United States District Court, S.D. Indiana, Terre Haute Division
ENTRY GRANTING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT AND DIRECTING ENTRY OF FINAL JUDGMENT
JANE MAGNTTS-STINSON UNITED STATES DISTRICT COURT CHIEF
reasons explained in this Entry, the defendant's motion
for summary judgment [dkt. 33] is granted.
plaintiff in this Federal Tort Claims Act
(“FTCA”) action is Jerry Lee Ward (“Mr.
Ward”). The defendant is the United States of America.
Mr. Ward alleges in his complaint that the defendant United
States of America was negligent in failing to provide proper
follow-up treatment for his fractured right eye orbit and
other contusions while he was incarcerated at the FCI-Terre
Haute. He seeks compensatory damages.
specifically, Mr. Ward alleges that Bureau of Prisons
(“BOP”) medical staff was negligent by (1)
failing to bring him back to the hospital for surgery in the
time frame requested by an emergency room doctor, and (2)
failing to give him a second MRI to see how his face healed.
He further contends that, because of this negligence, he
experienced misalignment of his face, nerve pain and
irritation, and stress.
defendant seeks resolution of Mr. Ward's claims through
the entry of summary judgment. Mr. Ward has not opposed the
Summary Judgment Standard
judgment is appropriate if “the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A dispute about a material fact is
genuine only “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). If no reasonable jury could find for the non-moving
party, then there is no “genuine” dispute.
Scott v. Harris, 127 S.Ct. 1769, 1776 (2007).
noted, Mr. Ward has not opposed the motion for summary
judgment. The consequence of his failure to do so is that he
has conceded the defendant's version of the facts.
Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003)
(“[F]ailure to respond by the nonmovant as mandated by
the local rules results in an admission.”);
Waldridge v. American Hoechst Corp., 24 F.3d 918,
921-22 (7th Cir. 1994). This does not alter the standard for
assessing a Rule 56(a) motion, but does “reduc[e] the
pool” from which the facts and inferences relative to
such a motion may be drawn. Smith v. Severn, 129
F.3d 419, 426 (7th Cir. 1997).
following statement of facts was evaluated pursuant to the
standards set forth above. That is, this statement of facts
is not necessarily objectively true, but as the summary
judgment standard requires, the undisputed facts and the
disputed evidence are presented in the light reasonably most
favorable to Mr. Ward as the non-moving party with respect to
the motion for summary judgment. See Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 150 (2000).
Ward was incarcerated at FCI Terre Haute from June 2011
through May 2016. On July 27, 2013, he was in the recreation
yard when he was hit in the right side of his face by a
softball. Mr. Ward was brought to Health Services via
wheelchair. Mr. Ward reported to RN Corey Pointer that he did
not pass out, but that he did fall. There was swelling noted
to Mr. Ward's right cheek and around his right eye and
two minor abrasions to his right cheek below the eye. Mr.
Ward complained of right jaw pain and stated that it felt as
if his right side teeth were pushed in. He had a nose bleed
and was alert and oriented times three. Mr. Ward also
complained of severe pain when the right side of his face was
touched, especially around the right eye. Mr. Ward was sent
to the emergency room at a local hospital, Union Hospital in
Terre Haute, Indiana, via government vehicle to rule out
hospital, Mr. Ward was diagnosed with right-sided facial
fractures. It was recommended that he continue to apply ice
to his injuries, take pain medication and basic antibiotics
as directed, and follow up with an ear, nose, and throat
specialist (“ENT”). A CT scan revealed comminuted
fractures of the right orbit and a non-displaced zygomaticus