JACKSON v. GRONDOLSKY et al
Filing
82
OPINION. Signed by Judge Noel L. Hillman on 3/20/2012. (dmr)(n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JOHN DOUGLAS JACKSON,
Civil No. 09-5617 (NLH/KMW)
Plaintiff,
OPINION
v.
J. GRONDOLSKY, et al.,
Defendants.
APPEARANCES:
John Douglas Jackson
4853 Old Route 50
Vienna, Maryland 21869
Pro Se
David S. Cohen, Esquire
Kristy E. Fischer, Esquire
Mintzer, Sarowitz, Zeris, Ledva & Meyers, LLP
2070 Springdale Road
Suite 400
Cherry Hill, New Jersey 08003
Tobin A. Butler, Esquire
Litchfield Cavo, LLP
1800 Chapel Avenue West
Suite 360
Cherry Hill, New Jersey 08002
Attorneys for Defendant Francis J. Sieber, O.D.
Karen H. Shelton, Esquire
Office of the United States Attorney
402 East State Street
Trenton, New Jersey 08608
Attorney for Defendant J. Grondolsky
HILLMAN, District Judge
This matter comes before the Court by way of the following
motions: (1) Defendant United States’s1 motion [Doc. No. 44] to
dismiss Plaintiff’s complaint pursuant to Rule 12(b)(1) for lack
of subject matter jurisdiction; (2) Plaintiff’s motion [Doc. No.
49] for an extension of time to file a sur-reply; (3) Defendant
Sieber’s motion [Doc. No. 56] to strike Plaintiff’s Certificate
of Merit; (4) Plaintiff’s motion [Doc. No. 61] for a postponement
regarding the motion to strike; and (5) Plaintiff’s motion [Doc.
No. 62] to modify the Certificate of Merit.
The Court has
considered the parties’ submissions and decides this matter
pursuant to Federal Rule of Civil Procedure 78.
For the reasons expressed below, Defendant United States’s
motion to dismiss is granted, Plaintiff’s motion for an extension
of time to file a sur-reply is granted, Defendant Sieber’s motion
to strike is denied, and Plaintiff’s remaining motions are
dismissed as moot.
I.
JURISDICTION
In this case, Plaintiff asserts an Eighth Amendment claim
for deliberate indifference, and a claim under the Federal Tort
Claims Act.
The Court exercises jurisdiction over Plaintiff’s
federal claims under 28 U.S.C. § 1331.
1. For the reasons set forth infra, the United States is the
proper federal Defendant with respect to Plaintiff’s claim under
the Federal Tort Claims Act and the motion is construed to be
filed on behalf of the United States, not J. Grondolsky.
2
II.
BACKGROUND
In its January 3, 2011 Memorandum Opinion and Order the
Court previously set forth the lengthy background of this case
including, but not limited to, the detailed procedural history of
two related actions filed by Plaintiff, the Court’s findings upon
screening Plaintiff’s complaint in one of the related actions,
and the relevant factual allegations of the complaint filed in
the present action.
(See generally Mem. Op. & Order [Doc. No.
11] 2-18, Jan. 3, 2011.)
Accordingly, the Court sets forth
herein only those facts relevant to the present motions.
As the Court previously noted by Opinion dated December 23,
2011, Plaintiff John Douglas Jackson was incarcerated at the
Federal Correctional Institution in Fort Dix, New Jersey (“FCIFort Dix”) at the time the complaint in this action was filed.2
(Pl.’s First Am. Compl. [Doc. No. 1] (hereinafter, “Pl.’s
Compl.”), ¶ 1.)
In this action, Plaintiff essentially alleges
that Defendants failed to provide him with adequate medical care
regarding a previously diagnosed eye condition and that this
failure ultimately resulted in the complete loss of sight in his
left eye.
30, 32-42.)
(See, e.g., Pl.’s Compl. ¶¶ 10-12, 17-21, 23-24, 29After screening Plaintiff’s complaint in January of
2011, pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A, the Court
2. Since that time, Plaintiff has been released from custody and
is “presently at home living in Maryland.” (Letter from Pl.
[Doc. No. 57] 1.)
3
permitted “two narrowly-tailored lines of Plaintiff’s claims ...
to proceed past the sua sponte dismissal stage.”
Order [Doc. No. 11] 1, Jan. 3, 2011.)
(Mem. Op. &
Specifically, the Court
permitted Plaintiff to proceed with his Eighth Amendment
deliberate indifference claim against Dr. Sieber based on the
alleged denial of, or excessive delay in receiving, prescribed
eye medication and eye surgery.
(Id. at 24, 26.)
The Court also
permitted Plaintiff’s claims under the Federal Tort Claims Act
(“FTCA”) to proceed past sua sponte dismissal.
(Id. at 24-26.)
All of Plaintiff’s remaining claims were dismissed with
prejudice.
(Id. at 26.)
With regard to the deliberate indifference claim under the
Eighth Amendment, the Court found that “Plaintiff’s claims
against Dr. [Sieber] asserting that Dr. [Sieber] denied (or
excessively delayed) Plaintiff’s requests for prescriptions or
the dispensing of the already-prescribed medications and eye
surgery appear[ed] plausible[.]”
(Id. at 24.)
Thus, the Court
ordered that Plaintiff’s “Eighth Amendment claims based on denial
of prescribed eye medication and prescribed eye surgery” could
proceed.
(Id. at 26) (internal parentheses omitted).
Furthermore, “out of an abundance of caution,” the Court found it
“warranted to proceed past the sua sponte dismissal stage and
obtain responsive pleadings with regard to Plaintiff’s FTCA
challenges.”
(Id. at 24-25.)
