Porter v. Hendrix

Case 2:19-cv-00138-LPR-JTR Document 76 Filed 07/24/23 Page 1 of 39

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS DELTA DIVISION

DAMON DEWAYNE PORTER PLAINTIFF v. Case No. 2:19-CV-00138-LPR DEWAYNE HENDRIX, et al. DEFENDANTS

MEMORANDUM OF DECISION

On June 6, 2023, the Court presided over a bench trial in this case.1 The trial involved only one claim under the Federal Tort Claims Act. That single claim alleged that (1) the United States negligently failed to repair a hole in a prison shower, (2) Plaintiff Damon Dewayne Porter stepped in the hole and fell, and (3) Mr. Porter suffered injuries from the fall.2 At the bench trial, the Court heard evidence and legal argument. Now, in accordance with Federal Rule of Civil Procedure 52(a), and after reviewing the entire trial record, the Court makes the following findings of fact and conclusions of law regarding Mr. Porter’s claim.

FINDINGS OF FACT

1. During the time period involved in this lawsuit, Mr. Porter was an inmate at the Federal Correctional Institution in Forrest City, Arkansas (Forrest City).3 He was serving a 151-month sentence for enticement to prostitution.4

2. Mr. Porter was originally incarcerated at Beaumont Medium.5 But sometime in

1 Clerk’s Mins. (Doc. 68). 2 Compl. (Doc. 2) at 9, 12–13. All other claims in this case have either been dismissed or stayed pending resolution of the FTCA slip-and-fall claim. See Order (Doc. 37); Order (Doc. 39). 3 June 6, 2023 Tr. of Bench Trial at 8:21–23, 38:9–10. 4 Id. at 8:24–9:2, 38:1–6. 5 Id. at 9:3–4, 38:7–8.

Case 2:19-cv-00138-LPR-JTR Document 76 Filed 07/24/23 Page 2 of 39 2015 or 2016, he was sent to Forrest City Medium.6

3. At Forrest City, Mr. Porter was housed in the A-1 Unit.7 He was in cell 220.8 The following picture shows Mr. Porter’s cell in relation to the showers and much of the A-1 Unit.9 Cell 220 is in the foreground of the picture, on the left side as one looks at the picture. The two rows of showers—one row above the other row—are in the background of the picture, on the right side as one looks at the picture.

4. The A-1 Unit has twelve showers.10 Showers one through six are on the first floor and showers seven through twelve are directly above on the second floor.11 Generally speaking, inmates may use any of these showers; the decision of which shower to use is left to the individual

6 Id. at 9:5–9, 38:9–18. Neither the testimony in this trial nor any admitted exhibit provides a more exact transfer date. 7 Id. at 10:19–20. 8 Id. at 11:4–5. 9 Def.’s Trial Ex. 2B; see June 6, 2023 Tr. of Bench Trial at 11:1–5. 10 June 6, 2023 Tr. of Bench Trial at 57:25–58:2; see Def.’s Trial Ex. 2A. 11 June 6, 2023 Tr. of Bench Trial at 58:19–24; see Def.’s Trial Ex. 2A.

Case 2:19-cv-00138-LPR-JTR Document 76 Filed 07/24/23 Page 3 of 39 inmate.12

5. The following picture shows more clearly the two rows of showers.13 Shower 8, which is the shower directly at issue in this case, is on the top row, second-from-the-left as one looks at the picture.14

6. On October 25, 2018, Mr. Porter took a shower in Shower 8.15 There was a hole in the floor of Shower 8 as the result of water eroding away the tile.16 The hole was about five to eight inches wide.17 The deepest part of the hole was “approximately an inch and a half to [two] inches deep.”18 It was located about ten inches from the back wall of the shower, almost directly

12 See June 6, 2023 Tr. of Bench Trial at 43:12–15. 13 Def.’s Trial Ex. 2A; see June 6, 2023 Tr. of Bench Trial at 11:22–12:13, 58:3–8. 14 June 6, 2023 Tr. of Bench Trial at 12:14–23, 58:9–11. 15 Id. at 10:15–18, 75:1–7. 16 Id. at 59:11–14, 59:21–60:5, 62:16–19; see Def.’s Trial Ex. 2C. 17 June 6, 2023 Tr. of Bench Trial at 59:21–60:5. 18 Id.

Case 2:19-cv-00138-LPR-JTR Document 76 Filed 07/24/23 Page 4 of 39 below the shower head.19

7. Below are two pictures to aid in understanding the contours of the shower and the location of the hole. The first picture is an image of the shower taken in 2022, well after the hole was fixed.20 That picture was taken from essentially the entrance to the shower, and shows the shower head, two drains, and no hole. The second picture is of the eroded tile and resulting hole in Shower 8 as it was on October 25, 2018.21 That picture shows the drain closest to the shower head and the hole between the drain and the wall to which the shower head is attached.

19 Id. 20 Def.’s Trial Ex. 2F. 21 Def.’s Trial Ex. 2C.

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8. The hole was there ever since Mr. Porter arrived at Forrest City in 2015 or 2016.22 Mr. Porter knew about the hole for years.23 And he knew it was getting worse, bigger, and deeper over time.24 Indeed, he had made efforts to report the hole to Forrest City staff prior to October 25, 2018.25 Despite the existence of the hole and Mr. Porter’s knowledge of it, Mr. Porter chose to use Shower 8 almost exclusively from his arrival at Forrest City through October 25, 2018.26 Mr. Porter does not suggest he forgot about the hole when he chose to use Shower 8 on October 25, 2018. The Court finds that, on October 25, 2018, before he entered Shower 8, Mr. Porter knew about the hole, its general size, and its general depth.

9. Mr. Porter was not the only one to know about the hole. Bureau of Prisons officials

22 June 6, 2023 Tr. of Bench Trial at 16:16–19, 39:3–5. 23 Id.; see id. at 38:25–39:2. 24 Id. at 16:16–19, 39:3–5. 25 Id. at 16:20–22. 26 Id. at 12:14–15.

Case 2:19-cv-00138-LPR-JTR Document 76 Filed 07/24/23 Page 6 of 39 knew about the hole as well.27 They knew about it and the need to fix it at least as far back as August of 2018.28 And the reasonable inference the Court draws is that BOP officials knew about it long before August of 2018, especially since officials came around and did safety inspections at regular intervals.29

10. While showering in Shower 8 on October 25, 2018, Mr. Porter got soap in his eyes, inadvertently stepped into the hole, and fell to the ground.30 The fall caused him some pain and resulted in some level of injury.31

11. All of the foregoing is either undisputed or only minimally disputed. The serious factual dispute (at least with respect to liability) is whether, on October 25, 2018, Shower 8 was the only shower in the A-1 Unit with hot water.

12. Mr. Porter testified that he usually used Shower 8 because it was the only shower with hot water.32 This portion of Mr. Porter’s testimony was focused generally on his entire term of incarceration at Forrest City up until the day of the incident.33 As to the day of the incident, Mr. Porter also specifically testified that Shower 8 was the only shower in the A-1 Unit that had hot water.34

13. The Court credits the testimony discussed in paragraph 12 in part. To be clear, the Court finds that Mr. Porter sincerely believed, both before and on October 25, 2018, that Shower

27 McGlawn Dep. at 20:7–22:3; Pl.’s Trial Ex. 1 at 1–2; Def.’s Trial Ex. 3 at 6; see June 6, 2023 Tr. of Bench Trial at 16:20–25, 62:10–15, 63:2–64:1, 64:23–65:1. 28 Def.’s Trial Ex. 3 at 1, 4, 6. 29 June 6, 2023 Tr. of Bench Trial at 16:20–17:4; see id. at 56:25–57:4, 62:10–13; see also Def.’s Trial Exs. 3 & 4. 30 June 6, 2023 Tr. of Bench Trial at 16:5–9, 17:13–19. 31 See infra Findings of Fact ¶¶ 38–45. 32 June 6, 2023 Tr. of Bench Trial at 12:14–15, 12:24–25. 33 See id. at 12:25, 42:21–43:6. 34 Id. at 11:6–12:25.

Case 2:19-cv-00138-LPR-JTR Document 76 Filed 07/24/23 Page 7 of 39 8 was the only shower in the A-1 Unit with hot water. However, the Court finds that Mr. Porter has failed to prove by a preponderance of the evidence that, in fact, Shower 8 was the only shower in the A-1 Unit with hot water during his incarceration at Forrest City and on October 25, 2018.

14. The problem with Mr. Porter’s testimony is a lack of personal knowledge. Mr. Porter testified that, when he first came to Forrest City, he used each of the available showers and, at that time, the only shower with hot water was Shower 8.35 He also testified that, after this initial period, he used each of the other showers one or two more times before October 25, 2018—the date of his fall in Shower 8.36 And he testified that each time he used the other showers, they did not have hot water.37

15. The Court assumes (fairly conservatively based on the testimony) that Mr. Porter was at Forrest City for at least 730 days (2 years) prior to the October 25, 2018 incident.38 Over those 730 days, he used each shower other than Shower 8 only two or three times.39 With respect to each shower, that’s not enough to have personal knowledge that a particular shower was cold all the time or, specifically, on October 25, 2018. With respect to the showers cumulatively, he only used the 11 showers other than Shower 8 between 22 and 33 times—less than 5 percent of the days between his arrival at Forrest City and the day of his fall. Again, that’s not enough to give him personal knowledge that the other showers were always cold or cold on October 25, 2018. Moreover, what he had personal knowledge of—in terms of the number of cold showers he had taken—does not make it more likely than not that only Shower 8 had hot water on October 25,

35 Id. at 44:7–15. 36 Id. at 44:5–7. 37 Id. at 14:15–22. 38 See id. at 38:11–15 (Mr. Porter stating that he arrived at Forrest City “sometime in ’15 or sometime in ’16”). 39 Id. at 43:16–23.

Case 2:19-cv-00138-LPR-JTR Document 76 Filed 07/24/23 Page 8 of 39 2018.

16. Aside from his own personal experience, Mr. Porter testified to seeing, over the course of his time at Forrest City, groups of other inmates running to get in line for Shower 8 as soon as their cell doors were opened.40 And he testified that everybody in the A-1 Unit preferred to use Shower 8 because of the hot water.41 Specifically, he testified that the only time another inmate would use a shower other than Shower 8 was if the inmate was brand new to the facility or if it was summertime.42

17. There are some problems with this testimony. First, Mr. Porter does not specify when he saw groups of inmates running to Shower 8. It is speculative to assume that Mr. Porter was saying this happened every day of his incarceration at Forrest City. The Court does not make that leap. Without knowing when this occurred, its evidentiary value is extremely minimal. Second, we know that Mr. Porter was not always present in the A-1 Unit throughout the day; he often left the unit for work in other parts of the facility.43 Although he can testify to what he saw while he was present in the A-1 Unit, he can’t testify to what other inmates did or didn’t do while he was away from the unit working elsewhere in the facility.

