Free Motion for Summary Judgment - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

PAUL K. CHARLTON United States Attorney District of Arizona NINA J. RIVERA Assistant U.S. Attorney Arizona State Bar No. 5938 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 Facsimile: (602) 514-7760 E-Mail: [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Etop Morgan Ekwere, Plaintiff, v. Tracy Branch; Doctor Luiz Rodriguez; Denise Williams; United States of America, Defendants. Defendant United States hereby submits its Statement of Facts in Support of its Motion for Summary Judgment in the above-captioned proceeding based on plaintiff's failure to file his administrative claim under the Federal Tort Claims Act within two years of when it accrued. 1. Plaintiff is a 49 year old Nigerian male, who was detained at the Bureau of CIV-04-0094-PHX-DGC (JI) DEFENDANTS' STATEMENT OF FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Immigration and Customs Enforcement (hereinafter "BICE"), Florence Processing Center beginning on March 12, 2001. Plaintiff alleges that the BICE Medical Unit in Florence delayed referral to an ophthalmologist to treat his eye problems despite his requests for referral for treatment. Plaintiff alleges in his Complaint that the occurrences where this was denied "transpired between March 14, 2001 and April 13, 2001." Plaintiff's Complaint, C. Cause of Action, Count II (cont'd) Sec. 3 Supporting Facts, ¶ 3. 2. Plaintiff stated in his deposition taken on September 20, 2005, that the complained

of conduct (delay in referral) occurred between March and April 2001. Exhibit A, Deposition of Etop Morgan Ekwere p.40 lines 1-23.

Case 2:04-cv-00094-DGC-JRI

Document 42

Filed 12/13/2005

Page 1 of 4

1

3.

On March 14, 2001, plaintiff was screened at the BICE Medical Unit in Florence.

2 Plaintiff was assessed by Lt. J.G. Kim Ferris on March 14, 2001, who noted a history remarkable 3 for untreated hypertension for 5 years. A physical was performed which revealed a refractive 4 error with visual acuity of 20/100 OD and 20/50 OS, and mildly elevated blood pressure. 5 Medication was started for hypertension. In the intake screening process documents, there is no 6 subjective history from the plaintiff as to a history of eye problems. Exhibit B, BICE Medical 7 Records EKW.PHS 00002, 00118-00120, 00117, 00116, 00091, 00006. 8 4. On March 19, 2001, plaintiff presented to the BICE Medical Unit with a complaint

9 of headache and nasal congestion and gave a history which included a history of "eye problems 10 for years." Exhibit C, BICE Medical Records EKW.PHS 00091-00090. 11 5. On April 13, 2001, plaintiff again presented to the Medical Unit for follow up of

12 previously diagnosed mild hypertension. He complained of poor vision on that visit, and a 13 consult to an ophthalmologist was requested. Exhibit D, BICE Medical Records EKW.PHS 14 00086-00087. 15 6. On April 23, 2001, a referral was made to Dr. Kianoush Kian, M.D. Exhibit E,

16 BICE Medical Records EKW.PHS 00084. 17 7. On May 2, 2001, plaintiff was seen by Dr. Kian and diagnosed with end stage

18 glaucoma in the left eye and advanced glaucoma in the right eye. Medications were prescribed. 19 Exhibit F, BICE Medical Records, Advanced Laser and Eye Center of Arizona Medical

20 Records, EKW.PHS 00115, 00153, 00114. 21 8. On May 2, 2001, plaintiff returned to BICE from the ophthalmologist and reported

22 to the Medical Unit. The medical record reflects that the plaintiff told Physician's Assistant 23 McBride that Dr. Kian told him "it won't be long before he loses his sight in the left eye and he 24 will have to take care of his right eye unless he loses that vision too." Exhibit G, BICE Medical 25 Records EKW.PHS 00083. 26 9. In plaintiff's Complaint he states that Dr. Kian told him on May 2, 2001, that

