Theodore v. U.S. Department of Justice et al

Filing 31

Magistrate Judge Marianne B. Bowler: ORDER entered. REPORT AND RECOMMENDATION re 14 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM is ALLOWED; 19 MOTION TO AMEND THE COMPLAINT is DENIED; and 25 MOTION FOR LEAVE TO FILE CERTIFICATE OF MERIT filed by T. Ronald Theodore is DENIED. ( Objections to R&R due by 8/20/2013)(Feeney, Eileen)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
T. RONALD THEODORE,
Plaintiff,
v.

CIVIL ACTION NO.
12-10863-PBS

U.S DEPARTMENT OF JUSTICE
and FEDERAL BUREAU OF
PRISONS,
Defendants.
REPORT AND RECOMMENDATION RE:
DEFENDANT’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
(DOCKET ENTRY # 14)
MEMORANDUM AND ORDER RE:
PLAINTIFF’S MOTION TO AMEND THE COMPLAINT
(DOCKET ENTRY # 19); PLAINTIFF’S MOTION FOR LEAVE TO FILE
CERTIFICATE OF MERIT (DOCKET ENTRY # 25)
August 6, 2013
BOWLER, U.S.M.J.
Pending before this court is a motion to dismiss for
failure to state a claim (Docket Entry # 14) filed by defendants
United States Department of Justice and the Federal Bureau of
Prisons (“defendants”) under Rule 12(b)(6), Fed. R. Civ. P.
(“Rule 12(b)(6)”).

Also pending before this court are a motion

for leave to amend the complaint (Docket Entry # 19) and a
motion for leave to file a certificate of merit (Docket Entry #

25) filed by plaintiff T. Ronald Theodore (“plaintiff”) under
Rule 15(a)(2), Fed. R. Civ. P. (“Rule 15(a)(2)”).1
PROCEDURAL BACKGROUND
Prior to filing the pending motion to amend (Docket Entry #
19), plaintiff, who is proceeding pro se, filed a document
captioned “first amendment to complaint” (Docket Entry # 11).
Plaintiff filed the original complaint (Docket Entry # 1) and a
supplement to the complaint (Docket Entry # 3) prior to service
of the complaint on defendants.2

Because plaintiff is proceeding

pro se, this court will construe the supplement (Docket Entry #
3) as part of the original complaint (Docket Entry # 1).
Defendants’ motion to dismiss (Docket Entry # 14) considers and
addresses the original complaint (Docker Entry # 1), the
supplement (Docket Entry # 3) and the proposed claims in the
motion to amend (Docket Entry # 11).

The motion to amend

(Docket Entry # 11) consists of four paragraphs.

Paragraphs

one, two and four set out a proposed Bivens3 claim alleging a
deliberate indifference to medical care.

1

Paragraphs one and

A magistrate judge has “the authority to decide the motion to
amend outright” under 28 U.S.C. § 636(b)(1)(A). Maurice v.
State Farm Mutual Automobile Insurance Co., 235 F.3d 7, 9 n.2
(1st Cir. 2000) (referring to motion for leave to file amended
complaint to add new count).
2
The supplement consists of a number of documents plaintiff
submitted during the course of exhausting his administrative
remedies.
3
Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388
(1971) (“Bivens”).
2

three set out a proposed Bivens claim alleging retaliation.

The

motion to amend (Docket Entry # 11) is allowed.
Although ordinarily an amended complaint supersedes an
original complaint, see Snyder v. Pascack Valley Hospital, 303
F.3d 271, 276 (3rd Cir. 2002) (“amended complaint supersedes the
original version in providing the blueprint for the future
course of the litigation”), plaintiff is proceeding pro se.
Accordingly, the operative complaint shall consist of the
amended complaint (Docket Entry # 11) incorporating the entirety
of the original complaint and the supplement.

The complaint

(Docket Entry ## 1, 3 & 11) distills into four claims.
raises the following two Bivens claims:

(1) deliberate

indifference to medical care; and (2) retaliation.
Entry # 11).

