prejudice. Bellecourt, Slip op. at 25-34. Appellant argues the state law does not require an expert affidavit if expert testimony is not necessary to establish liability, and that expert testimony was not needed in the present case because the symptoms and treatment for a heart attack are well known. See Miller _v. Raaen, 139 N.W.2d 877, 880 (Minn. 1965) (summary of medical malpractice cases were expert testimony the medical malpractice summons and complaint, the second expert affidavit must be served within 180 days of the commencement of the lawsuit. Minn. Stat. § 145.682. The statute specifically informs litigants that unexcused noncompliance will lead to dismissal with prejudice of each cause of action as to which expert testimony is necessary to establish a prima facie case. - 18 - not needed to- establish liability). Appellant further contends that his noncompliance can be remedied by extending the time to file an expert affidavit. Dr. Wynne argues the district court correctly decided that appellant did not establish excusable neglect for his failure to timely file the required expert affidavits and that expert testimony was necessary for appellant to pursue this action. We agree. Appellant’s claim that Dr. Wynne failed to properly diagnose his heart attack is not the kind of case where the alleged negligence "speaks for itself" without expert medical Opinion. See Todd Vv. _Eitel Hospital, 237 N.W.2d 357, 361 (Minn. 1975) (Distinguishing failure to properly diagnose malignancy, which would require expert testimony, from having a Sponge inside body following surgery, which would not). We hold the district court did not err in dismissing appellant’s medical malpractice claim with prejudice. V. Appellant also argues that the federal appellees and pr. Wynne violated the requirements of Minn. Stat. § 144.651, the state medical "bill of rights." He argues summary judgment was not appropriate because genuine issues of material fact existed. The district court found that summary judgment was warranted because, beyond a general allegation that the federal appellees and pr. Wynne had violated this Statute, appellant neither Stated which provision of the Statute was violated nor provided any specific facts Supporting his allegations. Bellecourt, Slip op. at 25. We agree that appellant did not establish sufficient facts to raise a genuine issue for trial, and hold the district court did not err in granting summary judgment in favor of the federal appellees and Dr. Wynne. Accordingly, we affirm the Order of the district court dismissing appellant’s FTCA claims, and granting summary judgment On appellant’s other claims. Given our disposition of the appeal (no. 92-1818), we do not reach the merits of pr. Wynne’s self-styled cross-appeal (No. 92-2002) and dismiss that appeal as moot. A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT. UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 92-1818MNMI Clyde H. Bellecourt, * ” Appellant, * Order Denying * Petition for vs. * Rehearing and * Suggestion for United States of * Rehearing En America, * Banc + Appellees. * The suggestion for rehearing en banc is denied. The petition for rehearing is also denied. July 19, 1993 Order Entered at the Direction of the Court: /S / Clerk, U.S. Court of Appeals, Eighth Circuit UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA FOURTH DIVISION Clyde H. Bellecourt, Civil No. 4-8 Vv. Plaintiff, United States of America, et al., Defendants. Larry B. Leventhal, Esq., Suite 420 Sexton Building, 529 South Seventh Street, Minneapolis, MN 55415 and Douglas Hall, Legal Rights Center, 808 Franklin Avenue East, Minneapolis, MN 55404, counsel for plaintiff. Thomas Heffelfinger, United States Attorney and Lonnie F. Bryan, Assistant United States Attorney, 234 U.S. Courthouse, 110 South Fourth Street, Minneapolis, MN 55401, counsel for federal defendant. Leo G. Stern, Esq., Laurie J. Miller, Esq. and Fredrikson & Byron, P.A. 1100 International Centre, 900 Second Avenue South, Minneapolis, MN 55402, counsel for defendant Wynne. 9-828 ORDER This matter is before the court on the federal defendants’ motion for dismissal or, in the alternative, for summary judgment and on defendant Wynne’s motion for partial summary judgment. Based on the files, records and proceeding herein, the federal defendants’ motion for dismissal on plaintiff’s federal tort Claim will be_- granted, the federal defendants’ motion for summary judgment on plaintiff’s other claims against the federal defendants will be granted and defendant Wynne’s motion for summary judgment will be granted. BACKGROUND Plaintiff Clyde H. Bellecourt asserts causes of action for negligence, medical malpractice, violation of due process, cruel and unusual punishment, civil rights - 24 -+ violations under 42 U.S.C. § 1981 and 42 U.S.C. § 1985(c), Statutory violations, and violation of various duties owed to him. Those causes of action stem from two alleged incidents of mistreatment plaintiff claims occurred while he was incarcerated in the Federal Medical Center in Rochester, Minnesota ("FMC") in 19867. First, plaintiff, who is over fifty years Old, claims that he was assigned to work in the FMC kitchen in contravention of a prison policy that states that persons over fifty are not required to work in the kitchen. Second, plaintiff claims that he Suffered a heart attack on September 16, 1987, and that prison officials and the physician at FMC deliberately ignored his requests for treatment of his painful ailment. Defendant Dr. Wynne moves for summary judgment on all claims of medical malpractice against him on the grounds that plaintiff failed to submit timely affidavits of expert review as required by Minn. Stat. § 145.682. The federal defendants move for dismissal on various grounds or, in the alternative, for Summary judgment on all claims against them. The court heard oral arguments on those motions on March 1, 1991. On March 6, 1991, the court issued a preliminary order regarding plaintiff’s negligence claims against the government.! The court ruled that before it could consider defendants’ motions as they applied to the ‘See Bellecourt v. United States, No. 4-89-828 (D. Minn. Mar. 6, 1991). - 26 - merits of plaintiff’s Claims, the court had to decide the threshold jurisdictional issue of whether piaintiff properly presented his negligence claims to the appropriate federal agency, as required by the Federal Tort Claim Act ("FTCA"). The FTCA requires that a plaintiff Satisfy the presentment requirement before the court may exercise jurisdiction over the Claim.’ °28 U.S.C. § 2675(a) provides in pertinent part that: An action shall not be instituted upon a claim 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 employee of the Government while acting within the scope of his office or employment, unless the Claimant shall have first presented the claim to the appropriate Federal Agency and his claim shall have been finally denied by the agency in writing and sent by certified or - 27 - See Melo v. United States, 505 F.2d 1026, 1028-29 (8th Cir. 1974). The presentment requirement is satisfied Only when the appropriate federal agency actually receives the clainm.? registered mail. “ae ©... § 14.2(a) entitled "Administrative Claim; When Presented" Supplements 28 U.S.C. § 2675(a) and provides in pertinent part: For purposes of the provisions of 28 U.S.C. 2401(b), 2672, and 2675, a claim shall be deemed to have been presented when a Federal Agency receives from the Claimant, his duly authorized agent or legal representative, an executed Standard Form 95 or other written notification of an incident.... See also Drazan v. United States, 762 F.2d 56, 58 (7th Cir. 1985) (citing 28 C.F.R. § 14.2(a); 28 C.F.R. § 14.604(b)) (finding that for purposes of the Federal Torts Claims Act, "mailing is not presenting; there must be receipt."); Murray v. United States, 604 F. Supp. 444 (E.D. Pa. 1985) (same); Barlow v. Avco Corp., 527 F. Supp. 269, 273 (E.D. Va. 1981) (Same). - 28 - That discovery has not been completed. DISCUSSION tatus of Defendant Dr. Wynne As a preliminary matter, the court must determine whether Dr. Wynne is a federal or private sector employee. The United States Attorney’s office originally represented defendant Dr. Wynne because the Department of Justice and the Bureau of Prisons considered him a. federal employee. In August, 1990, the Department of Justice reversed its position and determined that Dr. Wynne was an limiting the length of briefs submitted in this case, the court finds that plaintiff’s latest submission constitutes a flagrant violation of the court’s previous order requesting a memorandum solely on the issue of presentment. Accordingly, the court will consider only that portion of plaintiff’s September 4, 1991, memorandum of law that discusses the issue of presentment. independent contractor with FMC. Thereafter, Dr. Wynne retained private counsel to represent him in this matter. On May 30, 1991, the federal defendants moved the court to amend its answer in order that it might reflect that Dr. Wynne was an independent contractor and that he was represented by private counsel. Dr. Wynne did not file an objection to the government’s motion and plaintiff had no objection to the government’s motion. The contract between Dr. Wynne and the Bureau of Prisons repeatedly describes Dr. Wynne as a contractor. The contract States that Dr. Wynne’s position with FMC "ie coe contractual and not an appointment.... Contractor shall not be subject to government supervision." Exhibit C to federal defendant’s motion to iii dismiss or, in the alternative for summary judgment at 1. The contract further specifies that the "[g]overnment will not withhold any taxes an the contractor is not entitled to any fringe benefits." DF Other documents submitted with the federal] defendants’ motions also allude to the contractual nature of Dr. Wynne’s employment with FMC. The court finds that Dr. Wynne was an independent contractor with FMC at the time of the alleged malpractice and grants the federal defendants’ May 30, 1991, motion to amend their answer to reflect Dr. Wynne’s independent contractor status. Because Dr. Wynne was an independent contractor at the time of the alleged malpractice, the court concludes that Dr. Wynne is not an appropriate party to plaintiff’s federal marries attributable to the State, and that ... [the doctor] acted under color of state law for purposes of § 1983. Id. at $7. "The fact that the State employed respondent pursuant to a contractual arrangement that did not generate the same benefits or obligations applicable to. other ‘state employees’ does not alter the analysis. It is the physician’s function within the state system, not the precise terms of his employment, that determines whether his actions can fairly be attributed to the State.... Contracting out prison medical care does not relieve the State of its constitutional duty to provide adequate medical treatment to those in its custody, and it does not deprive the State’s prisoners of the means to vindicate their Eighth Amendment rights." Id. at 55-56. The holding in West is instructive to the determination to be made in the case at hand because a Bivens claim is analogous to a § 1983 claim. "The effect of Bivens was, in essence, to - 35 - create a remedy against federal officers, acting under color of federal law, that was analogous, to the § 1983 action against state officials." Dean __v. Gladney, 621 F.2d 1331, 1336 (Sth Cir. 1980); see also Schowengerdt v. General Dynamics Corp., 823 F.2d 1328, 1337-38 (9th Cir. 1987) (finding that the private Status of a defendant will not serve to defeat a Bivens claim for violation of constitutional rights provided that defendant engaged in federal action). Therefore, the court concludes that Dr. Wynne is an appropriate party to plaintiff’s Bivens claims. Presentment of the Administrative Claim Whether plaintiff properly presented his administrative claim is a jurisdictional issue. The federal defendants move the court for an order dismissing plaintiff’s federal tort action pursuant to Fed. R. Civ. P. 12(b) (1). Rule 12(b) (1) "(jjurisdictional issues, whether they involve questions of law or of fact, are for the courts to decide." Osborn v. United States, 918 F.2d 724, 729 (8th Cir. 1990). The court may consider matters outside the pleadings in a challenge to subject matter jurisdiction. Id. at 728 n.4 (citations omitted). Plaintiff continues to allege that he properly presented an administrative claim under 28.