Opinion
Civil Action 4:22-CV-0070
08-31-2023
RUBEN C. HOLTON, Plaintiff v. UNITED STATES OF AMERICA et al., Defendants
MANNION, D.J.
REPORT AND RECOMMENDATIO N(ON THE UNITED STATES' MOTION TO DISMISS (DOC. 24))
William I. Arbuckle U.S. Magistrate Judge
I. INTRODUCTION
Covid-19 disrupted much of the world in 2020 and 2021. Prisons were not exempt from this disruption. Plaintiff here contracted Covid and blames the prison staff for not implementing the CDC Guidelines and not providing him proper preventative medical care.
Federal inmate Ruben C. Holton (“Plaintiff”) initiated this pro se Federal Tort Claims Act (“FTCA”) case against the United States of America and three individuals. (Doc. 1). Currently before the Court is the United States' Motion to Dismiss. (Doc. 24). In its Motion, the United States argues that Plaintiff's Complaint should be dismissed because Plaintiff did not exhaust his administrative remedies, did not file a certificate of merit, and did not plead a plausible medical malpractice claim. For the reasons explained in this report, it will be RECOMMENDED that the United States' Motion (Doc. 24) be DENIED, but that the individual Defendant DISMISSED from this action.
II. BACKGROUND & PROCEDURAL HISTORY
On January 13, 2022, Plaintiff initiated this case by lodging his Complaint. (Doc. 1). Plaintiff sought, and was granted, leave to proceed without prepayment of fees. (Doc. 7). As Defendants, Plaintiff names:
1. The United States;
2. Health Service Administrator Bret Brosious;
3. NER MAST Physician Ellen Liebson-Mace; and
4. Mary M. Spiese.(Doc. 1, ¶ 3). Plaintiff brings his Complaint pursuant to the Federal Tort Claims Act (“FTCA”). (Doc. 1, ¶ 1). Plaintiff alleges in his Complaint that, before filing his complaint, he submitted an administrative claim and was denied. (Doc. 1, ¶ 2).
Individual Defendants Brosious, Liebson-Mace, and Spiese were not originally added to the docket in this case. However, Plaintiff specifically states he “also brings this action against” these Defendants. Consequent to the Individual Defendants not being added to the docket, they were not served in this case. As will be explained below, the Court will recommend their dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), which states that “the court shall dismiss the case at any time if the court determines that . . . the action or appeal is frivolous ....”As an administrative matter, the individual defendants should likely be added to the docket.
We will begin our analysis of this case by summarizing the facts and procedure relevant to Plaintiff's administrative claim, then will discuss the allegations in Plaintiff's complaint and the procedural history in this Court.
A. Plaintiff's Administrative Claim for Damage, Injury or Death
On March 15, 2021, Plaintiff, using Standard Form 95 (“SF 95”), completed a Claim for Damage, Injury, or Death and submitted it to the Federal Bureau of Prisons (“BOP”). (Doc. 1-1, pp. 1-3, 5). For the benefit of the Court and parties, we have reproduced Plaintiff's allegations in the SF 95 in their entirety below:
Beginning on or about 3-18-2018, and continuing thereafter, I was confined at the FPC Schuylkill to serve a Federal sentence. Prior to March 2, 2021, I did not have the Coronavirus, nor did I ever test positive for the disease. Pursuant to 18 U.S.C. 4042, FPC Schuylkill owed me a duty of care, as a federal prisoner in it's [sic] custody to, among other things, “Provide suitable quarters and provide for the safekeeping, care and subsistence of all persons charged with or convicted of offenses against the United States.”
BOP COVID-19 Action Plan required that staff at all BOP Facilities, including FPC Schuylkill, enforce and strictly follow the CDC guidelines to prevent the spread of the deadly Coronavirus.
FPC Schuylkill and it's [sic] employees breached it's [sic] duty of care by, among other things, failing to provide suitable quarters and provide for the safekeeping, care of me.
Including failing to enforce and strictly follow the CDC guidelines” [sic] and as a proximate result, of it's [sic] breach of duty of care.
On March 2, 2021, I contracted and tested positive for the Corona-virus, sustained loss of taste, smell and other personal injures and damages.(Doc. 1-1, pp. 1-2, Box 8 and Attachment). On the SF 95 Plaintiff listed March 2, 2021 at 10:00 a.m. as the date and time of accident. (Doc. 1-1, p. 1, Boxes 6, 7). When asked to state the nature and extent of his injuries, Plaintiff wrote “See Paragraph 8,” the box containing Plaintiff's basis for his claim as reproduced above. (Doc. 1-1, p. 1, Box 10). As relief, Plaintiff requested $850,000.00 in damages. (Doc. 1, ¶ 2a; Doc. 1-1, p. 1, Boxes 12b, 12d).
