                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 13a0441n.06

                                            No. 12-6213
                                                                                          FILED
                                                                                      Apr 30, 2013
                              UNITED STATES COURT OF APPEALS
                                                                                DEBORAH S. HUNT, Clerk
                                   FOR THE SIXTH CIRCUIT

WILLIAM J.R. EMBREY,                                  )
                                                      )
       Plaintiff-Appellant,                           )
                                                      )
v.                                                    )      ON APPEAL FROM THE
                                                      )      UNITED STATES DISTRICT
UNITED STATES OF AMERICA,                             )      COURT FOR THE EASTERN
                                                      )      DISTRICT OF KENTUCKY
       Defendant-Appellee.                            )



       Before: MARTIN, GILMAN, and KETHLEDGE, Circuit Judges.


       PER CURIAM. William J.R. Embrey appeals a district court judgment that dismissed his

complaint filed under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671–2680.

       Embrey alleged that he was subjected to “negligent and wrongful acts and omissions” while

he was incarcerated by the Federal Bureau of Prisons in Ashland, Kentucky. He alleged that the

United States, through Bureau staff and officials, l) deprived him of food from the prison mess hall

for ten days in early 2010 and another sixteen days in June 2010, when he was bedridden because

of back pain; 2) refused to allow him a wheelchair so that he could go to the mess hall for food; 3)

forced him to walk up two sets of stairs to reach the medical department; and 4) failed to provide him

with proper medical care. The district court granted the defendant’s motion for summary judgment

and dismissed the case on September 12, 2012.

       We review the grant of summary judgment de novo. Himes v. United States, 645 F.3d 771,

776 (6th Cir. 2011).
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       The FTCA effectively waives sovereign immunity in limited contexts, and it “is the exclusive

remedy for suits against the United States or its agencies sounding in tort.” Himes, 645 F.3d at 776

(citing 28 U.S.C. § 2679(a)). The FTCA provides a right of action for the negligence of a federal

employee if a private person would be liable to the plaintiff under the law of the state where the

employee’s conduct occurred. 28 U.S.C. §§ 1346(b)(1), 2674; FDIC v. Meyer, 510 U.S. 471, 477

(1994). Thus, liability under the FTCA is determined by reference to the law of the state where the

alleged medical malpractice or negligence occurred. 28 U.S.C. § 1346(b)(1).
       Embrey argues that the declarations in his verified complaint were sufficient to withstand the

defendant’s motion for summary judgment. However, the defendant submitted evidence showing

shows that Embrey’s back condition was evaluated and treated, albeit conservatively, during his

incarceration. In light of this evidence, an expert’s opinion was required to support Embrey’s claims

because a layman would not be able to recognize medical malpractice or negligence based on

common knowledge and experience. See Baylis v. Lourdes Hosp., Inc., 805 S.W.2d 122, 124 (Ky.

1991); Rogers v. Integrity Healthcare Servs., 358 S.W.3d 507, 511–12 (Ky. Ct. App. 2012).

       Embrey argues that expert evidence is not necessary to support his claim in the federal courts.

This argument lacks merit because the federal courts are required to evaluate a substantive FTCA

claim under the law of the state where the alleged tort occurred. See 28 U.S.C. § 1346(b)(1); Himes,
645 F.3d at 776–77. The district court properly held that the Kentucky state courts would have

required expert evidence to support Embrey’s FTCA claim. See Baylis, 805 S.W.2d at 124. Embrey

did not present or allege the existence of expert evidence to establish that the medical treatment he

received was substandard. As a result, the district court properly dismissed Embrey’s claims under

the FTCA.

       Embrey also argues that the district court should have allowed further discovery before it

ruled on the defendant’s motion for summary judgment. We review this argument for an abuse of

discretion. See Abercrombie & Fitch Stores, Inc. v. Am. Eagle Outfitters, Inc., 280 F.3d 619, 627
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(6th Cir. 2002). The district court acted within its discretion here because Embrey did not describe

the materials he hoped to obtain with further discovery or how those materials would help him in

opposing summary judgment. See Fed. R. Civ. P. 56(d); CareToLive v. Food & Drug Admin., 631

F.3d 336, 344–45 (6th Cir. 2011).

       Finally, Embrey argues that the district court failed to rule on several motions in which he

argued that prison employees were inhibiting his access to the court by harassing him and retaliating

against him for filing this lawsuit. However, Embrey did not amend his complaint to add a civil
rights claim for retaliation. Moreover, that type of claim is not cognizable under the FTCA because

it involves intentional conduct. See 28 U.S.C. § 2680(h).

       The district court’s judgment is affirmed.