18. Moreover, there was no competent evidence as to why groups of inmates were running to Shower 8 or not showering in other showers. To the extent Mr. Porter is relying solely on the fact that other inmates ran to Shower 8 or the fact that he didn’t see inmates using the other showers often, it is sheer speculation as to why. For certain, the Court accepts that this evidence bolsters the idea that Mr. Porter sincerely believed Shower 8 was the only shower with hot water.

40 Id. at 13:1–9, 42:25–43:2. 41 Id. at 14:11–13. 42 Id. at 43:2–6. 43 Id. at 15:14–23, 40:4–8.

Case 2:19-cv-00138-LPR-JTR Document 76 Filed 07/24/23 Page 9 of 39 But Mr. Porter can’t testify as to what was in the minds of those other inmates; in any event, those other inmates might have been operating on incorrect assumptions as well. And if Mr. Porter’s testimony was trying to suggest what inmates told him about why they used Shower 8 and not the other showers, that’s inadmissible hearsay if used for the truth of the matter asserted.

19. In a deposition admitted without objection at trial, Martha McGlawn (a Senior Officer Specialist at Forrest City) testified that she vaguely recalled that, at some unspecified time period, inmates would say “there might be hot water on the end showers or in certain spots certain times of the day . . . .”44 Even putting aside the hearsay problems with this statement, her vague and unspecific recollections don’t come anywhere close to suggesting that Shower 8 was the only one with hot water on October 25, 2018. Indeed, her testimony about the “end showers,” if it could be considered at all, would suggest Shower 8 was not the only shower with hot water.45 Ultimately, the Court chooses not to consider her hearsay testimony.

20. On the other side of the ledger, there is some competent evidence that Shower 8 was not the only shower with hot water—both generally and on October 25, 2018. Ron White, who was the Forrest City Complex Safety Manager from 2016 to 2021, credibly testified that one single pipe services the hot water for all twelve showers in the A-1 Unit.46 As Mr. White testified, that means the temperature of the hot water going to each of the twelve showers would be the same at any given time, and so it’s the time of use (as opposed to the shower used) that determines whether hot water is available.47

21. In addition, it is worth emphasizing that Shower 8 is the second shower (from the

44 McGlawn Dep. at 9:6–15, 23:15–23. 45 Id. 46 June 6, 2023 Tr. of Bench Trial at 56:6–15, 61:3–20. 47 Id. at 61:17–62:1, 66:4–13.

Case 2:19-cv-00138-LPR-JTR Document 76 Filed 07/24/23 Page 10 of 39 left) on the top row.48 Given that location, there is no good explanation for why only that shower and no other shower would have hot water. Perhaps if it was an end shower, it might make more sense. Or if just Shower 8 and the shower directly below it had hot water, maybe that would make more sense. But there’s no good explanation for why only Shower 8 would have hot water.

22. Based on the foregoing—especially Paragraphs 13–18 and Paragraph 20—the Court finds that Shower 8 was not the only hot shower in the A-1 Unit on October 25, 2018, but that Mr. Porter sincerely believed it was. The Court’s conclusion is based on its view that Mr. Porter has failed to prove by a preponderance of the evidence that Shower 8 was the only hot shower.49

23. Aside from the hot water issue, the other significant factual dispute in this case centers around the extent of Mr. Porter’s injuries from the fall. The next 43 paragraphs contain factual findings that relate to causation and damages.

24. Prior to the October 25, 2018 fall, Mr. Porter already had significant injuries and pain associated with some of those injuries.

48 Id. at 58:9–11. 49 Although the Court reached its factual findings on this point independent of the following information, it is worth noting that the Court’s findings are consistent with Mr. Porter’s Proposed Findings of Fact and Conclusions of Law. Proposed Fact 2 in that submission reads: “Unit A-1 Shower 8 was one of the only showers that had hot water on October 25, [2018].” Pl.’s Proposed Findings of Fact and Conclusions of Law (Doc. 72) ¶ 2. This proposed fact obviously implies that Shower 8 was not the only shower that had hot water on that date. And lest one believe this was simply a drafting error as opposed to a considered position, the same verbiage appears in other equally important filings. In Mr. Porter’s (pro se) Complaint, he alleged that “[o]n October 25, 2018, inmate Damon Porter . . . entered one of the only hot showers in Unit A-1 upper shower no. 8.” Compl. (Doc. 2) at 23. In Mr. Porter’s Pre-Trial Disclosures, the “concise summary of the facts” section includes the statement that, on October 25, 2018, “Mr. Porter entered one of the only hot showers in Unit A-1 upper shower No. 8.” Pl.’s Pre-Trial Disclosures (Doc. 67) at 2. In the “[a]ll proposed stipulations” section of that document, Mr. Porter proposed the following stipulation: “Unit A-1 Shower 8 was one of the only showers that had hot water on October 25, [2018].” Id. at 3. Then, in the “facts and procedural history” section of his Trial Brief, Mr. Porter asserted that “[o]n October 25, 2018, . . . Mr. Porter entered one of the only hot showers in Unit A-1 upper shower No. 8.” Pl.’s Trial Br. (Doc. 73) at 1 (capitalization omitted). And in the “analysis” section of the same Trial Brief, Mr. Porter argued that he “entered one of the only hot showers in Unit A-1 upper shower No. 8.” Id. at 2 (capitalization omitted). To be fair, these filings were all made before the trial. However, at the end of trial, the Court asked each party whether they wanted to supplement their proposed findings of fact and conclusions of law based on the evidence that came out at trial. June 6, 2023 Tr. of Bench Trial at 109:9–17. Both sides declined the invitation. Id. at 109:18–21.

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25. When he was 15 years old, Mr. Porter was involved in a car wreck.50 The wreck “shattered” the left side of Mr. Porter’s face and his sinus cavity.51 Mr. Porter has sinus problems because of these injuries. Specifically, he testified to “sometimes” having headaches and being “stopped up.”52

26. In 1991, Mr. Porter was shot in the back.53 The injury left him with a bullet fragment that “projects over the right lower quadrant” of his lumbar spine.54 Since the injury, Mr. Porter has suffered back pain.55 After arriving at Forrest City, he visited the medical unit numerous times to address the pain. A number of those visits occurred before the October 25, 2018 fall. They are detailed below.

27. On October 26, 2016, Mr. Porter saw Licensed Vocational Nurse Kelsea Jones for a “Bureau of Prisons Health Services Health Screen.”56 That Health Screen indicated that Mr. Porter had lower back pain from the 1991 gunshot wound.57

28. The Forrest City medical unit performed another health screen of Mr. Porter on March 17, 2017.58 That health screen was performed by Registered Nurse Melissa Loveday.59

50 June 6, 2023 Tr. of Bench Trial at 9:18–10:4. 51 Id. at 9:21–22. 52 Id. at 10:9–13. 53 Id. at 9:22–23, 10:5–8; Def.’s Trial Ex. 1A at 115–16. When referencing Defendant’s Trial Exhibit 1A, the Court uses the bates-number pagination at the bottom right corner of each exhibit document. In doing so, the Court omits “BOP” and the leading zeros in the bates-number pagination. For example, the Court references page “BOP000116” as page “116.” 54 Def.’s Trial Ex. 1A at 171; June 6, 2023 Tr. of Bench Trial at 72:17–22. 55 June 6, 2023 Tr. of Bench Trial at 10:9–14. 56 Pl.’s Trial Ex. 2, Attach. 3 at 1. 57 Id. at 3. 58 Pl.’s Trial Ex. 2, Attach. 4 at 1. 59 Id.

Case 2:19-cv-00138-LPR-JTR Document 76 Filed 07/24/23 Page 12 of 39 Mr. Porter reported “sciati[c]a” pain at that visit.60 The visit was otherwise unremarkable.

29. On March 22, 2017, Mr. Porter complained to the medical unit about “chronic lower back pain” and “sciatic type pain in [his] hips.”61 The treating physician at that visit, Dr. Capps, provided Mr. Porter with lower-back exercises and advised him on weight loss.62 At the time, Mr. Porter weighed 246 pounds.63

30. On May 24, 2017, Mr. Porter returned to the medical unit to complain about lower back pain that had “increased” to a 6 out of 10.64 At that visit, Mr. Porter saw Advanced Practical Registered Nurse Jillian Harris.65 Nurse Harris instructed Mr. Porter to use over-the-counter pain medication, muscle rub, and ice.66 She also ordered an x-ray of Mr. Porter’s lumbar spine.67 The results of the x-ray showed the bullet fragment in Mr. Porter’s back and “minimal facet arthropathy . . . .”68 Minimal facet arthropathy is arthritis, a chronic condition that can cause pain.69

31. After the x-ray, Mr. Porter continued to frequent the Forrest City medical unit for pain treatment. On June 26, 2017, he complained about back pain that “radiate[d] down his legs” and was an 8 out of 10 on a pain scale.70 When asked about his weight loss efforts, Mr. Porter stated that he was doing exercises but not “regularly.”71

60 Id. at 3. 61 Def.’s Trial Ex. 1A at 115 (capitalization omitted); June 6, 2023 Tr. of Bench Trial at 71:24–72:5. 62 Def.’s Trial Ex. 1A at 115; June 6, 2023 Tr. of Bench Trial at 71:24–72:6. 63 Def.’s Trial Ex. 1A at 116; June 6, 2023 Tr. of Bench Trial at 72:7–9. 64 Def.’s Trial Ex. 1A at 108. 65 Id.; see June 6, 2023 Tr. of Bench Trial at 70:19–25. 66 Def.’s Trial Ex. 1A at 108. 67 Id. 68 Id. at 171; June 6, 2023 Tr. of Bench Trial at 72:23–73:5. 69 See June 6, 2023 Tr. of Bench Trial at 72:23–73:5. 70 Def.’s Trial Ex. 1A at 104; June 6, 2023 Tr. of Bench Trial at 73:6–9. 71 Def.’s Trial Ex. 1A at 104.