27 "plaintiff's glaucoma was in its most advanced staged caused by delayed and denied medical 28 2

Case 2:04-cv-00094-DGC-JRI

Document 42

Filed 12/13/2005

Page 2 of 4

1 attention, at which time Dr. Kian stated `that it won't be long before plaintiff loses sight in his 2 left eye and he will have to take care of his right eye unless be loses that vision too'." 3 Complaint, C. Cause of Action Count 1, p. 2, ¶ 2. 4 10. In plaintiff's deposition taken on September 20, 2005, plaintiff stated that on his

5 first visit to Dr. Kian on May 2, 2001, that the doctor stated " . . . it wouldn't be long before he 6 loses his sight in the left eye and he will have to take care of his right eye until he loses that 7 vision too, that is what he said." Exhibit H, Deposition of Etop Morgan Ekwere, p. 47, lines 88 11. 9 11. On May 11, 2001, plaintiff saw the ophthalmologist again. At that time, Dr. Kian

10 determined that the medication was not sufficient to treat the condition and he recommended 11 surgery to reduce intraocular pressure. Exhibit I, BICE Medical Records, Advanced Laser and 12 Eye Center of Arizona Medical Records, EKW.PHS 00113, EKW.PHX 00154. 13 12. On June 4, 2001, plaintiff had a trabeculectomy on his left eye. Exhibit J, Warner

14 Medical Park Medical Records, BICE Medical Records EKW.WP0021, EKW.WP0023, 15 EKW.PHS 00112. 16 13. On June 20, 2001, Dr. Kian saw plaintiff for follow up and told him that the

17 trabeculectomy had failed and that a repeat surgery was scheduled. Exhibit K, BICE Medical 18 Unit Records, EKW.PHS 00109. 19 14. On June 25, 2001, plaintiff had a second trabeculectomy on his left eye. Exhibit

20 L, Warner Medical Park Records EKW.WMP 0008, EKW.WMP 0006. 21 15. On July 8, 2003, plaintiff filed his Administrative Claim, Form 95, #03-0340

22 (executed on June 30, 2003) with the Public Health Service. Exhibit M, Plaintiff's Standard 23 Form 95, Administrative Claim; Exhibit N, Declaration of Dorothea P. Koehler, Paralegal 24 Specialist, Department of Health and Human Services, Claims Branch. 25 16. The Claims Office acknowledged receipt of plaintiff's claim on July 8, 2003 by

26 letter dated July 9, 2003. Exhibit O, Letter from Dorothea P. Koehler, Department of Health and 27 Human Services, Claims Branch, dated July 9, 2003. 28 3

Case 2:04-cv-00094-DGC-JRI

Document 42

Filed 12/13/2005

Page 3 of 4

1 2 3 4 5 6 7 8 9

Respectfully submitted this 13th day of December, 2005. PAUL K. CHARLTON United States Attorney District of Arizona S/Nina J. Rivera NINA J. RIVERA Assistant U.S. Attorney

CERTIFICATE OF SERVICE 10 I hereby certify that on December 13th, 2005, I electronically transmitted the attached 11 document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice 12 of Electronic Filing to the following CM/ECF registrants: 13 Guy P. Roll 14 The Roll Law Office, PLLC 398 S. Mill Avenue, Suite 201 15 Tempe, AZ 85281 16 17 18 19 I hereby certify that on December 13th, 2005, I served the attached document by mail,
S/Rufina Lebario

Office of U.S. Attorney

20 on the following, who are not registered participants of the CM/ECF System: 21 Guy P. Roll The Roll Law Office, PLLC 22 398 S. Mill Avenue, Suite 201 Tempe, AZ 85281 23 24 25 26 27 28 4
S/Rufina Lebario

Office of U.S. Attorney

Case 2:04-cv-00094-DGC-JRI

Document 42

Filed 12/13/2005

Page 4 of 4