4
Also, in the January 3, 2011 Memorandum Opinion and Order,
the Court properly dismissed the United States of America as a
defendant with respect to Plaintiff’s alleged Bivens claim, (see
Mem. Op. & Order [Doc. No. 11] 20-21, 26, Jan. 3, 2011), because
a plaintiff cannot bring a Bivens action “to pursue
constitutional claims against the United States or its agencies.”
See Mierzwa v. U.S., 282 F. App’x 973, 976 (3d Cir. 2008).
To
the extent Plaintiff alleged claims under the FTCA, the Court
permitted those claims to proceed past sua sponte dismissal and
directed service on the warden at FCI-Fort Dix, Defendant
Grondolsky, with respect to those FTCA claims.
[Doc. No. 11] 24-25, 25 n.4, Jan. 3, 2011.)
(Mem. Op. & Order
The Court
specifically noted that permitting service on Warden Grondolsky
as the warden at FCI-Fort Dix should “not be construed as this
Court’s finding that the warden might be liable for Plaintiff’s
FTCA claims[.]”
(Id. at 25 n.4.)
At this juncture, the Court recognizes that while the United
States was properly terminated as a party with respect to
Plaintiff’s Bivens claim, the only proper defendant on claims
brought under the FTCA is, in fact, the United States, not a
federal agency sued in its own name or individual federal
employees sued in their official capacities.
See, e.g., Bailey
v. U.S. Marshals Serv. Headquarters, 426 F. App’x 44, 45-46 (3d
Cir. 2011) (“It is well established that the United States is the
5
only proper defendant in an action brought under the FTCA.”); CNA
v. United States, 535 F.3d 132, 138 n.2 (3d Cir. 2008) (“The
Government is the only proper defendant in a case brought under
the FTCA.”).
In this case, it appears that the United States, while
properly dismissed as a Defendant with respect to Plaintiff’s
Bivens claim, was inadvertently terminated as a party with
respect to Plaintiff’s surviving FTCA claim.
Although the Court
directed service on Warden Grondolsky as the warden of FCI-Fort
Dix for purposes of the FTCA claim, Warden Grondolsky should have
been terminated as a Defendant in this action as he is not a
proper party to Plaintiff’s FTCA claim.
See, e.g., Malouf v.
Turner, 814 F. Supp. 2d 454, 462 (D.N.J. 2011) (finding that the
United States is the only proper party on an FTCA claim and
dismissing Warden Grondolsky as a defendant in that action with
respect to the FTCA claim); Pinet v. United States, 08-5678, 2010
WL 503022, *2 n.1 (D.N.J. Feb. 8, 2010) (dismissing FTCA claim
against Warden Grondolsky in that action because he was not a
proper defendant).
Apparently recognizing this issue, the Assistant United
States Attorney contends that the present motion to dismiss
Plaintiff’s FCTA claim is brought “on behalf of the United States
as the proper Federal Defendant.”
(Br. in Supp. of Federal
Def.’s Mot. to Dismiss [Doc. No. 44-1] (hereinafter, “United
6
States’s Mot. to Dismiss”), 4.)
While Plaintiff generally
opposes the motion to dismiss, Plaintiff appears to concede that
the United States is the proper party to his FTCA claim, not
Warden Grondolsky.
(Mot. in Opp’n to the United States
Attorney’s Reply to Pl.’s Compl. [Doc. No. 46] (hereinafter,
“Pl.’s First Opp’n”), 4) (arguing that the United States is
liable for the actions of independent contractors such as
Defendant Sieber).
In light of the foregoing and in order to properly consider
the present motion to dismiss, the Court will sua sponte dismiss
Warden Grondolsky from this action, and properly substitute the
United States in his place as the proper Defendant with respect
to Plaintiff’s FTCA claim.
See Newsham v. Transp Sec. Admin.,
No. 08-105, 2010 WL 715838, at *4 (D.N.J. Feb. 26, 2010) (finding
that the United States was the only proper defendant on
plaintiff’s FTCA claims and sua sponte substituting the United
States in place of the Transportation Security Administration as
a “necessary prerequisite” to consideration of a motion for
summary judgment on plaintiff’s FTCA claims).
Therefore, the
Court refers to the United States as the Defendant on Plaintiff’s
FTCA claim throughout the remainder of this Opinion.
III. DISCUSSION
A.
Standard for 12(b)(1) Motion to Dismiss
Here, the United States moves to dismiss Plaintiff's
7
complaint under Federal Rule of Civil Procedure 12(b)(1).
A
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(1) challenges the existence of a federal court's subject
matter jurisdiction.
“‘When subject matter jurisdiction is
challenged under Rule 12(b)(1), the plaintiff must bear the
burden of persuasion.’”
Symczyk v. Genesis HealthCare Corp., 656
F.3d 189, 191 n.4 (3d Cir. 2011) (citing Kehr Packages, Inc. v.
Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).
A motion to dismiss for lack of subject matter jurisdiction
may either (1) “attack the complaint on its face” or (2) “attack
the existence of subject matter jurisdiction in fact, quite apart
from any pleadings.”
Mortensen v. First Fed. Sav. & Loan Ass’n,
549 F.2d 884, 891 (3d Cir. 1977).
“The defendant may facially
challenge subject matter jurisdiction by arguing that the
complaint, on its face, does not allege sufficient grounds to
establish subject matter jurisdiction.”
D.G. v. Somerset Hills
School Dist., 559 F. Supp. 2d 484, 491 (D.N.J. 2008).
On a
facial attack, “the court must consider the allegations of the
complaint as true.”
Mortensen, 549 F.2d at 891.
“A defendant
can also attack subject matter jurisdiction by factually
challenging the jurisdictional allegations set forth in the
complaint.”
D.G., 559 F. Supp. 2d at 491.
Upon a factual attack, by contrast, the court need not
presume the truth of the allegations and “is free to weigh the
8
evidence and satisfy itself as to the existence of its power to
hear the case.”