-U.S.C. § 2675(a). First, plaintiff alleges a presumption of receipt. Plaintiff submitted affidavits stating this his claim was mailed to the FMC. Second, plaintiff claims that deposition testimony indicates that FMC - 37 - received plaintiff’s administrative Claim, thereby supporting the presumption of receipt and satisfying plaintiff’s burden of establishing presentment. Plaintiff alleges that the depositions of Dr. Daniel Foster, Chief Psychologist at FMC, and John Chreno, coordinator of social services at FMC when plaintiff had his hart attack, provide sufficient evidence that FMC received plaintiff’s clain. Plaintiff cites a portion of Dr. Foster’s deposition in which the doctor states that he overheard a _ conversation regarding plaintiff’s claim shortly after plaintiff allegedly mailed the claim. Plaintiff also cites a portion of Chreno’s deposition in which he states that he remembered a discussion about the claim at a department head _ meeting. Chreno attributed that discussion to a newspaper article. Plaintiff also submitted the affidavit of Ray Howe, Director of Research Unlimited in Rochester, Minnesota, in which Howe states that no Minnesota daily newspaper carried an article on plaintiff’s lawsuit between October 1988 and January 1989. Based on that evidence, plaintiff claims that FMC officials must have received plaintiff’s administrative claim. The court finds that plaintiff has not satisfied his burden of showing that FMC actually received his administrative claim. Presumption of receipt is not sufficient to withstand the federal defendants’ motion to dismiss. Plaintiff must show that FMC actually received his claim and the deposition testimony that plaintiff relies on to establish presentment is too speculative to prove that FMC actually received his claim. Plaintiff draws his inference of receipt from the following portions of Dr. Foster’s and John Chreno’s testimony: Dr. Foster Q. I want to focus on this conversation you overhead for a couple of seconds, okay? | Yes. Q. As I understand it one, you cannot tell us who made the statement? A. That’s correct. Q. Okay. You cannot tell us who was present when the statement was made, is that correct? A. That’s correct. Q. You cannot tell us with any precision when the statement was made, is that correct? A. That’s correct. - 40 - *k* Q. Okay. And it is your -- Do I also understand that it is your characterization of the conversation, that it did not reference any formal complaint Or written claim having been received on that subject? A. My characterization or my recall, vague as it is, was to anticipate a lawsuit. It certainly was not clear whether there was anything formal written or it was just something verbalized. It was a Speculative type of comment, from my perspective. I didn’t know it was a fact or had substance to it. Q. Okay. One of the things I am trying to get at with the question is, in the Federal Tort Claim Procedures, as you may know, one of the steps that a person has to follow to get into court is to have filed a formal written administrative claim with FMC Rochester prior to filing the lawsuit. Okay. Can your characterization of the conversation that you overheard, okay, was it your understanding that any formal written administrative claim had been received at FMC Rochester at that time? A. I have no recollection of such a statement or of reference to such a filing. x**k* A. I couldn’t say it’s likely. I could say it’s possible. I don’t know. I was not -- I did not hear mention of a written claim. Foster Dep. at 12, 16-18. John Chreno Q. And do you recall any discussion in that period in 1988 in the executive group regarding Mr. Bellecourt and the heart attack situation? A. I don’t have any specific independent recollection of that. Other than I recall that there were -- I do remember being involved in general discussions about the claim when the newspaper article came out. But again, I don’t know exactly when that came out. x*k* Q. (Mr. Hall) In October, November or December of 1988, was there a discussion in the executive group about a BP-9 submitted by Clyde Bellecourt concerning a heart attack? A. Not that I can recall. Chreno Dep. at 12-13. Although the deposition testimony raises the inference that some FMC officials were aware of a potential or pending Claim against defendants, the deposition testimony does not provide sufficient evidence from which the court can determine that FMC actually received plaintiff’s claim. The federal defendants submitted additional deposition testimony on the mail receipt procedure that Supports the court’s finding. FMC receives its mail in a central mail room. Mail room employees sort the mail into departments’ and department employees pick up the mail. - 43 - Logs are kept for legal and certified mail, but not for Ordinary mail. Because plaintiff sent his alleged claim through Ordinary mail, mail room employees would not have recorded receipt of plaintiff’s claim. Plaintiff addressed his Claim to Associate Warden Olson. If FMC had received the Claim, the associate warden’s secretary would have picked up his mail from the mail room, taken the mail to the associate warden’s office and Opened and reviewed the mail before passing it on to the associate warden. The associate warden’s secretary at the time plaintiff allegedly sent his Claim, Kathy Leighton, testified that she did not see the letter until it was shown to her shortly before her deposition. - 44 - i Associate Warden Olson testified that the claim would have come to his attention because it was addressed to him. However, Olson testified that he did not see the claim until it was shown to him shortly before his deposition. Likewise, Timothy Ondahl, who was acting associate warden between December 5 and 19, 1988, while Warden Olson was away from FMC, testified that he would have read mail addressed to Warden Olson during his absence. Mr. Ondahl testified that he did not see the Claim until it was shown to him a few weeks before his deposition. Plaintiff’s claim is a BP-9 Request for Administrative Remedy ("BP-9") which is used for inmate grievances occurring during an applicant’s imprisonment. When a BP-9 is received, the associate warden’s secretary gives it to the case management coordinator. If the case management coordinator determines that utilization of a BP-9 is the proper remedy for the relief requested, the associate warden’s secretary notes the receipt of the BP-9 in a log book. The log contains the administrative case number, the name of the inmate, the assignment to prison staff and a brief description of the claim. When the case management coordinator determines that a BP-9 is an improper request, receipt of the BP-9 is not marked in the log book. Instead, the case management coordinator prepares a memorandum rejecting the BP-9. The BP-9 is then returned to the applicant with a copy of the memorandum. The case management coordinator also keeps a copy of the memoranda rejecting the BP-9. At the time plaintiff allegedly filed his administrative claim plaintiff was not an inmate. Consequently, filing a BP-9 was not the appropriate method by which plaintiff should have filed his claim. Therefore, the case management coordinator would have prepared a memorandum rejecting the BP-9. Julie Alba, the case management coordinator at the time of the alleged filing, testified that she did not prepare a memorandum rejecting plaintiff’s claim. She further testified that, given the nature of plaintiff’s allegations, his claim would have been forwarded to her and she would have remembered it. Alba testified that she did not see plaintiff’s ie aR alleged claim until shortly before her deposition. Plaintiff argues that the BP-9 should have been construed as a valid notification of a claim under the FTCA. Assuming that an FMC employee would have treated plaintiff’s claim as a claim arising under the FTCA, receipt of the palin Dis 1 dima Kinane Claim would have been forwarded to FMC’s attorney advisor for analysis. Daryl Kosiak, FMC’s attorney advisor at the time plaintiff allegedly mailed his clain, testified that he did not see plaintiff’s alleged claim until it was shown to him after initiation of this lawsuit. Accordingly, the court finds that plaintiff has failed to satisfy his burden of establishing actual presentment and plaintiff’s negligence claim against - 48 - federal defendants is dismissed pursuant to Fed. R. Civ. P. 12(b) (1). Other Claims Against Federal Defendants The court also dismisses plaintiff’s eighth, ninth, and tenth counts in which plaintiff alleges that J. Michael Quinlan, Director of Federal Bureau of Prisons, Peter Carlson, Director of FMC, and Dr. Michael Trujillo, Medical Director of FMC, violated various duties owed to plaintiff. Plaintiff proffers no evidence to support those claims and the court holds that those claims fail to state a claim upon which relief may be granted. The court grants summary judgment on those claims pursuant to Fed. R. Civ. P. 56(c). Constitutional Claims The federal defendants move to dismiss plaintiff’s constitutional claims - 49 - ave SOS a ee ae oe pursuant to Fed. R. Civ. P. 12(b) (6) or, in the alternative, for summary judgment on those claims. On a motion to dismiss, the "court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-56 (1957)). Defendants have submitted additional documents with its motion. Because the court relies on those additional documents in making its determination, defendant’s motion will be treated as a motion for summary judgment. See Fed. R. Civ. P. 12(b) (6) & 56. Rule 56(c) of the Federal Rules of Civil Procedure provides that summary - 50 - judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." This standard mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a), which is that the trial judge must direct a verdict if, under the governing law, there can-be but one reasonable conclusion as to _ the verdict. ders v. Libert obb Inc., 477 U.Ss~ 242, 250 (1986). Stated in the negative, summary judgment will not lie if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. at 248. In order - 51- for the moving party to prevail, it must demonstrate to the court that "there is a genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Celotex Corp. vv. Catrett, 477 U.S. Lp ty 325 (1986); Fed. R. Civ. P. 56(c). A fact is material only when its resolution affects the outcome of the case. Anderson, 477 U.S. at 248. On a motion for summary judgment, all evidence and inferences are to be viewed in a light most favorable to the nonmoving party. id. at 250. The nonmoving party, however, may not rest upon mere denials or allegations in the pleadings, but must set forth specific facts sufficient to raise a genuine issue for trial. Celotex, 477 U.S. at 324. Moreover, if a plaintiff cannot support - 52 = each essential element of its claim, summary judgment must be granted because a complete failure of proof regarding an essential element necessarily renders all other facts immaterial. Id. at 322-23. With this standard at hand, the court will consider federal defendants’ motion.