Travis Blank v. United States ( 2018 )


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  •      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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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.
    3