Mortensen, 549 F.2d at 891.
Moreover, when
considering a factual challenge to the Court’s jurisdiction under
Rule 12(b)(1), the Court is “not confined to the allegations in
the complaint ... and can look beyond the pleadings to decide
factual matters relating to jurisdiction.”
Cestonaro v. U.S.,
211 F.3d 749, 752 (3d Cir. 2000) (citing Mortensen, 549 F.2d at
891).
“The defendant may factually attack subject matter
jurisdiction at any stage in the litigation, including before the
answer has been filed.”
D.G., 559 F. Supp. 2d at 491.
B. Exhaustion Under the FTCA
Generally, the United States is entitled to sovereign
immunity unless it otherwise consents to suit.
White-Squire v.
U.S. Postal Serv., 592 F.3d 453, 456 (3d Cir. 2010).
The United
States’s “consent to be sued must be ‘unequivocally expressed,’
and the terms of such consent define the court's subject matter
jurisdiction.”
Id.
With respect to the FTCA, the statute
constitutes “a limited waiver of the United States's sovereign
immunity.”
Id.
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[.]”
28 U.S.C. § 1346(b)(1); see also 28 U.S.C. §
9
2674.
Prior to bringing an FTCA action against the United States
in federal court, a plaintiff must “first present[] the claim to
the appropriate Federal agency” and receive a final denial “by
the agency in writing and sent by certified or registered mail.”
28 U.S.C. § 2675(a).
A claim is deemed presented when the
federal agency receives written notification of the alleged
tortious incident and the resulting injuries, accompanied by a
claim for money damages in a sum certain.
28 C.F.R. § 14.2(a).
Where a federal agency fails to make a final disposition of the
claim within six months from the time it is filed, that failure
is “deemed a final denial of the claim” for purposes of
instituting suit under the FTCA.
28 U.S.C. § 2675(a).
“In 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
Nat’l State Bank of New Jersey, 879 F.2d 1186, 1194 (3d Cir.
1989)).
Specifically, as recognized by the Supreme Court, “[t]he
FTCA bars claimants from bringing suit in federal court until
they have exhausted their administrative remedies.”
United States, 508 U.S. 106, 113 (1993).
10
McNeil v.
Thus, a district court
may properly dismiss a claim under the FTCA for lack of subject
matter jurisdiction pursuant to Rule 12(b)(1) where the plaintiff
has not yet exhausted his or her administrative remedies.
See,
e.g., Abulkhair v. Bush, 413 F. App’x 502, 506 (3d Cir. 2011)
(affirming district court’s dismissal of plaintiff’s FTCA claim
under Rule 12(b)(1) where plaintiff failed to exhaust his
administrative remedies before filing suit); Accolla v. United
States Gov’t, 369 F. App’x 408, 409-10 (3d Cir. 2010) (concluding
that the district court properly dismissed plaintiff’s FTCA claim
where plaintiff filed suit in federal court prior to exhausting
administrative remedies).
C. Independent Contractor Exception
Although the FTCA provides a limited waiver of sovereign
immunity whereby the United States may be held liability, “[t]he
United States is not liable under the FTCA unless the alleged
tortfeaser is an employee of the government.”
Moreno v. United
States, 387 F. App’x 159, 160 (3d Cir. 2010) (citing 28 U.S.C. §§
1346(b), 2671).
Under what is known as the independent
contractor exception to the FTCA, “the United States is not
liable for injuries caused by the negligence of its independent
contractor[s.]”
Jackson v. Liberty Mut. Ins. Co., 282 F. App’x
150, 151 (3d Cir. 2008) (citing Norman v. United States, 111 F.3d
356, 357 (3d Cir. 1997) (“[T]here is an independent-contractor
exemption in the Federal Tort Claims Act”)); see also Moreno, 387
11
F. App’x at 160 (“[S]uits against independent contractors are not
viable” under the FTCA.).
“The critical factor used to distinguish a federal agency
employee from an independent contractor is whether the government
has the power ‘to control the detailed physical performance of
the contractor.’”
Norman, 111 F.3d at 357 (citing United States
v. Orleans, 425 U.S. 807, 814 (1976).
“‘[T]he question here is
not whether the [contractor] receives federal money and must
comply with federal standards and regulations, but whether its
day-to-day operations are supervised by the Federal Government.’”
Norman, 111 F.3d at 357 (citing Orleans, 425 U.S. at 815).
Moreover, the Court may properly consider whether the independent
contractor exception to the FTCA is applicable on a motion to
dismiss pursuant to Rule 12(b)(1) because the motion raises
jurisdictional issues.
See Pace v. United States, No. 07-3882,
2008 WL 4559598, at *2 (D.N.J. Oct. 9, 2008) (addressing the
United States’s motion under Rule 12(b)(1) rather than Rule 56
where government argued that a cleaning service was an
independent contractor responsible for negligence which led to
plaintiffs’ injuries).
IV.
ANALYSIS OF UNITED STATES’S MOTION TO DISMISS
In the present motion, the United States moves to dismiss
Plaintiff’s FTCA claims under Rule 12(b)(1) based on two grounds:
(1) Plaintiff failed to timely and properly exhaust his
12
administrative remedies prior to filing the present suit, (United
States’s Mot. to Dismiss 5-6); and (2) even assuming proper
exhaustion, the alleged denial or delay of medical care by
Defendant Sieber cannot give rise to any FTCA claims against the
United Stated because Defendant Sieber is an independent
contractor, not a federal employee.
(Id. at 7-8.)