°® As his third and fourth causes of action, plaintiff alleges a violation of his fifth and eight amendment rights. See Bivens v. Six Unknown Agents, 403 U.S. 388 (1971). Plaintiff alleges that because he is Native American, defendants failed to fairly apply the laws and regulations governing his incarceration, violating his fifth amendment rights. Plaintiff further alleges that defendants’ actions ‘This summary judgment standard also applies to defendant Dr. Wynne’s motion for partial summary judgment. - 53 - individually and in concert constituted cruel and unusual punishment in violation of his eighth amendment rights. A plaintiff whose clearly established constitutional rights are violated by federal officials may sue them directly, even though no legislation by Congress exists specifically authorizing such a remedy. See Bivens, 403 U.S. at 396-97; Arcoren v. Peters, 811 F.2d 392, 393 (8th Cir. 1987). Caution is observed in granting a Bivens remedy. Arcoren, 811 F.2d at 393. Courts should hesitate when factors, such as the existence of another equally effective remedy, exist. Id. (citing Bivens, 403 U.S. at 397). "A Bivens action must be founded upon disregard of requirements established by the Constitution. Mere ultra vires action - 54 - in excess of the officer’s lawful authority does not suffice." Id. at 393- 94 (citing Bivens, 403 U.S. at 396-97). Erroneous decisions do not provide a basis for a Bivens. action. Id. at 394 (citations omitted). A. Fifth Amendment Beyond bare allegations of race discrimination, plaintiff has failed to allege any other facts Supporting his Claim. In a recent case regarding constitutional claims brought under 42 U.S.C. § 1983, Chief Judge Alsop warned plaintiffs that constitutional claims "should not be pled in ... [a] shotgun manner." Liggins v. Morris, 749 F. Supp. 967, 971 (D. Minn. 1990). Almost invariably, complaints using this format are met with motions to dismiss or for Summary judgment .... It is Id. left to the court to divine what discrete constituti «al violations are in luct legitimate and proper ... as against each defendant. The court must and does ferret out and dismiss those alleged constitutional violations that patently cannot be maintained. The process is time consuming, fraught with frustrations for both the court and counsel, and disrupts the orderly processing of legitimate claims.... The time has come for practitioners in this district to prepare complaints alleging [constitutional] violations in a fashion that will identify the specific constitutional violations as against only culpable defendants. This court is no longer disposed to perform what should be the responsibility of diligent counsel in that regard. at 971. The court finds that admonition equally apropos to a Bivens claim. Plaintiff’s assertion that he will fill in the details of his complaint with additional discovery is inappropriate and insufficient to withstand defendant’s - 56 - motion. Accordingly, because defendant has failed to withstand defendant’s motion. Accordingly, because defendant has failed to provide facts that sufficiently demonstrate discriminatory treatment, defendants’ motion for summary judgment on plaintiff’s fifth amendment Claim is granted. B. Eighth Amendment Plaintiff’s eighth amendment claim also suffers from a vague’ factual predicate. However, because of the serious allegations of alleged indifference to plaintiff’s medical needs, and because the court has plaintiff’s medical records and other documents before it, the court will attempt to ferret out plaintiff’s claim. - 57 - Prison employees violate a prisoner's eighth amendment right to be free from cruel and unusual punishment if they are deliberately indifferent to a prisoner’s serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976); Smith v. Jenkins, 919 F.2d 90, 92-94 (8th Cir. 1990). "This is true whether’ the indifference is manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once proscribed." Estelle, 429 U.S. at 104-05 (footnotes omitted). 5. upervi so : i t M WwW ° M Pet edical Director of FMC, Dr. Michael Trujillo In a Bivens action, ae federal official cannot be held vicariously liable for the acts of his subordinates under the doctrine of respondeat superior, unless he was personally involved in or participated in the unconstitutional acts. Rizzo v. Goode, 423 U.S. 362, 371, 376-377 (1976); Tallman _v. Regan, 846 F.2d 494, 495 (8th Cir. 1988). Unless plaintiff pleads an "affirmative link" between the Supervisor’s "personal participation, his exercise of control or direction, or his failure to supervise," dismissal is appropriate. McKay v. Hammock, 730 F.2d 1367, 1374 (10th Cir. 1984). Beyond bare allegations, plaintiff has not alleged - 59 - a : facts linking the supervisory personnel to the alleged unconstitutional acts. Neither has plaintiff produced evidence that the supervisory personnel maintained discriminatory policies, failed to provide adequate instruction or failed to Supervise in a fashion that could link them to a deprivation of constitutional rights. Accordingly, the court finds that Summary judgment is appropriate for J. Michael Quinlan, Peter Carlson and Dr. Trujillo on plaintiff’s eighth amendment claim. , # Lieutenant Cliff Friese Plaintiff admits that Lieutenant Friese, along with several other guards, responded to his call for help and that defendant Friese radioed for medical assistance after plaintiff said he was in pain. Plaintiff contends that during his examination he repeatedly told the doctor that his condition was serious, and that in response, defendant Friese warned plaintiff that he "should be quiet and not make trouble, or else ... [he] would risk being sent to the ‘“‘hole’". Plaintiff further contends that Dr. Wynne told plaintiff to contact him if he had a reoccurrence of pain during the night and that Lieutenant Friese failed to check on his condition during the night and that Lieutenant Friese failed to check on his condition during the night to determine if he needed further assistance. The court finds that plaintiff does not have a valid eighth amendment claim against Lieutenant Friese. Plaintiff has not alleged sufficient facts indicating - 61 - o_o AD = that Lieutenant Friese "intentionally denied or delayed" plaintiff’s access to medical care. First, plaintiff admits that defendant Friese immediately responded to his call for assistance and shortly thereafter obtained medical care for plaintiff. Second, although Lieutenant Friese himself may not have checked on plaintiff during the night, documents submitted to the court indicate that other prison guards did check plaintiff’s status during the course of the night. See Exhibit L to federal defendant’s Motion to Dismiss or for Summary Judgment. Third, plaintiff has not provided the court with sufficient evidence indicating that he attempted to obtain additional medical care and was deliberately denied that care. Plaintiff stated that he "stayed awake in continuous pain throughout most of the night and considered calling for the doctor but did not do so because he thought the doctor would not listen to him." Plaintiff also claims that he did not call for the doctor because Lieutenant Friese "had told him [during Dr. Wynne’s examination] not to make a disturbance and (p]laintiff believed that if he did call for a guard again, that he might be placed in solitary confinement without access to medical personnel." Plaintiff’s Memorandum in Opposition at 3. Even assuming that plaintiff believed as he did, plaintiff’s subjective determination that further requests for assistance would be ignored or cause him to be placed in solitary confinement is not sufficient to Support his claim. Lieutenant Friese had no reason to believe that plaintiff required additional assistance after the doctor’s examination and treatment, and "deliberately denied" him nothing. Therefore, plaintiff’s eighth amendment Claim against Lieutenant Friese fails. : F Medical Personnel: Physician Assistant Urriste and Dr. Wynne The eighth amendment is violated if medical care is so grossly incompetent or inadequate that it amounts to deliberate indifference. Smith, 919 F.2d at 93 (citations omitted). A doctor’s decision to take an easier or less efficacious course of treatment, refusal to provide essential care, or care so inappropriate as to evidence intentional maltreatment violates the eighth amendment. Id. However, the indifference to medical needs - 64 - must be substantial. Mere negligence, inadvertent failure to provide adequate medical care and gross negligence do not Support a claim of medical mistreatment under the eighth amendment. Estelle, 429 U.S. at 106. Likewise, a difference of Opinion between an inmate and _ prison medical personnel regarding appropriate medical treatment does not suffice, Randall v. Wyrick, 642 F.2d 304, 308 (8th Cir. 1981), neither does a delay in providing medical treatment unless the delay causes substantial harm. Wood _v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). a. Physician Assistant Urriste Plaintiff claims that he reported to Sick call at 7:20 a.m. on September 16, 1987, told Physician’s Assistant Urriste that he was having chest pains and that she told him to wait in the waiting room and that someone would like at him immediately. Plaintiff contends that he was not examined until 9:15 a.m., and that this delay in treatment constitutes a violation of his eighth amendment rights. The court finds, however, that the medical records submitted by the federal defendants indicate that plaintiff received some medical care between 7:20 a.m. and 9:15 a.m. on September 16, 1987. An electrocardiogram ("EKG") printout Shows that an EKG was taken at 7:48 a.m. On September 16, 1987. Another medical document indicates that a blood test was performed at 8:10 a.m. Accordingly, the court finds that plaintiff has not shown that defendant Urriste was deliberately indifferent to plaintiff’s medical needs. b. Dr. Wynne Plaintiff asserts that Dr. Wynne’s examination so greatly deviated from the medical norm that it constituted an eighth amendment violation. In support of that contention, plaintiff submitted an affidavit of expert review. The expert Stated that Dr. Wynne deviated from the normal standard of care in attending to plaintiff’s reported condition. See Affidavit of Identification of Expert at : The expert stated that reports of pressure and pain in the chest area and Shortness of breath should have led an examining physician to Suspect a heart attack. Id. According to the expert, given the potential danger to both life - 67 - and vital organs posed by a heart attack, the normal standard of medical care dictates precautions, such as hospitalization and an EKG to determine if a heart attack was occurring. Plaintiff also asserts that he told pr. Wynne that he was having a heart attack and needed hospitalization and an EKG. The court finds that Dr. Wynne did not violate defendant’s eighth amendment rights. The facts indicate that Dr. Wynne arrived at defendant’s cell within a reasonable time after receiving word that plaintiff was having chest pains. Medical records indicate that Dr. Wynne thoroughly examined plaintiff and from his examination determined that plaintiff likely was suffering from severe indigestion. Dr. Wynne gave plaintiff antacid and observed that plaintiff’s pain seemed to subside. Therefore, Dr. Wynne believed that a heart attack was not the cause of plaintiff’s pain and determined that an EKG was unnecessary at that time. Dr. Wynne did make a notation in his medical notes that he would get an EKG of plaintiff if he continued to experience chest pain. The fact that Dr. Wynne misdiagnosed the source of plaintiff’s pain, that his method of examination and treatment may not have followed community Standards, or that he disagreed with plaintiff’s suggested course of treatment does not amount to an eighth amendment violation. Estelle, 429 U.S. at 106. Accordingly, the court finds that Dr. Wynne’s exercise of medical judgment was not deliberately indifferent to plaintiff’s medical needs and that plaintiff’s eighth amendment claim with respect to Dr. Wynne is denied. Civil Rights Claims As his fifth and sixth causes of action, plaintiff asserts violations of his civil rights pursuant to 42 U.S.C. § 1981 and 42 U.S.C. § 1985(c). Plaintiff contends that because of their racial animus, defendants treated him differently than other prisoners through failure to provide reasonable, competent, and Standard medical