On May 20, 2021, the BOP's Northeastern Regional Office (“NERO”) sent Plaintiff a letter acknowledging receipt of his claim. The letter also provided the following claim number: TRT-NER-2021-05034 (“Claim 05034”). (Doc, 1, ¶ 2a; Doc. 1-1, p. 4).
On September 16, 2021, Plaintiff mailed NERO what appears to be an amendment or supplement to Claim 05034. (Doc. 1-1, pp. 5-6). In that document Plaintiff wrote, “In the letter dated 5-20-21, from your office it stated: ‘If the circumstances surrounding this claim change in any fashion, you should contact this office immediately' ....” (Doc. 1-1, p. 5). Plaintiff went on to explain two ways in which the circumstances surrounding his claim had changed and become worse. (Doc. 1-1, pp. 5-6). Plaintiff then described events related to his medical care after his Covid diagnosis on March 2, 2021 and alleged “FPC” Schuylkill was not enforcing the BOP Covid-19 Action Plan or CDC Guidelines. Id. It is unclear when or if NERO received this document, and whether it was considered during the administrative decision-making process.
In a letter dated September 24, 2021, NERO denied Claim 05034. (Doc. 1-1, p. 7). This letter also informed Plaintiff that he could bring an action against the United States in an appropriate district court within six months of the date of the letter. Id. Plaintiff chose to do so, initiating this suit by lodging his Complaint regarding Claim 05034 on January 13, 2022. (Doc. 1).
B. Summary of Plaintiff's District Court Complaint
In his Complaint, Plaintiff describes a series of events occurring over a twenty-one day period in February and March of 2021. During this period, Plaintiff contracted Covid-19, and allegedly received inadequate treatment. (Doc. 1).
On February 22, 2021, Plaintiff went to sick-call, because he was experiencing chest pain and difficulty breathing. (Doc. 1, ¶ 5a). At sick-call, Defendant Spiese allegedly “teased/mocked” Plaintiff and did not take his vitals or administer a Covid-19 test. (Doc. 1, ¶ 5b). After this, Plaintiff sent a message via the TRULINCS system to Defendant Liebson-Mace, Warden Scott Finley, and Dr. Green “(Psychology)” to inform them of the incident with Defendant Spiese. (Doc. 1, ¶ 5c). Plaintiff received a reply from Dr. Green the same day stating that Plaintiff would be scheduled to be seen. Id.
The next day, Plaintiff again went to sick-call with worsening chest pain and difficulty breathing. (Doc. 1, ¶ 5d). Plaintiff was examined by Physician Assistant Richard Andreuzzi who told Plaintiff to return if his condition worsened. Id. Plaintiff alleges that his temperature was not taken and a Covid-19 test was not administered. (Doc. 1, ¶ 5f).
In his Sick Call Note, P.A. Andreuzzi wrote, “Must question a secondary agenda by inmate.” (Doc. 1-2, p. 6).
On February 24, 2021, Plaintiff received an email from Defendant Liebson-Mace stating Plaintiff's email had been forwarded to the Clinical Director and Administration. The same day, Warden Finley also replied to Plaintiff's February 22, 2021 email “taking sides” with Defendant Spiese and noting that Plaintiff's chest pain was found to be reproducible. (Doc. 1, ¶ 5c). Plaintiff alleges this statement was false because no examination occurred on February 22, 2021, as shown in the Clinical Encounter- Administrative Note. Id.
Plaintiff attaches to his Complaint a copy of that Note as “exhibit B.” (Doc. 1-2, p. 1). In her note, Defendant Spiese wrote, “Must question secondary agenda on part of inmate.” Id.
Also on February 24, 2021, Plaintiff sent a message to Defendant Brosious requesting a switch of his health care provider from Defendant Spiese, explaining why. (Doc. 1, ¶ 5e). Defendant Brosious responded the same day stating Plaintiff's email was forwarded to the Clinical Director and Administration. Id.
