                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0410n.06

                                           No. 09-4108
                                                                                            FILED
                              UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT                               Jun 24, 2011
                                                                                LEONARD GREEN, Clerk
JAMES D. LYONS,                                      )
                                                     )
       Plaintiff-Appellant,                          )
                                                     )
v.                                                   )       ON APPEAL FROM THE UNITED
                                                     )       STATES DISTRICT COURT FOR
RN/HSA SUZANNE BRANDLY, et al.;                      )       THE NORTHERN DISTRICT OF
BRADFORD BLACK; CHARLES RAY,                         )       OHIO
                                                     )
       Defendants-Appellees.                         )



                                             OPINION

       Before: KEITH, MARTIN, and COOK, Circuit Judges.


       BOYCE F. MARTIN, JR., Circuit Judge. James D. Lyons, a convicted federal prisoner who

has been released from custody, appeals a judgment in favor of various defendants in his civil rights

case. Lyons suffers from a severe urological condition.
       The allegations in his pro se amended complaint and supplemental complaint involve the

central thesis that medical omissions and mistreatment, including the failure to promptly provide

necessary corrective urological surgery, caused harm which progressed to the point that simple

urethroplasty was no longer an option, and Lyons’s urological condition, which he alleges was

initially easily treatable, deteriorated despite medical resources which should have been readily

available, including the provision of catheters and timely consultative examinations. Lyons

complains that incompetent medical care resulted in erectile dysfunction and permanently painful

urination difficulty. Lyons’s theories of recovery include state-law claims for negligence and
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malpractice, violations of his Eighth Amendment Federal Constitutional rights raised in a Bivens-

type claim,1 and claims of negligence by federal employees under the Federal Tort Claims Act.

       This case has been referred to a panel of the Court pursuant to Rule 34(j)(1), Rules of the

Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed.

Fed. R. App. P. 34(a).

       In 2003, Lyons filed an amended complaint naming as defendants numerous doctors, nurses,

physicians, assistants, and other employees of the Elkton, Ohio Federal Correctional Institution, the
Federal Medical Center in Lexington, Kentucky, the Federal Transfer Center of Oklahoma, and the

Federal Medical Center in Butner, North Carolina. He also alleged abuse by several employees of

EMSA Correctional Care, a government contractor composed of licensed physicians, nurses, and

administrative personnel who provide medical care to inmates in the Franklin County Correctional

Center in Columbus, Ohio. Lyons alleged that since his incarceration in August 1998 in these

institutions, the defendants failed to make available adequate medical supplies so that he could

perform the self-catheterization that was required due to a pre-existing urethral stricture condition.

Lyons claimed that the defendants’ actions resulted in a deterioration of his condition and caused

permanent injury, including sexual dysfunction, sterilization, and pain and suffering that continue

until the present day. He alleged seven causes of action, including deliberate indifference under the
Eighth Amendment, violations of the Tort Claims Act, and state-law claims of negligence and

medical malpractice. Lyons was also granted permission to join the United States as a party under

the Tort Claims Act.

       The amended complaint in the district court contained seven counts. Counts two, six and

seven were dismissed in 2009. The third count concerning Dr. Bradford Black’s malpractice was

dismissed on April 19, 2005 and is now before us on appeal. The fourth count was dismissed on

September 30, 2005. The fifth count claiming malpractice against Dr. Charles Ray was transferred

       1
           See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
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to the United States District Court for the Eastern District of Kentucky and is not before us. The

magistrate judge conducted a very thorough review of count one and issued a very well reasoned

opinion which the district court adopted and which is now before us along with counts two, three,

four and seven.

       Needless to say, we begin our review of the grant of summary judgment as to all these counts

de novo. ACLU v. Grayson Cnty., Ky., 591 F.3d 837, 843 (6th Cir. 2010). Summary judgment is

appropriate where no genuine issue of material fact exists, and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a). In considering a motion for summary judgment,

the district court draws all reasonable inferences in favor of the non-moving party. Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). The overriding issue is “whether

the evidence presents a sufficient disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 251-52 (1986).

       We first conclude that the district court did not err in granting summary judgment in favor

of Dr. Bradford Black, who treated Lyons while in custody in Ohio. Lyons alleged that Dr. Black

was negligent by, among other things, improperly evaluating, diagnosing, and treating his condition,

failing to provide pertinent information prior to surgery, failing to exercise reasonable care during
two surgeries he performed, failing to treat post-operative complaints, failing to properly document

Lyons’s complaints, and failing to recognize that the prescribed course of treatment was “predictably

unsuccessful.” Under Ohio law, a plaintiff alleging medical malpractice or professional negligence

must prove, by a preponderance of the evidence, that the defendant medical providers failed to

adhere to the appropriate standard of care recognized by the relevant medical community and that

such failure caused the plaintiff injury. Bruni v. Tatsumi, 346 N.E. 2d 673, 677 (Ohio 1976). Lyons

produced no such testimony with respect to Dr. Black’s care. Although Ohio’s medical malpractice

law contains a “common knowledge exception,” see id. at 677, Lyons’s claims against Dr. Black –
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                                                 -4-

evaluating the standards of care involved in diagnosis, treatment, and surgery – are outside the realm

of common knowledge and the exception is inapplicable. Thus, his medical malpractice claims

against Dr. Black fail as a matter of law.