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32. On July 19, 2017, Mr. Porter reported to the medical unit because of pain in his lower back that he rated as an 8 out of 10.72 Nurse Harris prescribed Mr. Porter Motrin, back stretches, muscle rub and ice, and again advised him on diet and weight loss.73 On that day, Mr. Porter weighed 242 pounds.74

33. Mr. Porter returned to the medical unit on August 25, 2017.75 Dr. Capps treated Mr. Porter and noted that he had chronic lower back pain, that he rated the pain as an 8 out of 10, and that he had not lost any weight since his last visit (although he claimed he walked five miles daily).76 At this visit, Mr. Porter weighed 245 pounds.77

34. On December 7, 2017, Mr. Porter returned to the medical unit for continued lower back pain that shot “down his legs and up into his shoulder blades.”78 Mr. Porter reported that his pain was a 9 out of 10 and became “worse with movement and sitting still for too long.”79 The medical records indicate that Mr. Porter had gained weight since his previous medical unit visit— he now weighed 254 pounds.80 Nurse Harris discontinued the Ibuprofen and prescribed Mr. Porter Indomethacin for pain relief.81

35. On February 6, 2018, Mr. Porter visited the medical unit to complain that the Indomethacin was not relieving his back pain—which he then rated as an 8 out of 10.82 He

72 Id. at 99. 73 Id. 74 Id. at 100. 75 Id. at 94. 76 Id. 77 Id. at 95. 78 Id. at 82; June 6, 2023 Tr. of Bench Trial at 73:10–21. 79 Def.’s Trial Ex. 1A at 82; June 6, 2023 Tr. of Bench Trial at 73:17–18. 80 Def.’s Trial Ex. 1A at 83. 81 Id. at 82. 82 Pl.’s Trial Ex. 2, Attach. 9 at 1.

Case 2:19-cv-00138-LPR-JTR Document 76 Filed 07/24/23 Page 14 of 39 indicated that he wished to switch back to Ibuprofen.83 Nurse Harris obliged and prescribed Mr. Porter Ibuprofen again.84

36. On May 23, 2018, Mr. Porter went to the Forrest City Medical Center for a CT scan of his lumbar spine.85 The results showed “[n]o acute osseous abnormality . . . [and a] small disk osteophyte complex present at the L5-S1 level . . . .”86 No acute osseous abnormality means that “there’s nothing wrong with the bone.”87 And a small disk osteophyte complex is “[s]imilar to a bone spur.”88

37. On August 8, 2018—about two and a half months before his fall—Mr. Porter again presented to the medical unit with back pain.89 He rated his pain as an 8 out of 10 and indicated that “[e]xacerbating [f]actors” were “[w]eather change and prolonged standing.”90 Mr. Porter saw Dr. Woodard, who renewed Mr. Porter’s Ibuprofen prescription.91 There is no indication that Dr. Woodard discussed weight loss with Mr. Porter, even though Mr. Porter then weighed 256 pounds.92

38. The October 25, 2018 fall certainly caused Mr. Porter some pain. When he fell, his “ankle was really throbbing,” and he had pain in his shoulder, elbow, neck, and back.93 Mr.

83 Id. 84 Id. at 3. 85 Def.’s Trial Ex. 1A at 274. 86 Id.; Pl.’s Trial Ex. 2, Attach. 9; June 6, 2023 Tr. of Bench Trial at 74:5–9. 87 June 6, 2023 Tr. of Bench Trial at 74:10–12. 88 Id. at 74:13–14. 89 Def.’s Trial Ex. 1A at 504. 90 Id. 91 Id. 92 Id. at 504–05. 93 June 6, 2023 Tr. of Bench Trial at 18:10–15; see id. at 75:6–9; see also Pl.’s Trial Ex. 1 at 1 (Officer McGlawn email stating that “Inmate Porter, Damon . . . fell in shower # 8 . . . and hurt his neck and back . . .”).

Case 2:19-cv-00138-LPR-JTR Document 76 Filed 07/24/23 Page 15 of 39 Porter’s pain made him “unable to make it to” the prison medical unit by foot.94 So, Registered Nurse Candyce Nichols met Mr. Porter in the A-1 Unit.95 Nurse Nichols escorted Mr. Porter to a “medical ambulance” for transport to the medical unit.96

39. Upon arrival at the medical unit, Mr. Porter was “able to ambulate without assistance [or] limping.”97 At that point, Mr. Porter reported “aching pain” in the “right side of [his] neck, shoulder, back and leg . . . .”98 He also reported “a headache [even] though he did not hit his head.”99 Mr. Porter rated his pain a 10 out of 10.100 Nurse Nichols gave Mr. Porter Tylenol and instructed him to follow-up with medical the next morning.101 He was then returned to his cell.102

94 Def.’s Trial Ex. 1A at 221; June 6, 2023 Tr. of Bench Trial at 17:16–21, 17:25–18:1. 95 Def.’s Trial Ex. 1A at 221; see June 6, 2023 Tr. of Bench Trial at 17:17–18; see also id. at 75:1–5. 96 Def.’s Trial Ex. 1A at 221; June 6, 2023 Tr. of Bench Trial at 17:17–18:1, 75:10–13. 97 Def.’s Trial Ex. 1A at 221; June 6, 2023 Tr. of Bench Trial at 75:21–23. There is conflicting testimony on this point from Mr. Porter. See June 6, 2023 Tr. of Bench Trial at 28:25–29:7 (“[Mr. Porter:] Like from where I put my wheelchair was probably from right here to the seat right there because you couldn’t get it inside the door and I walked like tentatively trying to you might as well say hobble, because it wasn’t like walking perfect.”). The Court resolves the conflict in favor of the United States of America. The Court believes Mr. Porter tended to exaggerate his reports (and testimony) of post-fall injuries and pain. Indeed, several Forrest City medical professionals created notes that recorded Mr. Porter’s ability to walk into the medical unit without the wheelchair. See infra Findings of Fact ¶¶ 43, 55, 58. These notes were made independent of one another, at different times, and started the night of the fall. And they are consistent with the Court’s finding. Moreover, also consistent with the Court’s finding is the credible testimony that, after his fall, Mr. Porter used the elliptical and sometimes walked laps on the track without a wheelchair. See infra Findings of Fact ¶¶ 47–48. In short, it is more likely than not that Mr. Porter was able to ambulate without assistance or limping when he arrived at the medical unit after the fall on October 25, 2018. Throughout the course of the entire Findings of Fact section, the Court either explicitly or implicitly makes findings that require resolution of conflicting evidence (testimonial or otherwise). Sometimes the Court explicitly notes the conflicting evidence and sometimes it does not. Regardless, where the Court has made a finding of fact in the face of conflicting evidence, the Court has considered such conflicting evidence before making the finding. That applies whether the finding is explicit or implicit. 98 Def.’s Trial Ex. 1A at 221; June 6, 2023 Tr. of Bench Trial at 75:14–18. 99 Def.’s Trial Ex. 1A at 221; June 6, 2023 Tr. of Bench Trial at 75:14–18. 100 Def.’s Trial Ex. 1A at 220–21; June 6, 2023 Tr. of Bench Trial at 75:14–18. 101 Def.’s Trial Ex. 1A at 221; June 6, 2023 Tr. of Bench Trial at 18:19–20. 102 June 6, 2023 Tr. of Bench Trial at 18:23–25.

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40. About three or four hours later, Mr. Porter was still in pain.103 He says his shoulder, ankle, neck, and back were hurting.104 At that point, BOP officials decided to take Mr. Porter to an offsite hospital for evaluation—the Forrest City Medical Center Emergency Department (FCMED).105

41. Mr. Porter testified that, at the hospital, he complained of back, neck, shoulder, and ankle pain.106 The FCMED documents, however, tell a different story. They indicate that Mr. Porter complained of head, neck, shoulder, and back pain, but not of ankle pain.107 Moreover, while FCMED performed a CAT scan of Mr. Porter’s cervical spine, thoracic spine, and lumbar spine,108 they did not do x-rays, a CAT scan, or any other imaging related to Mr. Porter’s ankle.109 Given the foregoing, the Court finds that Mr. Porter did not complain of ankle pain at the hospital.

42. The results of the spinal CAT scan were unremarkable.110 That is, Mr. Porter had “[n]o acute fracture,” “[n]ormal alignment,” “[n]o spinal stenosis,” “[n]o neural foraminal narrowing,” and no issues with his soft tissues.111 The FCMED physician diagnosed Mr. Porter with a “[c]ontusion of unspecified back wall of thorax [and a] [s]prain of ligaments of [the] cervical spine . . . .”112 “A contusion is a deep bruise” and a “cervical sprain is when the tissues . . . that hold the neck bones in place stretch or tear.”113 Mr. Porter was given a Toradol injection and

103 Id. at 18:20–25. 104 Id. at 19:1–7. 105 Id. at 18:20–25, 76:4–13. 106 Id. at 19:1–4. 107 Def.’s Trial Ex. 1A at 247–48, 250–51; June 6, 2023 Tr. of Bench Trial at 76:14–20. 108 Def.’s Trial Ex. 1A at 242–45, 251–52; June 6, 2023 Tr. of Bench Trial at 20:16–19, 76:21–77:24. 109 See Pl.’s Trial Ex. 2, Attach. 14; see also June 6, 2023 Tr. of Bench Trial at 76:21–77:24. 110 Def.’s Trial Ex. 1A at 242–45, 251–52; June 6, 2023 Tr. of Bench Trial at 76:21–77:24. 111 Def.’s Trial Ex. 1A at 242–45, 251–52. 112 Id. at 247, 256; June 6, 2023 Tr. of Bench Trial at 20:22–25. 113 Pl.’s Trial Ex. 2, Attach. 14.