On March 2, 2021, Plaintiff tested positive for Covid-19. (Doc. 1, ¶ 5h). Plaintiff was placed in isolation the same day and was released from isolation on March 15, 2021. Id. Plaintiff alleges that at no point during his isolation, or before his release, was he tested for Covid-19 again. Id. Plaintiff also alleges that on March 4, 2021, March 7, 2021, March 13, 2021 and March 14, 2021 he was not checked on. Id. Plaintiff alleges that during the summer of 2021 and into the fall he continued to face “denials,” presumably of medical care, and had lingering Covid-19 symptoms. Id.
Plaintiff alleges that officials at FCI Schuylkill posted signs from the CDC around the institution instructing inmates to seek medical attention immediately if they experienced trouble breathing or persistent pain or pressure in the chest. (Doc. 1, ¶ 5f). Plaintiff states that he followed those instructions but was denied sick-call and a Covid-19 test on February 22 and 23, 2021. Id. Plaintiff alleges that “at this time” FCI Schuylkill “ranked # 1 in the Nation in positive Covid-19 infections.” Id.
Plaintiff cites to the FCI Schuylkill Orientation Handbook, pages 61-62 which lay out Health Care Rights and Responsibilities. (Doc. 1, ¶ 5g; Doc. 1-3, pp. 2-3). Plaintiff highlights the Handbook states that inmates have the right to health services based on the local procedures at their institution, including medical sick call, the right to address any concerns regarding their health care to any member of the institutional staff, and the right to complain of pain and have their pain assessed and treated. Id.
Plaintiff alleges that Defendant Brosious was negligent in failing to properly investigate Plaintiff's complaint of chest pain and difficulty breathing. (Doc. 1, ¶ 5i). Plaintiff also alleges Defendants Liebson-Mace and Spiese were negligent for failing to test him for Covid-19 when he complained of Covid-19 symptoms, and for allowing him back into general population at that time. (Doc. 1, ¶ 5j).
Plaintiff asserts:
Defendants, by their actions above, failed to follow generally accepted medical standards. Defendants, Pursuant [sic] ¶ 18 U.S.C. § 4042 owed him a duty of care, as a federal prisoner in it's custody, to among other things, “provide suitable quarter & provide for safe keeping, car[e] & subsistence of all persons charged with or convicted of offenses against the United States. FPC Schuylkill and it's [sic] employees breached it's [sic] duty of care, by, among other things, failing to provide suitable quarters & provide for the safekeeping, care of Plaintiff.(Doc. 1, ¶ 5k). Plaintiff alleges that as a direct and proximate result of Defendants' negligence he contracted Covid-19, has lingering Covid-19 symptoms, and suffered pain of mind and body. (Doc. 1, ¶ 6). Plaintiff states that because of these injuries he will incur medical expenses in the future and lose earnings in a substantial sum due to “his mind & body being permanently disabled.” (Doc. 1, ¶ 7). Plaintiff seeks at minimum $850,000.00, pre- and post-judgment interest, and cost of suit. (Doc. 1, p. 5).
Plaintiff attached four exhibits to his Complaint. Exhibit A includes information pertinent to Claim 05034, including the SF 95 and denial letter. (Doc. 1-1). Exhibit B includes messages sent between Plaintiff and various individuals as well as a Clinical Encounter note. (Doc. 1-2). Exhibit C includes the CDC signs apparently posted around FCI Schuylkill and the Orientation Handbook pages cited to in Plaintiff's Complaint. (Doc. 1-3). Exhibit D includes Clinical Encounter Notes and Health Services Records, messages between Plaintiff and various individuals, and institutional grievances Plaintiff filed regarding his medical care. (Doc. 1-4).
C. Procedural History In This Court
On July 15, 2022, the United States filed a Notice of Intention to Move for Dismissal of Medical Negligence Claims for Failure to File a Certificate of Merit pursuant to Pennsylvania Rule of Civil Procedure 1042.3. (Doc. 13). In response, Plaintiff filed what he titled a Certificate of Merit (“COM”) asserting he was filing his COM pursuant to Pennsylvania Rule 1042.3(a)(3), deeming expert testimony unnecessary to prosecute his claims. (Doc. 14).
On July 27, 2022, the Court issued an Order instructing Plaintiff to file a COM pursuant to 1042.3(a)(1) and (2). (Doc. 16). The Court granted Plaintiff sixty days to do so. Id.
After an extension of time, on November 10, 2022, Plaintiff filed another COM pursuant to Pennsylvania Rule of Civil Procedure 1042.3(a)(3), clearly indicating he was asserting that expert testimony of an appropriate licensed professional is unnecessary for the prosecution of his claims. (Doc. 21, ¶ 3). That COM indicated Plaintiff had attempted to get a certification from a licensed professional but had been unable to do so. (Doc. 21, ¶ 2). Plaintiff stated that if the Court were to rule that he must file a COM by a licensed professional he would be forced to withdraw his Complaint. (Doc. 21, ¶ 5).