        Lyons’s constitutional claims of deliberate indifference under the Eighth Amendment against

Dr. Black also fail as a matter of law. An Eighth Amendment violation cannot be established by a

showing that a physician has been negligent in diagnosing or treating a medical condition. Estelle

v. Gamble, 429 U.S. 97, 106 (1976). Because Lyons did not establish a genuine issue of fact to
demonstrate that Dr. Black was deliberately indifferent to his serious medical needs, summary

judgment in favor of Dr. Black was proper. Further, we find no abuse of discretion in the grant of

summary judgment to Dr. Black without allowing Lyons additional discovery because Lyons failed

to demonstrate that additional discovery would provide the expert testimony needed to succeed on

his medical malpractice claims. See Abercrombie & Fitch Stores, Inc. v. Am. Eagle Outfitters, Inc.,

280 F.3d 619, 627 (6th Cir. 2002).

        We also conclude that the district court did not err in granting summary judgment in favor

of the employees of the federal prison facility at FCI-Elkton, FTC-OK, and FMC-Butner or the

administrative employees of the Federal Bureau of Prisons. These claims of deliberate indifference

in violation of the Eighth Amendment and medical malpractice claims raised under the Tort Claims
Act have no factual basis.

        The record is replete with references to the medical treatment that Lyons received while in

custody and acknowledgment by Lyons himself that he received such treatment. Although Lyons

suffered from a serious medical condition during his incarceration as a result of his urethral stricture,

he failed to establish that the federal defendants acted with a sufficiently culpable state of mind

because “[t]he fact that alternative procedures might have better addressed [a prisoner’s] particular

needs does not show that the [defendants were] deliberately indifferent to his medical needs.”

Graham ex rel. Estate of Graham v. Cnty. of Washtenaw, 358 F.3d 377, 384 (6th Cir. 2004). While
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                                                -5-

there is no dispute that Lyons contracted infections and suffered complications from his condition,

the record indicates that the federal defendants routinely examined Lyons, administered antibiotics

to treat his infections, provided Lyons with catheterization supplies and aided him in catheterization

procedures, consulted with private physicians, and approved four major surgeries and numerous

surgical procedures. We have said “[m]edical care which is so cursory as to amount to no treatment

at all may amount to deliberate indifference.” Terrance v. Northville Reg’l Psychiatric Hosp., 286

F.3d 834, 843-44 (6th Cir. 2002). However, the care that Lyons received in this case was far from
cursory. Lyons’s disagreement with the exhaustive testing and treatment he received while

incarcerated does not constitute an Eighth Amendment violation. See Estelle, 429 U.S. at 107;

Westlake v. Lucas, 537 F.3d 857, 860 n.5 (6th Cir. 1976).

        Lyons’s remaining deliberate indifference claims dealt with the defendants’ failure to treat

his erectile dysfunction and their orders to transfer him to various institutions without regard for his

medical care. As the magistrate judge’s report explained, Lyons’s erectile dysfunction cannot be said

to be a serious medical condition, given that no physician indicated its treatment was mandatory, it

was not causing Lyons pain, and it was not life-threatening.

        Lyons did not demonstrate that the administrative employees of the Bureau of Prisons

displayed deliberate indifference with respect to his transfers from various institutions. Lyons failed
to establish personal involvement on the part of the individual defendants. See Gibson v. Matthews,

926 F.3d 532, 534-35 (6th Cir. 1991) (“[P]ersonal liability on any of the defendants ... must be based

on the actions of that defendant in the situation that the defendant faced, and not based on any

problems caused by the errors of others .... ”). Accordingly, summary judgment was properly granted

in favor of the federal defendants on Lyons’s claims under the Eighth Amendment.

        The district court also did not err in granting summary judgment in favor of the defendants

on Lyons’s medical malpractice claims under the Federal Tort Claims Act. Liability under the Act

is determined by reference to the law of the state where the alleged medical malpractice or
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                                               -6-

negligence occurred. See 28 U.S.C. § 1346(b); Flechsig v. United States, 991 F.3d 300, 303-04 (6th

Cir. 1993). Lyons alleged medical malpractice in Ohio and must prove, by a preponderance of the

evidence and generally through expert testimony, that the defendant medical providers failed to

adhere to the appropriate standard of care recognized by the relevant medical community and that

such failure caused the plaintiff injury. Bruni, 346 N.E. 2d at 677-78. Lyons’s medical malpractice

claims fail for the same reason his claims against Dr. Black fail – his lack of expert evidence to

establish that the federal defendants breached an applicable standard of care. Nor can Lyons sustain
a negligence action under North Caroline law with respect to the FMC-Butner federal defendants,

as North Carolina law also requires expert testimony to establish a prima facie case for malpractice

against a physician. Bailey v. Jones, 435 S.E. 2d, 787, 792 (N.C. Ct. App. 1993).

       Likewise, Lyons’s claims of malpractice against EMSA, the government health contractor,

and its employees, which arose in Ohio while Lyons was housed at the Franklin County Correctional

Center, fail because Lyons has provided no expert testimony regarding the applicable standard of

care. Summary judgment was properly granted in favor of EMSA and its employees.

       With respect to the remaining allegations in Lyons’s brief in this Court, we find no merit to

his arguments that the district court abused its discretion in denying him permission to withdraw his

motion to dismiss count four or in denying his motion to correct clerical errors.
       The judgment of the district court is affirmed.