Case 2:19-cv-00138-LPR-JTR Document 76 Filed 07/24/23 Page 17 of 39 prescribed Anaprox and Tramadol for pain relief.114

43. The next day, Mr. Porter followed up with the Forrest City medical staff.115 He was treated by Nurse Harris.116 Although Mr. Porter arrived at the medical unit in a wheelchair, he was “able to stand and walk into [the] exam room and sit in [the] chair without difficulty.”117 He complained of neck, back, shoulder, knee, and ankle pain.118 Mr. Porter rated his pain as a 9 out of 10.119 However, an examination by Nurse Harris revealed that there was “no obvious swelling,” “no bruising,” and that Mr. Porter was “able to move all extremities without [a] decrease in [range of motion] . . . .”120 Nurse Harris gave Mr. Porter Ibuprofen, prescribed him Naproxen and a wheelchair, gave him a “medical lay in,” and instructed him to “refrain from activity” and “rest/ice/heat/elevate areas as needed.”121 Nurse Harris also placed an order to have an x-ray performed on Mr. Porter’s shoulder, knee, and ankle.122

44. The x-rays performed on Mr. Porter’s shoulder, knee, and ankle showed that he had no fractures or malalignments.123 The x-rays did show a “2mm [enthesophyte] at insertion of the Achilles tendon” and “[m]inimal soft tissue swelling overlying the lateral malleolus.”124 An

114 Def.’s Trial Ex. 1A at 249, 252–53, 255–56, 260–64; see June 6, 2023 Tr. of Bench Trial at 21:4–12. It is worth noting that Mr. Porter testified that the prison medical staff “gave [him] a shot,” not the FCMED medical staff. June 6, 2023 Tr. of Bench Trial at 18:16–22. The medical documents admitted at trial, however, unambiguously indicate that Mr. Porter received the Toradol injection at FCMED, not at the prison. See Def.’s Trial Ex. 1A at 249, 220–21. 115 June 6, 2023 Tr. of Bench Trial at 21:13–17, 77:25–78:2. 116 Id. at 21:18–21; see id. at 77:25–78:2; see also Def.’s Trial Ex. 1A at 215. 117 Def.’s Trial Ex. 1A at 215; June 6, 2023 Tr. of Bench Trial at 78:18–22; see id. at 22:4–7. 118 Def.’s Trial Ex. 1A at 215; June 6, 2023 Tr. of Bench Trial at 78:11–17, 87:13–15. 119 Def.’s Trial Ex. 1A at 215. 120 Id.; June 6, 2023 Tr. of Bench Trial at 78:23–79:5. 121 Def.’s Trial Ex. 1A at 216; June 6, 2023 Tr. of Bench Trial at 22:10–19, 79:6–14, 87:4–12. 122 Def.’s Trial Ex. 1A at 216; June 6, 2023 Tr. of Bench Trial at 22:20–21, 79:10–12, 79:24–80:2. 123 Def.’s Trial Ex. 1A at 210, 212, 268–70; June 6, 2023 Tr. of Bench Trial at 80:4–19. 124 Def.’s Trial Ex 1A at 210, 212, 268–70; June 6, 2023 Tr. of Bench Trial at 80:4–19.

Case 2:19-cv-00138-LPR-JTR Document 76 Filed 07/24/23 Page 18 of 39 enthesophyte is a chronic condition that is “[s]imilar to a bone spur . . . .”125 It is not a condition that would immediately occur as the result of a trauma (such as an ankle injury caused by a fall).126

45. On October 30, 2018, Mr. Porter returned to the Forrest City medical unit for another follow-up.127 He again was treated by Nurse Harris.128 Mr. Porter complained of pain “in all the same places” that he rated at a level of 10 out of 10.129 However, there was no swelling, nor tenderness, nor decreased range of motion in Mr. Porter’s shoulder, knee, or ankle.130 There was some inflammation in his right ankle.131 Nurse Harris prescribed Naproxen, allowed Mr. Porter to remain in a wheelchair, and requested an MRI of his right ankle.132

46. Despite his pain from the fall, Mr. Porter was able to continue his work as a janitor in the prison recreational area in October.133 That job required Mr. Porter to “spray down sinks, toilets, and exercise equipment.”134 He maintained his janitorial job until he was released from prison.135

47. Additionally, Mr. Porter performed exercises in the prison recreational area at various points after his fall.136 Mr. Porter used the elliptical machine “on occasion” during and

125 June 6, 2023 Tr. of Bench Trial at 80:12–16. 126 See id. (stating that an enthesophyte is a chronic injury). 127 Id. at 22:24–23:3; Def.’s Trial Ex. 1A at 209. 128 Def.’s Trial Ex. 1A at 209. 129 Id. 130 Id. at 211. 131 Id.; June 6, 2023 Tr. of Bench Trial at 87:16–88:1. 132 Def.’s Trial Ex. 1A at 210. The request for an MRI was labeled as “Medically Acceptable-Not Always Necessary.” Pl.’s Trial Ex. 2, Attach. 18.2 at 1. The request was subsequently denied with instructions for Mr. Porter to follow-up with Dr. Sheila Woodard. Id. at 3. 133 June 6, 2023 Tr. of Bench Trial at 15:2–5, 40:4–8, 40:19–20, 68:9–10. 134 Id. at 40:16–18. 135 Id. at 40:19–24. 136 Id. at 68:11–69:9.

Case 2:19-cv-00138-LPR-JTR Document 76 Filed 07/24/23 Page 19 of 39 after October of 2018.137 He also walked laps on the facility track during that timeframe.138 When walking laps, Mr. Porter would sometimes push his wheelchair, but would otherwise not use the wheelchair.139

48. Although Mr. Porter was able to return to work and exercise “on occasion” following his fall, he continued to complain of pain in the months that followed. On November 16, 2018, Mr. Porter returned to the Forrest City medical unit to again complain about pain.140 Mr. Porter described experiencing pain at a level of 10 out of 10 in his neck, back, and right ankle.141 This time, Nurse Practitioner Hickerson treated him.142 While Mr. Porter arrived at the health unit in a wheelchair, he “ambulated without difficulty to [the] exam room . . . .”143 He had normal ranges of motion in his back and ankles.144 Nurse Hickerson prescribed Mr. Porter Tylenol and a Medrol dose pack for pain.145 A Medrol dose pack is a steroid prescribed for inflammation that causes pain.146

49. At the November 16, 2018 visit, Nurse Hickerson discussed additional pain management medications with Mr. Porter.147 Specifically, she discussed Elavil, Duloxetine, and Trazadone.148 But Mr. Porter refused these medications because of the “side effects” and because

137 Id. 138 Id. 139 Id. 140 Id. at 23:23–24:5. 141 Id. at 24:6–8; Def.’s Trial Ex. 1A at 204. 142 See Def.’s Trial Ex. 1A at 203; June 6, 2023 Tr. of Bench Trial at 80:20–24. 143 Def.’s Trial Ex. 1A at 203. 144 Id. at 205; June 6, 2023 Tr. of Bench Trial at 80:25–81:4. 145 Def.’s Trial Ex. 1A at 203; June 6, 2023 Tr. of Bench Trial at 24:23–25:1, 81:5–13. 146 June 6, 2023 Tr. of Bench Trial at 81:5–13. 147 Def.’s Trial Ex. 1A at 203. 148 Id.

Case 2:19-cv-00138-LPR-JTR Document 76 Filed 07/24/23 Page 20 of 39 they were, according to him, “psychotic medication[s].”149

50. Mr. Porter’s next visit to the Forrest City medical unit occurred on December 12, 2018.150 This time, he saw Nurse Harris again.151 In his testimony, Mr. Porter stated that, by this time, his shoulder was getting better, but his back, neck, and ankle still hurt.152 But here again the medical notes created by Nurse Harris tell another story. Those notes indicate that Mr. Porter complained of neck, shoulder, and back pain, with no mention of ankle pain and no mention of Mr. Porter’s shoulder getting better.153 In any event, Nurse Harris’s examination (which did not include an ankle examination because Mr. Porter did not complain of ankle pain) did not reveal any swelling, inflammation, tenderness, bruising, or decreased range of motion in Mr. Porter’s shoulder, back, or neck.154 But because Mr. Porter was still complaining of pain in those areas, Nurse Harris ordered new x-rays and prescribed Naproxen and muscle rub as needed.155

51. The new x-rays were performed on December 18, 2018.156 The x-ray results showed no “fracture or malalignment” and were overall “[u]nremarkable.”157

52. About two months later, on February 20, 2019, Mr. Porter was seen by Dr. Woodard in the medical unit.158 At that visit, Mr. Porter complained of “[u]nrelenting [a]ching pain localized to his [n]eck,” “[t]hrobbing” pain in his upper back, and “[t]hrobbing” pain in his ankle.159 Dr.

149 June 6, 2023 Tr. of Bench Trial at 24:9–22; Def.’s Trial Ex. 1A at 203. 150 June 6, 2023 Tr. of Bench Trial at 25:5–12; see Def.’s Trial Ex. 1A at 191. 151 Def.’s Trial Ex. 1A at 191; June 6, 2023 Tr. of Bench Trial at 81:14–17. 152 June 6, 2023 Tr. of Bench Trial at 25:5–12. 153 Def.’s Trial Ex. 1A at 191; see June 6, 2023 Tr. of Bench Trial at 81:19–22. 154 Def.’s Trial Ex. 1A at 192–94; June 6, 2023 Tr. of Bench Trial at 81:23–82:20. 155 Def.’s Trial Ex. 1A at 192; June 6, 2023 Tr. of Bench Trial at 25:13–17, 82:21–25, 88:2–9. 156 June 6, 2023 Tr. of Bench Trial at 25:22–24; see Def.’s Trial Ex. 1A at 226. 157 Def.’s Trial Ex. 1A at 226–28; June 6, 2023 Tr. of Bench Trial at 25:25–26:10, 82:24–83:15. 158 Pl.’s Trial Ex. 2, Attach. 19 at 1; June 6, 2023 Tr. of Bench Trial at 26:11–18. 159 Pl.’s Trial Ex. 2, Attach. 19 at 1.

Case 2:19-cv-00138-LPR-JTR Document 76 Filed 07/24/23 Page 21 of 39 Woodard prescribed Mr. Porter Tylenol and a TENS unit, and placed a consultation request for an MRI of his ankle because his toes were red and swollen.160 (For an unspecified reason, Dr. Woodard’s MRI request was “discontinued” on August 20, 2020.)161

53. Mr. Porter’s next visit to the medical unit occurred on March 27, 2019.162 That visit was a follow-up to the previous pain-management visits.163 Mr. Porter complained of “aching” pain in his neck, right knee, and right ankle.164 The treating professional, Nurse Harris, did note in her medical notes that “[inmate] is obese . . . .”165 She prescribed Mr. Porter Ibuprofen and scheduled a follow-up for him to see a doctor.166

54. Mr. Porter attended the doctor follow-up appointment on April 2, 2019.167 He saw Dr. Hari Kapur.168 Dr. Kapur discussed chronic pain management with Mr. Porter.169

55. The next month, Mr. Porter saw Nurse Harris to follow-up on “abnormal labs.”170 At that visit, Nurse Harris noted that Mr. Porter parked his wheelchair outside of the office and

160 Id. at 1–3; June 6, 2023 Tr. of Bench Trial at 26:25–27:2. A transcutaneous electrical nerve stimulation (TENS) unit “is a therapy that uses low voltage electrical current to provide pain relief. A TENS unit consists of a battery- powered device that delivers electrical impulses through electrodes placed on the surface of your skin.” Transcutaneous Electrical Nerve Stimulation (TENS), Cleveland Clinic (2020), https://my.clevelandclinic.org/health/treatments/15840-transcutaneous-electrical-nerve-stimulation-tens; see Fed. R. Evid. 201(b)(2) (“The court may judicially notice a fact that is not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”). 161 Pl.’s Trial Ex. 2, Attach. 21; see June 6, 2023 Tr. of Bench Trial at 27:7–9. 162 June 6, 2023 Tr. of Bench Trial at 27:10–14; Pl.’s Trial Ex. 2, Attach. 22 at 1. 163 June 6, 2023 Tr. of Bench Trial at 27:15–16. 164 Pl.’s Trial Ex. 2, Attach. 22 at 1. 165 Id. 166 Id. 167 June 6, 2023 Tr. of Bench Trial at 27:17–22; Pl.’s Trial Ex. 2, Attach. 23 at 1. 168 Pl.’s Trial Ex. 2, Attach. 23 at 1. 169 Id. 170 Pl.’s Trial Ex. 2, Attach. 24 at 1.

