                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-28-2008

Perez v. USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1199




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"Perez v. USA" (2008). 2008 Decisions. Paper 1366.
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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 07-1199


                                     MIKE PEREZ,
                                                        Appellant

                                           v.

                           UNITED STATES OF AMERICA



                    On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                           (D.C. Civil Action No. 04-cv-1944)
                    District Judge: Honorable Christopher C. Conner


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   March 26, 2008

               Before: AMBRO, FUENTES and FISHER, Circuit Judges

                            (Opinion filed: March 28, 2008)


                                       OPINION


PER CURIAM

      Mike Perez appeals from the order of the U.S. District Court for the Middle

District of Pennsylvania granting summary judgment to the United States. For the

following reasons, we will vacate the judgment of the District Court and remand for
further proceedings.

       Perez, a former inmate at FCI-Schuylkill, filed suit under the Federal Tort Claims

Act (“FTCA”) in 2004 alleging that prison officials were negligent when he had an

asthma attack while he was housed in the Segregated Housing Unit (“SHU”). Perez, who

has a history of asthma, claims that it was very hot in his cell in the early morning hours

of August 16, 2003, and that an additional inmate, who was intoxicated and started

smoking cigarettes, was added to Perez’ cell. Perez claims that he could not breathe and

that he vomited due to the extreme heat, lack of ventilation, and close quarters. He

requested medical attention, but an officer told him no doctor or physician’s assistant was

available.1 Instead, officers placed him in the shower with the fan on, which, as Perez

testified at his deposition, “seemed to work.” After an hour, Perez was taken back to his

cell against his wishes. He claims that he still suffered from asthma symptoms at that

time, that he continued to try to attract the attention of officers on duty, and that the

officers should have summoned medical personnel to the SHU to help him. He claims to

have suffered headaches, nausea, weakness and a sore back from his acute attack.

       The physician’s assistant made rounds at about 10 a.m. the morning after Perez’

2:30 a.m. attack, but no interaction with Perez is reflected in the medical records. Perez

testified at his deposition that he did not see the physician’s assistant until the day after

his attack (August 17), and that the physician’s assistant told him that the officers should



   1
     The United States submitted affidavits of two responding officers who stated that it
did not appear as though Perez was having difficulty breathing.

                                               2
have called the doctor when Perez had the attack.2

       Perez had been prescribed medications by the prison medical staff, an Albuterol

inhaler and Montelukast tablets, and these prescriptions had recently been refilled, but he

claims that the medication and inhaler did not alleviate his symptoms that night. He

asserts that he needed to be on an Albuterol machine in the medical unit, and that he was

in need of steroids the next day to get himself back to a normal state of breathing, neither

of which he had since he did not receive medical attention. He alleges that he now suffers

from psychological problems such as bad dreams and feelings of helplessness, from

suffering what he feared would be a fatal asthma attack in a cell with unresponsive

personnel.

       The United States filed a motion for summary judgment and discovery

commenced. In a reply brief to Perez’ opposition to summary judgment, the United

States asserted that the injuries claimed by Perez at his deposition–nightmares–did not

constitute a “prior showing of physical injury” as required under 28 U.S.C. § 1346(b)(2)

and 42 U.S.C. § 1997e(e) to claim mental or emotional damages. The court agreed and

granted summary judgment to the United States on that ground. The court denied Perez’

subsequent motion to alter or amend the judgment under Federal Rule of Civil Procedure

59(e). Perez appealed.

       We employ a plenary standard of review of the District Court’s order granting



   2
    An affidavit by the physician’s assistant states that the records reflect that he did not
have any contact with Perez on his rounds on August 16. It does not address August 17.

                                              3
summary judgment. See Camiolo v. State Farm Fire and Cas. Co., 334 F.3d 345, 354 (3d

Cir. 2003). We review the denial of Perez’ motion under Rule 59(e) for an abuse of

discretion. See Max’s Seafood Café v. Quinteros, 176 F.3d 669, 673 (3d Cir. 1999).

       First, it is unclear why the District Court did not consider whether the immediate

physical effects from the asthma attack itself would have constituted a “prior showing of

physical injury” under the statute, but it did not. See Munn v. Toney, 433 F.3d 1087 (8th

Cir. 2006) (prisoner’s allegations and testimony of headaches, cramps, nosebleeds, and

dizziness while prison missed prescribed blood pressure screenings sufficient to

overcome § 1997e bar); cf. Davis v. District of Columbia, 158 F.3d 1342, 1349 (D.C. Cir.

1998) (physical manifestations of emotional injury do not qualify as “prior” physical

injuries). In its brief, the United States asserts that Perez only identified bad dreams as

his injuries. While the United States is correct that Perez claims only damages for mental

or emotional distress, it is wrong that Perez never identified other physical injuries that

occurred as a result of the alleged asthma attack. At the deposition, Perez stated that he

was dizzy, weak, nauseous, and had a headache immediately after the attack, and that he

had back pain from coughing for a couple of days. (See Plaintiff’s Opposition to Motion

for Summary Judgment, attached as Exhibit 1, at p. 53-54.) Just because Perez is not

claiming damages specifically from those physical injuries does not mean that his

allegations of them cannot be considered as a showing of a physical injury for the

purposes of the statute. See 28 U.S.C. § 1346(b)(2).

       Moreover, we note that the United States did not raise this defense in the District

                                              4
Court until its reply brief to Perez’ opposition to summary judgment. Perez had no viable

opportunity to respond to the United States’ argument at that point because the Federal

Rules of Civil Procedure do not provide a right to file a sur-reply.3 Even when Perez

attempted to rebut the argument in his motion to alter or amend, the United States

contended that the argument was improper and that Perez changed his position on his

injuries because at his deposition Perez only identified bad dreams as his injuries. We do

not agree; as we pointed out above, Perez stated at his deposition that he suffered from

headaches, weakness, back pain and nausea immediately after the attack.

       We will vacate the District Court’s order and remand for the court to assess

whether Perez’ showing of physical injuries is sufficient to meet the statutory criteria of

28 U.S.C. § 1346(b)(2) and 42 U.S.C. § 1997e(e). Cf. Mitchell v. Horn, 318 F.3d 523,

536 (3d Cir. 2003) (on appeal from dismissal upon motion to dismiss, remanding for

District Court to decide whether physical injuries met criteria of 28 U.S.C. § 1997e(e)).

We offer no opinion on the underlying merits of Perez’ claims.4




   3
     The United States raised the “prior showing of physical injury” defense in only the
briefest of terms, and while Perez filed a response to the United States’ reply, he
apparently overlooked or did not respond to this unadorned argument.
   4
    We note that Perez filed a post-judgment motion regarding fees in the District Court,
which remains outstanding.

                                              5