care, in violation of § 1981. Plaintiff also contends that defendants conspired to violate his civil rights, in violation of § 1985(c). As with his Bivens claim alleging violation of his fifth amendment rights, plaintiff must allege sufficient facts - 70 - indicating defendants actions were motivated by discriminatory animus to Survive federal defendants’ motion for summary judgment on the alleged civil rights violations. See Runyon v. McCrary, 427 U.S. 160 (1976). In addition, for his § 1985(c) Claim to survive federal defendants’ motion for Summary judgment, plaintiff must also allege sufficient facts that shows defendants reached an agreement and directed themselves toward an unconstitutional action by virtue of mutual understanding. See City of Omaha Employees Betterment Assoc. v. City of Omaha, 883 F.2d 650, 652 (8th Cir. 1989). Beyond bare allegations of a conspiracy to violate his civil rights because he is Native American, plaintiff has provided no facts of racial animus or a conspiracy to act because of racial animus. Accordingly, federal defendants’ motion for summary judgment on plaintiff’s civil rights claims is granted. tatu m: Patient’s Bill of Right Plaintiff’s seventh cause of action alleges a violation of Minn. Stat. 144.651, a medical "Bill of Rights" for patients. Beyond a general allegation that defendants violated this statute, plaintiff did not state which provision of the statute was violated or provide any facts supporting his allegations. Because plaintiff has not set forth sufficient facts to raise a genuine issue for trial, summary judgment is appropriate on this statutory cause of action. AS a preliminary matter, the government contends that the court should decline to exercise jurisdiction over plaintiff’s state law medical malpractice Claim against defendant Dr. Wynne. Under Eighth Circuit law, the decision to dismiss plaintiff’s pendent state law Claims is discretionary. See e.g. Curtis Vv. Sears, Roebuck & Co., 754 F.2d 781, 785 (8th Cir. 1985). The court has determined that it will exercise jurisdiction over plaintiff’s medical malpractice claim. If jurisdiction is not examined, plaintiff’s state law claim may be barred by the Minnesota statute of limitations. Significant delay in this case has already occurred as it is approximately two and one-half years old. Deciding this issue - 73- a ea. also favors judicial economy because there _ has been a significant investment of ie judicial time and resources, and the court is familiar with the complex fact issues involved. Dr. Wynne contends that summary judgment on plaintiff’s medical malpractice claim is appropriate because (1) plaintiff did not timely file two affidavits that are necessary to sustain a medical malpractice claim under Minn. Stat. § 145.682, thereby warranting dismissal, (2) this is the type of case where expert testimony is necessary to establish liability, and therefore, plaintiff may not avail himself of an exception to § 145.682 excusing compliance with the affidavit requirement when expert testimony is not necessary to prove - 74 - Sails 2S 8 anal oo at Ant nl ‘ as = Agi ae uct ty eile ne as = liability, and (3) plaintiff cannot establish excusable neglect for the late filing of expert affidavits. Plaintiff — contends that he did not have to comply with Minn. Stat. § 145.682 because (1) this is the type of case where expert testimony is not necessary to establish liability, and (2) even if the court determines that expert testimony is necessary to establish liability, plaintiff filed an expert affidavit and filed it late because of excusable neglect. Minn. Stat. § 145.682 requires a plaintiff bringing a medicai malpractice Claim to submit two affidavits supporting the claim. The first affidavit ("expert review affidavit") must be submitted with the complaint and state that before - 75 - a ) ene commencing the lawsuit, plaintiff's attorney reviewed the facts of the case with a medical expert who believed that at least one defendant named in the suit deviated from the applicable standard of care and thereby injured the plaintiff. Minn. Stat. § 145.682, subd. 3(a). In lieu of submitting the affidavit, plaintiff’s attorney may state that the required expert review could not be obtained in time to file the suit within the statute of limitations. Id., subd. 3(b). If the latter option is selected, plaintiff’s attorney, within 90 days of filing the complaint, must. submit an affidavit stating that he has reviewed the case with an expert who believes the Standard of care was breached. Id. - 76- The second affidavit ("expert disclosure affidavit") must be served upon the defendant within 180 days after commencement of the suit and identify each expert plaintiff intends to call at trial, disclose the substance of the facts and opinions to which the expert will testify, and provide a summary of the grounds for each opinion. Minn. Stat. § 145.682, subd. 4. Answers to interrogatories may Substitute for the expert disclosure affidavit, as long as they are provided within the requisite 180 days and contain the required information. Id. The penalty for noncompliance is set forth in Minn. Stat. § 145.682, subd. 6. With respect to the expert review affidavit, failure to comply within 60 days after demand for the affidavit — ee Bi th, wes Pe dit AD ~ SOE hae. "results, upon motion, in mandatory dismissal with prejudice of each cause of action as to which expert testimony is necessary to establish a prima facie case." Id. With respect to the expert disclosure affidavit, no demand is necessary to trigger the noncompliance penalties. Rather, the statute simply provides that failure to Supply the affidavit within 180 days "results, upon motion, in mandatory dismissal with prejudice of each cause of action as to which expert testimony is necessary to establish a prima facie case." Id. There are two methods through which a plaintiff may escape dismissal for noncompliance. First, the court may extend the time for serving the affidavits, even after the time limits have expired, upon a showing of excusable neglect. Stern v. Dill, 442 N.W.2d 322, 324 (Minn. 1989). To claim excusable neglect, Minnesota courts require a plaintiff to satisfy four factors: (1) plaintiff has a reasonable case on the merits; (2) plaintiff has a reasonable excuse for his failure to meet the Statutory time limits; (3) plaintiff has proceeded with due diligence after notice of statutory time limits; and (4) no Substantial prejudice will result to defendant by the extension of time. See Parker _v. O’Phelan, 414 N.W.2d 534, 537 (Minn. Ct. App. 1987), aff'd by equally divided court, 428 N.W.2d 361 (Minn. 1988). Second, a plaintiff need not submit expert affidavits if liability may be - 79 = a * established without expert testimony. _ Minnesota courts hold that "[e)xpert testimony is not necessary where the facts to be determined are within the common knowledge of the jury and where the results of surgical or medical treatment, viewed in_- the light cf all the circumstances, provide a sufficient evidentiary basis to support an inference of negligence." Bauer v. Friedland, 394 N.W.2d 549, 553 (Minn. Ct. App. 1986); see Ctr., 457 N.W.2d 186, 191 (Minn. 1990). It is undisputed that plaintiff did not file either of the expert affidavits in a timely manner. Plaintiff commenced this lawsuit against Dr. Wynne. on September 18, 1989. With his summons and complaint, plaintiff served an affidavit - 80 - ode. elie beet uid , “pee bie tee is NEL Ati te. | Peter Carlson, Warden Federal Medical Center, Rochester Minnesota, in his official capacity, and Dr. Michael Trujillo, Medical Director, Federal Medical Center, Rochester, Minnesota in his official capacity, and Cliff Friese, Lieutenant, Federal Medical Center, Rochester, Minnesota, in his official and individual capacities and the Mayo Foundation, a Minnesota Non-Profit Corporation, Rochester, Minnesota, and Dr. Alan Wynne, Resident Physician, in his official capacities as resident physician for Mayo Foundation, and as an employee of the Federal Medical Center and individually, and Sarah Urriste, Physicians’ Assistant, in her official capacities as Physician’s Assistant for Mayo Foundation and as an employee of the Federal Medical Center and individually, Defendants. Plaintiff, Clyde H. Bellecourt, for his cause of action alleges: I. NATURE OF CLAIM 1. Plaintiff Clyde H. Bellecourt, by and through his undersigned attorneys, seeks damages for physical injury, emotional injury, pain and suffering, medical malpractice, and discrimination from the Federal Medical Center, Rochester, Minnesota, (hereinafter "Federal Medical Center"), a division of the Federal Bureau - 107 - NU So SES a AID Ee te ee ea of Prisons, an agency of the United States, from Mayo Foundation, a Minnesota Corporation doing business in Rochester, Minnesota, and others so named. Due to the deliberate indifference of the Defendants to Plaintiff’s serious medical needs including life-threatening medical and psychological needs, Plaintiff, suffering a heart attack, was misdiagnosed, given the wrong course of treatment by Defendant Alan Wynne, who then abandoned Plaintiff without any medical care or institutional care for over nine hours in the midst of a life- threatening heart attack and further that such negligent care constitutes medical malpractice. Due to further deliberate indifference of Defendants to Plaintiff’s serious medical needs, Plaintiff was - 103 = abandoned without medical or institutional care by Defendant Federal Medical Center, Defendant Lieutenant Friese, and Defendant Sarah Urriste for over nine hours in the midst of a life-threatening heart attack and further that such actions constitute negligence. Such abandonment and lack of institutional care were directed and/or encouraged by the policies implemented by Defendants United States, Federal Bureau of Prisons, J. Michael Quinlan, Warden Dr. Joseph B. Bogen, and Medical Director Dr. Martha Grogan. Plaintiff reported his heart attack at approximately 12:30 a.m. on September 16, 1987, receiving antacid for treatment by Defendant Dr. Alan Wynne. Plaintiff was thereafter abandoned in his cell despite pleas for medical treatment and - 109 = received no reasonable, competent or meaningful medical attention until approximately 9:45 a.m. the following morning. The Defendants’ individual and collective acts and omissions constituted negligence, medical malpractice, and deliberate and wilful indifference to the health and safety of Plaintiff and resulted in the unnecessary and wanton infliction of physical injury and permanent damage, and pain and suffering including, but not limited to, permanent heart damage. Such shocking and heinous conduct by government authorities and other named Defendants deprived Plaintiff of rights guaranteed by the Fifth and Eighth = 41310 - Amendments to the United States Constitution and Minnesota law. II. JURISDICTION This action is brought pursuant to the Federal Tort Claims Act, Sections 2671 through 2680 of Title 28 of the United States Code (28 U.S.C. §§ 2671-2680) and to Title 42 U.S.C. §§ 1981, 1985(c), and 1986 to redress the deprivations or rights secured by the Fifth and Eighth Amendment to the Constitution of the United States. This is a civil action for damages and declaratory relief. 3. This Court has jurisdiction of these claims pursuant to Title 28 U.S.C. § 1346(b) and § 1331 , and Title 42 U.S.c. - £65 ° "ee ee jurisdiction of this Court with respect to several state law claims. 