ALD-033                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 18-1869
                                      ____________

                                      DENON KITT,
                                                       Appellant

                                             v.

                           UNITED STATES OF AMERICA
                        __________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                              (D.C. Civ. No. 3-15-cv-01115)
                            District Judge: Robert D. Mariani
                       __________________________________

                     Submitted on a Motion for Summary Affirmance
                    Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

                                November 15, 2018
                Before: MCKEE, SHWARTZ, and BIBAS, Circuit Judges

                           (Opinion filed: November 26, 2018)
                                     ____________

                                       OPINION*
                                      ____________


PER CURIAM

       Denon Kitt appeals from an order of the District Court granting summary

judgment to the United States of America. For the reasons that follow, we will

summarily affirm.

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Kitt, a federal inmate, sued the United States (“the Government”) under the

Federal Tort Claims Act (“FTCA”), alleging that he contracted latent tuberculosis (“TB”)

when he was negligently exposed to another inmate, who was suffering from active TB,

at the United States Penitentiary in Waymart, Pennsylvania (“USP Canaan”). Kitt

alleged that the Federal Bureau of Prisons failed to take reasonable precautions with

respect to the infected inmate, by isolating him instead of placing him on Kitt’s unit, and

that, as a result, he contracted latent TB. He sought $5,000,000 in damages. After taking

Kitt’s deposition, the Government moved for summary judgment, which Kitt opposed.

The Magistrate Judge issued a Report and Recommendation. Kitt submitted Objections.

The District Court then overruled Kitt’s objections and awarded summary judgment to

the Government. In an order entered on April 6, 2018, the District Court denied Kitt’s

timely motion for reconsideration.

       Kitt appeals pro se, and the United States has moved for summary affirmance.

Kitt has responded to the motion, and his response has been treated as his Informal Brief.

       We will summarily affirm because no substantial question is presented by this

appeal, Third Circuit LAR 27.4 and I.O.P. 10.6. Summary judgment is appropriate “if

the movant shows that there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party has

the initial burden of identifying evidence that shows an absence of a genuine issue of

material fact, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The District Court is

required to view the facts in the light most favorable to the non-moving party and make

all reasonable inferences in his favor, see Armbruster v. Unisys Corp., 32 F.3d 768, 777




                                          2
(3d Cir. 1994). Furthermore, credibility determinations on material issues cannot be

made in the context of a motion for summary judgment, nor may a District Court weigh

the evidence. See Petruzzi’s IGA Supermarkets, Inc. v. Darling-Delaware Co., Inc., 998

F.2d 1224, 1230 (3d Cir. 1993).

       On the other hand, the nonmoving party may not rest on mere allegations or

denials, Fed. R. Civ. Pro. 56(e)(2), (3). See also Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 256 (1986). Kitt was required, in opposing the Government’s motion for

summary judgment, to designate specific facts by use of affidavits, depositions,

admissions, or answers to interrogatories showing that there was a genuine issue for trial.

See Fed. R. Civ. P. 56(c) (setting forth requirements for supporting or opposing party’s

assertion that a fact cannot be or is genuinely disputed). Ultimately, “[w]here the record

taken as a whole could not lead a rational trier of fact to find for the non-moving party,

there is no genuine issue for trial.” Matsushita Electric Industrial Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986).

       The BOP policy for infectious disease management, including tuberculosis, is set

forth in Program Statement 6190.04. This program statement provides that, before an

inmate is transferred between BOP institutions, he must be medically cleared for

tuberculosis. Specifically, there must be no evidence of medical complaints or symptoms

associated with tuberculosis within the past 30 days, and the inmate must have a baseline

negative chest x-ray result if the tuberculin skin test is positive.

       The summary judgment record establishes the following undisputed facts.

Kimberly Bucklaw, R.N., the Quality Improvement Infection Prevention and Control




                                          3
Coordinator at USP Canaan, directs activities to identify and control infectious disease at

USP Canaan. Her review of the medical records of the infected inmate disclosed that he

was transferred into USP Canaan from Estill Federal Correctional Institute in South

Carolina in May, 2011. On arrival, the medical documentation indicated that this inmate,

while previously treated for latent tuberculosis, was asymptomatic for active tuberculosis.

The inmate’s Intra-System Transfer Form indicated that he had a chest x-ray performed

on April 20, 2011, which was negative for active TB. Accordingly, he was not isolated

from other inmates. More than a year later, on August 15, 2012, a new x-ray of the

carrier inmate’s chest revealed a mass in his left upper chest, but the physician

specifically stated in his note that he did not see any evidence of tuberculosis in the chest

at that time.