It

(Docket

The complaint also sets two claims under the

Federal Tort Claims Act, 28 U.S.C. § 2674 (“FTCA”):
negligence; and (2) medical malpractice.

(1)

(Docket Entry ## 1 &

3).
STANDARD OF REVIEW
When considering a motion to dismiss pursuant to Rule
12(b)(6), a court “accept[s] as true all well pleaded facts in
the complaint and draw[s] all reasonable inferences in favor of
the plaintiffs.”

Gargano v. Liberty International Underwriters,

Inc., 572 F.3d 45, 48 (1st Cir. 2009).

“The general rules of

pleading require ‘a short and plain statement of the claim
3

showing that the pleader is entitled to relief.’”

Id.

“This

short and plain statement need only ‘give the defendant[s] fair
notice of what the . . . claim is and the grounds upon which it
rests.’”

Id.

“To survive a motion to dismiss, the complaint must allege
‘a plausible entitlement to relief.’”
F.3d 46, 52 (1st Cir. 2008).

Fitzgerald v. Harris, 549

While “detailed factual

allegations” are not required, “a plaintiff’s obligation to
provide the ‘grounds’ of his ‘entitlement for relief’ requires
more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.”

Bell Atlantic

v. Twombly, 550 U.S. 554, 555 (2007); Maldonado v. Fontanes, 563
F.3d 263, 266 (1st Cir. 2009); Thomas v. Rhode Island, 542 F.3d
944, 948 (1st Cir. 2008).

Additionally, “a well-pleaded

complaint may succeed even if it strikes” a court “that actual
proof of those facts is improbable.”

Twombly, 550 U.S. at 556.

As to a motion to amend, it is well settled that futility
constitutes an adequate basis to deny amendment.

See Universal

Communication Systems, Inc. v. Lycos, Inc., 478 F.3d 413, 418
(1st Cir. 2007); Maine State Building and Construction Trade
Council, AFL CIO v. United States Department of Labor, 359 F.3d
14, 19 (1st Cir. 2004).

“An amendment is futile if it could not

withstand a Rule 12(b)(6) motion to dismiss.”

Menard v. CSX

Transportation, Inc., 840 F.Supp.2d 421, 427 (D.Mass. 2012).
4

FACTUAL BACKGROUND4
I.

MOTION TO DISMISS (DOCKET ENTRY # 14)
Throughout the relevant time period, plaintiff was an

inmate in the Federal Bureau of Prisons.

The Federal Prison

Camp-Canaan (“Canaan”), where plaintiff served his sentence, is
located in Waymart, Pennsylvania.

(Docket Entry # 3).

On June 26, 2010, plaintiff “suffered acute pulmonary edema
and congestive heart failure.”

(Docket Entry # 1).

Plaintiff,

“a former doctor, knew he needed oxygen and pleaded for it.”
(Docket Entry # 1).

Plaintiff’s “condition was known, and the

oxygen was available,” but “the staff [at Canaan] refused to
administer the oxygen to him.”

(Docket Entry # 1).

After filing the original complaint (Docket Entry # 1) on
May 4, 2012, plaintiff filed the supplement (Docket Entry # 3)
on May 30, 2012.

The supplement includes an administrative

claim dated April 21, 2011, that plaintiff submitted to the
Northeast Region of the Federal Bureau of Prisons which, in
light of plaintiff’s pro se status, this court construes as
elucidating the facts at the case in bar.
The incident occurred at 3:00 a.m., “6 weeks post massive
anterior wall myocardial infarction with cardiogenic shock and
an emergency coronary artery bypass graft.”
4

(Docket Entry # 3).

The factual background is taken from the operative complaint,
i.e., the original complaint, the supplement and the amended
complaint (Docket Entry ## 1, 3 & 11).
5

Canaan “does not have any medical staff on site from 11:00 p.m.
to 6:00 a.m. everyday.”