On February 6, 2023, the United States filed a Motion requesting that Plaintiff's Complaint be dismissed for failure to state a claim. (Doc. 24). Along with its motion, the United States filed a Brief in Support, (Doc. 25). On April 27, 2023, Plaintiff filed a Brief in Opposition. (Doc. 30). On May 11, 2023, the United States filed a Reply Brief. (Doc. 31). The United States' Motion to Dismiss is ripe and ready for review.
III. LEGAL STANDARDS
Before proceeding to the merits of the United States' motion, it is helpful to restate the legal standards relevant to motions to dismiss under Rules 12(b)(6) and 12(b)(1) of the Federal Rules of Civil Procedure. We will also discuss other legal standards relevant to this case.
A. Motion to Dismiss Under Federal Rule of Civil Procedure 12(b)(1) Standard (Lack of Subject Matter Jurisdiction)
Federal Rule of Civil Procedure 12(b)(1) provides the mechanism for a party to move for dismissal due to the court's lack of subject matter jurisdiction. “Subjectmatter jurisdiction defines the court's authority to hear a given type of case.”Subject matter jurisdiction “represents the extent to which a court can rule on the conduct of persons or the status of things.”When subject matter jurisdiction is challenged, the plaintiff “bears the burden of demonstrating subject matter jurisdiction.” In deciding a Rule 12(b)(1) motion, the court must first determine whether the “motion presents a ‘facial' attack or a ‘factual' attack on the claim at issue, because that distinction determines how the pleading must be reviewed.”
United States v. Morton, 467 U.S. 822, 828 (1984).
Carlsbad Tech. Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009) (citing Black's Law Dictionary, 870 (8th ed. 2004) (internal quotations omitted)).
Lightfoot v. United States, 564 F.3d 625, 627 (3d Cir. 2009).
Const. Party of Pennsylvania v. Aichele, 757 F.3d 347, 357 (3d Cir. 2014) (quoting In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235, 243 (3d Cir. 2012) (internal quotation marks omitted)) (citing Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)).
A facial attack . . . is an argument that considers a claim on its face and asserts that it is insufficient to invoke the subject matter jurisdiction of the court because, for example, it does not present a question of federal law, or because there is no indication of a diversity of citizenship among the parties, or because some other jurisdictional defect is present. Such an attack can occur before the moving party has filed an answer or otherwise contested the factual allegations of the complaint. A factual attack . . . is an argument that there is no subject matter jurisdiction because the facts of the case . . . do not support the asserted jurisdiction.
So, for example, while diversity of citizenship might have been adequately pleaded by the plaintiff, the defendant can submit proof that, in fact, diversity is lacking .... In sum, a facial attack ‘contests the sufficiency of the pleadings,' ‘whereas a factual attack concerns the actual failure of a [plaintiff's] claims to comport [factually] with the jurisdictional prerequisites.'”
Id. at 358 (citing Mortensen, 549 F.2d at 891 (quoting In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235, 243 (3d Cir. 2012) (internal quotation marks omitted)) (quoting CNA v. United States, 535 F.3d 132, 139 (3d Cir. 2008) (internal quotation marks omitted)).
When reviewing a facial attack, “the court must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff.” The court must also “consider the allegations of the complaint as true.”Therefore, the court is “to apply the same standard of review it would use in considering a motion to dismiss under Rule 12(b)(6), i.e., construing the alleged facts in favor of the nonmoving party.”
Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000); see also Moore v. Angie's List Inc., 118 F.Supp.3d 802, 806 (E.D. Pa. 2015).
Mortensen, 549 F.2d at 891.
Constitution Party, 757 F.3d at 358 (citing In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d at 243).
On the other hand, a factual attack permits “a court [to] weigh and consider evidence outside the pleadings.”“[T]he trial court is free to weight the evidence and satisfy itself as to the existence of its power to hear the case.”In doing so, “no presumptive truthfulness attaches to plaintiff's allegations ”While evaluating a factual attack, “the court may consider evidence outside the pleadings.”A factual attack on subject matter jurisdiction requires a factual dispute and “attacks the factual allegations underlying the complaint's assertion of jurisdiction, either through the filing of an answer or ‘otherwise present[ing] competing facts.'”A Rule 12(b)(1) factual attack “should be granted sparingly” as the “disputed factual issue [ ] goes both to the merits and jurisdiction.”The court must “demand less in the way of jurisdictional proof than would be appropriate at a trial stage.”
