United States District Court, D. Connecticut
MEMORANDUM OF DECISION
Glazer Margolis, United States Magistrate Judge.
December 7, 2010, plaintiff Charlotine Duverge, who was an
inmate at Federal Correctional Institution in Danbury,
Connecticut ["FCI Danbury"] at the time the allegations
in her complaint occurred, commenced this action pro se under
the Federal Tort Claims Act ["FTCA"], 28 U.S.C.
§ 2671, alleging injuries arising out of treatment by
her counselor following an asthma attack on May 4, 2008, and
the medical treatment received thereafter. (Dkt. #1).
Familiarity with the extensive litigation history of this
case, and specifically with this Court's thirty-five page
Ruling on Defendant's Motion for Summary Judgment, filed
on October 31, 2017 (Dkt. #132), 2017 WL 4927658
[“October 2017 Ruling”] is
presumed. Following this Court's October 2017
Ruling, 2017 WL 4927658, at *9-18, and the Ruling on
Defendant's Motion in Limine and Order Regarding
Plaintiff's Request for Issuance of Subpoenas (Dkt.
#150), 2018 WL 619497, at *2, 3, 5, the issues remaining in
this case are limited to plaintiff's claim of negligence
under the FTCA arising out of the injury she claims she
suffered to her right shoulder, right knee, and right foot.
(See also Dkt. #144, at 3-4).
February 12, 2018, a bench trial was held before this
Magistrate Judge, at which plaintiff, Norman Reid, and Dr.
Tiffany Sanders testified. (Dkt. #162-63). For the reasons
set forth below, judgment shall enter in favor of
defendant in that plaintiff has failed to satisfy
her claim for negligence under the FTCA.
following constitutes this Court's findings of fact
pursuant to Fed.R.Civ.P. 52(a). On May 4, 2008, the date of
the incident that is the subject of this lawsuit, plaintiff
was incarcerated at FCI Danbury. Plaintiff testified that she
was convicted of identity and bank fraud in 2005, and began
her serving her sentence at the Danbury prison camp within
FCI Danbury on March 3, 2006. From March 3, 2006 until May 4,
2008, plaintiff did not have any medical problems other than
asthma, diabetes and high blood pressure; she received
medication for these conditions.
4, 2008, plaintiff was informed by her counselor, Keisha
Perkins, that she was to move from her basement unit to Room
5 which was located on the upper level of the split level
facility. The upper and lower levels of the facility are
separated by approximately ten to twelve stairs. Plaintiff,
with the assistance of two other inmates, carried her
personal items that she had purchased from the commissary,
along with her mattress and uniform, from her basement unit
to Room 5. After plaintiff arrived in Room 5, she learned
that there was another inmate in her assigned lower
bunk. According to plaintiff, that inmate had
just come from the hospital so she could not move from that
bunk. Plaintiff left her items in Room 5 and went down the
hall to Counselor Perkins' office to inform her of the
“problem” with moving into Room 5. According to
plaintiff, Counselor Perkins told her to go to Room 9
instead. Plaintiff returned to Room 5, gathered her items,
and relocated to Room 9. When plaintiff arrived at Room 9
with all of her personal items, another inmate informed her
that she could not use Room 9 because it was a “show
room” used when the facility was
“inspected” by “people from
Washington.” Plaintiff was told that she had “too
much stuff” to be in that room. Accordingly, plaintiff
returned to Counselor Perkins to report that this second room
assignment did not work either. When plaintiff arrived at
Counselor Perkins' office, she could not breathe because
she had walked back and forth from several rooms. According
to plaintiff, Counselor Perkins told plaintiff to leave her
office because Counselor Perkins was not a “PA”
and thus could not help plaintiff. Plaintiff testified that
although she could not speak, she tried to tell Counselor
Perkins that she could not breathe because Counselor Perkins
kept “moving” her around the facility. Plaintiff
left Counselor Perkins' office and walked about fifty to
one hundred feet to the phone bank with the intention of
calling her family. She was able to reach a telephone, but
when she picked up the receiver, she was unable to dial the
phone number because she was shaking and could not breathe.
Another inmate came out of the kitchen, which was located
nearby, and asked plaintiff what was wrong. At that moment,
plaintiff “just passed out.” She fell to the
floor and the inmates nearby screamed, “Duverge is on
to plaintiff, Counselor Perkins then came out of her office
and approached plaintiff, who was laying flat on the floor.
Plaintiff testified that Counselor Perkins then pulled on
plaintiff's arm and shoulder to try to sit her up from a
lying position. Plaintiff testified that she “can't
say” that Counselor Perkins was trying to hurt her, but
rather, Counselor Perkins was just trying to sit her up.
testified that she felt pain in her right arm but that she
could not tell whether the pain was from Counselor Perkins
pulling on her arm, or whether the pain was from her fall.
Plaintiff also testified that she is not sure if her
“shoulder was torn by [Counselor Perkins] pulling [on
her arm] or [whether it was the caused] by the fall.”
to plaintiff, Counselor Perkins then said to her,
“you're just mad because I moved you.”
Plaintiff could not respond because she could not breathe.