(Docket Entry # 3).

While plaintiff

awaited the arrival of an ambulance, correctional officers
“stood there smiling and saying ‘we are not allowed to give you
oxygen.’”

(Docket Entry # 3).

The correctional officers “had

cell phones and were in communication with central command” at
the time plaintiff requested oxygen.

(Docket Entry # 3).

Plaintiff was “unable to breath and lost consciousness” due to
“[t]he failure to provide oxygen.”

(Docket Entry # 3).

“When

the ambulance arrived, it was reported that the officers
appeared to intentionally take a lot of time in placing
[plaintiff] in the ambulance.”

(Docket Entry # 3).

When plaintiff arrived at Wayne Memorial Hospital, “[t]here
was great concern by the physicians that the prolonged period of
hypoxemia may have precipated [sic] another heart attack and/or
extended the damage from the heart attack a few weeks prior.”
(Docket Entry # 3).

“[A]n 80%-90% blockage in the right carotid

artery” and “the diminished oxygen level” also created “concern”
that “a possible stroke could have occurred.”
3).

(Docket Entry #

While being treated, plaintiff “made known” to the “medical

staff at Wayne Memorial Hospital” that he was “concern[ed] that
there was no oxygen available [at Canaan]” and that “[i]t would
be dangerous and unreasonable to send a heart patient in
[plaintiff’s] condition back to [Canaan].”
6

(Docket Entry # 3).

Plaintiff “was told oxygen would be available.”
3).

(Docket Entry #

Specifically, plaintiff “was told by the [Physician’s

Assistant at Wayne Memorial Hospital] that she and the attending
physician had received assurances [from the staff at Canaan]
that oxygen would be always available.”

(Docket Entry # 3).

Upon returning to Canaan, plaintiff was told by “the Camp
Administrator” that “only medical [staff] could give oxygen.”
(Docket Entry # 3).

During the period that no medical staff was

on site, “[a]n ambulance could be called” if oxygen was needed.
(Docket Entry # 3).
Plaintiff “filed a grievance with the Warden” alleging that
“[t]he staff at Canaan had lied to [him] and the physicians and
staff at [Wayne Memorial] hospital.”

(Docket Entry # 3).

In

reply to the grievance, the Warden stated, “In regard to your
questions as to why the Correctional Officers did not give you
oxygen when you were lying on the sidewalk, Correctional
Officers are trained as First Responders.

As a First Responder,

they are not trained in the administration of oxygen.

Oxygen

can only be administered by properly trained Medical staff in an
emergency situation or as prescribed by a Doctor.”
Entry # 3).

(Docket

Plaintiff maintains that he “sustained severe

physical harm and was placed in severe jeopardy for his life and
[sustained] severe emotional distress as a result of

7

correctional officers failure to provide basic emergency care.”
(Docket Entry # 3).
“[F]ollowing [plaintiff’s] heart attack and bypass surgery,
[plaintiff] had many complications” while recovering at Canaan.
(Docket Entry # 3).

“Dr. [Daniel] Holloway [a doctor at Canaan]

had requested [plaintiff] be transferred to a federal medical
center.

The request was denied by Central.”

(Docket Entry #

3).
Plaintiff was “repeatedly denied proper cardiac diet” by
correctional officers at Canaan and “staff practically assaulted
[plaintiff’s] family member.”5

(Docket Entry # 3).

Plaintiff

was “prescribed two (2) Percocet 3-4 times a day” for “severe
pain from the sternotomy” by his cardiac surgeon.
# 3).

(Docket Entry

“The medical staff prescribed NSAIDS (ibuprofen) which

gave [plaintiff] an irregular heartbeat.”

(Docket Entry # 3)

“[The medical staff] then had [plaintiff] take naproxen.”
(Docket Entry # 3).

