Travis Blank v. United States , 713 F. App'x 400 ( 2018 )

Case: 17-10024 Document: 00514370566 Page: 1 Date Filed: 03/02/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-10024
Fifth Circuit
Summary Calendar
FILED
March 2, 2018
Lyle W. Cayce
TRAVIS BLANK, Clerk
Plaintiff-Appellant
v.
UNITED STATES OF AMERICA,
Defendant-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:14-CV-502
Before REAVLEY, PRADO, and GRAVES, Circuit Judges.
PER CURIAM: *
Travis Blank, federal prisoner # 16486-078, appeals the grant of
summary judgment and dismissal with prejudice of his complaint that raised
claims against the United States of America pursuant to the Federal Tort
Claims Act (FTCA). Blank, who suffers from Crohn’s disease and related
ailments, complained of his medical classification and his assignment to a non-
medical prison facility, the Federal Correctional Institute at Oakdale (FCI-
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 17-10024 Document: 00514370566 Page: 2 Date Filed: 03/02/2018
No. 17-10024
Oakdale), complained of the medical treatment that he received at FCI-
Oakdale, and complained of the medical treatment that he received at FCI-
Fort Worth, where he was later transferred. The district court found that
Blank’s claim regarding his medical classification and designation to a non-
medical prison facility was barred by the discretionary function exception to
the FTCA because it involved elements of judgment or choice. Accordingly, the
district court granted summary judgment and dismissed this claim for lack of
subject matter jurisdiction. With regard to Blank’s remaining medical
malpractice claims, the district court granted summary judgment, finding that
Blank failed to provide any evidence, in the form of expert testimony, on the
essential elements of standard of care, breach, causation, and damages as
required by state law. See Ayers v. United States, 750 F.2d 449, 452 n.1 (5th
Cir. 1985).
We “review a grant of summary judgment de novo, applying the same
standard as the district court,” and we consider all evidence “in the light most
favorable to the nonmoving party.” Broussard v. Procter & Gamble Co., 517
F.3d 767, 769 (5th Cir. 2008) (citations omitted). 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). “When a proper motion for summary judgment is made, a
nonmoving party who wishes to avoid judgment by establishing a factual
dispute must set forth specific facts showing that there is a genuine issue for
trial.” Hanks v. Transcon. Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir.
1992) (footnote omitted).
The medical classification and designation of a prisoner to a particular
prison facility involves elements of judgment or choice so as to bring it within
the purview of the discretionary function exception to the FTCA. See United
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No. 17-10024
States v. Gaubert, 499 U.S. 315, 322 (1991). Accordingly, the district court did
err in dismissing the claim for lack of subject matter jurisdiction. See Castro
v. United States, 608 F.3d 266, 268 (5th Cir. 2010) (en banc).
With regard to Blank’s remaining medical malpractice claims, the
district court did not err in granting summary judgment given Blank’s failure
to provide expert testimony as required by the relevant medical malpractice
laws of Louisiana and Texas. See Quijano v. United States, 325 F.3d 564, 567
(5th Cir. 2003); Bailey v. State, 695 So. 2d 557, 559 (La. Ct. App. 1997). We
also agree with the district court that Blank cannot take advantage of the
common-knowledge exception to the expert-testimony requirement. See Hood
v. Phillips, 554 S.W.2d 160, 165-66 (Tex. 1977); Pfiffner v. Correa, 643 So. 2d
1228, 1234 (La. 1994). The judgment of the district court is AFFIRMED.
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