Reid, who at the time of this incident was an Activity
Lieutenant at FCI Danbury, testified that when he arrived at
the telephone bank, there was an officer already there and
plaintiff was laying on the floor saying that she needed to
see medical. Lieutenant Reid did not see Counselor Perkins
“tug” on plaintiff's shoulder. According to
Lt. Reid, if a BOP employee had “tugged” on the
shoulder of an inmate, Lt. Reid would have reported such
action as a use of force by a staff member towards an inmate;
however, he did not make such a report.
to plaintiff, PA Parella then arrived and assisted plaintiff
to her feet. She went back to her basement unit. The next
day, while she was at Bible Study, she was notified that her
name was being announced. She was informed by FCI Danbury
staff that she would be escorted to Danbury Hospital. At the
hospital, x-rays were taken of plaintiff's right
shoulder, which revealed “[n]o acute pathology.”
(Joint Exh. 4, Bates No. 462). Plaintiff testified that she
was given pain medication and she returned to the Danbury
camp after midnight.
was seen by Dr. Tiffany Sanders at FCI Danbury on May 29,
2008, at which time she had limited active and passive range
of motion in her right shoulder, and complaints of pain with
abduction past forty-five degrees. (Id., Bates No.
336-37). Dr. Sanders' medical notes reflect:
“[plaintiff] states ER doc told her she would need
surgery.” (Id. at 336). Plaintiff, however,
denies that she said that. After reviewing plaintiff's
x-rays, Dr. Sanders “discussed with [plaintiff that]
surgery would not be indicated as there was no fracture or
dislocation.” (Id.). Dr. Sanders questioned
whether plaintiff had “some minor malingering, ”
and she opined that it was “likely ok to [discharge]
sling [sic] post orthopedic visit[.]” (Id. at
6, 2008, plaintiff reported continued pain in her right
shoulder and right elbow. (Id. at 453, 466).
Plaintiff was seen by Dr. Mullen, an orthopedist at FCI
Danbury. (See id.). Dr. Mullen and Dr. Sanders noted
that x-rays taken of plaintiff's right shoulder were
negative, and there was no swelling.
(Id.). Dr. Mullen also noted that plaintiff was
“unable/unwilling to move [her] arm.”
(Id.). Three days later, on June 9, 2008, Dr.
Sanders ordered an MRI of plaintiff's right shoulder.
(Id. at 335). The MRI results revealed a
“small amount of bursal surface signal toward the
musculotendinous junction of the supraspinatus, consistent
with fraying, minor partial thickness tearing.”
(Id. at 461). Additionally, the “acromion
process [was] somewhat hooked in morphology but there [was]
no subacromial enthesophyte or subacrominal subdeltoid
bursitis”; the “biceps long head tendon [was]
intact”; and there was “[n]o labral tear . . .
detected.” (Id.). The impression was
“[b]ursal surface fraying or minor partial thickness
tearing of the supraspinatus tendon[, ]” and
“[h]ooked acromion process[.]” (Id.).
continued to complain of pain during her next sixteen months
at FCI Danbury. On August 1, 2008, she received an
orthopedic consultation by Dr. Mullen, who noted that
plaintiff's MRI did not show an acute injury, and that
plaintiff was “getting better[.]” (Id.
at 465). Dr. Mullen also noted that plaintiff had “good
passive [range of motion]” and no swelling, and was
diagnosed with right shoulder
“impingement/bursitis[.]” (Id.). She was
seen for another orthopedic consult in October 2008, at which
time her range of motion was “better, although [she
was] still giving poor effort.” (Id. at 464).
December 19, 2008, plaintiff was seen for another orthopedic
consult with Dr. Mullen (Joint Exh. 4, Bates No. 463); the
orthopedist found decreased range of motion in her right
shoulder, but also questioned “poor effort”;
plaintiff had mild swelling in her lateral foot; plaintiff
was diagnosed with mild bursitis and right peroneal
tendinitis. (Id.). On December 24, 2008, Dr. Sanders
ordered over the counter NSAIDs and a right ankle brace for
plaintiff. (Id. at 392). Dr. Sanders testified,
however, that she could not recall if she prescribed an ankle
brace for plaintiff. On March 27, 2009, Dr. Mullen
administered a cortisone injection into plaintiff's right
foot and prescribed NSAIDs for pain. (Id. at 452).
was transferred to FCI Waseca in early October
2009. She continued to complain of pain in her
right shoulder, knee and foot. On December 31, 2009, plaintiff
underwent an x-ray of her right foot, the results of which
were “[n]egative[.]” (Joint Exh. 5, Bates No.
651). As Dr. Sanders testified, on June 28, 2011, plaintiff
again underwent radiology imaging of her right shoulder, the
results of which were negative. (Id. at 767). On
November 17, 2011, plaintiff received two injections in her
right shoulder for pain. (Id. at 811). For the
remainder of her time at Waseca, plaintiff continued to
complain of muscle weakness, numbness and pain due to her
“torn shoulder[.]” (See id. at
pain did not subside following her release from FCI Waseca in
2012. Following her release, plaintiff was
treated by Dr. Rebecca Berman at a subsidiary of
Massachusetts General Hospital (see Joint Exh. 6,
Bates No. 184-87). In a medical note dated November 27,
2012, Dr. Berman recited that plaintiff's pain resulted
from a fall in 2008 when plaintiff
had a syncopal episode while being arraigned in court. She
had a brief [loss of consciousness]. . . . She went to the
[emergency room], where no imaging was obtained. She had
fallen on her right shoulder and right knee. Subsequent MRI
of the knee showed small tear ...