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Ward v. United States

United States District Court, S.D. Indiana, Terre Haute Division

March 29, 2017

JERRY LEE WARD, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          ENTRY GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DIRECTING ENTRY OF FINAL JUDGMENT

          HON. JANE MAGNTTS-STINSON UNITED STATES DISTRICT COURT CHIEF JUDGE.

         For the reasons explained in this Entry, the defendant's motion for summary judgment [dkt. 33] is granted.

         I. Background

         The 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.

         More 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.

         The defendant seeks resolution of Mr. Ward's claims through the entry of summary judgment. Mr. Ward has not opposed the motion.

         II. Summary Judgment Standard

         Summary 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).

         As 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).

         III. Discussion

         A. Undisputed Facts

         The 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).

         Mr. 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 orbital/facial features.

         At the 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 ...


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