In support of
these arguments, the United States attached to its motion to
dismiss: (a) two administrative tort claims filed by Plaintiff;
(b) federal agency responses to the administrative tort claims;
and (c) the declaration of Ann Marie Hinkelman, a Human Resource
Manager for the Federal Bureau of Prisons at FCI-Fort Dix
declaring that Defendant Sieber is a contract employee
(hereinafter, “Hinkelman Decl.”).3
(See Exs. 2-4 to Declaration
of Tara Moran [Doc. No. 44-2]; see also Hinkelman Decl. [Doc. No.
44-3] ¶¶ 1, 3.)
A.
Exhaustion of Plaintiff’s Claims
With respect to exhaustion, the United States contends that
Plaintiff did not properly or timely exhaust his administrative
remedies before filing the present action because Plaintiff filed
3. In ruling on the present motion to dismiss pursuant to Rule
12(b)(1), the Court may properly rely on these documents to
determine whether it has jurisdiction over Plaintiff’s FTCA
claims. See Cestonaro v. United States, 211 F.3d 749, 752 (3d
Cir. 2000) (“Because the government’s challenge to the District
Court’s jurisdiction was a factual one under FED . R. CIV . P.
12(b)(1), we are not confined to the allegations in the complaint
(nor was the District Court) and can look beyond the pleadings to
decide factual matters relating to jurisdiction.”)
13
his administrative tort claim on October 13, 2009 and then “filed
the instant complaint” on October 27, 2009.
Mot. to Dismiss 5-6.)
(United States’s
Therefore, the United States argues that
“[a]t the time [Plaintiff] filed the instant complaint, ... this
Court had no jurisdiction to entertain it, because the
administrative claim had not yet been pending six months.”
at 6.)
(Id.
In support of this argument, the United States relies on
an administrative tort claim numbered, TRT-NER-2010-00405, which
was filed with the Northeast Regional Office of the Federal
Bureau of Prisons on October 13, 2009, (hereinafter, “the October
13, 2009 Tort Claim”).4
(Id.; see also October 13, 2009 Tort
Claim, Ex. 3 to the Decl. of Tara Moran [Doc. No. 44-2] 1-2.)
The United States apparently relies upon the October 13, 2009
Tort Claim specifically because Plaintiff referenced that claim
by number, TRT-NER-2010-00405, in the complaint to demonstrate
that the FTCA exhaustion requirement was satisfied based on the
filing of the October 13, 2009 Tort Claim and its subsequent
denial on April 13, 2010.
(See United States’s Mot. to Dismiss
4. In the October 13, 2009 Tort Claim, Plaintiff generally
claims that prior to his transfer to FCI-Fort Dix, he was being
treated by a specialist for his eye condition, known as
sarcoidosis, whereby he received eye drops and monthly eye
pressure checks. (October 13, 2009 Tort Claim, Ex. 3 to Decl. of
Tara Moran [Doc. No. 44-2] 1-2.) Plaintiff contends that he
advised the medical staff at FCI-Fort Dix of this condition and
his need for continued care on multiple occasions, but asserts
that this care was significantly delayed which led to his total
loss of vision in his left eye. (Id.) Plaintiff demanded
$1,000,000.00 as a result. (Id.)
14
6; see also Pl.’s Compl. 14.)
Notwithstanding the exhaustion argument regarding the
October 13, 2009 Tort Claim, the United States indicates in its
moving papers that Plaintiff filed a previous administrative tort
claim numbered, TRT-NER-2009-01878, with the Northeast Regional
Office on January 12, 2009, (hereinafter, “the January 12, 2009
Tort Claim”).5
(See United States’s Mot. to Dismiss 7 n.2; see
also January 12, 2009 Tort Claim, Ex. 2 to Decl. of Tara Moran
[Doc. No. 44-2] 1.)
By Memorandum dated July 10, 2009, Henry J.
Sadowski, Regional Counsel at the Northeast Regional Office of
the Bureau of Prisons informed Plaintiff that his January 12,
2009 Tort Claim had been denied.
(See United States’s Mot. to
Dismiss 7 n.2; see also July 10, 2009 Memorandum, Ex. 2 to Decl.
of Tara Moran [Doc. No. 44-2] 2.)
In this written denial, Mr.
Sadowski specifically informed Plaintiff that if he was
dissatisfied with the decision, Plaintiff could “bring an action
5. In the January 12, 2009 Tort Claim, filed approximately ten
months before the October 13, 2009 Tort Claim, Plaintiff
generally asserts that prior to his arrival at FCI-Fort Dix he
had been under the care of a specialist for his severe eye
condition and that “[a]s a result of prison officials reluctance
in providing [Plaintiff] with this same care” Plaintiff lost
vision in his left eye. (January 12, 2009 Tort Claim, Ex. 2 to
Decl. of Tara Moran [Doc. No. 44-2] 1.) Plaintiff contends that
he was seen by the prison’s doctor, but that the doctor was not
an ophthalmologist specializing in sarcoidosis of the eye. (Id.)
Plaintiff further asserts that the officials at FCI-Fort Dix were
negligent under tort law and are liable for the loss of vision in
his left eye. (Id.) Plaintiff demanded $100,000.00 in damages
as a result. (Id.)
15
against the United States in an appropriate United States
District Court within six (6) months of the date” of the July 10,
2009 Memorandum.
(See July 10, 2009 Memorandum, Ex. 2 to Decl.
of Tara Moran [Doc. No. 44-2] 2.)
In noting the existence of the earlier filed January 12,
2009 Tort Claim, the United States acknowledges that it was
“aware of [the] earlier tort claim ... filed by Plaintiff[,]” but
contends that the earlier tort claim was “not cited as a basis
for jurisdiction in [Plaintiff’s] complaint.”
Mot. to Dismiss 7 n.2.)
(United States’s
Significantly, the United States
concedes that the January 12, 2009 Tort “[C]laim was properly
exhausted” and thus “would have supported jurisdiction of the
Court for this complaint, had Plaintiff cited to it.”
(Id.)