4. Damages sustained by Plaintiff exceed $10,000.00. S. That Plaintiff, in compliance with all requirements of the Federal Tort Claims Act (28 U.S.C. §§ 2671-2680), properly presented to the appropriate agency, Federal Bureau of Prisons, full notice of claim and the claim for injury and damages on November 29, 1988, by submitting a Request for Administrative Remedy to the Federal Medical Center, Rochester, Minnesota. Attached as Exhibit 1. $1988, and Plaintiff invokes the pendent 6. That Plaintiff’s Request for Administrative Remedy, submitted on November 29, 1988, was in full compliance with all instructions, procedures, and forms according to the instructions in the Memorandum of Warden Dr. Joseph B. Bogen, then Warden of the Federal Medical Center, Rochester, Minnesota. Attached as Exhibit 2. Ve That Plaintiff’s claim, Request for Administrative Remedy, was presented to the administrative agency, Federal Bureau of Prisons through the Federal Medical Center, in a timely manner, the November 29, 1988 claim occurring within two years of the September 16, 1987 injury. - 433 = 8. That said federal agency, Federal Bureau of Prisons, has rejected Plaintiff’s notice of claim and Claim, as filed in the Administrative Remedy Request, by inaction in that no response to Plaintiff’s Request for Administrative Remedy was received within six (6) months Or has been received to date. 9. That this action is timely filed within the proper period following the lack of response by the administrative agency. III. PARTIES 10. Plaintiff Clyde Bellecourt resides in the City of Minneapolis, County of - 114 - Hennepin, State of Minnesota, which is within the District of the State of Minnesota. il. At all times material herein, Plaintiff Clyde Bellecourt was an inmate of the Federal Medical Center, a federal prison, located at Rochester, Minnesota, County of Olmstead, State of Minnesota, located within the District of Minnesota. 12. The term "Defendants" as used herein refers to the named Defendants who were responsible for the particular acts and omissions specified in the Complaint. 13. At all times material herein, Defendant United States of America, by and through the Defendant Federal Bureau of - 115 . Si, Le ee right of Plaintiff to be free from cruel and unusual punishment as guaranteed by the Eighth Amendment to the Constitution of the United States, and violated Minnesota law. 4. That this Court order the Defendants tc pay the Plaintiffs costs, expenses, and attorney’s fees for this action; and - 171 - 5. That this Court grant such other and further relief as this Court deems just and proper. Dated: this 18th day of September, 1989. Respectfully submitted, LS/ Larry B. Leventhal Leventhal and Associates Attorney I.D. # 62534 Suite 420, Sexton Building 529 South Seventh Street Minneapolis, Minnesota 55415 Phone: 612/333-5747 LS/ Douglas Hall Legal Rights Center Attorney I. D. # 39688 808 East Franklin Avenue Minneapolis, Minnesota 55406 Phone: 612/871-4886 Counsel for Plaintiff ~ 2a * ~_ a Me ws a ee ~ MJ Le, 9, \5> | ee eas : > ae i se VERIFICATION I, Clyde Bellecourt, the Plaintiff herein, being first duly sworn upon oath, declare and allege that I have read the above and foregoing Complaint, know the contents herein, and that the same is true to the best of my knowledge and belief. LS/ Clyde Bellecourt, Plaintiff Subscribed to and sworn to before me this 18th day of September, 1989. LS/ Notary Public - 173 - CLYDE H. BELLECOURT, #02501-041 2419 18th Avenue South, Minneapolis, MN 55404 November 29, 1988 Associate Warden (Programs) Federal Medical Center, Rochester U.S. Department of Justice Federal Bureau of Prisons Rochester, MN 55901 RE: Request for Administrative Remedy Dear Associate Warden Olson: I am enclosing herewith, a Request for Administrative Remedy on form BP-DIR- 9, with an attached account specifically setting forth the circumstances of which I make complaint. It is my view that while I was an inmate at the Federal Medical Center, Rochester I suffered extensive medical deterioration due to the fact that I did not receive timely treatment for a heart attack while it was in progress. In fact, as is elaborated upon in my account, I first alerted appropriate prison personnel to my medical emergency at 12:30 a.m. on September 16, 1987. However, I received no bona fide medical attention until approximately 9:45 a.m. the following morning. - 4176 = ts tence I have presented my complaints seeking an appropriate rememdy to various prison personnel including Keith Farrell, my counselor; Paul Schultz, my case manager; Associate Warden Helman; and Hospital Administrator Dr. P. Benantz. The matter, however, has not been resolved and I am therefore addressing to you the attached formal Request for Administrative Remedy. You may contact me at the above address. My telephone is (612) 722-4423. Alternatively you may contact me through one of my attorneys, Larry Leventhal, 420 Sexton Building, 529 S. 7th Street, Minneapolis, MN 55415 or Douglas Hall, Legal Rights Center, 808 E. Franklin Ave., Minneapolis, MN 55404. Thank you for your attention to this matter. Very truly yours, Clyde H. Bellecourt - 173.° immediately. I sat in the waiting room for almost two hours, until 9:15 a.m., with no assistance at all. During the same period several other inmates with minor colds were being taken care of. At 9:15 a.m. I had a previously scheduled dental appointment, and dental personnel came and got me to take a mold for a partial denture. I was in the dental office for just a few minutes, when Dr. Soddard, the Dentist and his Assistant Michelle sent me back to the waiting room, stating that I looked really bad health wise. - 165 - a te ot ES At about 9:45 a.m. Dr. Thorne came into the hospital. I was taken into the examining room and hooked up to the Electrocardiogram machine. It was then confirmed that I had a heart attack, and was still having a heart attack. An ambulance was called from St. Marys Hospital in Rochester. When they arrived I was given shots to relieve the pain, hooked up to IV’s and rushed downtown. I spent nine days at St. Marys Hospital at which time an Angiogram was taken, which was able to pinpoint the exact damage to my heart. One of my main arteries in the front of my heart, half- way down, was completely closed, another artery, which branched off from this artery, is 80% closed. » 336 | & i 7 if 4 > | é hue ri 7 Ls * 3 3? Qe. e I. $a - a. * f "3 sss = C: ’ er mos oe a eee oor Fi REPORT vee Creetise Giense MX), Tote! © Prection tere: Shatin tw B frectin, ewe d=" mowt Bel lecewt, Clipe ee ete ae et ee ee ae ie bee el pe eee bee ed 8 Lk =-€349:: 1A3-—- iS2. eS T22"ear Cee oe ome oe tas. res BF nas RES See “yg TAS UBMSIAS Ott: teed BIL. 46/93/76) INMPEd’ BLE a ec yae Net eT Pus 15S. § Vg) he pies “ 2 2 “” * HVSNLISYWVO tM ONTIN3L1b Sct ta art -hSt: 2 Fey a tXs% aJA wo "28022 °) 734 tShgN Lear ese 8% ‘ a eee oat ¥ 4 P29 C8TH LOG), a, > ae EC4SS “LOSBNNIW 8393209! : A3ErLs SBiNSD 1Sv2 oFtz . Les, = ¥ in me ee ere . REI EE + ‘ a walk “s 193 ee et : o Pegeeey Yer mn ’ Sm Mme Meee Rte d j 406 Sal MT —— a7 —— | ame Se ee eo . 194 tar tee ox ASMISBION: THEN @4 H RECORD 180 DAILY MElonTs “RT om Cree oe ; 2 Sf0In Pur O08 FOR FIRST 24 mons aestran, &. WD 9/te 12:23 Pn THEN ADVANCE AS TOLERATED TO FUL oler: 70 MEG MA. GALL mas. LOw CHOLESTEROL. FLUID: GI°8 UNTIL BTagie ns : 2 sapREesT PeDP an anesTan. & wD 9/1 12:23 PR F . ee Ce AOSTA. K. PD . 97ie 12:23 Pn s Dow oo. ae TKO STRAN. K. MD 9/16 12:23 Pn . & wEPanin 23000 Vv anosTNAN, K. HD */le 12:23 PM : 290 = 1000 UNIT i & WEPARIN S000 VY ol.v. STaT anesTen. K MD */ie 18:22 PR 7 WEPAAIN ov tv @ om anesTran, & MD 9/ie 12:23 PH i ° COLACE 100 me PO OaD ANOSTIAN. K. MD 9/ie 12:23 Pm ‘ 10) MOM 7 20 ce OPO PRN AMNOSTMAN. K MD . 9/16 12:23 PH 1.) WORPHINE 2.00 me I.v. 610m AOSTHAN, K DD 9/lé 12:23 Pn UNTIL PAIN RELIEVED, TOTAL 10.00 ne FOr AMALOESIA —-- Belleceurt, Clyde #8 -O4! Referral Swumary increased to greater levels. At this point he is able te miles around the track twice « day and is having no 2 eae mms suggestive of angine. EKG's obtained with these symptoms also showed no signs of acute ischemia or changes from his post MI EEG. i: | Currently the patient is on 25 mg of Atenolol orally every day and has blood pressures Chat run in the upper 90's systolically. Me denies symptoms of | orthostatic hypotension. Working Diagmosis: Status post myocardial infarction. It is doubtful that the patient has had post myocardial infarction angine. Most likely his symptomatology was due to deconditioning and breathlessness. With increased exercise the patient's symptomatology has progressively improved. Current Medications: 1) Atenolol 25 mg orally every day. 2 Plan: The patient is doing remarkably well post anterior wall myocardial \ infarction. The plan at this time is to have a standard Bruce strass test ~~, Gone six weeks after his myocardial infarction. Specifically we are looking to be able to tell the patient specific exercise limitations. What his target heart rate showld be when he exercises. This will give us an ides of what of work he can do and vhen he can go back to work. Also since the @ Mative American part of his religious ceremonies include spending DD: 10-27-1987 DT: 10-28-1987/enp 198 Perl CeimiC - re eIeR, AiSOBUTA 2 ee 744 wEDiCa. BeOuRY pean 3 a avs Mis wae ofan + A AGnITTED 69/ie/e7 18:19 Ph 8 66BIeHISeED 60 ooysesay 4: BO OP. se oa ‘1 Lae s , . 4 oon WT. 164.4 ne ot. wr. Re : eS ere oe OF ee La A ~ Seat ae Ae POR TER i CCU oS. ie eee CIN | Heme ee want, o/iere é P + wars ata te. . - emg 8 . : 9/17 ACUTE ANTERIGR INDETERMINATE WYOCARD IAS. ; ; ° 20/17 GBT PalN/OTGR CEST PAIN Moog te" : +: : 9/00 CERBUAY ARTERY DISEASE a er aes 7 oe F “4 Ps 9/17 10:16 an CONG@ERY AATER IOORAPHIC oner". 9/47 10:46 an LV AATERIOGRAPHIC STUDY COP eat om 7 -. : ' cit . - , eS. 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XFS spe ON ee thy, ns Ce ceca elim a Soma ea ten ee ee SD al a SS. PAT WNT Pece.ee List Atmimmag Oegees ene PRO Eh ORC RON tnicnand ~ Cmctade xmas’ agence) phot — a! OR Ba | ing | PA bored Aust — 2 v.29) ALAR LY) | Fane a g La OILY WD Fe rethiah 7 Lg gm /79 lan, 7 Ea aired \C Nici OL. Vid tactcie ce ELE la halt Ppa Pea Th GAL? 7} LOPLI LTS” A UL GAD ALAM SLE y- 231 ‘ 3 986 WY en ‘ eciaicouet, ae carce s * . @80036 fosetstce. #8 55905 7 Re ae pieee ee ee et - Sao OC one . woe ee . * * a | ° ; *, ‘ - ee ee mw alld! cx adenccad ‘2 nee pee tly bicomncing PTS y ard NTT peas 2y . ee ee Peet Bee ee, eee, ed es 232 Monday Oct. 30, 1989 K: Present are Daryl Kosiak, Dr. Alan Wynne and Dr. Michael Trujillo. Discussion of Mr. Clyde Bellecourt who alleges that on Sept. 16, 1987 he suffered a heart attack and about the treatment that carried on thereafter. The purpose of this conversation is to send it on to Mr. Lonnie Bryant, an Assistant United States Attorney, to give him a better feeling of what happened. So, do you have any questions about why we’re doing this as we are? W: No, I do not. K: And the reason that Dr. Trujillo is present is incase there is any medical questions that should be asked that my expertise doesn’t allow me to even be aware of. So we are going to proceed that way. Okay. Dr. Wynne, could you spell your first and last names for me please. 233 W: Sure, ALAN WYNWNE. K: And what’s your age? W: 30. K: And your current address. W: 2841 C 19th Ave NW, Rochester, Minnesota 55901. K: And could you tell me something about your education. W: My education, as far as medical school was at the University of Missouri in Columbia, Missouri. And Internal Medicine Residency training was. three years here at the Mayo Clinic in Rochester and I am now in my second year of an Endocrinology Fellowship at the Mayo Clinic as well. K: Could you tell me when you graduated from med school? W: Medical school graduation was in May of 1985. 