United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
DOUGLAS P. WOODLOCK UNITED STATES DISTRICT JUDGE
Plaintiff Nicholas Martello brings this case under the Federal Tort Claims Act. He alleges that, while he was in federal custody after a violation of the terms of his supervised release, the United States failed to provide him with adequate medical care for a defective wire in his knee, causing him to suffer pain and damages in the amount of $10, 000. I denied a motion to dismiss when the government alleged inadequate service of process. Martello v. United States, 2015 WL 5680327 (D. Mass. Sept. 25, 2015). Following completion of discovery, the United States now moves for summary judgment. It contends that the level of care that it provided to Martello was adequate, and that Martello has provided no evidence or expert opinion to find otherwise.
A. Factual Background
Martello underwent knee surgery at Massachusetts General Hospital in October of 2011. A few months later, in January of 2012, he saw a different doctor for a follow-up visit where he discussed the possibility of removing a wire that was put into his knee during the original surgery. Martello and the doctor specifically discussed the possibility of removing the wire at a later visit, but left it in place for the time being.
On February 9, 2012, Martello was found to have violated the conditions of his supervised release on a prior federal sentence. He was taken into custody on February 15, 2012 and transferred to a federal Bureau of Prisons facility in Brooklyn, New York. At that facility, he was prescribed a painkiller for his knee as a result of an initial medical evaluation. After a few weeks at the facility, Martello had a full medical exam, at which he did not complain of knee pain.
On May 31, 2012, Martello was transferred to another Bureau of Prisons facility, this one in Otisville, New York, where he was given another initial medical evaluation, during which his knee was not mentioned. On June 14, 2012, Martello saw Dr. Sommer, the clinical director at Otisville. He mentioned pain in his knee, which he thought was a result of a broken wire from his surgery. Dr. Sommer ordered an x-ray of the knee and made a note to schedule a consultation with an orthopedic doctor if the x-ray showed that the wire was broken. The x-rays did not show any evidence of a broken wire in Martello’s knee; consequently, a consultation was not scheduled at that time.
On July 30, 2012, Martello had another physical exam, at which a doctor noticed mild swelling in his knee, but no physical evidence of a broken wire. The doctor requested Martello’s surgery records from MGH and requested that an appointment be made for Martello to see an orthopedist. This request was provisionally approved on August 10, 2012, but needed further approval from the Regional Medical Director responsible for the area’s federal prison facilities. Martello had another exam at Otisville on September 25, 2012, during which the doctor noticed physical signs of a defective wire in his knee. On November 2, 2012, Martello had a consultation with Dr. Daniil Polishchuk, an orthopedic specialist who recommended removing the wire. On December 5, 2012, Martello filed an administrative claim with the Bureau of Prisons, complaining that he had not yet had a procedure to remove the wire, despite Dr. Polishchuk’s recommendation. On December 20, 2012, Dr. Polishchuk performed a procedure to remove the wire from Martello’s knee. Martello was released from federal custody shortly thereafter, when the term of his incarceration ended on January 22, 2013.
Martello’s administrative claim was denied on June 4, 2013. The denial cited the fact that Martello had in fact ultimately had the procedure to remove the wire, and that he had suffered no compensable loss due to BOP negligence. On December 4, 2013, Martello filed a claim in this court seeking $10, 000 in damages, alleging inadequate and negligent medical care provided by the United States, or, more specifically, by the BOP through its medical staff. Fact discovery closed on July 31, 2015. Plaintiff’s expert disclosures were due on September 4, 2015, those of the defendant due on October 2, 2015, and depositions of both to be completed by October 30, 2015. Plaintiff, however, disclosed no expert opinion in support of his claim.
II. LEGAL STANDARD
Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a), (c). A “genuine” dispute is one that, based on the evidentiary material, a factfinder “could resolve . . . in favor of the non-moving party, ” and a “material” fact is one that has “the potential to affect the outcome of the suit under the applicable law.” Sanchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996) (citations and quotation marks omitted). When reviewing a motion for summary judgment, I view the facts “in the light most favorable to the non-moving party.” Zambrana-Marrero v. Suarez- Cruz, 172 F.3d 122, 125 (1st Cir. 1999). If the moving party satisfies the burden of showing, based on evidentiary material, that there is no genuine issue of material fact, the burden shifts to the nonmoving party to demonstrate by reference to other evidentiary material “that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). “[C]onclusory allegations, improbable inferences, and unsupported speculations” are insufficient to establish a genuine dispute of fact. Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).
The United States contends that, because Martello ultimately received the necessary knee surgery, his claim is moot because he is no longer suffering an injury. It is of course true that Article III requires a live case or controversy for a district court to assert jurisdiction. See Steffel v. Thompson, 415 U.S. 452, 459 n. 10 (1974) (“The rule in federal cases is that an actual controversy must be extant at all stages of review, not ...