“NSAIDs are contraindicated in the setting

of coronary artery bypass as they can precipitate ‘acute

5

In particular, on September 6, 2010, a correctional officer
approached plaintiff’s visitor because she was in an
unauthorized area. “Visitors are aware they are not permitted
in this area. The officer did explain to [plaintiff’s] visitor
that she was in an area that visitors are not permitted to be in
and hat[sic] her visiting privileges could be suspended.
[Plaintiff’s] visitor was then escorted to Camp Inmate Visiting
Area for in-processing into Camp Visiting Area.” (Docket Entry
# 3).
8

pulmonary edema’ and ‘congestive heart failure.’”

(Docket Entry

# 3).
DISCUSSION
Defendants move to dismiss all four claims presented in the
operative complaint (Docket Entry ## 1, 3 & 11).
argue that:

Defendants

(1) the two claims brought under Bivens fail

because such claims are not actionable against federal agencies;
(2) the claim regarding post-operative treatment of pain brought
under the FTCA is a medical malpractice claim and plaintiff
failed to file a certificate of merit as required by
Pennsylvania Rule of Civil Procedure 1042.3 (“Rule 1042.3”); and
(3) plaintiff fails to state a claim for negligence.
A.

Bivens Claims
Plaintiff alleges two claims under Bivens:

(1) deliberate

indifference to medical care (Docket Entry # 11, ¶¶ 1, 2 & 4);
and (2) retaliation (Docket Entry # 11, ¶¶ 1 & 3).

The

operative complaint names only the Department of Justice and the
Federal Bureau of Prions as defendants.

(Docket Entry # 1).

Naming only a federal agency as a defendant is a ground for
dismissal of a Bivens claim.

See F.D.I.C. v. Meyer, 510 U.S.

471, 486 (1994).
“The Bivens doctrine allows a plaintiff to vindicate
certain constitutionally protected rights through a private
cause of action for damages against federal officials in their
9

individual capacities.”

Chiang v. Skeirik, 582 F.3d 238, 243

(1st Cir. 2009); see generally Soto-Torres v. Fraticelli, 654
F.3d 153, 157-158 (1st Cir. 2011).

A plaintiff may seek

vindication for violations of his First, Fourth, Fifth, Sixth
and/or Eighth Amendment rights through a Bivens claim.

See

Farmer v. Brennan, 511 U.S. 825, 839, (1994) (Eighth Amendment);
David v. Passman, 442 U.S. 228, (1979) (Due Process Clause of
Fifth Amendment); Bivens, 403 U.S. 388 (1971) (Fourth
Amendment); Toro v. Gil, 110 F.Supp.2d 28 (D.P.R. 2000) (First
Amendment); Edmond v. U.S. Postal Service General Counsel, 949
F.2d 415 (D.C.Cir. 1991) (Sixth Amendment).
A Bivens claim may not be made against a federal agency.
Meyer, 510 U.S. at 486 (holding “[a]n extension of Bivens to
agencies of the Federal Government is not supported by the logic
of Bivens itself”); Tapia-Tapia v. Potter, 322 F.3d 742, 746 (1st
Cir. 2003) (restating Supreme Court’s refusal to recognize a
Bivens remedy against federal agencies).

A “claimant who seeks

relief under Bivens must prove the violation of constitutional
right by a federal agent acting under the color of federal law.”
DeMayo v. Nugent, 517 F.3d 11, 14 (1st Cir. 2008); McCloskey v.
Mueller, 446 F.3d 262, 271-72 (1st Cir. 2006) (“Bivens doctrine
allows constitutional claims against federal officials, in their
individual capacities for actions taken under color of federal
law”).

As explained by the Court in Meyers:
10

[T]he purpose of Bivens is to deter the officer.
(“Because the Bivens remedy is recoverable against
individuals, it is more effective deterrent than the
FTCA remedy against the United States”). If [the
Court] were to imply a damages action directly against
federal agencies, thereby permitting claimants to
bypass qualified immunity, there would be no reason
for aggrieved parties to bring damages actions against
individual officers.
Id at 485 (internal citations omitted) (emphasis in the
original).