Id. at 358; Gould Elecs. Inc., 220 F.3d at 176 (citing Gotha v. United States, 115 F.3d 176, 178-79 (3d Cir. 1997)). See also Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016).
Mortensen, 549 F.2d at 891.
Id.
Gould Elecs. Inc., 220 F.3d at 178.
Davis, 824 F.3d at 346 (quoting Constitution Party, 757 F.3d at 358).
Id. at 350.
Mortensen, 549 F.2d at 892.
B. Motion to Dismiss Under Federal Rule of Civil Procedure 12(b)(6) Standard (Failure to State a Claim)
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to seek dismissal for failure to state a claim upon which relief can be granted. To assess the sufficiency of a complaint when dismissal is sought under Rule 12(b)(6), a court should: (1) take note of the elements a plaintiff must plead to state a claim; (2) identify mere conclusions which are not entitled to the assumption of truth; and (3) determine whether the complaint's factual allegations, taken as true, could plausibly satisfy the elements of a legal claim.
Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011).
In order for his or her allegations to be taken as true, a plaintiff must provide some factual ground for relief, which “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”Thus, courts “need not credit a claimant's ‘bald assertions' or ‘legal conclusions' when deciding a motion to dismiss.”The court also need not assume that a plaintiff can prove facts that he or she has not alleged.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)).
Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”The court must accept as true all allegations in the complaint, and any reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff.This “presumption of truth attaches only to those allegations for which there is sufficient ‘factual matter' to render them ‘plausible on [their] face.'”The plausibility determination is context-specific and does not impose a heightened pleading requirement.
Palakovic v. Wetzel, 854 F.3d 209, 219-20 (3d Cir. 2017) (quoting Iqbal, 556 U.S. at 678) (internal quotation marks omitted); see also Sheridan v. NGK Metals Corp., 609 F.3d 239, 262 n. 27 (3d Cir. 2010).
Jordan v. Fox Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
Schuchardt v. President of the United States, 839 F.3d 336, 347 (3d Cir. 2016) (internal quotation and citation omitted) (alternations in original).
Id. at 347.
C. Screening IN FORMA PAUPERIS Complaints Under 28 U.S.C. § 1915(E)(2)
This Court has a statutory obligation to review an in forma pauperis complaint in accordance with 28 U.S.C. § 1915(e)(2), which provides, in pertinent part:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that -
(A) the allegation of poverty is untrue; or
(B) the action or appeal--
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.
In performing this mandatory screening function, the Court applies the same standard that is used to evaluate motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
D. The Federal Tort Claims Act
In general, the United States enjoys sovereign immunity from suit unless it otherwise consents to be sued.The United States' “consent to be sued must be ‘unequivocally expressed,' and the terms of such consent define the court's subject matter jurisdiction.”The FTCA constitutes “a limited waiver of the United States' sovereign immunity.”The FTCA provides that the United States shall be liable, to the same extent as a private individual, “for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment[.]”
White-Squire v. U.S. Postal Serv., 592 F.3d 453, 456 (3d Cir. 2010).
Id.
Id.
28 U.S.C. § 1346(b)(1); see also 28 U.S.C. § 2674.
Before beginning an FTCA action in federal court, a plaintiff is required to present his or her claim “to the appropriate Federal agency” and be denied or “deemed” denied. Section 2675(a) of Title 28 of the United States Code provides in relevant part:
An action shall not be instituted against the United States for money damages for injury or loss of property or personal injury . . . unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of the agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for the purposes of this section ....
As this Court has explained:
The Third Circuit has instructed us that “[i]n light of the clear, mandatory language of the statute, and [the] strict construction of the limited waiver of sovereign immunity by the United States, . . . the requirement that the appropriate federal agency act on a claim before suit can be brought is jurisdictional and cannot be waived.” Roma v. United States,
344 F.3d 352, 362 (3d Cir. 2003) (citing Livera v. First Nat1 Bank of New Jersey, 879 F.2d 1186, 1194 (3d Cir. 1989)). The Supreme Court has likewise succinctly explained that “[t]he FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies.” McNeil v. United States, 508 U.S. 106, 113 (1993). As a result, a district court may dismiss a claim brought under the FTCA for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) where the plaintiff has not exhausted his administrative remedies prior to filing suit. See, e.g., Abulkhair v. Bush, 413 Fed.Appx. 502, 506 (3d Cir. 2011); Accolla v. United States Gov't, 369 Fed.Appx. 408, 409-10 (3d Cir. 2010) (finding the district court properly dismissed FTCA claim where the plaintiff filed federal suit prior to exhausting administrative remedies).