Case 2:19-cv-00138-LPR-JTR Document 76 Filed 07/24/23 Page 22 of 39 “ambulate[d] into [the] room and into [the] chair.”171 Mr. Porter and Nurse Harris discussed diet and exercise with the understanding that Mr. Porter needed “to watch [his] diet.”172 Mr. Porter weighed in at 279 pounds at that visit.173

56. On June 20, 2019, Mr. Porter saw Dr. Woodard for neck, upper back, and ankle pain.174 Mr. Porter rated his pain as a 5 out of 10.175 Dr. Woodard’s exam revealed nothing abnormal and noted that weather change, sitting, and standing exacerbated Mr. Porter’s pain.176 Dr. Woodard prescribed Mr. Porter Ibuprofen and a steroid dose pack.177

57. Mr. Porter’s next medical unit visit was with Dr. Woodard on August 2, 2019.178 Mr. Porter complained of right ankle and lower back pain that he rated as an 8 out of 10.179 The exam notes again indicate that weather change exacerbated Mr. Porter’s pain.180 Dr. Woodard renewed Mr. Porter’s Ibuprofen prescription.181

58. Three days later, Mr. Porter followed up with Nurse Harris for abnormal labs.182 At that visit, Nurse Harris counseled Mr. Porter on diet, exercise, and weight loss because he weighed in at 270 pounds.183 Nurse Harris noted that Mr. Porter arrived at the medical unit in a

171 Id. 172 Id. 173 Id. at 2. 174 Pl.’s Trial Ex. 2, Attach. 26 at 1; June 6, 2023 Tr. of Bench Trial at 27:23–28:3. 175 Pl.’s Trial Ex. 2, Attach. 26 at 1; June 6, 2023 Tr. of Bench Trial at 28:4–6. 176 Pl.’s Trial Ex. 2, Attach. 26 at 1–2. 177 Id. at 1. 178 Pl.’s Trial Ex. 2, Attach. 28 at 1; June 6, 2023 Tr. of Bench Trial at 28:15–18. 179 Pl.’s Trial Ex. 2, Attach. 28 at 1; June 6, 2023 Tr. of Bench Trial at 28:15–18. 180 Pl.’s Trial Ex. 2, Attach. 28 at 1. 181 Id. at 3; see June 6, 2023 Tr. of Bench Trial at 28:19–21. 182 Pl.’s Trial Ex. 2, Attach. 29 at 1; June 6, 2023 Tr. of Bench Trial at 28:22–24. 183 Pl.’s Trial Ex. 2, Attach. 29 at 1–2.

Case 2:19-cv-00138-LPR-JTR Document 76 Filed 07/24/23 Page 23 of 39 wheelchair but was able to get up and “ambulate into the exam room.”184 Nurse Harris instructed Mr. Porter to “continue to work on diet and exercise” and to “take [his] medications as directed.”185

59. Mr. Porter’s final visit with Dr. Woodard was on October 4, 2019.186 At that visit, Mr. Porter complained of neck, back, ankle, leg, and foot pain “because of the recent [t]emp[erature] [c]hange.”187 Mr. Porter denied any recent injury.188 After that visit, Mr. Porter was transferred “from Dr. Woodard’s case load to Dr. Tomar’s case load . . . .”189

60. Mr. Porter saw Dr. Tomar on March 3, 2020.190 At the visit, Dr. Tomar noted that Mr. Porter was “able to bear weight, but . . . ha[d] opted to largely lead a sedentary life with little ambulation and no exercise.”191 Dr. Tomar’s “impression [was] that [a] combination of morbid obesity and deconditioned leg muscles ha[d] resulted in subtle ankle changes followed by chronic pain.”192 Dr. Tomar provided Mr. Porter with physical therapy exercises for his ankle, leg, and neck.193 Mr. Porter did not follow through with the physical therapy exercises because they required resistance bands which were not allowed in the prison housing area and he was not allowed “time . . . to . . . do the physical therapy in the clinic.”194

184 Id. at 1; June 6, 2023 Tr. of Bench Trial at 28:25–29:7. 185 Pl.’s Trial Ex. 2, Attach. 29 at 1. 186 Def.’s Trial Ex. 1A at 285; June 6, 2023 Tr. of Bench Trial at 29:11–18; see id. at 83:16–19. 187 Def.’s Trial Ex. 1A at 285; see June 6, 2023 Tr. of Bench Trial at 29:11–18, 83:20–84:1. 188 Def.’s Trial Ex. 1A at 285; June 6, 2023 Tr. of Bench Trial at 84:2–3. 189 June 6, 2023 Tr. of Bench Trial at 29:20–30:3. Dr. Tomar was another medical doctor at Forrest City. June 6, 2023 Tr. of Bench Trial at 84:20–21. 190 June 6, 2023 Tr. of Bench Trial at 30:4–9; Def.’s Trial Ex. 1A at 278. 191 Def.’s Trial Ex. 1A at 278; June 6, 2023 Tr. of Bench Trial at 84:22–85:3. 192 Def.’s Trial Ex. 1A at 278; see June 6, 2023 Tr. of Bench Trial at 30:4–12. 193 Def.’s Trial Ex. 1A at 278–79; June 6, 2023 Tr. of Bench Trial at 30:19–21, 85:1–3. 194 June 6, 2023 Tr. of Bench Trial at 30:22–31:7; see id. at 85:4–9; see also Def.’s Trial Ex. 1A at 278.

Case 2:19-cv-00138-LPR-JTR Document 76 Filed 07/24/23 Page 24 of 39

61. Mr. Porter saw Dr. Tomar again on August 20, 2020.195 Dr. Tomar’s notes indicate that Mr. Porter weighed 276 pounds, had “an impressive purchase history for months of junk food,” and was “nearly 100 [pounds] overweight . . . .”196 Dr. Tomar recommended a 10–15 pound weight loss to reduce ankle pain.197 Dr. Tomar also recommended that Mr. Porter stop spending “hours with [his] neck against the wall [while sitting] on [his] bed” to reduce neck pain.198

62. At Mr. Porter’s next medical visit, Dr. Tomar noted that Mr. Porter had made “no meaningful effort to reduce [his] weight . . . .”199 Mr. Porter testified that he was unable to lose weight because he could not work out due to his injuries.200

63. Sometime around August of 2020, Mr. Porter stopped using a wheelchair.201 He has not used a wheelchair since leaving prison.202

64. Mr. Porter has not received medical care related to his October 25, 2018 fall since leaving prison.203

65. Mr. Porter still experiences back, neck, and ankle pain.204 His pain causes him to have trouble sleeping, sitting, and standing.205 It also affects Mr. Porter’s ability to interact with his nine children.206 Specifically, he is unable to play sports with his kids or chase them around

195 Pl.’s Trial Ex. 2, Attach. 37 at 1; see June 6, 2023 Tr. of Bench Trial at 31:13–17. 196 Pl.’s Trial Ex. 2, Attach. 37 at 1, 3; June 6, 2023 Tr. of Bench Trial at 32:9–11. 197 Pl.’s Trial Ex. 2, Attach. 37 at 1; see June 6, 2023 Tr. of Bench Trial at 32:1–8. 198 Pl.’s Trial Ex. 2, Attach. 37 at 2. 199 June 6, 2023 Tr. of Bench Trial at 32:17–33:3. 200 Id. 201 See id. at 33:14–18; Pl.’s Trial Ex. 2, Attach. 37 at 1 (“[Patient] has reduced dependence on [wheelchair].”). 202 June 6, 2023 Tr. of Bench Trial at 33:16–18. 203 Id. at 33:19–25, 41:14–19. 204 Id. at 34:1–15. 205 Id. 206 Id. at 35:4–17.

Case 2:19-cv-00138-LPR-JTR Document 76 Filed 07/24/23 Page 25 of 39 because he suffers from pain.207

66. Mr. Porter is employed.208 He works as a Janitor Supervisor.209 That job requires Mr. Porter to supervise three people and help them complete tasks such as sweeping, mopping, and taking out trash.210

CONCLUSIONS OF LAW

“When analyzing actions brought under the FTCA, courts apply the substantive law of the state in which the events giving rise to the complaint occurred.”211 The alleged tort occurred in Arkansas; so, Arkansas law applies.212 The parties agree on that.213 Mr. Porter’s claim sounds in negligence.214 “Negligence is defined as the failure to do something that a reasonably careful person would do, or the doing of something that a reasonably careful person would not do, under the circumstances.”215 To prevail on a common law claim of negligence in Arkansas, “the plaintiff must prove that the defendant owed a duty to the plaintiff, that the defendant breached the duty, and that the breach was the proximate cause of the plaintiff’s injuries.”216 I. Duty

Courts generally begin this analysis by determining whether the defendant owed the

207 Id. 208 Id. at 9:16–17, 34:16–18, 40:25–41:5. 209 Id. at 34:16–18, 41:6–7. 210 Id. at 34:19–35:3, 41:8–13. 211 Shanner v. United States, 998 F.3d 822, 824 (8th Cir. 2021). 212 June 6, 2023 Tr. of Bench Trial at 9:5–9; see Compl. (Doc. 2) at 9, 11–12, 16. 213 See June 6, 2023 Tr. of Bench Trial at 46:14–23, 47:5–9, 52:1–6; see also Pl.’s Trial Br. (Doc. 73) at 2; Def.’s Trial Br. (Doc. 75) at 3. 214 See Compl. (Doc. 2) at 13. 215 Ethyl Corp. v. Johnson, 345 Ark. 476, 481, 49 S.W.3d 644, 648 (2001). 216 Duran v. Sw. Ark. Elec. Coop. Corp., 2018 Ark. 33, at 6, 537 S.W.3d 722, 726.