       On January 18, 2013, a pre-operative chest x-ray revealed an unspecified mass in

the inmate’s left lung. On June 26, 2013, the inmate had a follow-up examination

following a chest x-ray in which a hilar mass of the left lung was observed; a CT scan

was ordered to rule out cancer. On August 12, 2013, the inmate was transferred to

Wayne Memorial Hospital. An administrative note in the inmate’s medical record on

August 13, 2013 indicated that he had been placed in isolation. On August 19, 2013,

prison medical staff received positive confirmation that the inmate had active TB. In her

Report of Consultation, Dr. Rosita Liu confirmed the diagnosis of active TB and made

two observations which Kitt now, among other things, relies upon: that the inmate had a

“known lung mass since 2010;” and that he “was exposed to tuberculosis in 1994 and had

six months of therapy.”




                                           4
       The infected inmate was returned to USP Canaan on November 14, 2013 and

immediately placed in isolation and separated from all inmates, where he remained until

he was released. In the meantime, Bucklaw took action to identify and treat any potential

cases of tuberculosis within USP Canaan. Kitt, who had no prior history of tuberculosis

exposure, received several tuberculin skin tests. His skin tests on August 19 and October

8, 2013 were negative, but a repeat test on October 23, 2013, was positive. Kitt was

asymptomatic for the active strain of TB and his chest x-rays were negative. He

underwent a course of preventative care, including treatment with Isoniazid, and has

since remained asymptomatic for active TB.

       Under § 1346(b)(1) of the FTCA, federal district courts have jurisdiction over tort

claims against the United States for “injury or loss of property, or personal injury or

death” caused by the negligence of a federal government employee, if the claim would

give rise to liability in the state where the tort occurred. 28 U.S.C. § 1346(b)(1).

Accordingly, Kitt must identify and support a triable claim for negligence under

Pennsylvania law. Under Pennsylvania law, a tort plaintiff must show that (1) the

defendant owed a duty of care to the plaintiff; (2) the defendant breached that duty; (3)

there is a causal connection between the breach and the resulting injury; and (4) the

plaintiff suffered actual loss or damage. See Martin v. Evans, 711 A.2d 458, 461 (Pa.

1998). A plaintiff must show that the defendant’s negligence was the proximate cause of

his injury by a preponderance of the evidence, and Pennsylvania law defines proximate

cause as causation which was a substantial factor in bringing about the injury, Hamil v.

Bashline, 392 A.2d 1280, 1284 (1978).




                                           5
         No genuine issue of fact exists to show that BOP staff knew or should have known

that the inmate had active TB and should have been immediately isolated when he was

transferred to USP Canaan in May, 2011. The summary judgment evidence shows that

the inmate entered USP Canaan with the required documentation showing that he had a

chest x-ray on April 20, 2011, which was negative for active TB and that the inmate was

asymptomatic for active TB. Accordingly, that the inmate suffered from latent TB in

1994 and had, according to Dr. Liu, a “known lung mass since 2010,” is immaterial. 1

         Kitt also argues, however, that BOP staff should have suspected that the inmate

had active TB well before August, 2013. He points to the August 15, 2012 x-ray

showing a mass in the inmate’s chest, and cites the doctrine of res ipsa loquitur, arguing

that he could not have contracted latent TB without negligence by BOP staff in

connection with the specific inmate he has identified. The summary judgment record

establishes, however, that the BOP’s policies are designed to prevent exposure of inmates

to TB, and that the policies and protocols were fully implemented and administered at

USP Canaan by BOP staff in connection with the infected inmate. It is true that, after the

inmate had been in the general population at USP Canaan for over a year, an August,

2012 x-ray showed a mass located in this inmate’s left upper chest, but a physician’s note

specifically stated that there was no evidence of tuberculosis at that time. To the extent

that Kitt is arguing that that the presence of the mass in August, 2012 was itself

diagnostic of the inmate’s active TB, notwithstanding the physician’s note to the

contrary, he proferred no evidence to show that any staff member at USP Canaan knew or

1
    Dr. Liu did not state in her report that the inmate had active TB in 1994.




                                            6
had reason to know that the inmate had developed active tuberculosis prior to August 13,

2013, when he was evaluated at an outside hospital, nor does he have a medical expert to

identify problems with the BOP’s TB screening process. Moreover, Kitt failed to adduce

any evidence to show that the BOP staff’s alleged breach of a duty caused his exposure to

TB. TB is an airborne contagion which can be spread merely by coughing or sneezing.

Kitt did not have a medical expert to link any of his claimed damages to the alleged

negligent acts, and, because of the airborne nature of the disease, more was needed than

circumstantial proof of negligence to show a triable issue of causation, all as explained by

the District Court and the Magistrate Judge.

       For the foregoing reasons, we will affirm the order of the District Court granting

summary judgment in favor of the Government on Kitt’s FTCA claim.




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