[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-14545 FEBRUARY 5, 2007
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 05-01417-CV-CC-1
GERMAN DUQUE,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee,
IVAN NEGRON, et al.,
Defendants.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(February 5, 2007)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
German Duque, a federal prisoner filing pro se, appeals the district court’s
entry of summary judgment, in favor of the United States,1 on his claims under the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b)(1), 2674. On appeal,
Duque argues that the district court erred (1) by finding that the medical
contractors who treated him were not employees of the federal government, and (2)
by finding no evidence from which a reasonable factfinder could conclude that the
medical staff at the United States Penitentiary in Atlanta (“USP Atlanta”) breached
its duty to provide him with medical care. After careful review, we affirm.
We conduct a de novo review of a district court’s order granting summary
judgment, “applying the same legal standards as the district court.” Chapman v. AI
Transp., 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc). “Summary judgment is
appropriate if the evidence before the court shows ‘that there is no genuine issue as
to any material fact and that the moving party is entitled to a judgment as a matter
of law.’ In making this determination, the court must view all evidence and make
all reasonable inferences in favor of the party opposing summary judgment.”
Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995) (citations omitted). The
summary judgment movant bears the initial burden of showing the court, by
1
Duque also named various individuals in his complaint, including medical doctors at the
prison and contract hospital. The district court dismissed these individuals from the lawsuit,
however, on the grounds that the United States is the only proper defendant in an action brought
under the FTCA. Duque does not challenge this ruling on appeal.
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reference to the record, that no genuine issues of material fact exist to be
determined at trial. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.
1991). The movant meets this burden by showing that there is an “absence of
evidence to support the non-moving party’s case.” Jeffery v. Sarasota White Sox,
Inc., 64 F.3d 590, 593 (11th Cir. 1995). Once this initial burden is met, the other
party must “go beyond the pleadings, and by its own affidavits, or by depositions,
answers to interrogatories, and admissions on file, designate specific facts showing
that there is a genuine issue for trial.” Id. at 593-94 (citations and quotations
omitted).
The FTCA imposes civil liability on the United States for “injury or loss of
property, or personal injury or death caused by the negligent or wrongful act or
omission of any employee of the Government while acting within the scope of his
office or employment, under circumstances where the United States, if a private
person, would be liable to the claimant in accordance with the law of the place
where the act or omission occurred.” 28 U.S.C. § 1346(b). It is well-established
that for the United States to be liable under the FTCA, the alleged tortfeasor must
be an employee of the government. Patterson & Wilder Constr. Co. v. United
States, 226 F.3d 1269, 1273-74 (11th Cir. 2000). Under the FTCA, an “employee
of the Government” includes “officers or employees of any federal agency . . . and
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persons acting on behalf of a federal agency in an official capacity, temporarily or
permanently in the service of the United States, whether with or without
compensation.” 28 U.S.C. § 2671. Thus, private individuals who are not on the
government’s payroll may be considered employees for the purpose of establishing
the government’s liability under the FTCA. Patterson, 226 F.3d at 1274. “[A]
person is an employee of the Government if the Government controls and
supervises the day-to-day activities of the alleged tortfeasor during the relevant
time.” Id. To satisfy this test, it is not necessary for the government to continually
control all aspects of the individual’s activities, so long as it has the authority to do
so given the nature of the task. Id.
When analyzing a FTCA claim, we apply the law of the state in which the
alleged tort was committed. See Stone v. United States, 373 F.3d 1129, 1130 (11th
Cir. 2004). Under Georgia law, “[a] person professing to practice surgery or the
administering of medicine for compensation must bring to the exercise of his
profession a reasonable degree of care and skill.” Ga. Code Ann. § 51-1-27
(2006). From this statute, Georgia courts have derived the following three
elements to establish liability in a medical malpractice claim: “(1) the duty inherent
in the doctor-patient relationship; (2) the breach of that duty by failing to exercise
the requisite degree of skill and care; and (3) that this failure be the proximate
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cause of the injury sustained.” Zwiren v. Thompson, 578 S.E.2d 862, 864 (Ga.
2003). Generally, the determination of whether the alleged professional negligence
caused an injury is beyond the ken of the average layperson, so the plaintiff must
use expert testimony to establish proximate cause. Id. at 865.
Viewing the record in the light most favorable to Duque and drawing all
inferences in his favor, the district court correctly found that the United States
cannot be held liable for any negligence attributable to the medical contractors who
treated him. In response to the government’s summary motion materials, Duque
produced no evidence showing that the government controlled and supervised the
treatment provided by the contractors. Accordingly, the United States may be
liable for Duque’s injuries only if his injuries were proximately caused through
negligence by the USP Atlanta medical staff.
In response to the government’s summary judgment materials, Duque did
not present evidence to raise a genuine issue of material fact as to the USP Atlanta
medical staff’s negligence. In fact, Duque produced no evidence indicating that
the USP Atlanta medical staff failed to exercise the requisite care in treating and
diagnosing him. Duque relies on a report produced by a legal nurse consultant
who reviewed his medical records, but even this report indicates that the USP
Atlanta medical staff was not negligent in his treatment.
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Therefore, upon thorough review of the record and careful consideration of
the parties’ briefs, we discern no reversible error in the district court’s entry of
summary judgment in favor of the United States on Duque’s claims.
AFFIRMED.
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