Case 2:19-cv-00138-LPR-JTR Document 76 Filed 07/24/23 Page 26 of 39 plaintiff a duty, and, if so, the scope of that duty.217 In Arkansas, as in all or nearly all states, a property owner’s duty depends on the status of the other party who is on the property.218 Currently, the highest order of duty for property owners is the duty they have vis-à-vis invitees.219 And this is the category that both parties in this case suggest applies to Mr. Porter.220 So the Court will treat Mr. Porter as an invitee.221 “In Arkansas, a property owner has a duty to exercise ordinary care to maintain the premises in a reasonably safe condition for the benefit of invitees.”222

Importantly, however, this duty usually “applies only to defects or conditions such as hidden dangers, traps, snares, pitfalls and the like, in that they are known to the owner but not to

217 “The issue of whether a duty exists is always a question of law, not to be decided by a trier of fact.” Lacy v. Flake & Kelley Mgmt., Inc., 366 Ark. 365, 367, 235 S.W.3d 894, 896 (2006). However, it is often necessary for a trier of fact to resolve predicate disputed factual issues before the Court can decide the legal question concerning duty. See Elkins v. Arkla, Inc., 312 Ark. 280, 281, 849 S.W.2d 489, 490 (1993). In the case at bar, the Court and trier of fact are one in the same. Now that the “trier of fact” has settled the predicate factual disputes, “the Court” can reach a conclusion on the legal duty question. 218 See Roeder v. United States, 2014 Ark. 156, at 10 n.6, 432 S.W.3d 627, 634 n.6. 219 See Coleman v. United Fence Co., 282 Ark. 344, 345, 668 S.W.2d 536, 537 (1984) (“The general rule is that the possessor of land is not liable for injury to trespassers caused by his failure to exercise reasonable care to put his land in a safe condition for them.”); King v. Jackson, 302 Ark. 540, 541, 790 S.W.2d 904, 905 (1990) (“Generally, a landowner owes no duty to a licensee other than to refrain from injuring her through willful or wanton conduct.”); infra note 222 and accompanying text. An “invitee” is “one who enters or remains on land for a purpose connected with the business dealings of the owner.” Young v. Paxton, 316 Ark. 655, 660, 873 S.W.2d 546, 549 (1994). 220 June 6, 2023 Tr. of Bench Trial at 46:12–23 (“Ms. Lorence: . . . The plaintiff here, a then incarcerated person, while perhaps not totally hitting on all cylinders with respect to a true state analog, Arkansas courts have likened an inmate with the legal status of an invitee.”); id. at 51:18–23 (“Mr. Proctor: . . . In this case, he’s there not by choice, so he’s clearly under the law an invitee.”). 221 The Court wonders whether prison inmates—who are not in the prison voluntarily—should receive some higher order of protection under common law. But that academic query is of no moment here because neither party argues for such a novel approach. In any event, it is true that “because a ‘prisoner has involuntarily entrusted himself to the control and protection of the prison’ and is not free to leave to seek safer conditions, [some] courts have agreed that prisoners should be given invitee status.” Williams v. United States, 2:15CV00123, 2017 WL 1078655, at *4 n.10 (E.D. Ark. Feb. 17, 2017) (citations omitted) (collecting cases). Most courts generally acknowledge the awkwardness of the designation, but note that the invitee category is the highest level of protection available. See Carson v. Corrs. Corp. of Am., 10-cv-01329, 2011 WL 1656509, at *3 (D. Colo. May 3, 2011) (“Although a prisoner is perhaps not the most typical example, plaintiff’s circumstances are most closely analogous to that of an invitee.”); Dubuis v. United States, 3:06CV01443, 2008 WL 410429, at *4 (D. Conn. Feb. 12, 2008) (assuming that the federal inmate “was owed the highest duty of care, that of an invitee”). 222 Dollar Gen. Corp. v. Elder, 2020 Ark. 208, at 7, 600 S.W.3d 597, 603.

Case 2:19-cv-00138-LPR-JTR Document 76 Filed 07/24/23 Page 27 of 39 the invitee and would not be observed by the latter in the exercise of ordinary care.”223 Put another way, a landowner “generally does not owe a duty to an invitee if a danger is known or obvious.”224 “A dangerous condition is ‘obvious’ when ‘both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising ordinary perception, intelligence, and judgment.’”225 “A dangerous condition is ‘known’ if the plaintiff had knowledge of the existence of [the] dangerous condition and appreciated the corresponding danger.”226 This rule is colloquially known as the obvious-danger rule or the open-and-obvious rule.227

Both parties agree that the hole in Shower 8 constituted an open-and-obvious hazard.228 Both parties further agree that Mr. Porter knew of the hazard and the dangers associated with it.229 In most cases, that would be the end of the matter. But, here, Mr. Porter asserts that this case fits into an exception to the open-and-obvious rule. The Arkansas Supreme Court has “described the . . . exception to apply ‘when the invitee is forced, as a practical matter, to encounter that danger in order to perform his or her job.’”230 Mr. Porter argues that, as a practical matter, he was forced to use Shower 8—because it was the only one with hot water in the A-1 Unit.231 Putting aside (for a moment) whether the exception set forth by the Arkansas Supreme Court is limited to workers

223 Id. 224 Id. 225 Shook v. Love’s Travel Stops & Country Stores, Inc., 2017 Ark. App. 666, at 7, 536 S.W.3d 635, 639 (quoting Van DeVeer v. RTJ, Inc., 81 Ark. App. 379, 386, 101 S.W.3d 881, 885 (2003)). 226 Rogers v. Dep’t of Veterans Affairs USA, 1:19-cv-00041, 2021 WL 304557, at *5 (E.D. Ark. Jan. 29, 2021) (citing Hope Med. Park Hosp. v. Varner, 2019 Ark. App. 82, at 6, 568 S.W.3d 818, 823). 227 See Jenkins v. Int’l Paper Co., 318 Ark. 663, 670–71, 887 S.W.2d 300, 303–04 (1994); Shook, 2017 Ark. App. 666, at 2, 536 S.W.3d at 637. 228 June 6, 2023 Tr. of Bench Trial at 52:10–15; see id. at 46:14–47:9. 229 Id. at 47:3, 52:16–18. 230 Pinson v. 45 Dev., LLC, 758 F.3d 948, 952 (8th Cir. 2014) (quoting Jenkins, 318 Ark. at 670, 887 S.W.2d at 304). 231 June 6, 2023 Tr. of Bench Trial at 52:6–22, 54:19–55:5.

Case 2:19-cv-00138-LPR-JTR Document 76 Filed 07/24/23 Page 28 of 39 forced to encounter an obvious danger, Mr. Porter’s position runs headlong into the Court’s findings of fact. The Court has found as a factual matter that Shower 8 was not the only A-1 Unit shower with hot water.232 Accordingly, Mr. Porter was not forced, as a practical matter, to use Shower 8.

Mr. Porter has one final argument. He asserts that Arkansas recognizes an exception to the open-and-obvious rule even where an invitee is not forced to encounter the hazard.233 Specifically, he says that the exception applies when a defendant should reasonably anticipate that harm to an invitee may arise notwithstanding the open-and-obvious danger.234 And, here, the BOP should have anticipated that (1) inmates would use Shower 8 despite knowing about the hole, and (2) that at least one inmate would accidentally step in the hole while showering.235

The Court wishes to be clear: This broader exception, if taken seriously, would threaten to swallow the open-and-obvious rule. If this Court’s job was to decide what the common law should be in Arkansas in this area, the Court would reject this broader exception. But that is decidedly not this Court’s job. In this FTCA case, just as in diversity cases, the Court’s job is to apply Arkansas law as set forth by the Arkansas Supreme Court.236 And where the Arkansas Supreme Court has not yet clearly resolved an issue, this Court’s job is to make an educated prediction as to what the Arkansas Supreme Court would do were it faced with the issue.237 As disconcerting as it might be to me, all the normal clues that usually aid federal courts in this educated prediction

232 See supra Findings of Fact ¶ 22. 233 June 6, 2023 Tr. of Bench Trial at 95:8–96:14. 234 Id. at 95:16–96:1. 235 Id. at 96:2–14. 236 LaFromboise v. Leavitt, 439 F.3d 792, 793 (8th Cir. 2006); Safeco Ins. Co. of Ill. v. Palazzolo, 15 F.4th 1204, 1206 (8th Cir. 2021). 237 See Interstate Bakeries Corp. v. OneBeacon Ins. Co., 686 F.3d 539, 542 (8th Cir. 2012).

Case 2:19-cv-00138-LPR-JTR Document 76 Filed 07/24/23 Page 29 of 39 point towards application of this broader exception.

Perhaps most importantly—given my role as an inferior federal court—the Eighth Circuit seems to believe the Arkansas Supreme Court would apply the broader exception Mr. Porter advocates. In Pinson v. 45 Development, LLC, the Eighth Circuit noted that the Arkansas Supreme Court has, at least once, “referred to the Restatement’s broader formulation of the obvious danger rule exception: that it applies when a landowner ‘as a reasonable person should anticipate an unreasonable risk of harm to the invitee notwithstanding his knowledge, warning, or the obvious nature of the condition.’”238 And, indeed, in that diversity case under Arkansas state law, the Eighth Circuit went on to apply the broader version of the exception.239

The Eighth Circuit is not the only Court to conclude that Arkansas law countenances the broader version of the exception. The Arkansas Court of Appeals has come to the same conclusion. In Van DeVeer v. RTJ, Inc., while acknowledging that the Arkansas Supreme Court has thus far only applied an exception to the open-and-obvious rule in forced-to-encounter scenarios, the Arkansas Court of Appeals adopted the broader exception.240 Despite concluding the harm in its case was “known or obvious” and the invitee was not “forced to encounter” that harm, the Van DeVeer Court reversed a summary judgment grant because “reasonable men could reach different conclusions as to whether [a landowner] should have anticipated that harm to its invitee might arise under the circumstances . . . .”241

238 758 F.3d at 952 (quoting Jenkins, 318 Ark. at 670, 887 S.W.2d at 304). 239 Id. Technically, because the Eighth Circuit held that the landowner was not liable even under the broader exception formulation, the Eighth Circuit’s view that the broader exception applies is not a binding holding. Additionally, Pinson concerned an independent contractor performing a job, so it did not have to address whether the exception applies to invitees that are not performing a job. Id. at 953. 240 81 Ark. App. at 389–90, 101 S.W.3d at 886–87. 241 Id. To be sure, cases decided by the Arkansas Court of Appeals are not binding on me as definitive expositions of the law in Arkansas. See United Fire & Cas. Ins. Co. v. Garvey, 328 F.3d 411, 413 (8th Cir. 2003). However, such

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As support for the existence of the broader exception in Arkansas common law, the Arkansas Court of Appeals relied heavily on the Arkansas Model Jury Instructions (AMI) and the Restatement (Second) of Torts.242 The reliance on these sources makes a good deal of sense. The Arkansas Model Jury Instructions are expressly adopted by the Arkansas Supreme Court, and thus the content of the relevant Instruction would be a good indicator of how the Arkansas Supreme Court views the overall doctrine.243 As for the Restatement (Second) of Torts, the Arkansas Supreme Court positively adverted to it in the Court’s 1974 landmark case concerning the exception to the open-and-obvious rule:

The duties of owners and occupiers of land to business invitees usually end when the danger is either known or obvious to the invitee. However, most authorities; see Prosser on Torts, Invitee s 61 (4th ed. 1971); 2 Harper and James, The Law of Torts s 27.13 (1956); and Restatement of Torts 2d s 343A (1965); recognize that under some circumstances a possessor of land may owe a duty to the business invitee despite the knowledge of the latter.244

As discussed below, these two sources—the Arkansas Model Jury Instructions and the Restatement (Second) of Torts—pretty clearly point to the broader exception.