Despite this concession regarding proper exhaustion, the United
States appears to be making the nuanced argument that the January
12, 2009 Tort Claim “would have supported jurisdiction” only if
Plaintiff had specifically cited that exact Tort Claim, numbered
TRT-NER-2009-01878, in the complaint, as opposed to citing the
October 13, 2009 Tort Claim, numbered TRT-NER-2010-00405.6
The
Court finds this argument to be without merit for the reasons set
forth below.7
6. The United States fails to cite any authority in support of
this argument.
7. Because Plaintiff is proceeding pro se in this action, the
Court must construe Plaintiff’s complaint and any additional
16
As set forth supra, before filing suit in federal court
under the FTCA, a plaintiff must first present his claim to the
appropriate federal agency.
The purpose of this presentment
requirement “is to ease court congestion and to allow the
appropriate agency the opportunity to investigate the claim and
then to decide whether it wants to settle or defend said claim.”
Abuhouran v. Fletcher Allen Healthcare, No. 07-CV-05108, 2009 WL
1834316, at *6 (D.N.J. June 25, 2009); see also Tucker v. United
States Postal Serv., 676 F.2d 954, 958 (3d Cir. 1982) (“This
requisite minimal notice, therefore, promptly informs the
relevant agency of the circumstances of the accident so that it
may investigate the claim and respond either by settlement or by
defense.”)
submissions liberally. Higgs v. Att'y Gen., 655 F.3d 333, 339
(3d Cir. 2011). At the same time, however, the FTCA and its
procedural requirements must be strictly construed because it
acts as a limited waiver of sovereign immunity. White-Squire,
592 F.3d at 456.
In rejecting the United States’s argument that the January
12, 2009 Tort Claim could support jurisdiction for Plaintiff’s
complaint only if he had specifically cited it in his complaint,
the Court strikes the appropriate balance between liberally
construing a pro se complaint and strictly construing the
procedural requirements of presentment under the FTCA. Under the
facts of this particular case as set forth infra, Plaintiff
presented his claims to the appropriate agency and filed his suit
after those claims were denied.
The fact that Plaintiff misidentified the number of a
properly exhausted Tort Claim in his complaint, and thereby
improperly referenced a non-exhausted Tort Claim is insufficient
to dismiss Plaintiff’s complaint for failure to exhaust in the
absence of specific authority on this issue. The United States
fails to cite any authority for this proposition, and the Court’s
research has not revealed any.
17
As set forth more fully above, here, the Court finds that
the underlying purpose of the FTCA presentment requirement was
satisfied based on the filing of Plaintiff’s January 12, 2009
Tort Claim because the Bureau of Prisons was informed of
Plaintiff’s claim, had the opportunity to investigate that claim,
and was able to decide whether to settle or defend against
Plaintiff’s claim.
Plaintiff’s failure to specifically reference
or cite to the proper number of the January 12, 2009 Tort Claim
in his complaint is of no moment under these circumstances as the
record clearly demonstrates that Plaintiff timely and properly
exhausted his Tort Claim.8
A review of the January 12, 2009 Tort Claim as compared to
the October 13, 2009 Tort Claim demonstrates that in both of
these Tort Claims, which are largely identical, Plaintiff was
attempting to exhaust his administrative remedies relating to the
alleged loss of vision in his left eye while at FCI-Fort Dix
based on a purported delay or denial of eye care.
(Compare
January 12, 2009 Tort Claim, Ex. 2 to Decl. of Tara Moran [Doc.
No. 44-2] 1, with October 13, 2009 Tort Claim, Ex. 3 to Decl. of
Tara Moran [Doc. No. 44-2] 1-2.)
Moreover, by letter dated
December 3, 2009, Mr. Sadowski, a representative of the Bureau of
Prisons, a federal agency, acknowledged that Plaintiff’s October
8. A point which even the United States concedes with respect to
the January 12, 2009 Tort Claim. (See United States’s Mot. to
Dismiss 7 n.2.)
18
13, 2009 Tort Claim was duplicative of Plaintiff’s earlier filed
January 12, 2009 Tort Claim.9
(December 3, 2009 Denial Letter,
Ex. 4 to Decl. of Tara Moran [Doc. No. 44-2] 1.)
Mr. Sadowski
specifically explained that upon review, Plaintiff’s “claim [TRTNER-2010-00405] [was] a duplicate of tort claim TRT-NER-200901878.”
(Id.)
Mr. Sadowski further instructed Plaintiff to
“[u]se Claim No. TRT-NER-2009-01878, received on January 12,
2009, on future correspondence regarding” Plaintiff’s claim.
(Id.)
Furthermore, the FTCA claims raised in the current
complaint clearly mirror the claims set forth in both of
Plaintiff’s January 12, 2009 and October 13, 2009 Tort Claims.
Accordingly, based on the Bureau of Prisons’ acknowledgment
that Plaintiff’s October 13, 2009 Tort Claim was duplicative of
his January 12, 2009 Tort Claim, and in light of the fact that
both Tort Claims assert virtually identical facts and claims, the
Court finds that Plaintiff provided the Bureau of Prisons with
information sufficient to investigate Plaintiff’s loss of vision
claim under the FTCA and to decide whether to settle or defend
against that claim.
Therefore, it is clear that Plaintiff has
fully exhausted his administrative remedies with respect to his
alleged vision loss by virtue of filing the January 12, 2009 Tort
Claim because this Tort Claim was presented to the appropriate
9. Mr. Sadowski is the same Regional Counsel at the Northeast
Regional Office of the Federal Bureau of Prisons who denied
Plaintiff’s initial January 12, 2009 Tort Claim.
19
federal agency and Plaintiff received a written denial of this
Tort Claim.
Moreover, the United States concedes that Plaintiff
properly and timely exhausted his administrative remedies with
regard to the January 12, 2009 Tort Claim such that this Tort
Claim supports jurisdiction for the complaint.