In this regard, it must be emphasized that full administrative exhaustion is a jurisdictional prerequisite to filing a lawsuit. Therefore, where an FTCA lawsuit is filed before the exhaustion process is completed, we are compelled to dismiss that action. Miller v. United States, 517 Fed.Appx. 62, 63 (3d Cir. 2013); Roma v. United States, 344 F.3d 352, 362 (3d Cir. 2003). In short, given the jurisdictional nature of this exhaustion requirement, when an inmate files an FTCA lawsuit before he receives a final denial of his administrative tort claim, “the District Court [i]s without jurisdiction to rule on the FTCA claim[,] See McNeil, 508 U.S. at 111-12, (holding that a court is without jurisdiction to rule on a prematurely filed action even if an agency denies the related administrative claim soon after the federal lawsuit is filed),” Accolla v. U.S. Gov't, 369 Fed.Appx. 408, 410 (3d Cir. 2010), and the claim must be dismissed.
Robinson v. United States, No. 3:13-CV-1106, 2014 WL 2940454, at *5-6 (M.D. Pa. June 30, 2014).
E. Pennsylvania' Certificate of Merit Requirement Under Pa. R. CIV. P. 1042.3
Pennsylvania Rule of Civil Procedure 1042.3 states:
(a) In any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the attorney for the plaintiff, or the plaintiff if not represented, shall file with the
complaint or within sixty days after the filing of the complaint, a certificate of merit signed by the attorney or party that either
(1) an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm, or
(2) the claim that the defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard, or
(3) expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim.
IV. ANALYSIS
In its motion, the United States argues that the Court should dismiss Plaintiff's FTCA claims against it for the following three reasons:
(1) The Court lacks subject matter jurisdiction over administrative claim number 07486;
(2) Plaintiff's medical malpractice claims should be dismissed because Plaintiff did not file a certificate of merit that complies with Pa. R. Civ. P. 1042.3; and
(3) Plaintiff cannot plead a plausible medical malpractice claim without a medical expert.
We will address each of these issues below. The first issue will be addressed separately, then we will address the United States' second and third arguments together. After analyzing each of the United States' arguments, we will address Plaintiff's ordinary negligence claim and the claims against the individual Defendants.
A. The Court Has Subject Matter Jurisdiction Over Issues Raised in Administrative Claim 05034
We begin with the United States' contention that the Court lacks subject matter arguing that if that were true, we must dismiss this action.As explained above, “the requirement that the appropriate federal agency act on a claim before suit can be brought is jurisdictional and cannot be waived.”The United States' argument as to FTCA exhaustion is construed as a factual challenge to this Court's subject matter jurisdiction. Therefore, the Court can consider evidence outside the pleadings to adjudicate this claim. The Court has considered the exhibits attached to the United States' Brief in Support in connection with its analysis under 12(b)(1), but not in relation to the arguments asserted by the United States under Rule 12(b)(6).
Roma, 344 F.3d at 362.
The United States argues this Court lacks jurisdiction because Plaintiff filed this lawsuit before he received a denial of his administrative claim from the BOP, and thus did not exhaust his claim. (Doc. 25, pp. 10-12). The United States alleges that the BOP received Plaintiff's Administrative Tort Claim Number SF 95 TRT- NER-2021-07486 (“Claim 07486”) on August 24, 2021. (Doc. 25, p. 11). The BOP's Regional Office denied that claim on March 11, 2022, after Plaintiff lodged this lawsuit on January 13, 2022, and that Plaintiff cannot cure the failure to exhaust an FTCA claim after filing his Complaint. (Doc. 25, pp. 11-2). The United States' attaches to its Brief in Support the SF 95 Claim for Damage, Injury, or Death received on August 24, 2021, and the denial letter for Claim 07486 which is dated March 11, 2022.(Doc. 25-1, pp. 8-16). Claim 07486, however, is never mentioned in Plaintiff's Complaint.
Three pages the United States attaches with Plaintiff's SF 95 for Claim 07486 are illegible. (Doc. 25-1, pp. 9, 11, 13).