“[P]laintiff must state a claim for direct rather

than vicarious liability; respondeat superior is not a viable
theory of Bivens liability.”

Ruiz Rivera v. Riley, 209 F.3d 24,

28 (1st Cir. 2000); see Ashcroft v. Iqbal 556 U.S. 662, 676
(2009) (“[g]overnment officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory or
respondeat superior”).
The original complaint names the United States Department
of Justice and the Federal Bureau of Prisons.

The supplement

and the motion to amend retain the same caption as the original
complaint, all of which name the Department of Justice and the
Federal Bureau of Prisons.

The operative complaint (Docket

Entry ## 1, 3 & 11) therefore does not name or identify any
other federal official as a defendant.

Aside from the two

parties named as defendants, plaintiff mentions seven
individuals by name and 19 by occupation or title in documents
submitted as part of the administrative proceedings.
Entry # 3).

(Docket

Plaintiff does not identify these individuals as a
11

“defendant.”

He also fails to allege that any of the

individuals mentioned (Docket Entry # 3) were deliberately
indifferent to the medical care he received or that any of the
individuals retaliated against him.

Plaintiff therefore fails

to state a claim against a federal official in his or her
individual capacity.
The pending motion to amend (Docket Entry # 19) seeks to
cure this deficiency by adding as defendants:

(1) Attorney

General Eric Holder; (2) Director of Federal Prisons Charles E.
Samuelson; and (3) Warden Ronnie R. Holt.

During oral argument,

defendant opposed the motion to amend based on futility.

The

original complaint (Docket Entry # 1), the supplement (Docket
Entry # 3) and the amended complaint (Docket Entry # 11) do not
tie these individuals to the facts alleged.

Plaintiff’s failure

to state a claim against a federal official in his or her
individual capacity renders the motion to amend the complaint
(Docket Entry # 19) futile.
B.

FTCA
The FTCA gives federal district courts exclusive

jurisdiction over claims against the United States for “injury
or loss of property, or personal injury or death caused by the
negligent or wrongful act or omission of federal employees
acting within the scope of their employment.”
1346(b)(1).

28 U.S.C. §

The FTCA “was designed primarily to remove the
12

sovereign immunity of the United States from suits in tort.”
Richards v. United States, 369 U.S. 1, 6 (1962).
[T]o be actionable under § 1346(b), a claim must
allege, inter alia, that the United States would be
liable to the claimant as a private person . . . in
accordance with the law of the place where the act or
omission occurred . . . [the Court has] consistently
held that § 1346(b)’s reference to the law of the
place means law of the State-the source of substantive
liability under the FTCA.
Meyer, 510 U.S. at 477-78 (internal quotation marks omitted)
(emphasis in the original); see McCloskey v. Mueller, 446 F.3d
262, 266 (1st Cir. 2006) (explaining substantive state law
applies in federal tort claim).

The FTCA, however:

is itself subject to several exceptions . . . the most
expansive of these is the “discretionary function”
exception, which precludes government liability for claims
based upon “the exercise or performance or the failure to
exercise or perform a discretionary function or duty on the
part of a federal agency or an employee of the Government,
whether or not the discretion involved be abused.”
Santana-Rosa v. United States, 335 F.3d 39, 42 (1st Cir. 2003)
(quoting 28 U.S.C. § 2680(a)).
Here, plaintiff brings two claims under the FTCA:
negligence; and (2) medical malpractice.

(1)

Both claims are based

on acts or omissions that occurred in Pennsylvania.
Pennsylvania law therefore governs both claims.

See 28 U.S.C. §

1346(b)(1); Torres-Lazarini v. United States, 523 F.3d 69, 72
(1st Cir. 2008) (“law of Puerto Rico, where the alleged

13

malpractice occurred, provides the standard of liability in this
FTCA action”).
1.