The Court thus
rejects the United States’s argument that the Court lacks subject
matter jurisdiction over Plaintiff’s FTCA based on a failure to
exhaust.
B.
Defendant Sieber’s Independent Contractor Status
Having concluded that Plaintiff did in fact exhaust his
administrative remedies prior to bringing suit under the FTCA,
the Court must now consider whether the Court lacks subject
matter on the basis of the independent contractor exception.
The
United States asserts that based on the Court’s previous rulings
in this case, “the only conduct remaining at issue that could
support a negligence claim is the conduct of Dr. Sieber [because]
all other medical personnel ... were dismissed” from this action.
(United States’s Mot. to Dismiss 11.)
Therefore, the United
States argues that Plaintiff cannot sue the United States, and
his FTCA claim should be dismissed for lack of subject matter
jurisdiction based on the independent contractor exception to the
FTCA because “Dr. Sieber is an independent contractor” and “any
alleged negligence on his part would not support liability
against the Untied States[.]”
(Id.)
20
In support of this argument, the United States asserts that
“it is well settled that the FTCA does not waive the United
States’ immunity from suit for the negligence of its independent
contractors[.]”
(Id. at 8.)
The United States relies on case
law from multiple Circuit Courts of Appeals holding “that where
the federal government contracts for the services of a private
physician, the contract physician is not an employee of the
government under the FTCA.”
(Id. at 9-11) (citing cases).
To
establish Dr. Sieber’s status as an independent contract, the
United States submits the declaration of Ann Marie Hinkelman, a
Human Resource Manager for the Federal Bureau of Prisons at FCIFort Dix declaring that Defendant Sieber is a contract employee.
(See Hinkelman Decl. [Doc. No. 44-3] ¶¶ 1, 3.)
In opposition10 to the United States’s motion, Plaintiff
concedes that “Dr. Sieb[e]r is contracted with the Federal Bureau
of Prisons[,]” (Pl.’s First Opp’n 3), but argues that officials
at FCI-Fort Dix, including the Warden, the Health Care
Administrator, and other federal employees, “exercised detailed
supervisory control over the contractor’s daily operations (Dr.
Sieb[e]r)[.]”
(Id. at 4.)
Plaintiff contends that because
10. Plaintiff originally filed his “Motion in Opposition to the
United States Attorneys Reply to Plaintiff’s Complaints” [Doc.
No. 46], (hereinafter, “Pl.’s First Opp’n”), on July 25, 2011.
Although denominated as a motion, Plaintiff’s submission is
clearly offered in opposition to the United States’s motion to
dismiss.
21
“[e]very thing that Dr. Sieb[e]r does is under scrutiny” by these
officials, including making referrals to specialists and advising
these officials of his examination findings, Dr. Sieb[e]r is
under sufficient supervisory control by federal employees to
support the exercise of jurisdiction.
(Id. at 3-4.)
Plaintiff
specifically alleges that the following federal employees at FCIFort Dix “exercised detailed supervisory control over the
contractor, Dr. Sieb[e]r’s daily operations[:]” Dr. Lopez, Dr.
Turner, Mr. Spoulding, and Warden Grondolsky.11
(Id. at 6.)
In response to Plaintiff’s arguments that Defendant Sieber
was under sufficient supervisory control by federal employees to
warrant liability on the part of the government, the United
States again relies on the declaration of Ann Marie Hinkelman to
11. Plaintiff’s opposition also attempts to distinguish the
present case from Moreno v. United States, 387 F. App’x 159 (3d
Cir. 2010), which the United States cited parenthetically in its
moving brief. (Pl.’s Opp’n 2-3.)
While the Court notes Plaintiff’s arguments, the Third
Circuit in Moreno affirmed the district court’s holding that “the
United States [could not] be held liable for any negligence
attributable to the medical providers who treated” the plaintiff
based on: (1) the plaintiff’s repeated references to the treating
physicians as “contractors” in the amended complaint and
administrative tort claims; and (2) the plaintiff’s failure to
argue that the United States exercised supervisory control over
the daily operations of these physicians. 387 F. App’x at 161.
Unlike the plaintiff in Moreno, Plaintiff in this case
clearly contends that the United States exercised supervisory
control over the day-to-day operations of Defendant Sieber vis-avis the federal employees at FCI-For Dix. However, the Court’s
determination that Defendant Sieber is an independent contractor
under the particular circumstances of this case is not based upon
Moreno, but upon authority set forth in additional case law.
22
demonstrate that Defendant Sieber is a contract employee, not a
federal employee.
(See Hinkelman Decl. [Doc. No. 44-3] ¶ 3.)
Additionally, the United States submits the declaration of
Jacqueline Taylor-Bailey, a Contract Specialist for the Bureau of
Prisons at FCI-Fort Dix with access to contractor employee files
kept by the Bureau in the ordinary course of business.
(Decl. of
Jacqueline Taylor- Bailey (hereinafter, “Taylor Decl.”) [Doc. No.
47-1] ¶ 1.)
This includes purchase orders generated by the
Contracting Office and filed in an individual contract employee’s
file.
(Id.)
Attached as Exhibit A to the declaration of
Jacqueline Taylor-Bailey is a true and correct copy of a
purchased order signed by Ms. Taylor-Bailey “which outlines the
services to be performed by Dr. Sieber, and details the
contractual arrangement between Dr. Sieber and the Bureau of
Prisons.”
(Taylor Decl. [Doc. No. 47-1] ¶¶ 2-3; see also
Purchase Order, Ex. A to Taylor Decl. [Doc. No. 47-1] 1-2.)
