Friedman v. United States

87 F. App'x 459
CourtCourt of Appeals for the Sixth Circuit
DecidedDecember 10, 2003
DocketNo. 02-1802
StatusPublished
Cited by2 cases

This text of 87 F. App'x 459 (Friedman v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Friedman v. United States, 87 F. App'x 459 (6th Cir. 2003).

Opinion

ORDER

Herbert M. Friedman, proceeding pro se, appeals a district court judgment dismissing his civil complaint filed pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-2680. 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).

Seeking monetary and equitable relief, Friedman sued the United States and the United States Bureau of Prisons, essentially claiming that: 1) the defendants failed to provide him with adequate treatment for Crohn’s disease (a chronic inflammatory bowel condition) and for ankylosing spondylitis (a spinal condition); and 2) he was exposed to second-hand cigarette [461]*461smoke. Upon initial review, the district dismissed the complaint for failure to state a claim. On appeal, a panel of this court affirmed in part, reversed in part, and remanded the case with instructions for the district court to permit Friedman to amend his complaint to assert a claim based on the defendants’ alleged negligence in providing for the safekeeping, care and substance of federal prisoners under 18 U.S.C. § 4042. Friedman v. United States, No. 99-1445, 2000 WL 876391 (6th Cir. June 21, 2000).

On remand, Friedman alleged that the defendants engaged in culpable negligence in violation of § 4042(a)(2), when they failed to provide him with sanitary living conditions, proper diet, and adequate bedding, which exacerbated his health conditions. At trial, Friedman also alleged that his Crohn’s disease was exacerbated by exposure to second-hand cigarette smoke. Following the bench trial, the district court ruled that Friedman had not established that the defendants were negligent in the discharge of their duties, and it granted judgment in favor of the defendants.

Friedman has filed a timely appeal essentially reasserting his claims. He also argues that the trial judge was biased against him, that he improperly declined to take judicial notice of adjudicable facts, that he improperly denied Friedman the opportunity to present a rebuttal witness in response to the testimony of a prison dietician (Mayhew), and that the trial judge erred by failing to compel the testimony of a witness (Reiner).

Upon review, we conclude that the district court properly granted judgment in favor of the defendants. This court reviews conclusions of law de novo and findings of fact for clear error. Performance Unlimited, Inc. v. Questar Publishers, Inc., 52 F.3d 1373, 1381 (6th Cir.1995). A finding of fact is clearly erroneous when the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948).

The trial court properly concluded that the defendants were not negligent in the discharge of their duty to provide Friedman with a diet amenable to his Crohn’s disease. A review of the record reflects that the defendants took reasonable steps to accommodate Friedman’s needs. Friedman acknowledged that, shortly after he arrived at FMC-Rochester (FMC), he met with the prison physician (Reiner) and reviewed his medical history with the doctor. Friedman testified that he informed Rein-er that he was accustomed to eating six small meals per day, and had been avoiding greasy, fried foods and highly spiced foods. Reiner arranged for Friedman to meet with the prison dietician (Mayhew). Mayhew testified that she met with Friedman and performed a nutrition assessment, and she made note of Friedman’s intolerance for high fiber foods and large quantities of dairy products. Mayhew arranged for multiple feedings and increased Friedman’s snacks. Friedman began to complain about the food he was receiving, and the defendants responded by offering diet tray meals and changing the snacks provided to Friedman. Friedman’s and Mayhew’s testimony also established that Friedman received three meals per day, plus a snack in the evening. Although Friedman argued that he was not permitted to keep any snack items overnight to be consumed the next day, Mayhew testified that inmates were allowed to keep snack items in the refrigerator at the nurses’ station. In addition, Friedman’s former FMC roommate testified that he was unaware of any problem with inmates being allowed to keep snacks overnight.

[462]*462The district court properly concluded that the menu items made available to Friedman did not represent negligence on the defendants’ part. Friedman complained that he was not provided with bananas or cottage cheese, and that he was served the same flavor of Jell-0 on 23 consecutive days. However, he has not presented anything establishing that he could not tolerate the food items provided to him, or that the defendants were obligated to make alternative food items available to him. The record also reflects that there is no such thing as a “Crohn’s diet.” Friedman’s post-incarceration gastroenterologist (Wiley) explained that there is no clear-cut association between a person’s diet and flare-ups of Crohn’s disease symptoms, and that the cause of Crohn’s disease is unknown.

The district court properly concluded that the defendants established that they took reasonable steps to maintain proper sanitation at FMC. Friedman argued that the unsanitary conditions at FMC, including unclean utensils and an appearance of rodent feces on inmate food trays, caused him to lose his appetite which adversely impacted his Crohn’s disease. The record reflects that the defendants were not negligent in this regard. During his deposition, the food service administrator (Wiesmann) testified that the dishwashing equipment used at FMC was checked daily to ensure that it was functioning properly. Wiesmann also testified that all of the dishes and utensils went through a pre-wash, a wash, and a rinse cycle. Furthermore, the dishes and utensils were treated with a liquid sanitizer and were heated to a minimum of 180 degrees to ensure cleanliness. With respect to Friedman’s complaints about the rodent feces, the record does not reflect that Friedman alleged that the feces came into contact with any food or that he actually ingested any feces. Friedman acknowledged that prison staff was notified immediately, and that the staff apologized and promised to investigate the matter. Moreover, Wiesmann testified that the food service areas were inspected regularly, and that traps and chemical means were used to control mice.

Finally, the defendants were not negligent with respect to Friedman’s complaint that exposure to second-hand smoke exacerbated his Crohn’s disease. First, the record does not reflect that Friedman ever complained to any prison official about the second-hand smoke or the alleged failure of prison guards to enforce the “no-smoking indoors” rule. Second, Friedman’s treating physician testified that he was unaware of any connection between exposure to second-hand smoke and exacerbation of Crohn’s disease symptoms.

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Bluebook (online)
87 F. App'x 459, Counsel Stack Legal Research, https://law.counselstack.com/opinion/friedman-v-united-states-ca6-2003.