Medical Malpractice
Plaintiff alleges that medical staff at Canaan prescribed

medication that was contraindicated in the setting of coronary
artery bypass which can precipitate acute pulmonary edema and
congestive heart failure.
malpractice claim.

The allegation presents a medical

See Toogood v. Owen J. Rogal, D.D.S., P.C.,

824 A.2d 1140, 1145 (Pa. 2003).

As explained by the court in

Toogood, “medical malpractice can be broadly defined as the
unwarranted departure from generally accepted standards of
medical practice resulting in injury to a patient, including all
liability-produced conduct arising from the rendition of
professional medical services.”

Id.

When filing a complaint for medical malpractice,
Pennsylvania law requires “the attorney for the plaintiff, or
the plaintiff if not represented, [to] file with the complaint
or within sixty days after the filing of the complaint, a
certificate of merit.”

Pa. R. Civ. P. 1042.3(a).

Defendants

move to dismiss the medical malpractice claim for failure to
comply with Rule 1042.3.
Rule 1042.3 constitutes “substantive state law that must be
applied by the federal district courts.

Under Pennsylvania law,

plaintiff’s failure to comply with the [certificate of merit]
14

requirement entitles the defendant to direct the prothonotary to
enter a judgment of non pros against the plaintiff.
Civ. P. 1042.6.”

See Pa. R.

Booker v. United States, 2010 WL 548411, at

*426-47 (3rd Cir. Feb. 18, 2010) (unpublished) (emphasis in the
original); see Smith v. United States, 2012 WL 3245347, at *121
(3rd Cir. Aug. 10, 2012) (unpublished); Stroud v. Abington
Memorial Hosp., 546 F.Supp.2d 238, 248 (E.D.Pa 2008) (“federal
courts in Pennsylvania have uniformly held that the [certificate
of merit] requirement is a substantive rule of law”) (internal
citations omitted); see also Sabot v. Federal Bureau of Prison,
2007 WL 2325823, at *5 (1st Cir. Aug. 16, 2007) (upholding
district court’s decision to dismiss complaint for failure to
comply with state law’s precondition to suit that it deemed
substantive).6

Failure to file the certificate of merit

therefore provides a basis to dismiss a medical malpractice
claim.

See Womer v. Hilliker 589 Pa. 256, 266-67 (2006) (“the

absence from the record of a certificate of merit signals . . .

6

Rule 32.1, Fed. R. App. Pro., allows citations of unpublished
opinions issued on or after January 1, 2007. See also First
Circuit Rule 32.1.0; Third Circuit Internal Operating Procedure
5.7. (“The court by tradition does not cite to its not
precedential opinions as authority. Such opinions are not
regarded as precedents that bind the court because they do not
circulate to the full court before filing.”); United States v.
DeRewal, 10 F.3d 100, 102 n.1 (3rd Cir. 1993) (“We traditionally
do not regard our unpublished decisions as having precedential
value”).
15

that nothing further should transpire in the action, except for
the lawsuit’s termination”).
In order to survive the motion to dismiss, plaintiff
belatedly filed the motion for leave to file the certificate of
merit.

(Docket Entry # 25).

Plaintiff, however, did not file

the certificate of merit in the time allowed by statute.

“In

any action based upon an allegation that a licensed professional
deviated from an acceptable professional standard . . . the
plaintiff . . . shall file with the complaint or within sixty
days after the filing of the complaint, a certificate of merit.”
Pa. R. Civ. P. 1042.3(a).

Plaintiff filed the motion to amend

four months after the the time allowed by statute.

The motion

is futile because the certificate of merit submitted does not
“substantially compl[y]” with Pennsylvania law which would be a
ground for dismissal.

Womer, 589 Pa. at 271.