Upon examination of the Purchase Order attached as Exhibit A
to the declaration of Ms. Taylor-Bailey, the Court notes that the
two-page document, denominated as a “Solicitation/Contract/Order
for Commercial Items,” numbered as Standard Form 1449, represents
the contract entered into by Defendant Sieber and the Bureau of
Prisons on behalf of the United States.
to Taylor Decl. [Doc. No. 47-1] 1-2.)
(Purchase Order, Ex. A
This contract and the
attached statement of work constitute sufficient evidence to
23
demonstrate that Defendant Sieber is an independent contractor
and was not subject to day-to-day supervisory control by federal
employees at FCI-Fort Dix.
For example, in Block 17a, Defendant Sieber is identified as
a contractor/offeror.
[Doc. No. 47-1] 1.)
(Purchase Order, Ex. A to Taylor Decl.
The Schedule of Supplies/Services at Block
20 of the contract sets forth that Defendant Sieber was to
“[p]rovide Optometrist services to the inmate population at FCI,
Fort Dix” and that these services would “be performed in
accordance to the attached statement of work.”
(Id.)
The
statement of work attached to the contract specifically provides
that “[t]his is a contractual arrangement and not a personnel
appointment” and explicitly states that “[t]he contractor shall
not be subject to government supervision.”
(Id. at 2.)
While
the statement of work permits the “government ... [to] observe
the service as rendered by the contractor[,]” the statement also
clearly articulates that the “[r]esults to be obtained will be
entirely within the contractor’s own unsupervised determination.”
(Id.)
The Court’s determination that Defendant Sieber is an
independent contractor based on the language of the contract is
consistent with the findings of other district courts within the
Third Circuit.
See, e.g., Pace v. United States, No. 07-3882,
2008 WL 4559598, at *1, 3 (D.N.J. Oct. 9, 2008); Boyd v. United
24
States, No. 3:CV-05-2033, 2006 WL 2828843, at *3 (M.D. Pa. Sept.
29, 2006).
The district court in Pace considered whether the
United States was subject to liability under the FTCA for the
alleged negligence of a cleaning services company that resulted
in the plaintiffs’ claim for a slip and fall at a postal
facility.
Pace, 2008 WL 4559598, at *1.
Addressing the
independent contract exception under Rule 12(b)(1), the district
court reviewed the contract between the cleaning services company
and the United States Postal Service.
Id. at *2.
Ultimately the court in Pace concluded that the cleaning
services company was an independent contractor, found that the
United States did not have the power to control the detailed
physical performance of the company, and held that the United
States was not liable for the company’s alleged negligence.
at *3-4.
Id.
In so holding, the court relied specifically on the
fact that the contract:
(1) identified the cleaning services
company as “an independent contractor and not an employee[;]” (2)
placed the “responsibility for safety precautions in relation to
the cleaning services” on the company, not the postal service;
(3) provided that the company would indemnify the postal service
from causes of action relating to the company’s negligence; and
(4) “delegate[d] responsibility to [the company] for all damages
occurring as a result of [the company’s] negligence.”
Id. at *3.
The court also relied on the affidavit of a Postal Service
25
supervisor affirming that the company was given “broad
responsibilities for daily cleaning maintenance, without any
supervision by any employee of” the Postal Service.
Id.
Accordingly, the court rejected the plaintiffs’ contentions that
the company was not an independent contractor as “insufficient to
overcome the overwhelming indications, contractual and otherwise,
that [the cleaning services company] [was] in fact an independent
contractor.”
Id. at *3.
The court noted that the plaintiffs had
merely recited the relevant factors the court must consider
without actually demonstrating that the United States retained
any control over the company.
Id. at *4.
Particularly relevant to the Court’s ruling on this motion
to dismiss, the district court in Boyd considered the precise
issue of whether optometrists treating inmates at federal prisons
are independent contractors or federal employees for purposes of
an FTCA claim, by virtue of the level of supervision and control
exercised by the Bureau of Prisons over the optometrists’ day-today activities.
Boyd v. United States, No. 3:CV-05-2033, 2006 WL
2828843, at *1-3 (M.D. Pa. Sept. 29, 2006).
The plaintiff in
Boyd alleged, among other things, that two optometrists at a
federal prison in Pennsylvania negligently failed to “evaluate,
diagnose or treat [the plaintiff’s] glaucoma, purportedly
26
resulting in irreversible loss of vision in his left eye.”12
at *1.
Id.
The Boyd plaintiff brought his claims pursuant to the
FTCA against medical staff at the federal prison and the
optometrists in question.
Id.
Subsequently, the United States
moved for summary judgment on the basis that it could not be held
liable under the FTCA for the alleged negligence of the
optometrists because they were independent contractors and not
federal employees.
Id.
After recognizing that the distinction between a federal
employee and an independent contractor under the FTCA is the
determination of whether the government has the power to control
the detailed physical performance of the contractor through
supervision of his day-to-day operations, the district court in
Boyd reviewed the contract between the optometrists and the
Bureau of Prisons.
Id. at *3.
Based on this review, the Boyd
court found that “[t]he contracts, and their respective
attachments, make clear that [the optometrists] are independent
contractors and not BOP employees” because the contracts
“specifically define the relationship between the co-defendants
as contractual and ‘not a personnel appointment.’”
Id.
The Boyd
court further relied upon the fact that the contracts specified
that the optometrists “‘[would] not be subject to Government
12. The Court recognizes the striking similarity between
Plaintiff’s claims in this action and those made by the plaintiff
in Boyd.
27
supervision, except for security matters.’”
Id.
Although the
optometrists averred that their activities were controlled by the
government despite the terms of these contracts, the court found
that these averments failed to contravene the showing made by the
United States of the optometrists’ independent contractor status.
Id.
Therefore, the Boyd court granted summary judgment in favor
of the United States on the plaintiff’s FTCA claim for the
negligence of the optometrists because there were not government
employees.
