[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 15, 2012
No. 11-13110
JOHN LEY
Non-Argument Calendar
CLERK
________________________
D.C. Docket No. 1:06-cv-01068-CAP
WILLIAM ROBINSON,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
SANTA ROSA COUNTY, FLORIDA,
SANTA ROSA COUNTY JAIL,
SANTA ROSA COUNTY SHERIFFS OFFICE,
JOHN DOE,
Santa Rosa County, Administrator,
et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(March 15, 2012)
Before HULL, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
William Robinson, a federal prisoner, appeals pro se the district court’s
grant of summary judgment on his medical negligence claims brought pursuant to
the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq., against the
United States (“the government”).1 Robinson’s claims relate to the treatment he
received for his hernia and skin condition while incarcerated at the United States
Penitentiary in Atlanta. The district court granted summary judgment because
Robinson conceded he received adequate treatment for his hernia and did not
present any expert medical testimony about his skin condition. After review, we
affirm.
I. SUMMARY JUDGMENT ON FTCA CLAIMS
In FTCA actions, liability is determined under the law of the state in which
the alleged negligence occurred. 28 U.S.C. § 1346(b)(1); F.D.I.C. v. Meyer, 510
U.S. 471, 478, 114 S. Ct. 996, 1001 (1994). Under Georgia law, to prove medical
negligence, the plaintiff must show: “(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 [was] the proximate cause of the injury
1
There originally were 26 defendants. In a prior appeal, this Court affirmed the dismissal
of all of Robinson’s claims except these two FTCA claims against the Defendant United States.
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sustained.” Zwiren v. Thompson, 276 Ga. 498, 499, 578 S.E.2d 862, 864 (Ga.
2003). To establish proximate cause, the plaintiff must use expert testimony
because the question of whether the alleged negligence caused the injury is
“generally one for specialized expert knowledge beyond the ken of the average
layperson.” Id. at 500, 578 S.E.2d at 865.
Here, Robinson did not present any expert testimony. When Robinson had
difficulty obtaining a medical expert to oppose the government’s summary
judgment motion, the district court appointed pro bono counsel. The district court
then gave Robinson’s counsel time to obtain Robinson’s complete medical file and
to find a doctor that could examine Robinson and provide an expert opinion. After
interviewing Robinson and reviewing his medical records, appointed counsel
advised the district court that Robinson conceded that he had received adequate
medical treatment for his hernia and did not contest the government’s summary
judgment motion as to that hernia claim.
After Robinson was examined by an outside dermatologist, Robinson’s
counsel filed a response opposing the government’s summary judgment motion.
Robinson’s response maintained that material issues of fact existed with respect to
his skin condition claim and that the matter should be submitted to a jury.
However, the response also advised the district court that “[i]n light of the
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opinions provided by [the dermatologist] in his oral report, Plaintiff’s counsel has
not asked for a written report and at this time has no intention of doing so,” and
that “counsel has no expert opinion evidence to submit to the Court . . . .”
The government, on the other hand, submitted evidence, including the
declaration of Dr. Thomas Webster and medical records, that Robinson’s skin
condition was properly diagnosed as folliculitis and eczema, and not scabies as
Robinson claimed, and was properly treated with hydrocortisone cream. Although
Robinson challenges the validity of Dr. Webster’s medical opinion, he offers no
evidence in support of his conclusory claim. Contrary to Robinson’s contention,
the fact that Dr. Webster’s opinion is based on his review of Robinson’s medical
records does not render Dr. Webster’s medical opinion invalid.
Given that Robinson did not present any expert medical evidence to
contradict the government’s expert medical evidence, the district court properly
granted summary judgment to the government on Robinson’s skin condition claim.
And, since Robinson did not oppose summary judgment as to his hernia claim and
conceded his hernia treatment was adequate, Robinson cannot challenge the
district court’s grant of summary judgment as to his hernia claim. See Doe v.
Princess Cruise Lines, Ltd., 657 F.3d 1204, 1213 (11th Cir. 2011) (explaining that
under the invited error doctrine, a party cannot challenge district court action to
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which the party agreed).2 For these reasons, we affirm the district court’s grant of
summary judgment in favor of the government on Robinson’s FTCA claims of
medical negligence.
II. OTHER RULINGS
Robinson’s appeal raises issues regarding various other rulings by district
court during the litigation. After review, we conclude that Robinson’s challenges
to the following rulings lack merit and warrant no further discussion: (1) January
13, 2009 order denying Robinson’s motion to compel discovery; (2) May 26, 2009
order granting the government’s motions for extensions of time to file its summary
judgment motion; (3) June 3, 2009 order denying Robinson’s motion for
appointment of counsel and his motion to amend his complaint; and (4) July 28,
2009 order denying Robinson’s motion for appointment of counsel.
Robinson argues that the district court erred when it denied Robinson’s
request to appoint an expert medical witness based on a belief that it had no
authority to do so. Under Federal Rule of Evidence 706, a district court has the
2
To the extent Robinson argues that his pro bono appointed counsel was ineffective in
investigating his claims and responding to the summary judgment motion, this claim lacks merit
because a party in a civil action has no right to effective assistance of counsel. See Mekdeci ex
rel. Mekdeci v. Merrell Nat’l Labs., 711 F.2d 1510, 1522-23 (11th Cir. 1983). Similarly
meritless is Robinson’s claim that the district court clerk erred in refusing to file his letter
advising the district court that his appointed counsel was not communicating with him. Nothing
in the record suggests that the district court clerk’s refusal to docket the letter prejudiced
Robinson or that the letter would have affected the outcome of the case.
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discretionary power to appoint an expert witness. See Fed. R. Evid. 706(a); Steele
v. Shah, 87 F.3d 1266, 1271 (11th Cir. 1996). Although the district court was
mistaken with respect to its authority, we nonetheless find no reversible error.
While the district court refused to appoint an expert, it appointed counsel to
assist Robinson in finding an expert. Appointed counsel found a dermatologist to
conduct an independent medical examination of Robinson. After an oral report
from the dermatologist, counsel decided not to submit a written report from the
dermatologist. Nothing in the record suggests that the outcome would have been
different had the district court appointed an expert witness, rather than appointing
counsel to find an expert witness.
Finally, Robinson challenges the June 8, 2011 judgment in the district court
because it ordered that “the defendants recover their costs of this action.” Citing
Hughes v. Rowe, 449 U.S. 5, 15-16, 101 S. Ct. 173, 178-79 (1980), Robinson
contends that attorney’s fees should not be awarded against a pro se prisoner
unless the claims were wholly without merit, which Robinson contends his were
not.
Robinson’s challenge to this judgment lacks merit. First, the judgment
addressed costs and not attorney’s fees. See Fed. R. Civ. P. 54(d)(1)-(2)
(permitting clerk to “tax costs on 14 days’ notice,” but requiring a motion for the
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award of attorney’s fees). Second, Robinson waived any challenge to the
judgment with respect to costs by failing to object in the district court. See Fed. R.
Civ. P 54(d)(1) (providing that district court may review clerk’s taxation of costs if
a motion is served within seven days of the required notice). In any event, the
government appears to have forgone any right to recover costs given that it has not
filed a bill of costs within thirty days as required by the Northern District of
Georgia’s Local Rule 54.1, making this issue moot.
AFFIRMED.
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