The Pennsylvania

Supreme Court “has now made it clear that the sixty-day deadline
for filing a [certificate of merit] will be strictly construed
and not lightly excused, while at the same time allowing a latefiling plaintiff to set out certain equitable considerations as
would constitute a reasonable explanation or legitimate excuse
for noncompliance . . ..”

Stroud, 546 F.Supp.2d at 250

(internal quotation marks omitted).
Here, plaintiff simply missed the statutory deadline.
Thus, assuming equitable considerations apply, plaintiff fails
16

to provide a legitimate or reasonable excuse for noncompliance.
Rule 1042.3 also includes a provision that allows a court to
grant an extension of the time period “upon good cause shown.”
It reads that, “The court, upon good cause shown, shall extend
the time for filing a certificate of merit for a period not to
exceed sixty days.

The motion to extend the time for filing a

certificate of merit must be filed on or before the filing date
that plaintiff seeks to extend.”

Pa. R. Civ. P. 1042.3(d).

In the case at bar, plaintiff filed the original complaint
on May 4, 2012.

Defendants filed the motion to dismiss on

November 23, 2012.

Plaintiff filed the motion for leave to file

the certificate on February 14, 2013, nine months after
plaintiff filed the original complaint and three months after
defendant filed the motion to dismiss.
25).

(Docket Entry ## 14 &

Plaintiff therefore did not file a motion to extend the 60

day time period “on or before the filing date that the plaintiff
seeks to extend.”7

Pa. R. Civ. P. 1042.3(d).

Assuming the alternative that federal procedural law
governs the time period to seek an extension, plaintiff fails to
show “excusable neglect” within the meaning of Rule 6(b), Fed.

7

Pennsylvania law provides that “an untimely [certificate of
merit] can suffice to prevent this entry of judgment if filed
prior to the defendant’s motion [to dismiss].” Cuevas v. United
States, 2011 WL 1303447, at *145 (3rd Cir. Apr. 6, 2011). As
noted, plaintiff filed the certificate after defendants filed to
motion to dismiss.
17

R. Civ. P.

Indeed, plaintiff never requested an extension to

file the certificate.

Even construing the motion to amend as a

request for an extension of time, it is too late.

Plaintiff did

not file the motion to amend within 60 days of filing the
complaint (July 3, 2012).

Failure to file a certificate of

merit is “no procedural misstep . . . it [is] instead, a
wholesale failure to take any of the actions that one of our
rules require.”

Womer, 589 Pa. at 271.

Finally, although

plaintiff filed the complaint pro se, “a pro se litigant’s
ignorance of or mistaken assumptions about the requirements of
Rule 1042.3 cannot serve as a reasonable excuse.”

Perez v.

Griffin, 2008 WL 5351829, at *75 (3rd Cir. Dec. 23, 2008); accord
Kendra Corp., Inc. v. Pot O’Gold Money Leagues, 329 F.3d 216,
225 n.7 (1st Cir. 2003) (citing principle that “‘pro se status
does not insulate a party from complying with procedural and
substantive law’” and finding that pro se plaintiff’s failure to
develop legal argument resulted in waiver).

Plaintiff’s

certificate of merit does not comply with Pennsylvania law and
there is no good cause or excusable neglect to justify the delay
in filing.

The motion to amend is therefore futile and thus

denied.
2.

Negligence8

8

Defendant construes these facts as a negligence claim. Out of
an abundance of caution, this court will address the claim even
18

The FTCA negligence claim is based on correctional
officers’ refusal to administer oxygen to plaintiff on June 26,
2010.

Plaintiff was told by correctional officers on the

morning of the incident that they were not authorized to
administer oxygen to him.

Upon returning to Canaan, the Camp

Administrator again told plaintiff that oxygen would not be
available on site from 11:00 p.m. until 6 a.m. every day.
“[A] person can sue under the [FTCA] to recover damages
from the United States Government for personal injuries
sustained during confinement in a federal prison, by reason of
the negligence of a government employee.”
U.S. 150, 150 (1963).