Plaintiff has two distinct FTCA Administrative claims. Claim 05034 list the incident date as March 2, 2021, and alleges contraction of “the Coronavirus” because of the failure of the BOP to “provide suitable quarters and provide for the safekeeping, care and subsistence of all persons charged with or convicted of offenses against the United States.” The claim details a failure by FC Schuylkill to enforce DCD Coving-19 Guidelines and provide preventative care. (Doc. 1-1, pp. 12).
Claim 07486 lists the incident date as September 14, 2020, and relates to his contracting “... a permanent limp, Vitamin D deficiency, prostate disorder, right chest pain, Dizziness and giddiness, nor anxiety Disorder with Significant Sleep Disturbance” (Doc. 25-1, p. 8).
Plaintiff specifically lays out in his Complaint that Claim 05034 is the pertinent administrative claim. (Doc. 1, ¶ 2a). Plaintiff states that “[o]n April 21, 2021, the U.S. D.O.J./F.B.O.P Northeast Regional Office received administrative claim (Claim No. TRT-NER-2021-05034 ) for matters in dispute in this action in the amount of $850,000 with Federal Bureau of Prisons.” (Doc. 1, ¶ 2a) (emphasis added). Plaintiff alleges he has properly exhausted, stating that on September 24, 2021, the BOP Northeast Regional Office denied Claim 05034. (Doc. 1, ¶ 2b). Plaintiff attaches to his Complaint the letter dated September 24, 2021 denying Claim 05034 and informing him that he had six months to bring an action against the United States in an appropriate District Court. (Doc. 1-1, pp. 1-7). Plaintiff then filed this suit on January 13, 2022.
In Plaintiff's Brief in Opposition he argues the United States' assertion that the Court lacks subject matter jurisdiction is incorrect because “the Court dismissed Plaintiff's TORT claim without prejudice, when he filed it along with his bivens [sic]. The Court afforded Plaintiff the opportunity to refile his TORT claim, after exhausting his claim, as he did.” (Doc. 30, ¶ 3). Plaintiff is referencing Middle District of Pennsylvania Case 4:21-CV-0737. In that case, Plaintiff brought an FTCA claim relating to Claim 05034.Plaintiff lodged his Complaint on April 22, 2021. Claim 05034 was not received by the BOP until April 21, 2021, and was not denied and administratively exhausted until September 24, 2021.The Court dismissed Plaintiff's FTCA claim without prejudice to Plaintiff refiling his FTCA claim regarding Claim 05034.Thus, in his Brief in Opposition, by stating that he was afforded the opportunity to refile his FTCA claim, “as he did,” Plaintiff again indicates this FTCA claim is based on Claim 05034. (Doc. 30, ¶ 3).
Holton v. Finley, No. 4:21-CV-0737, Middle District of Pennsylvania, Docket No. 1.
Id. at Docket No. 22, p. 16.
Id. at Docket No. 26.
Plaintiff's Complaint makes no reference to, or mention of, Claim 07486. Instead, Plaintiff's Complaint explicitly identifies Claim 05034 as the underlying administrative claim. As required to bring an FTCA claim, Plaintiff's Claim 05034 was exhausted on September 24, 2021, when the Claim was denied by the BOP.Plaintiff thereafter timely filed this action. Therefore, the Court has jurisdiction to hear Plaintiff's FTCA claim and it will be recommended the United States' Motion to Dismiss on this ground be denied.
See 28 U.S.C. §§ 2401(b), 2675(a).
B. Plaintiff Is Not Required to File A Certificate of Merit For AN FTCA CLAIM
The United States argues the Court should dismiss Plaintiff's medical malpractice claim for two reasons: (1) Plaintiff did not file a Certificate of Merit in compliance with Pennsylvania Rule of Civil Procedure 1042.3, (Doc. 25, p. 10); (2) Plaintiff cannot plead a plausible medical malpractice claim without a certificate of merit. Regarding its second argument, the United States asserts:
medical malpractice claims are not among the most self-evident exempt from the requirement of expert testimony.... Accordingly the Court should also dismiss Holton's complaint on the alternative ground that, due to his failure to procure an expert certificate as to the merit of his allegations, he has failed to plausibly plead an act of medical negligence.(Doc. 25, pp. 9-10) (internal quotation marks and citations omitted).
On August 21, 2023, after this motion was fully briefed, the Third Circuit Court of Appeals held in Wilson v. United States, “that Rule 1042.3's certificate of merit requirement does not apply in FTCA cases.”
Wilson v. United States, __F.4th __, 2023 WL 5341494, at *3 (3d Cir. Aug. 21, 2023).