AMI 1104 reads: “[The landowner] owed [to the invitee] a duty to use ordinary care to maintain the premises in a reasonably safe condition. No such duty exists, however, if the . . . condition of the premises that creates the danger was known by or obvious to [the invitee,] unless [the landowner] should reasonably anticipate that [the invitee] would be exposed to the danger

cases are often persuasive insofar as they suggest what the Arkansas Supreme Court would do if confronted with the same question. See id. 242 Van DeVeer, 81 Ark. App. at 389, 101 S.W.3d at 886–87. 243 See Cont’l S. Lines, Inc. v. Moses, 239 Ark. 905, 907, 395 S.W.2d 20, 22 (1965) (“The subjects of both instructions are now covered by our recently adopted Arkansas Model Jury Instructions [AMI].” (brackets in original)); Reed v. State, 2020 Ark. App. 49, at 5, 595 S.W.3d 391, 394 (“[O]ur supreme court has adopted model jury instructions for circuit courts to use in civil and criminal cases.”); 2 Ark. Civ. Prac. & Proc. § 28:19 (5th ed.). 244 Kuykendall v. Newgent, 255 Ark. 945, 947, 504 S.W.2d 344, 345 (1974).

Case 2:19-cv-00138-LPR-JTR Document 76 Filed 07/24/23 Page 31 of 39 despite [his or her] knowledge of it, or its obvious nature.”245 The exception to the open-and-obvious rule set forth in the final clause of this instruction is far closer to the broader version of the exception than it is to the narrow version.246 The same is true of Section 343A of the Restatement (Second) of Torts, which states that “[a] possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.”247

To the extent there is some doubt about the actual breadth of these formulations of the exception, the relevant Restatement Comment and Illustrations suggest a broad meaning was intended. The Comment explains:

There are, however, cases in which the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger. In such cases the possessor is not relieved of the duty of reasonable care which he owes to the invitee for his protection. This duty may require him to warn the invitee, or to take other reasonable steps to protect him, against the known or obvious condition or activity, if the possessor has reason to

245 AMI Civ. 1104 (2022) (cleaned up). 246 Indeed, the AMI’s Note on Use and accompanying Comment bear this out. The Note on Use explains that “[f]or instances where the last [clause] . . . is appropriate, see cases cited in the Comment.” The referenced Comment expressly mentions in case parentheticals the forced-to-encounter scenario, but then goes out of its way to add that “[o]ther exceptions to the obvious danger rule are discussed in the authorities cited in Jenkins . . . and Kuykendall . . . .” The Court has already discussed Kuykendall’s reference to the Restatement (Second) of Torts. See supra note 244 and accompanying text. In addition, both Kuykendall and Jenkins quote extensively from Prosser. The Prosser quotes from those cases—separated by two decades—are slight variations on the same theme, but essentially explain: In any case where the occupier as a reasonable person should anticipate an unreasonable risk of harm to the invitee notwithstanding his knowledge, warning, or the obvious nature of the condition, something more in the way of precautions may be required. This is true, for example, where there is reason to expect that the invitee’s attention will be distracted, as by goods on display, or that after a lapse of time he may forget the existence of the condition, even though he has discovered it or been warned; or where the condition is one which would not reasonably be expected, and for some reason, such as an arm full of bundles, it may be anticipated that the visitor will not be looking for it. In some jurisdictions, it is also true where the condition is one, such as icy steps, which cannot be negotiated with reasonable safety even though the invitee is fully aware of it, when, because the premises are held open to him for his use, it is to be expected that he will nevertheless proceed to encounter it. Jenkins, 318 Ark. at 671, 887 S.W.2d at 304; Kuykendall, 255 Ark. at 948, 504 S.W.2d at 345–46. 247 Restatement (Second) of Torts § 343A(1) (Am. Law Inst. 1965).

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expect that the invitee will nevertheless suffer physical harm.

Such reason to expect harm to the visitor from known or obvious dangers may arise, for example, where the possessor has reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it. Such reason may also arise where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk.248

And the Illustrations provided in the Restatement drive home the point.

The A Department Store has a weighing scale protruding into one of its aisles, which is visible and quite obvious to anyone who looks. Behind and about the scale it displays goods to attract customers. B, a customer, passing through the aisle, is intent on looking at the displayed goods. B does not discover the scale, stumbles over it, and is injured. A is subject to liability to B.

The A Drug Store has a soda fountain on a platform raised six inches above the floor. The condition is visible and quite obvious. B, a customer, discovers the condition when she ascends the platform and sits down on a stool to buy some ice cream. When she has finished, she forgets the condition, misses her step, falls, and is injured. If it is found that this could reasonably be anticipated by A, A is subject to liability to B.

Through the negligence of A Grocery Store a fallen rainspout is permitted to lie across a footpath alongside the store, which is used by customers as an exit. B, a customer, leaves the store with her arms full of bundles which obstruct her vision, and does not see the spout. She trips over it, and is injured. If it is found that A should reasonably have anticipated this, A is subject to liability to B.

A owns an office building, in which he rents an office for business purposes to B. The only approach to the office is over a slippery waxed stairway, whose condition is visible and quite obvious. C, employed by B in the office, uses the stairway on her way to work, slips on it, and is injured. Her only alternative to taking the risk was to forgo her employment. A is subject to liability to C.249

It seems, then, that Arkansas has or would adopt the following common law rule with respect to open-and-obvious hazards. An invitee—whether on a particular premises to perform work, to shop, to serve a prison sentence, or to do any of the myriad of things an invitee might do—is owed

248 Id. § 343A cmt. f. 249 Id. § 343A illus. 2–5.

Case 2:19-cv-00138-LPR-JTR Document 76 Filed 07/24/23 Page 33 of 39 a duty of care by a landowner when that landowner should reasonably anticipate that, because of some undefined list of special circumstances, the invitee will be harmed as a result of a hazard that is obvious and even known by the invitee.

Under this version of the exception, Mr. Porter is right that the United States had a duty of care to Mr. Porter. While the danger of the hole in the shower was open and obvious—indeed it was specifically known to Mr. Porter—BOP officials should have, on October 25, 2018, reasonably anticipated that an inmate would be harmed by it.250 BOP officials must have known inmates were using the shower despite the hole. Indeed, Mr. Porter, other inmates, and a BOP official complained on multiple occasions about the hole in the shower.251 Moreover, as Mr. Porter testified, he used Shower 8 nearly every day and a lot of other inmates used Shower 8 as well.252 It is reasonable to infer that BOP officials saw inmates using Shower 8 well after they knew that there was a hole in the shower. The harder question is whether BOP officials should have anticipated that an inmate would step in the hole despite knowing about it.

Given the location of the shower head, the hole was exactly on (or incredibly close to) the only spot where an inmate could stand to effectively take a shower.253 To avoid the hole and still shower, one would have to straddle the hole or stand incredibly close to its edges. Showers involve water and soap—on one’s face, near one’s eyes, and on the floor. Any reasonable landowner would anticipate that one of the inmates using that shower would at some point get water or soap in his eyes, slip on a wet floor, and/or otherwise become distracted and accidentally step into the hole—even despite knowing it was there at the beginning of his shower. This is enough to trigger

250 See supra Findings of Fact ¶¶ 8–9. 251 See supra Findings of Fact ¶¶ 8–9. 252 See supra Findings of Fact ¶¶ 8, 16. 253 See supra pp. 4–5.

Case 2:19-cv-00138-LPR-JTR Document 76 Filed 07/24/23 Page 34 of 39 the broad exception to the open-and-obvious rule.254 II. Breach

The United States breached its duty of care. BOP officials were aware of the hole in Shower 8 for months before Mr. Porter’s fall.255 They did not fix the hole. They did not shut off the water in the shower. They did not lock the shower door. They did not post warnings outside or inside the shower. They did not tell inmates not to use that shower. Essentially, they did nothing. This was a breach of the duty owed by the United States to Mr. Porter. III. Proximately Caused Injury and Damages

“Proximate causation is an essential element for a cause of action in negligence.”256 That is, as part of the liability case, the plaintiff must prove an injury that was proximately caused by the negligent event. “Proximate cause means a cause, which, in a natural and continuous sequence, produces damage and without which the damage would not have occurred.”257 Proximate cause requires “causation in fact and legal causation.”258 Causation in fact “addresses whether, as a matter of fact, an injury followed from a particular action.”259 In other words, “to constitute a cause in fact, the defendant’s negligent act must be a necessary cause of the plaintiff’s injury, such

254 The Court has already emphasized its serious concerns with the breadth of this exception. See supra pp. 28–29. However, it is fair to note that, if the broad exception has purchase in any circumstances, it has purchase here where the “invitee” is a prisoner being forced to be on the landowner’s property. Not forced in the practical sense, but in the real sense of the word. Cf. Restatement (Second) of Torts § 343A(2) (Am. Law Inst. 1965) (“In determining whether the possessor should anticipate harm from a known or obvious danger, the fact that the invitee is entitled to make use of public land, or of the facilities of a public utility, is a factor of importance indicating that the harm should be anticipated.”); id. § 343A cmt. g. 255 See supra Findings of Fact ¶ 9. 256 Clark v. Ridgeway, 323 Ark. 378, 389, 914 S.W.2d 745, 750 (1996). 257 Schubert v. Target Stores, Inc., 2010 Ark. 466, at 4, 369 S.W.3d 717, 719. 258 Chambers v. Stern, 347 Ark. 395, 406, 64 S.W.3d 737, 744 (2002) (quoting Dodson v. Charter Behavioral Health Sys. of Nw. Ark., Inc., 335 Ark. 96, 105, 983 S.W.2d 98, 103 (1998)); see Peregrine Trading, LLC v. Rowe, 2018 Ark. App. 176, at 17, 546 S.W.3d 518, 529 (stating that an essential element of negligence is “injury to the plaintiff actually and proximately caused by the defendant’s breach”). 259 Ashley Cnty. v. Pfizer, Inc., 552 F.3d 659, 667 (8th Cir. 2009).