234 se a el Brac ee WHA NE Ps oe ae K: And when did you complete your Internal Medicine residency? W: Internal Medicine was completed in June, late June of 1988. K: I assume then that you hold a Medical Doctor degree, or a degree in Medicine. W: Yes, that is correct. K: Do you hold any other degrees? I mean any other than under graduate one? W: No other degrees but a year ago I did pass my Internal Medicine Boards. K: Alright, you can tell me something about the Internal Medicine, the procedure for becoming board certified in that. W: I sure can. It requires that we complete 36 months of an accredited Internal Medicine program, which I did, and I think what you’re leading up to is where was I at the time that I met with or took care of Mr. Bellecourt and I was just reviewing that recently and I think that 235 it is pertinent that in the twelve months of my residency prior to taking care of him, that of note, two of my rotations were my emergency room rotation at the Clinic, which was two months worth and then I think very importantly I had just finished six months of in-house cardiology training. We are required to do six months of our three years of cardiology | and I had just finished that before taking care of him. Deh dashed har = Pn K: Now for my own benefit Dr. Wynne, tell me exactly what an Internist does. Somebody who is board certified in wha dL Tike ala beta Shae ines Internal Medicine, how do they stand in relation to a general practitioner or family practitioner and then the cardiologist. W: Well, an internist takes care of basically any medical problem that is non- surgical, non-obstetrical and non- 236 pediatric. So that leaves basically any other disorder or disease effecting the internal organs from heart to lungs to kidneys to gastrointestinal problems, cancer, etc. So pertaining to Mr. Bellecourt’s problems, internists do regularly take care of heart attack patients, patients with chest pain and diverse variety of cardiology problems. But when there are particularly difficult or demanding cases, then that is where it might be appropriate to consult with a cardiologist who has subspecialty training, usually two to three or four years in just cardiology. K: You are currently licensed to practice ‘medicine in the state of Minnesota. W: Yes. K: Are you licensed anywhere else? W: No. 237 * ee oe ee ED. Ps eet Sr ho ee Oe ee gt ne ly A eee Pee ert ‘ K: This is just one for the record, has your license to practice medicine ever been suspended or revoked? W: No. K: You’re currently board certified in Internal Medicine but you weren‘’t in September of 1987. W: Right. K: Do you belong to any wMmedical societies? W: Yes, I belong to the County Medical Society here, Zumbro Valley Medical Society; the state medical society, the Minnesota Medical Association and the American Medical Association and also I am a diplomat in, or a member of the American College of Physicians as well. K: Now have you ever been in court, either as a party or as a witness? 238 W: Yes I have. I witness a car accident and I was asked to testify about that, about seven years ago. K: But you’ve never been involved in a court either as a party or as a witness concerning your ability to practice medicine or somebody elses ability to practice medicine. W: No. K: Okay, very good. At this time do you have any professional liability insurance? W: Yes I do. I do through the Clinic in that I am still a fellow there and they cover my practice there and then I work at a number emergency rooms in the state and actually had been for about a year before even encountering Mr. Bellecourt and as such, I am covered by different liability policies for practice in just those emergency rooms at those places. 239 K: But you don’t have any professional liability insurance where you yourself pay the premiums. W: Correct. K: Now, I want to talk to you about your relationship with the Federal Medical Center. Now, when did you first start coming out here, to the Federal Medical Center? W: Oh, I believe that was in the Spring of that year which was 1987, so I believe maybe around April of ‘87 was my first shift. K: When you talk about a shift, what time did you come out and then what time did you go back. W: The usual shift is an evening shift starting at 6:30 in the evening and going, I guess it’s 6:00 in the, no it’s 6:30 in the evening going until 6:30 in the morning and that’s every night there is a 240 ae & shift available and then on weekends there are 12-hour day shifts from 6:30 a.m. to 6:30 p.m.. K: Is it your understanding that what the arrangement is between you and the Federal Medical Center and has nothing to do with the Mayo Clinic. W: Yes, that’s correct. K: And it, are you limited into the number or as to the number of shifts that you can work in a specific period? W: Oh, um, I guess I’m not sure of the answer to that. I know that it’s fairly flexible, I’ve worked from none at all if I don’t want to or can’t find time for the shifts up to as many as five shifts per month. I think I could even work more, I’m not sure. K: Can you tell me about how you are paid then for your services. 241 Be SEs ox )\) W: I am just paid as a contract employee, an hourly wage and the next month I just get a check in the mail that’s for the number of shifts I’ve worked. K: And that is made payable to you then, it comes directly from the Department of Justice or the Federal Medical Center. W: Right. K: Now, when you come out here, do you know in advance what you’re going to be doing that shift. W: No, I have no idea. K: Then when you come out here, how do you find out what you’re supposed to do, if anything. W: When I come out here, I always check a board, there is an information board or Clipboard, that’s up at the nurses station that usually is the very first thing I check because it outlines how much work 242 a there is to do any particular evening which can range from little or nothing at all to several inmates waiting to be examined. So, I just have to check that at the beginning of every shift. K: When you talk about doing examinations, is that the intake physicals that are usually done on the inmates when they come in? W: Yes, that is correct. On the new inmates but that can either be the general population or new inpatients that are actually sick on the hospital ward. K: Now, are, do you bring in any equipment of your own or from the Mayo Clinic? Or is the equipment that you are going to use, who is that provided by? W: It is all provided by the Federal Medical Center here. K: And as to how you actually do the physicals or do your other duties, are you 243 provided with any guidelines by the Federal Medical Center? W: Oh, um, I don’t think in any real specific terms, I mean they expect a very complete history and physical examination, pretty much as I had been trained to do in my training and I guess there are guidelines in a sense that in the physical form it lists the components of the history and physical that they want but they are pretty standard. So, I don’t think that there is anything real specific to the Federal Medical Center. K: AS part of your duties, are you, does this include providing emergency medical care as needed by the inmates here? W: Yes it does in that that’s something that can just happen at any time, I mean when we come in the evening we have a set number of physicals to do and once those are done, most often that is the end of 244 our work for that shift, whether we finish at 10 or 11 or midnight. Then we can sleep the rest of the shift. But we are always available by telephone contact in our room for any emergencies that arise and that does happen periodically. K: Now, can you tell me something about what decisions that you can actually make on your own as a contract physician who comes out here. And that would include such things as termination to provide specific tasks, decision to transport an inmeti from here down to a community hospital or things like that. And which wn that normally a physician would do require some type of approval from staff physicians. W: Sure. Oh, any kind of care that we are asked to give, diagnosis or treatment that is fairly straight forward or easily done, just myself, without outside 245 resources or permission say to transfer somebody out of the institution, then I can do that all on my own. But there is always ready back up from our medical officers, who ever is on call and if I have any questions about such as transferring somebody out for’ more definitive care, if it’s not something that we are not able to provide that falls under the guidelines for contacting the medical duty officer on call or if it’s a particularly difficult case, because of oh orders that are already given, such as not giving the patient narcotics, but they are really insisting on that, then we are free to call the medical duty officer. So, anything that is more than what we feel comfortable dealing with, then we call our backup. K: Now, I want to take you back to Sept. 15, 1987. And that is when you started a 246 tour out here at the Federal Medical Center. I know this is going back a long way but I want you to tell me as much as you can about what you did on Sept. 15th starting from the moment you got up until the time you left the Federal Medical Center on Sept. 16, 1987. W: Starting with when I got the call? K: I want to start from the very day one, when you went to work at the Mayo Clinic on the day of the 15th, if that’s what you did. W: On. K: As much as you can recall. W; Ok. Well, um, I won’t remember much about that day itself. I guess at that time I was on the Rheumatology Service at St. Marys Hospital so, more than likely, it was a light day. That is generaily one of our slower services. So, I don’t remember the specifics of that day but I 247 ee ae lly 8 tei el ee aa . obviously got off in time to come out here to start my shift that evening and I do remember what building we were stationed in, we were over in Building 10 at that time. There were a lot of different rooms where they put the on call contract physicians but that’s where we were and I think it was an uneventful evening as well as the general physicals were concerned. I don’t remember if had one or two or three but nothing uneventful really sticks out in my mind. And then I remember the room where they had us stay and sleep there and just a usual night, went to bed at; not sure, maybe eleven or midnight, and then I remember much more clearly what happened after that just because of getting the call about Mr. Bellecourt. I remember it weil because, as I say, it’s unusual for us to get a call in the middle of the night to go out and see somebody, 248 especially a house call over in their quarters. So, so I remember that well. I just remember the phone going, ringing and waking up and taking a couple of moments to really figure out what was going on and realizing that I was being asked to go see a patient in another building. So I put on my scrub uniform and my jacket also because it was getting cool by then and it was raining outside. So I remember it was cold and wet and went with the security officers over to Building 2 and I don’t think I had ever been in there before. So, I needed them to show me around an where to go. Got in to an inmates room and I guess on the way they told me that there was an inmate having chest pain and that they needed me to evaluate. I said Sure and asked them, as I recall, to pull any records that were available on this gentlemen and I think I also maybe asked 249 sisi the nurses if if they knew of this gentlemen, if he had ever had any chest problems or chest pain or heart problems before and I don’t remember what the answer was, they either said no they didn’t think so or they’d have to pull the records. So I got over there and walked in to a small room with four bunk beds, two sets on each other and he was to the right side of the room, the patient was, in the lower bunk. And he was sitting up calm, just looking concerned but not in any acute distress of any sort. And then when I went in there I was flanked by probably two or three security officers and then as I recall one or two of his roommates, if not three of them, were in there, all in their bunks, just kind of awake looking at what was going on, so there were a number of people around. And, I just introduced myself as Dr. Wynne 250 that was there to see what was going on with his symptoms and I learned his name actually on the way over as “Mr. Bellecourt, and asked Mr. Bellecourt what he was experiencing and he mentioned that he was having some chest pain and that it was in the center of his chest and so obviously concerned that this might be a heart problem, that he was having some cardiac ischemia, I asked the...... K: What’s cardiac ischemia? W: That is a lack of blood flow to the heart muscle itself which probably the most common symptom, if somebody is going to have symptoms with that is, chest discomfort or chest pain. And obviously in the setting of chest pain of any sort, that is the most serious possibility that needs to be checked into and explored and ruled out. So having established that he was having some chest pain, I asked him 251 nena reniin tae Tiina ee the usual questions to further clarify the nature of the chest pain. And there is a series of questions that need .: be asked to see if the chest pain that the patient is having fits the usual description of heart pain, chest pain that’s due to not enough blood getting to the heart. K: Just, I hate to interrupt you, but can you go through the litany of these questions. W: I sure will. K: And then if you recall, what Mr. Bellecourt’s responses were. W: Yes, I remember the questions and I know that most of those questions answers are in my note that I wrote about him and I think that the answer to those questions are very important because I remember very clearly asking them to Mr. Bellecourt and just being more and more convinced that this really did not have much character or 252 quality at all of cardiac ischemia, not enough blood getting to his heart. I asked him had he ever had chest pain like this before. And he said that he had on several occasions in the past, um, but I asked him what typically brought on the chest pain, and a _ chest pain that typically is due to a heart problem, not enough blood getting to the heart, is brought on or made worse by exertion. Something that the body is doing to require more output by the heart. And he Said that never got this chest pain in the past when he exerted himself. In fact, I asked him about what he did in the way of exercise or exertion and he related that he regularly walked two to three miles per day at a rather fast pace and that he did that even that day that I had examined him, earlier on the 14th or 15th and that he had not had any of this type of chest 253 pain with that exertion and that he never did with exertion. But that the chest pain typically occurred after lying down, within twenty minutes of lying down to go to sleep. And one type of chest pain that can act that way, isn’t heart pain but rather a problem with stomach contents, acid in the stomach coming up into the esophagus, what we can gastroesophageal reflux, which typically is worse if somebody has eaten a snack or meal later at night and then lies down and then it can be relieved after Sitting up. And he related that often times his pain like that in the past, he would sit up and that would help. So, as far as. other questions, I asked him if it hurt worse for him to breathe in deeply. And as I have documented in my note, that definitely it did. It hurt worse to breathe in deeply. And that type of chest 254 pain that we described as _pleuritic, x meaning just that, that it is worse, the pain is, if somebody takes a deep breath in and that typically is not characteristic of cardiac pain either. That suggest more something with the lining of the lungs or some problems with their rib cage that it would hurt worse if somebody is taking a deep breath in or out. Other questions I asked him was, did he have any radiation of the pain, or movement, spreading of the pain into another part of his body and he said he did into his right arn. And certainly heart pain can move into the right arn, although less commonly than it does say into the left arm or to the neck. I asked him also if he had any associated nausea, vomiting, or sweating, which is typical sometimes of heart pain and he said no. I asked him if he had any shortness of 255 breath with the chest pain and he said that he did. But that can go along with heart pain or lung pain or chest wall pain, any of the number of chest pain. I asked him if he had ever had any heart problems before, ever been diagnosed with a heart attack or angina, which is chest pain due to heart pain and he said no that he never had any known cardiac or heart diagnoses. I asked him if he had ever tried anything medically for his chest pain such as antacids, thinking that it might be, as I say some acid coming back from his stomach into his esophagus, he said no he had never tried that nor had he tried any nitroglycerin or other heart medicines. So we didn’t have that history to help out. Asking him about his risk factors for heart disease, there is a set list of five or six risk factors that we ask about in patients that we are 256 oe concerned that might have a blockage of their arteries going to the heart causing chest pain, heart symptoms. And I went through that list with him and specifically he had no known history. High blood pressure, of diabetes, of family history, early heart disease, he was a smoker however, so that was one risk factor for coronary artery disease as well. So, I guess those are the bulk of the questions that I asked Mr. Bellecourt trying to get the character and the flavor of his pain and I guess at this point just hearing the story that it certainly was not classic for cardiac ischemia, that it was not heart pain, as my first diagnosis but as any internist knows, Cardiac ischemia, heart Symptoms, can present in a whole lot of different ways. As belly pain or just simply right or left arm pain and no chest symptoms at all. The 257 threshold or index of suspicion has to be low for looking at any symptom that might be heart pain as possibly being just that. So, with that in mind I wanted to do some more testing on him and I asked for some antacids and some nitroglycerin to try some therapeutic intervention to see if this chest pain either to the appropriate therapy for heart pain or gastroesophageal reflux, the acid pain in his esophagus. And as I say I was over in the Gp complex in Building 2 and neither of those medicines were available so I think one of the security officers radioed to the nurses over in Building 10 to bring some over and they either brought it over or one of them went over to get the antacid and the nitroglycerin. And in the meanwhile I did examine Mr. Bellecourt and noted a normal exam. Lung exam was normal. Heart exam was normal. No Signs 258 aaah teetalll of any heart failure, meaning the heart not putting out enough blood and fluids packing up into the lungs. And also importantly there was no sign of any chest wall inflammation. He had a history of chest pain being worse by breathing in and out which as I say raised the possibility of some chest wall inflammation, the ribs or the cartilages around the chest wall. And often times if that is the cause of chest pain, you can reproduce the chest pain by pushing in on the chest wall and the patient will say yes that’s exactly it the kind ofspain where they can direct you to where they are hurting. And I did that with Mr. Bellecourt and there were no particularly tender areas. So, that was helpful as well. I had less suspicion that he had a costral chondritis, an inflammation of the chest or ribs there. And then later what happened was within a 259 ee ON Se a ee Se ee eee nee eee _* aE: few minutes I had the antacid available and that was the first thing I tried. I gave him 60 milliliters, 60 cc of Naalox, I think I gave him 30 cc a time and asked him to drink that, he was sitting up, just waiting to see what the results were. And I should mention that early on in examining him I explained to him our 10- point pain scale which we often times ask patients to categorize their pain that they are having on a scale of 1-10. 0 being no pain and 10 being the worst pain they could imagine. We will ask them early on to grade their pain somewhere on that scale to get an idea if this patient is really having a lot of pain and they are just being stoic or if if in fact they’re not experiencing much pain, etc. So I asked him early on to grade his pain and I don’t remember the exact number but I remember it was not very high. I think 260 he told me it was about 3 or 4 on a 10- point scale. And I asked him what was it at it’s worst. I mean the pain had just Started. Oh, I think less than 10 minutes before I got there because they called me right away and he said it was in that same range as I revall, it wasn’t over 5. So, in my mind I knew that it wasn’t an excrutiating or severe pain that he had been having but probably more mild to moderate. And we waited for the initial dos. of antacids to help and as I recall about 3 to 5 minutes later asking him what he thought about the chest, he said that it had definitely helped and he said that the pain was down to about a 2 on the scale and that it had been relieved by about 50%. So that’s when I gave him the other dose of antacids and once again we waited another 3 to 5 minutes and at the end of that time he said that the pain was 261 Pi rene, aa BY Ca one Ler 8. That your Affiant, on Wednesday, September 21, 1988, prepared a draft completion of the Administration PF -dy Forms and accompanying narrative stat. nat of Clyde H. Bellecourt for review by Mr. Bellecourt and Larry Leventhal. 9. That your Affiant, on Wednesday, October 5, 1988, reviewed the office file to review the status of the Administrative Remedy forms, and on Monday, October 10, 1988, and again on Friday, October 14, 1998, reviewed the file to check the status of the Administrative Remedy forms and also called the client, Clyde H. Bellecourt, to determine if he had reviewed them. 10. That your Affiant, on October 25, 1988, typed the final version of Administrative Remedy forms -BP-DIR-9 and RCH 1330.7, and proofed the draft of the narrative statement by Clyde H. Bellecourt to be attached to the Administrative Remedy form BP-DIR-9. 11. That your Affiant, on November 9, 1988, meet with Larry B. Leventhal and added corrections to the narrative Statement of Clyde H. Bellecourt to be attached to form BP-DIR-9. 12. That your Affiant, on November 29, 1988, was called into Larry B. Leventhal’s office where he and Clyde Bellecourt were meeting and that Mr. Leventhal gave your Affiant the cover letter to Associate Warden Olson, the Administrative Remedy forms - BP-DIR-9 and RCH 1330.7 and narrative statement of Clyde Bellecourt to be attached to form BP-DIR-9. 301 accordingly, used "white-out# to change the date on the cover letter from wh 1988" to "29, 1988" as is reflected in the disparate type style for the numbers on the date of the cover letter. 13. That your Affiant On November 29, 1998, after preparing the letter, forms and statement for mailing, gave them to Lynn Solberg, Secretary, in order to have her complete the mailing. FURTHER YOUR AFFIANT SAYETH NOT. Dated this 19th day of February 19, 1988. LS/ Margaret A. Penn Subscribed to and Sworn to before me this 19th day of February, 1988. LS/ Notary Public 302 a aire rien ees andi re ‘ et oy Bot 4 UNITED STATES DISTRICT. court DISTRICT OF MINNESOTA FOURTH DIVISION Civil No. 4~89-828 Clyde H. Bellecourt, ) AFFIDAVIT or LYNN SOLBERG Plaintiff, Vv. United States of America, et Giu, ) ) ) ) ) ) ) ) Defendants. ) STATE OF MINNESOTA) ) ss. COUNTY OF HENNEPIN) LYNN SOLBERG, being first duly Sworn on oath, States and alleges as follows: 1. That your Affiant is a Legal Secretary and has worked in said Capacity within the law Office of Larry Leventhal ¢ Associates Since August 2, 1988, Your Affiant is currently employed in this position with mr. Leventhal. 303 2. That as legal secretary ina small office your Affiant’s duties are varied and include typing of documents, photocopying, answering telephones, receiving mail, responsibility for mailing outgoing mail, and certain aspects of office management. Bs In November of 1988 there were three (3) attorneys working within the office of Larry Leventhal & Associates, these were Larry B. Leventhal, Margaret Penn, and Janice Frankman. Your Affiant was the sole secretary in the Office and was responsible with all aspects of secretarial duties for Larry Leventhal and Janice Frankman, part-time help was available and had responsibility for bookkeeping and billing activities. Margaret Penn was familiar with the word processing system used in the Office and 304 thus would prepare most .of her own correspondence, memorandum, and drafts. 