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Weaver v. United States

United States District Court, S.D. Mississippi, Northern Division

August 9, 2018

MARCUS WEAVER PLAINTIFF
v.
UNITED STATES OF AMERICA, ANTHONY CHAMBERS, “UNKNOWN” HUDSON, ROBERTO MARTINEZ, JEFFERY LEE HO, SCOTT MOATS, TED WALL, “UNKNOWN” NATAL, and J. RATLIFF DEFENDANTS

          REPORT AND RECOMMENDATION

          JOHN C. GARGIULO, UNITED STATES MAGISTRATE JUDGE

         BEFORE THE COURT is the Complaint (ECF No. 1) filed pro se by Marcus Weaver, who at the time he filed his Complaint, was a postconviction inmate in the custody of the Federal Bureau of Prisons. He has since been released. Weaver alleges that, while he was incarcerated, he was subject to medical malpractice and cruel and unusual punishment because prison medical providers failed to diagnose his Herpes Simplex Virus until approximately four years after he first complained of testicular pain. Defendants have filed a Motion to Dismiss, or in the Alternative, Motion for Summary Judgment. (ECF No. 57). In response, Weaver filed a Motion for Summary Judgment (ECF No. 67) and a Motion to Change Venue (ECF No. 71).

         Having considered the Motions, the record, and relevant law, the undersigned United States Magistrate Judge concludes that Defendants' Motion to Dismiss, or in the Alternative for Summary Judgment should be GRANTED IN PART AND DENIED IN PART, Weaver's Motion for Summary Judgment should be GRANTED IN PART AND DENIED IN PART, and Weaver's Motion to Transfer Venue with respect to the claims against the out-of-state-medical providers should be GRANTED. Weaver's FTCA medical malpractice claims should be dismissed on summary judgment because Weaver has not provided expert medical testimony in support of these claims. The constitutional Bivens claims against out-of-state medical providers should be severed and transferred to the United States District Court for the Central District of Illinois, where the events or omissions underlying these claims occurred. Weaver should be allowed more time to serve the in-state medical providers because he is proceeding in forma pauperis and entitled to rely on Court officers to effect service of process on his behalf.

         BACKGROUND

         A. Factual History

         In 2007, Weaver was sentenced to 151 months' imprisonment with three years of supervised release for bank robbery. (ECF No. 57-2, at 1). Weaver contends that he first complained of testicular pain to Dr. Roberto Martinez in May 2011, while he was housed at the Federal Correctional Institution in Yazoo City, Mississippi (FCI Yazoo). (ECF No. 30, at 18). Dr. Martinez purportedly instructed Weaver to take ibuprofen. Id.

         In July 2011, Weaver sought out Dr. Martinez in regard to his testicular pain. Id. at 19. Dr. Martinez was on vacation at the time, so Weaver was examined by Dr. Norma Natal and Nurse Jeneen Ratliff. Id. Weaver articulated his concerns over the “white papules, redness, discoloration, and lesions” on his genitalia, and Dr. Natal prescribed Podophyllum, which Weaver submits is a medication to treat genital warts. Id. at 19-20. Dr. Natal and Nurse Ratliff refused to provide pain medication or schedule Weaver for additional testing. Id. at 20.

         Weaver demanded to see Dr. Anthony Chambers, whom he asserts was the “chief doctor” at FCI Yazoo. Id. Weaver was seen by Dr. Chambers and nurse Natasha Hudson. Dr. Chambers recommended ibuprofen and prescribed antibiotics. Id. Dr. Chambers ordered that Weaver be tested for syphilis and gonorrhea. Id. Weaver describes Dr. Chambers' actions in ordering testing as “cosmetic” and “a transparent effort to avoid culpability.” Id.

         After the examination by Dr. Chambers, Weaver maintains that he submitted countless complaints to staff about “[a] burning sensation and pain in [his] penis[.]” Id. at 21. Nurse Ratliff directed Weaver to “[p]urchase ibuprofen and return in 1-week.” Id. Weaver submits that his genitals were “extremely sensitive” over the next week. Id. He alleges that all medical personnel refused to treat him or even speak to him until Dr. Martinez returned from vacation. Id. Upon Martinez's return, Weaver contends that Dr. Martinez examined him and advised him that he had “nothing to worry about[.]” Id. at 21-22.

