BLD-126                                                          NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 15-2677
                                       ___________

                            EUGENE KENNETH BRINSON,
                                                Appellant

                                             v.

                           UNITED STATES OF AMERICA
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                              (D.C. Civil No. 3-12-cv-01451)
                      District Judge: Honorable Matthew W. Brann
                      ____________________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
                or Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6.
                                    January 28, 2016

              Before: FUENTES, KRAUSE and SCIRICA, Circuit Judges

                            (Opinion filed: February 5, 2016 )
                                       _________

                                        OPINION*
                                        _________

PER CURIAM




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Appellant Eugene Kenneth Brinson appeals from the District Court’s award of

damages in the amount of $350.00 for the Appellee’s negligence in serving chicken

tainted with salmonella to Appellant while he was an inmate at USP-Canaan on June 25,

2011. For the reasons stated below, we will summarily affirm. Because the parties are

familiar with the facts and procedural history of the case, we need not reiterate them.

       Brinson brought a claim under the Federal Tort Claims Act (“FTCA”) against the

United States, claiming that he was served chicken tainted with salmonella on June 25,

2011, while incarcerated at USP-Canaan. He claims that, as a result, he suffered from

symptoms of salmonella poisoning for 60 days, including stomach pain, cramping,

nausea, dehydration, and diarrhea. He sought punitive damages.

       The Appellees conceded liability and the matter proceeded to a bench trial on the

issue of damages. Brinson argued that he was kept behind a locked door and denied

access to medical care for his salmonella poisoning for the 13 days after the incident due

to a prison lockdown. He asserts that he is entitled to damages in the amount of $10,000

a day for each of the 13 days he was denied treatment and experiencing severe physical

pain and mental anguish. He also argues that he was given inappropriate and inadequate

medication for his illness, which caused salmonella to remain in his system for over 60

days. As a result, he was unable to go to work at the prison or interact with the other

inmates.

       The District Court made a finding of fact that Brinson had symptoms of

salmonella for only seven days based on Brinson’s medical records. The Court also

found that Dr. Holloway, a physical at USP-Canaan at the time of the outbreak, went

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door to door providing treatment to the inmates. Based on Dr. Holloway’s testimony, the

standard medical protocol for treating salmonella was hydration, and not the antibiotics

that Brinson requested. The Court noted that the FTCA does not permit the grant of

punitive damages; however, the Court awarded Brinson 50 dollars per day for the seven

days he had salmonella poisoning symptoms for his intangible damages of pain and

suffering, inconvenience, and loss of capacity for enjoyment of life. Brinson appealed.

        We have appellate jurisdiction under 28 U.S.C. § 1291. We exercise plenary

review over the District Court’s legal conclusions and review its findings of fact for clear

error. O’Donald v. Johns, 402 F.3d 172, 173 n.1 (3d Cir. 2005) (per curiam). A district

court’s determination of damages is only disturbed upon a showing of clear error. See

Tyminski v. United States, 481 F.2d 257, 271 (3d Cir.1973). Absent “a firm conviction

that the damages award was so inadequate as to warrant interference on the appellate

level,” we will uphold a District Court’s award. Id.; see also Lanning v. Southeastern

Pennsylvania Transp. Auth., 181 F.3d 478, 501-02 (3d Cir.1999) (clear error standard

requires district court to be affirmed if its account is plausible in light of the entirety of

the record even though appellate court might have weighed the evidence differently).

We may take summary action if an appeal does not present a substantial question. See 3d

Cir. I.O.P. 10.6.

       Brinson argues that he suffered symptoms of salmonella poisoning for at least 60

days. The medical records Brinson attached to his complaint indeed indicate he

experienced diarrhea and abdominal pain as of mid-August 2011, about two months after

he ingested chicken tainted with salmonella. The District Court reasoned, however, that

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based on its review of Brinson’s medical records and the testimony of Dr. Holloway,

Brinson had salmonella poisoning for only seven days. The Court found persuasive a

nonbinding decision, Gil v. United States of America, 2006 WL 385088 (M.D. Fl. 2006),

where a district court awarded a federal inmate who suffered food poisoning

noneconomic damages of 50 dollars per day. Similar to the case at bar, the district court

in Gil reasoned that 50 dollars a day was “a fair and reasonable amount to compensate

[the] Plaintiff for his intangible losses” where a federal prisoner had suffered from a few

days of acute gastroenteritis from eating tainted ham at the prison dining hall. Id. at *3.

The Court reasoned that the prisoner did not incur any “medical expenses, lost wages, or

other special damages,” and therefore, his recovery was limited to “intangible damages

for pain and suffering, inconvenience, and loss of capacity for enjoyment of life.” Id.

       While Brinson appears to have suffered from diarrhea and abdominal pain for a

few months after he ate the salmonella-tainted chicken, we cannot conclude the District

Court clearly erred in limiting his damages award calculation to the seven days. As the

Court noted, Brinson’s continued diarrhea could have been caused by factors other than

salmonella poisoning, such as his pre-existing gastroenteritis, and from the antibiotics he

was given for his sinusitis. His medical records from mid-July and mid-August indicate

that his other vital signs were normal. Moreover, the District Court did not err in

declining to grant the punitive damages Brinson requested because such damages are

prohibited in FTCA cases. See Molzof v. United States, 502 U.S. 301, 312 (1992).

       As this appeal presents no substantial question, we will summarily affirm.



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