Case 2:19-cv-00138-LPR-JTR Document 76 Filed 07/24/23 Page 35 of 39 that without the negligent act, the plaintiff would not have suffered the injury.”260 Legal cause, on the other hand, is often “presented in terms of foreseeability.”261 Specifically, negligence is the legal cause of an injury if the injury “ought to have been foreseen in the light of attending circumstances.”262

Once a liability case is proven, the next question is one of damages. In Arkansas, the measure of damages in a negligence case is “the amount of money which will reasonably and fairly compensate” the plaintiff for “[a]ny pain and suffering and mental anguish experienced in the past and reasonably certain to be experienced in the future” that was “proximately caused by the” defendant’s negligence.263 “There is no definite and satisfactory rule to measure compensation for pain and suffering and the amount of damages must depend on the circumstances of each particular case.”264

The Court concludes that the October 25, 2018 fall (which was the result of a negligent breach of duty by the United States) was the proximate cause of some injury to Mr. Porter. As stated above, the United States breached its duty when it failed to repair the hole in Shower 8.265 That hole foreseeably caused Mr. Porter to fall when he stepped in it while taking a shower.266 And Mr. Porter’s fall foreseeably caused him some degree of injury in the form of pain, suffering,

260 1 Ark. Law of Damages § 33.1 (West Nov. 2022). 261 Id. 262 Regions Bank & Trust v. Stone Cnty. Skilled Nursing Facility, Inc., 345 Ark. 555, 568, 49 S.W.3d 107, 116 (2001). 263 AMI Civ. 2201, 2205 (2022) (brackets and italics omitted). 264 Hamby v. Haskins, 275 Ark. 385, 390, 630 S.W.2d 37, 40 (1982); see Townsend v. Bayer Corp., 774 F.3d 446, 466 (8th Cir. 2014) (“In general, awards for pain and suffering are highly subjective and should be committed to the sound discretion of the jury, especially when the jury is being asked to determine injuries not easily calculated in economic terms.” (citation and internal quotation marks omitted)). 265 See supra p. 34. 266 See supra Findings of Fact ¶ 10.

Case 2:19-cv-00138-LPR-JTR Document 76 Filed 07/24/23 Page 36 of 39 and mental anguish.267 Mr. Porter’s pain caused by the fall is evidenced by his testimony and the medical treatment he received immediately following the fall. The fall caused Mr. Porter pain in his ankle, shoulder, elbow, neck, and back.268 The pain was such that—at least immediately following the fall—Mr. Porter was unable to walk to the Forrest City medical unit.269 He rated his pain as a 10 out of 10 immediately after the fall.270 The Forrest City medical unit prescribed Mr. Porter medication to treat his pain.271 Additionally, the night of Mr. Porter’s fall, he was taken to the Forrest City Medical Center Emergency Department for increasing pain.272 There, he was diagnosed with a contusion and a cervical sprain.273 Mr. Porter continues to experience pain.274 A fall that results in pain, suffering, and mental anguish is a foreseeable consequence of failing to repair a hole in a shower that is regularly used.275

With respect to damages, Mr. Porter seeks compensation only for pain, suffering, and mental anguish.276 He believes that $60,000 “would be . . . fair compensation” in this case.277 Mr. Porter reaches his $60,000 figure by using the extent of his medical treatment as a proxy, which he estimates would “easily” be in the $10,000 to $20,000 range.278 The evidence in this case,

267 See supra Findings of Fact ¶¶ 10, 38–41. 268 See supra Findings of Fact ¶¶ 38–39. 269 See supra Findings of Fact ¶¶ 38–39. 270 See supra Findings of Fact ¶ 39. 271 See supra Findings of Fact ¶ 39. 272 See supra Findings of Fact ¶ 40. 273 See supra Findings of Fact ¶ 42. 274 See supra Findings of Fact ¶ 65. 275 Cf. Fayetteville Diagnostic Clinic, Ltd. v. Turner, 344 Ark. 490, 499–500, 42 S.W.3d 420, 426 (2001) (affirming jury verdict awarding damages for pain and suffering as the result of a slip-and-fall). 276 June 6, 2023 Tr. of Bench Trial at 36:8–10, 37:16–17. Mr. Porter explicitly stated at trial that he is not seeking damages for medical expenses, lost wages, or loss of earning capacity. Id. at 35:18–36:7. 277 Id. at 97:3–5. 278 Id. at 97:6–16.

Case 2:19-cv-00138-LPR-JTR Document 76 Filed 07/24/23 Page 37 of 39 however, suggests a far lower amount is sufficient to reasonably and fairly compensate Mr. Porter.

To start, Mr. Porter experienced serious pain (in his back, shoulder, and leg) long before he fell in Shower 8.279 He regularly rated his pre-fall pain as 8 or 9 out of 10 in severity.280 So, there is strong evidence that Mr. Porter would have experienced severe pain in the exact same portions of his body even if he hadn’t fallen. Second, the fall in Shower 8 did not cause Mr. Porter any permanent injury (aside from some lingering pain) or significantly impair his ability to move around and exercise. He was diagnosed with a contusion in his back and a sprain in his neck, both of which were treatable with pain medication, ice, muscle rub, and rest.281 And although Mr. Porter opted to use a wheelchair most of the time, he was able to ambulate without it.282 Indeed, Mr. Porter was able to use the elliptical machine and walk the track at Forrest City.283 And, after leaving prison, he has not used a wheelchair at all.284

To be sure, the fall in Shower 8 caused Mr. Porter some pain, suffering, and mental anguish that he would not have otherwise experienced—particularly, pain, suffering, and mental anguish that occurred in the immediate aftermath of the fall. Mr. Porter deserves compensation for that short-term pain, suffering, and mental anguish. But the vast majority of the long-term pain, suffering, and mental anguish he reports is not causally related to the fall. Before the fall, Mr. Porter was already experiencing long-term pain, suffering, and mental anguish due to past injuries

279 See supra Findings of Fact ¶¶ 24–37. 280 See supra Findings of Fact ¶¶ 31–35, 37. 281 See supra Findings of Fact ¶¶ 42–43. 282 See supra Findings of Fact ¶¶ 43, 48, 55, 58. 283 See supra Findings of Fact ¶ 47. 284 See supra Findings of Fact ¶ 63. Moreover, some portion of Mr. Porter’s pain (including any ankle pain) is attributable to his obesity. As outlined in the Court’s factual findings, the Forrest City medical personnel repeatedly discussed Mr. Porter’s weight, nutrition, and exercise habits with him. See supra Findings of Fact ¶¶ 29, 32–33, 53, 55, 58, 60–62. Doctors and nurses told Mr. Porter on multiple occasions that his weight contributed to his pain and that lifestyle change would be the best treatment. See supra Findings of Fact ¶¶ 29, 32–33, 53, 55, 58, 60–62. Yet, Mr. Porter did not and has not acted on that advice. See supra Findings of Fact ¶ 31.

Case 2:19-cv-00138-LPR-JTR Document 76 Filed 07/24/23 Page 38 of 39 and lifestyle choices. To the extent the fall exacerbated this long-term pain, suffering, and mental anguish, it mostly did so temporarily, and any permanent exacerbation was marginal. Put another way, by a preponderance of the evidence, Mr. Porter would have experienced nearly the same (but not entirely the same) level of long-term pain, suffering, and mental anguish even if there had been no fall.

Damages in this case cannot be based on that vast majority of long-term pain, suffering, and mental anguish. It can only be based on the pain, suffering, and mental anguish that Mr. Porter experienced (and experiences) because of the fall. The Court concludes that $2,500 reasonably and fairly compensates Mr. Porter for the pain, suffering, and mental anguish that he suffered from the fall in Shower 8. Most of this figure is tied to the pain, suffering, and mental anguish Mr. Porter suffered immediately after the fall, but a small amount is tied to the very marginal long-term pain, suffering, and mental anguish attributable to the fall.285

CONCLUSION

In accordance with the foregoing Findings of Fact and Conclusions of Law, IT IS HEREBY ORDERED that judgment shall be entered in favor of Plaintiff Damon Dewayne Porter in the amount of $2,500.286 Before a final judgment in this case is entered, however, the Court must resolve the Bivens claims that (technically) are still a part of this case. At the bench trial, the parties seemed to agree that, no matter how the FTCA claims came out, their resolution would

285 As noted above in footnote 276, Mr. Porter does not seek damages for past medical expenses (which were paid for by the prison system), lost wages, or lost earning capacity. Moreover, he does not seek damages for future medical expenses, lost wages, or lost earning capacity. And that is something of import: Mr. Porter appears to believe he does not need any future medical treatments for injuries from this fall, and he does not believe the injuries from this fall are going to affect his work. In this context, it is hard to imagine that Mr. Porter’s pain, suffering, and mental anguish are anywhere close to as extensive as he suggests. 286 Mr. Porter also asks for his filing fee. June 6, 2023 Tr. of Bench Trial at 37:13–15. But that is not an appropriate damages category. It may, however, be an appropriate request for a post-judgment fees and costs motion.

Case 2:19-cv-00138-LPR-JTR Document 76 Filed 07/24/23 Page 39 of 39 prevent subsequent litigation of the Bivens claims pursuant to 28 U.S.C. § 2676.287 Within seven days of the date of this Order, the Court directs the parties to file a joint submission explaining (1) whether each party still takes this position and (2) if so, what the appropriate disposition of those Bivens claims should be (e.g., dismissal with prejudice, dismissal without prejudice, judgment in favor of one side or the other, or some other disposition).

IT IS SO ORDERED this 24th day of July 2023.

________________________________ LEE P. RUDOFSKY UNITED STATES DISTRICT JUDGE

287 Id. at 110:4–111:24. The bench trial concerned one of Mr. Porter’s FTCA claims. Id. at 3:18–4:10. The other FTCA claim was resolved by way of a motion for summary judgment. Order (Doc. 65).