                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-22-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2807




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                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 08-2807
                                      ___________

                                     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-01944)
                    District Judge: Honorable Christopher C. Conner
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    May 18, 2009

            Before: RENDELL, FUENTES and ALDISERT, Circuit Judges

                             (Opinion filed: May 22, 2009)

                                      ___________

                                       OPINION
                                      ___________

PER CURIAM

      Mike Perez brought suit under the Federal Tort Claims Act (“FTCA”), claiming

that prison officials at FCI-Schuylkill were negligent when he had an asthma attack while

he was housed in the Segregated Housing Unit of the prison. The District Court granted
summary judgment in favor of the defendants on the basis that the nightmares cited by

Perez at his deposition 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. Perez appealed, and we vacated the District Court’s judgment.

       We noted that the District Court did not consider all of the physical injuries Perez

claimed:

               [I]t 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).

Perez v. United States, 271 F. App’x 240, 242 (3d Cir. 2008). We directed the District

Court to consider on remand whether the other physical injuries Perez claimed met the

criteria of 28 U.S.C. § 1346(b)(2) and 28 U.S.C. § 1997e(e).

       On remand, the District Court again found Perez unable to overcome the physical

                                              2
injury requirement of the statutes “because his dizziness, headaches, weakness, back pain,

and nausea, all of which were temporary in nature and did not require medical attention,

are considered de minimis for the purposes of the FTCA’s physical injury requirement.”

District Court Memorandum 5.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the District

Court’s order granting summary judgment is plenary. See Abramson v. William Paterson

College, 260 F.3d 265, 276 (3d Cir. 2001). We apply the same standard that a district

court must apply in deciding whether summary judgment is merited. See id. We view the

facts in the light most favorable to the nonmoving party and draw all inferences in that

party’s favor to determine whether there is a genuine issue of any material fact and

whether the moving party is entitled to judgment as a matter of law. See id.

       Applying this standard, we cannot conclude, as the District Court did, that the

United States was entitled to judgment as a matter of law because Perez suffered only de

minimis physical injuries. Ultimately, it may be true that Perez’s injuries were like the

“sore, bruised ear lasting for three days” which the court in Siglar v. Hightower classed as

de minimis. See 112 F.3d 191, 193 (5th Cir. 1997). Or they could be de minimis injuries

like “swelling, pain, and cramps,” Jarriett v. Wilson, 414 F.3d 634, 641 (6th Cir. 2005), or

“nose sores [that] were relieved with water and baby oil,” Canell v. Multnomah County,

141 F. Supp. 2d 1046, 1053 (D. Or. 2001). The injuries Perez reported might be like a

“sore muscle, an aching back, a scratch, an abrasion, a bruise, etc., . . . [like those that]



                                               3
people in the regular and ordinary events and activities in their daily lives do not seek

medical care for.” Luong v. Hatt, 979 F. Supp. 481, 486 (N.D. Tex. 1997).

       However, Perez reported that his symptoms, associated with his asthma attack,

were of such a severity that he needed steroids, prescription medicine, and other medical

treatment to recover. Plaintiff’s Exhibits in Support of his Response to the Motion for

Summary Judgment, Ex. 1, Perez Dep. 43, 48, 53-55, 58. Although the District Court

found that Perez did not require medical treatment to resolve his symptoms, the issue is a

matter of contention between the parties. Furthermore, in Luong, the court distinguished

those injuries that resolve with home treatment from those injuries that require a visit to

an emergency room or a doctor, assessing the former as de minimis. See 979 F. Supp. at

486; see also Munn v. Toney, 433 F.3d 1087, 1089 (8th Cir. 2006) (holding that

allegations and testimony about headaches, cramps, nosebleeds, and dizziness related to

missing prescribed blood pressure screenings were sufficient to overcome § 1997e bar).

We note that a severe asthma attack can be life-threatening like a heart attack, which

courts have held to be more than a de minimis physical injury. See Mata v. Saiz, 427 F.3d

745, 755 n.4 (10th Cir. 2005) (discussing the Mayo Clinic’s assessment of severe chest

pain and heart attack as life-threatening); Sealock v. Colorado, 218 F.3d 1205, 1210 n.6

(10th Cir. 2000). The severity of the attack and the need for medical treatment are

genuine issues of material fact in this case. It remains in question whether Perez met the

physical injury requirement to support his negligence claim for emotional injuries.



                                              4
       In addition to arguing that Perez’s injuries were de minimis, the United States

presses us to affirm the District Court’s judgment because Perez did not present expert

testimony to support his claim that the failure to treat his asthma attack caused his

injuries. However, we will not take up this issue. Not only did the United States not raise

the issue in the District Court, see Bell Atlantic-Pennsylvania, Inc. v. Pa. Pub. Util.

Comm’n, 273 F.3d 337, 344 n.3 (3d Cir. 2001), but also, in its brief in support of its

motion for summary judgment, it seemed to argue that expert testimony is not necessary

to resolve this case. (Specifically, in the District Court, the United States contended that

the law “does not require expert medical testimony - in [sic] case such a [sic] this - if a

matter is so simple or obvious to be within a lay person’s range of experience and

comprehension.” Brief in Support of Defendant’s Motion for Summary Judgment 11

(citation omitted).)

       In short, because the nature of Perez’s injuries remains unclear in light of the

conflicting submissions of the parties, we conclude that the District Court’s decision to

grant summary judgment in favor of the United States on the basis that Perez’s injuries

were de minimis was in error. We will vacate the District Court’s judgment. We remand

this matter to the District Court for further proceedings consistent with this opinion.




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