         According to Weaver, he submitted numerous requests for sick-call visitation during the period from September 2011 through March 2012. Id. at 22. Weaver contends that he repeatedly informed Defendants that he was experiencing “pain . . . burning, lesions, ulcers, and blisters.” Id. Weaver asserts that the FCI Yazoo Defendants ignored his requests for medical treatment. Weaver submits that when he was examined for other medical conditions, these Defendants “literally ignore[d]” his concerns regarding his genitalia. Id. at 22-23.

         At some point, Dr. Martinez tested Weaver for Herpes Simplex Virus. Id. at 23. Dr. Martinez allegedly informed Weaver that the test came back negative. Id. at 24. Weaver submits that the results were either misread or inaccurate. Id. Weaver claims that, despite the appearance of innumerable symptoms, he received no further medical testing while housed at FCI Yazoo. Id.

         In July 2012, Weaver was transferred to the Federal Correctional Institution in Pekin, Illinois (FCI Pekin) and remained there throughout 2013. Id. Dr. Jeffery Lee Ho medically screened Weaver upon his arrival. Id. at 24-25. Weaver described his symptoms to Dr. Lee Ho and told Dr. Lee Ho that he needed two more doses of Podophyllum. Id. at 25. Dr. Lee Ho ordered this medication but did not order additional testing or refer Weaver to an outside specialist. Id. Weaver maintains that he continued to experience “pain, ulcers, blisters, lesions, and burning of genitalia[.]” Id. He contends that he relayed these symptoms to Scott Moats, Nurse Ted Wall, and Dr. Lee Ho, but these Defendants did not diagnose or treat him properly. Id.

         Weaver was transferred to the United States Penitentiary in Marion, Illinois (USP Marion) in 2014. (ECF No. 12, at 3). He was tested in 2014 for Hepatitis B and C, and for HIV, but was not tested for Herpes Simplex Virus. Id. at 3-4. In March 2015, Weaver had outbreaks of lesions and warts in his genital region. Id. at 4. Weaver alleges he sent a series of email requests to medical staff between March to September 2015 requesting medical treatment but was told to buy pain medication from the prison commissary. Id. at 4.

         On April 2, 2015, Ferando Castillo, a physician's assistant at USP Marion, informed Weaver that he was infected with Herpes Simplex Virus-2 (HSV-2). Id. Castillo noted that the severity of Weaver's lesions, redness, and pain could have resulted from the long period of time that HSV-2 was not treated. Id. Weaver alleges that, due to the four-year delay in correctly diagnosing him, his immune system is weakened, and he is prone to infections. Id. Weaver maintains that he was forced to quit his prison job due to severe pain. Id.

         B. Procedural History

         On March 15, 2016, Weaver filed a Complaint in the United States District Court for the Southern District of Illinois. (ECF No. 1). Weaver advanced medical malpractice claims under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346, against various medical providers at FCI Yazoo, FCI Pekin, and USP Marion. He also alleged Eighth Amendment violations under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) against these medical providers.

         The Southern District of Illinois screened Weaver's claims under 28 U.S.C. § 1915(a). The Southern District of Illinois dismissed the FTCA medical malpractice claims lodged against the individual defendants because the United States is the only proper defendant to an FTCA claim. (ECF No. 12, at 5-6) (citing 28 U.S.C. § 2679(b) and FDIC v. Meyer,510 U.S. 471 (1994)). The Southern District of Illinois allowed the FTCA medical malpractice claims to proceed against the United States for the incidents or omissions arising at FCI Yazoo, finding that the claims passed threshold review. Id. at 7. The FTCA medical malpractice claims based on the events or omissions at FCI Pekin were dismissed because Weaver did not submit a personal affidavit and written report from a qualified health professional that is required under Illinois law to file a complaint ...


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