Applying Wilson, Plaintiff's alleged failure to file a COM in accordance with Pennsylvania Rule 1042.3 is not a basis to dismiss his FTCA claims.The United States asserts no other reason Plaintiff's Complaint fails to state medical malpractice claims other than his claims are not exempt from the requirement of expert testimony and he failed to procure an expert certificate that would allow him to use expert testimony under Pennsylvania law. Again, however, the COM requirement does not apply in FTCA cases.(Doc. 25, p. 10). Therefore it will be recommended that the United States' Motion to Dismiss on these grounds be denied.
Id.
Id.
C. Plaintiff Also Asserts An Ordinary Negligence Claim
While the United States' Motion to Dismiss only concerns Plaintiff's medical malpractice claims, it appears to the Court Plaintiff also asserts an ordinary negligence claim under the FTCA. In addition to alleging FCI Schuylkill “failed to follow generally accepted medical standards,” Plaintiff alleges FCI Schuylkill “owed him a duty of care,” to “provide suitable quarters & provide for the safekeeping, care of Plaintiff.” (Doc. 1, ¶ 5k). Plaintiff alleges that duty of care was breached by not providing him suitable quarters or for his safekeeping and care. Id. For example, Plaintiff alleges Brosious was “negligent in failing to properly & satisfactorily look into Mr. Holton's complaint of Chest Pain/Difficult Breathing . . . .” (Doc. 1, ¶ 5i). Plaintiff does not allege Brosious, an administrator, is a medical professional capable of committing medical malpractice that could be imputed to the United States.Any negligence by Brosious, imputed to the United States, that injured Plaintiff could not be brought under a medical malpractice theory of liability. We thus interpret Plaintiff's Complaint as also bringing an ordinary negligence claim under the FTCA.
In his Complaint, Plaintiff says that Brosious is the Health Service Administrator but does not (as he did with Physician Liebson-Mace and Nurse Practitioner Spiese) provide a medical professional title for Brosious. (Doc. 1, ¶ 3).
D. All Claims Against The Individual Defendants Should be Dismissed
In his Complaint, Plaintiff states he “also brings this action against Health Service Administrator Bret Brosious, NER MAST Physician Ellen Liebson-Mace, and Nurse Practitioner Mary M. Spiese.” (Doc. 1, p. 1). These individuals are not named in the caption as required by Federal Rule of Civil Procedure 10. Section 1915(e)(2) confers on the Court a statutory obligation to review in forma pauperis complaints and to dismiss claims sua sponte. Section 1915(e)(2)(B)(i) states that “the court shall dismiss the case at any time if the court determines that . . . the action or appeal is frivolous ....” The Supreme Court has instructed that a complaint “is frivolous where it lacks an arguable basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Against Defendants Brosious, Liebson-Mace and Spiese, Plaintiff's Complaint lacks an arguable basis in law. Plaintiff asserts only an FTCA claim in his Complaint. (Doc. 1). It is well settled that the United States “is the only proper defendant in a case brought under the FTCA.”Plaintiff thus cannot bring an FTCA claim against these individual Defendants. Therefore, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), we will sua sponte recommend Plaintiff's Complaint be dismissed against Defendants Brosious, Liebson-Mace and Spiese and that they be terminated from this case to the extent he intended to sue them in this lawsuit.
CNA v. United States, 535 F.3d 132, 138 n.2 (3d Cir. 2008).
Under 28 U.S.C. § 1915(e)(2), a plaintiff is “entitled to amend their complaint unless doing so would be inequitable or futile.”In this case, amendment would be futile. Plaintiff could not amend his Complaint to state an FTCA claim against Defendants Brosious, Liebson-Mace and Spiese and therefore should not be given leave to amend.
Grayson v. Mayview State Hosp., 293 F.3d 103, 111 (3d Cir. 2002).
V. RECOMMENDATION
Based on the foregoing, IT IS HEREBY RECOMMENDED that:
(1) The United States' Motion to Dismiss (Doc. 24) be DENIED.
(2) Plaintiff's Complaint (Doc. 1) be DISMISSED against Defendants Brosious, Liebson-Mace and Spiese without leave to amend pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
(3) The Clerk of Court be DIRECTED to terminate Defendants Brosious, Liebson-Mace and Spiese from this case.
NOTICE OF LOCAL RULE 72.3
NOTICE IS HEREBY GIVEN that any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.
Failure to file timely objections may constitute a waiver of any appellate rights.