U.S. v. Muniz, 374

Defendant seeks dismissal of the FTCA

claim based on the discretionary function exception.

As

explained, the discretionary function exception precludes
government liability for claims based upon the exercise or
performance or the failure to exercise or perform a
discretionary function or duty.

When the discretionary function

exception applies, “the government is completely immune from
suit, and the claim must be dismissed for lack of subject matter

though plaintiff’s allegations of deliberate actions on the part
of defendants and the foregoing individuals indicate that
plaintiff intended to sue for deliberate constitutional
violations as opposed to negligence under the FTCA. See Webb v.
United States, Bureau of Prisons, 2011 WL 1045097, at *4 (1st
Cir. March 18, 2011).
19

jurisdiction.”

Sanchez ex rel D.R.-S. v. United States, 671

F.3d 86, 92 (1st Cir. 2012).
The analysis of whether the discretionary function
exception applies:
begins, naturally enough, with the question of whether the
Government’s allegedly actionable conduct was
discretionary. United States v. Gaubert, 499 U.S. 315, 322
(1991); see also Magee v. United States, 121 F.3d 1, 4 (1st
Cir. 1997). To demonstrate that its conduct was
discretionary, the government need only show that there was
“room for choice” in making the allegedly actionable
decision or decisions. Attallah v. United States, 955 F.2d
776, 783 (1st Cir. 1992). If the challenged conduct is
found to have been discretionary, a court must then assess
whether the Government’s actions were of the kind that the
discretionary function exception was designed to shieldthat is, whether the Government’s acts were “susceptible to
policy analysis.” Gaubert, 499 U.S. at 325.
Santana-Rosa, 335 F.3d at 43.
Here, the room for choice exists in light of the broad
terms that define the Bureau of Prisons duty to prisoners in its
custody.

“The Bureau of Prisons . . . shall . . . provide for

the safekeeping, care, and subsistence of all persons charged
with or convicted of offenses against the United States . . ..”
18 U.S.C. § 4042(a)(2) (“Section 4042”); see Santana-Rosa, 335
F.3d at 44 (quoting section 4042 and noting, along with another
provision, that they “vest the BOP with the task of providing
for the protection and safekeeping of prisoners in very general
terms”).

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In determining how to best care for prisoners, prison
officials at Canaan chose to staff medical personnel on site
from 6 a.m. until 11:00 p.m. every day.

When members of the

medical staff were not on site, prison officials chose a course
of action that requires an ambulance to be summoned in the event
of a medical emergency.
Turning to whether the choices made by prison officials
were susceptible to policy analysis, when “choices are informed
by a need to balance concerns about a myriad of factors such as
efficiency, safety, aesthetics, and cost . . . those choices are
readily susceptible to policy analysis.”

Fothergill v. United

States, 566 F.3d 248, 253 (1st Cir. 2009).

The decision by

prison officials to provide medical staff on site during
designated hours, to limit First Aid training of correctional
officers and to use an ambulance at times when medical staff is
not present reflect efficiency, safety and cost concerns that
are readily susceptible to policy analysis.

Accordingly, the

decisions made by prison officials with respect to the
availability of oxygen fall within the discretionary function
exception.
CONCLUSION

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In accordance with the foregoing discussion, this court
RECOMMENDS9 that the motion to dismiss (Docket Entry # 14) be
ALLOWED.

The motion to amend the complaint (Docket Entry # 19)

is DENIED and the motion for leave to file the certificate of
merit (Docket Entry # 25) is DENIED.

/s/ Marianne B. Bowler
MARIANNE B. BOWLER
United States Magistrate Judge

Any objection to this Report and Recommendation must be filed
with the Clerk of the Court within 14 days of receipt of the
Report and Recommendation to which the objection is made and the
basis for such objection. See Rule 72(b), Fed. R. Civ. P. Any
party may respond to another party’s objections within 14 days
after service of the objections. Failure to file objections
within the specified time waives the right to appeal the order.
9

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