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Duverge v. United States

United States District Court, D. Connecticut

February 23, 2018



          Joan Glazer Margolis, United States Magistrate Judge.

         On December 7, 2010, plaintiff Charlotine Duverge, who was an inmate at Federal Correctional Institution in Danbury, Connecticut ["FCI Danbury"][1] 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.[2] 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).

         On 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).[3] 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.


         The 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.

         On May 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.[4] 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 the floor.”

         According 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.

         Plaintiff 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.”

         According 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.

         Norman 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.

         According 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.

         Plaintiff 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 337).

         On June 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.).[5] 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.).

         Plaintiff continued to complain of pain during her next sixteen months at FCI Danbury.[6] 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).

         On 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).

         Plaintiff was transferred to FCI Waseca in early October 2009.[7] She continued to complain of pain in her right shoulder, knee and foot.[8] 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 804).[9]

         Plaintiff's pain did not subside following her release from FCI Waseca in 2012.[10] 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).[11] 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 ...

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