4. That your Affiant is well acquainted with Clyde Bellecourt, the Plaintiff herein, as mr. Bellecourt has been in our office on many occasions both in connection with this action and in connection ‘with various activities and Organizations he is affiliated with in the American Indian community, as to which our office hac, rendered legal services. 5. Your Affiant was aware that in November 1988 a draft of a proposed Request for Administrative Remedy was Prepared by our office for review by Clyde Bellecourt. To the best of your Affiant’s recollection, the draft narrative associated with the Proposed submittal was typed by Margaret Penn, while your Affiant typed the cover letter addressed to Associate Warden Olson of the Federal 305 Oe Medical Center at Rochester. - The draft of the original letter was dated November 9; 1988. 6. Your Affiant remembers mr. Bellecourt being present in our office several weeks after the draft letter was initially typed. Your Affiant recalls that at that time mr. Leventhal expressed the belief that the administrative Submittal should be completed and stated that he had reviewed the draft with Clyde Bellecourt and made certain additions and corrections to the draft to the draft of the narrative. The draft with corrections was seen by your Affiant and is attached to the Affidavit of Larry Leventhal. your Affiant remembers that changes in the narrative on the computer program were completed by Margaret Penn. 7. Margaret Penn made inquiry of your Affiant as to where in the 306 computer programming the draft letter originally dated November 9, 1988 to the Associate Warden at the Federal Medical Center, Rochester, was located. Your Affiant checked certain listings for Ms. Penn and was unable to advise as to where, on the computer disk the letter was situate. Your Affiant recalls Ms. Penn Stating that there were no changes other than the date, and that the date could be amended by the use of white out and the typewriter. Your Affiant observed Ms. Penn completing this process. 8. Your Affiant remembers joking around somewhat with Ms. Penn concerning her alignment of the date line on the original letter. 9. After the Request’ for Administrative Remedy was revised and printed, your Affiant was given the documents by Ms. Penn, and asked to make 307 Photocopies of the same. Your Affiant was | informed that several photocopies were needed for our file, and further that a photocopy should be sent to Mr. Bellecourt as he had to leave our office before a copy could be prepared for him. 10. Your Affiant photocopied and prepared the envelopes for mailing. It is your Affiant’s belief that manila envelopes with labels were used in this mailing, as your Affiant usually did not fold documents that she believed to have particular legal Significance. 11. Your Affiant prepared the envelope for mailing, using the name and address that appeared on the _ redated correspondence. The address was prepared as follows: Associate Warden (Programs) Federal Medical Center, Rochester U.S. Department of Justice Federal Bureau of Prisons Rochester, MN 55901 308 The label was Specified as being to the attention of Associate Warden Olson. 12. Your Affiant following photocopying, would have weighed the envelope in question on the postage scale we have and affixed the Proper postage, as such was and is the common practice of our office. 13. The envelope addressed to the Associate Warden, (Programs), of the Federal Medical Center, Rochester would have been placed in the Out-going mail tray where mail is Situated until it is Placed in the mailbox in front of the building. It was and is your Affiant’s practice to carry mail with her when she leaves the office, and to deposit the same in the mailbox in front of the Sexton Building located at 529 South 7th Street in Minneapolis. In instances where your Affiant Stays late at the office, past the 309 PR PE le > | 2 pick-up time of 5:00 p.m. your Affiant takes all mail that is ready for mailing to the mail box, shortly prior to 5:00 P-m., to assure its pick-up. 14. Your Affiant has an independent recoliection of mailing the Administrative Claim in question, as your Affiant recalls mr. Leventhal making inquiry as to whether such mailing was accomplished and your Affiant assuring him tha. it was. 15. Your Affiant is certain that the above mailing occurred on November 29, 1988. Your Affiant has examined the office files and correspondence dated November 29, 1988, with the original printing of the correspondence in the file specifying November 9, 1988, upon which the handwriting of Margaret Penn is affixed noting the revised date to be the "29th", 310 Oe aS IONS FURTHER YOUR AFFIANT SAYETH NOT. Dated: : S/S/ Lynn Solberg Subscribed to and sworn to before me this day of , 1991. L8/ Notary Public 311 UNITED STATES DISTRICT. COURT DISTRICT OF MINNESOTA FOURTH DIVISION Civil No. 4-89-828 Clyde H. Bellecourt, Plaintiff, ) ) | ) AFFIDAVIT OF ) LARRY B. LEVENTHAL ) ) ) ) ) Ve United States of America et al., Defendants. STATE OF MINNESOTA) ) COUNTY OF HENNEPIN) LARRY B. LEVENTHAL, being first duly sworn on oath, states and alleges as follows: ? That your Affiant is an attorney at law, duly licensed to practice law within the State of Minnesota and admitted to this Court. EN fo AP 2. That your Affiant is one of the attorneys for Plaintiff, Clyde Bellecourt, in the above Captioned matter. Jaa iat @ ies as en. 9 That since this action was filed, your Affiant has periodically attempted to locate a physician with experience and/or a specialty in the treatment of cardiac problems. Your Affiant has spoken to at least eleven (11) such specialists, as compiled within your Affiant’s notes. In each instance, your Affiant, verbally outlined to the respective physician, the background of Plaintiff’s claim associated with initial lack of diagnosis or treatment of his heart attack on September 16, 1987. your Affiant was informed by all or virtually all of the doctors, until speaking with Dr. Russell Vincent Luepker, that the respective doctor did not care to become involved in offering testimony in a public manner against another physician. At least three (3) physicians respectively advised your Affiant that they would not 333 ee wish to participate as an expert witness, as to actions of another physician, in a matter that would involve a well known person, such as Clyde Bellecourt. At least two (2) of the physicians advised your Affiant that they believed that such a case would receive a great deal of publicity, and that they would not wish to be associated with such publicity. 4. In addition to the physicians specified in the preceding paragraph, your Affiant attempted to contact several other physicians with a specialty in cardiology concerning potential availability as an expert witness and either spoke with a secretary or left a message on an answering machine as to the purpose of your Affiant’s call, but did not receive a return call. S. That it is your Affiant’s view that the difficulty of finding an 314 expert witness arose largely from the Plaintiff’s status as being a publicly known and well recognized individual, and that such provides reasonable excuse for failing to comply with the specified time limits in Minn. Stat. 145.682. 6. On or about January 10, 1991, the Federal Defendants filed a motion in this matter seeking an order directing Plaintiff to comply with the requirement of filing an expert affidavit within 10 days of a hearing then scheduled for January 24, 1991. Shortly thereafter, your Affiant was advised by Assistant United States Attorney Lonnie Bryan that the motion was being canceled and Mr. Bryan asked your Affiant if he would be able to provide the expert affidavits and answer the interrogatory questions associated with expert testimony in the 315 near future. Your Affiant stated that he would be directing great effort to do so. 7. On January 23, 1991, your Affiant spoke with Dr. Russell Vincent Luepker who is with the School of Public Health at the University of Minnesota and a Professor of Epidemiology in Medicine at the School of Public Health and Medical School of University of Minnesota. Dr. Luepker indicated that he would be willing to review available medical records, and thereafter speak to your Affiant, concerning the possibility of his service aS an expert witness in this matter. your Affiant wrote to Dr. Luepker on January 24, 1991, and sent to him copies of available medical records. On January 26, your Affiant again spoke with Dr. Luepker by telephone. In a subsequent telephene conversation of January 29, 1991 br. Luepker agreed to serve as an expert 316 witness in this matter. An appointment was made by your Affiant to meet with Dr. Luepker on February 5, 1981. Defendants’ motions in this matter were served on January 3i, and February 1, 1991 respectively. 8. The Affidavits of Expert Review as set forth in Minn. Stat. $145.682 were prepared by your Affiant and served upon counsel for the Defendants on February 7, 1991. These Affidavits are attached hereto as Exhibit a and Exhibit B, respectively. o. Following your Affiant’s meeting with Dr. Luepker, your Affiant revised the answers by Plaintiff to the Interrogatories of Defendants to provide requested information on the views and background of Plaintiff’s expert witness. Plaintiff’s Amended Answers to the 317 Interrogatories of Defendants are attached hereto and identified as Exhibit C. 10. It is your Affiant’s belief after reviewing facts, circumstances, and caselaw available to your Affiant, that expert testimony is not necessary to establish a prima facie case in this matter. The contention of Plaintiff as to medical neglect is, that he reported sharp chest pains and shortness of breath, along with his belief that he was having a heart attack, to the physician at the Federal Medical Center, Rochester, who was attending to medical needs of. prisoners. Further Plaintiff asserts he requested an electrocardiogram and that nothing was done for him except that he was given antacid. Should a jury believe these facts, an expert’s opinion as to the propriety of testing for a heart attack when such symptoms are reported and/or 318 affording prompt treatment in such circumstances, is not, in your Affiant’s view, necessary for prima facie case. 11. The affidavits specified by Minn. Stat. §145.682 were prepared and served, and a motion for expansion of time filed, out of a desire to most thoroughly protect the-interests of Plaintiff rather than through any belief that expert testimony is necessary to present a prima facie case. 12. Your Affiant does not believe that late filing the aforementioned affidavits is prejudicial to Defendants. All the Defendants, until several months ago were represented by the Office of the United States Attorney, and the United States at all times has had, to your Affiant’s belief, full and total access to all medical and administrative records associated with Plaintiff during 319 the period of his incarceration which continued until approximately 8 months following his heart attack. Further discovery cutoff is not scheduled until June 1, 1991, thus permitting more than adequate time for full discovery procedures to be utilized by Defendants as to expert testimony as with other aspects of this case. 13. The date for discovery cutoff was stipulated to by counsel for all parties with this Court issuing an Order providing for a discovery cutoff of June 1, 1991. A copy of this Order is attached hereto as Exhibit p. 14. Margaret Penn, an attorney who formerly practiced with your Affiant, communicated, both in writing and by telephone, with officials of the Federal Medical Center, Rochester and Federal] Bureau of Prisons concerning’ their 320 a yd ee mh eH) E [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0594%3A2. Public record. Not legal advice.