Id.
A review of the contract in Boyd which is filed on the
public docket in the Middle District of Pennsylvania reveals
striking similarities with the contract in this case.13
Initially, the Court notes that the first page of the Boyd
contract is denominated as a “Solicitation/Contract/Order for
Commercial Items,” numbered as Standard Form 1449.
It is
apparent from the face of this document that it is the identical
standard form contract utilized by the Bureau of Prisons to
engage Defendant Sieber’s optometry services at FCI-Fort Dix.
Additionally, just as Box 17a of Defendant Sieber’s contract
identified him as the contractor, Box 17a of the Boyd contract
13. The Court notes that it may take judicial notice of this
publicly available document. See Murakush Caliphate of Amexem
Inc. v. New Jersey, 790 F. Supp. 2d 241, 251-52 (“the court may
take judicial notice of public records [,] ... pleadings and
other documents ... filed by a party in other judicial
proceedings”) (citation omitted).
28
similarly identifies the optometrists sued in that case as
contractors/offerors.
(See [Doc. No. 27-2] filed on Feb. 15,
2006 in Boyd v. United States, No. 3:05-cv-02033, 1 (M.D. Pa.
2006).)
Moreover, attached to this standard form contract is a
similar statement of work which provides that:
the following provisions are applicable to the work
being performed under this contract:
a.
The service is a contractual
arrangement and not a personnel
appointment; ...
c.
The service does not constitute an
employer/employee relationship; and
d.
The Contractor will not be subject to
Government supervision, except for
security related matters. However,
the Contractor’s performance shall be
closely monitored.
(Id. at 4.)
These provisions utilize virtually identical
language as the provisions set forth in the statement of work for
Defendant Sieber’s contract.
(See, e.g. Purchase Order, Ex. A to
Taylor Decl. [Doc. No. 47-1] 2) (stating that “[t]his is a
contractual arrangement and not a personnel appointment”; “[t]he
contractor shall not be subject to government supervision”;
“[r]esults to be obtained will be entirely within the
contractor’s own unsupervised determination”).
In Plaintiff’s Sur-Reply,14 Plaintiff reiterates his
14. After the United States filed its reply brief [Doc. No. 47]
to Plaintiff’s opposition on July 29, 2011, Plaintiff filed a
“Motion to Amend Plaintiff’s Motion in Opposition to the
Government’s Brief in Support of Defendants Motion to Dismiss
Plaintiff’s FTCA Claim for Lack of Subject Matter Jurisdiction”
[Doc. No. 71] on December 5, 2011.
29
original opposition argument that “there is solid proof that
federal employees in fact exercised detailed supervisor[y]
control over the contractor’s daily operations[.]”
Reply 2.)
(Pl.’s Sur-
Plaintiff contends that “even though [Dr. Sieber] was
an independent contractor[, he] was considered administrative
personnel[.]”
(Id. at 3.)
Plaintiff thus relies upon the Bureau
of Prisons’ Policy Statement 6010.02 to argue that because Dr.
Sieber “was considered administrative personnel[,]” Dr. Sieber
was subject to the supervision and oversight of the Health
Services Administrator at FCI-Fort Dix.
(Pl.’s Sur-Reply 2-3, 5)
Although Plaintiff entitled this filing as a motion to
amend, the Court construes the amended document as Plaintiff’s
Sur-Reply to the United States’s Reply Brief. On December 7,
2011, Plaintiff also filed an additional amended document [Doc.
No. 72] which, as far as the Court can discern, is simply a typewritten duplicate of Plaintiff’s handwritten Sur-Reply.
Therefore, the Court need only consider the Sur-Reply [Doc. No.
71] and not its duplicate [Doc. No. 72].
Pursuant to Local Civil Rule 7.1(d)(6), the filing of a surreply is not permitted without permission from the Court. L.
CIV. R. 7.1(d)(6). On August 10, 2011, approximately twelve days
after the United States’s Reply Brief was filed, Plaintiff filed
a “Motion Requesting Extension of Time to File a Reply to AUSA
Reply Brief in Support of Defendants Motion to Dismiss” [Doc. No.
49], (hereinafter, “Pl.’s Mot. for Ext. of Time”). Although
inartfully drafted, Plaintiff’s motion clearly requested “an
extension of time of 30 days to file a reply to the Defendants
Reply Brief[.]” (Pl.’s Mot. for Ext. of Time [Doc. No. 49] 1.)
Plaintiff noted that his request for additional time was “not
intended to cause any undue delay but to obtain documentation in
support of his reply to the Governments Reply.” (Id.)
In light of Plaintiff’s pro se status and in the absence of
any objection from the United States, the Court grants
Plaintiff’s motion [Doc. No. 49] seeking an extension of time to
file a sur-reply and considers the Sur-Reply [Doc. No. 71], filed
on December 5, 2011, in ruling on the United States’s motion.
30
(citing Ex. A to Pl.’s Sur-Reply, Bureau of Prisons Policy
Statement 6010.02).
Plaintiff further asserts that “he witnessed
such supervision on numerous occasions.”15
4.)
(Pl.’s Sur-Reply at
Accordingly, Plaintiff argues that the “United States [is]
liable for the negligence of Dr. Sieb[e]r[.]”
(Id. at 5.)
Despite Plaintiff’s arguments that Defendant Sieber was
subject to daily supervision by federal employees and his
reliance on the Bureau of Prison Policy Statement, Plaintiff
fails to offer sufficient evidence to demonstrate the specific
type of supervision and control that he contends the Bureau of
Prisons officials exercised over Dr. Sieber.
Moreover,
Plaintiff’s allegations are in direct contradiction with the
terms of the contract between the Bureau of Prisons and Defendant
Sieber which identifies Defendant Sieber as a contractor/offeror,
and specifies that Defendant Sieber is not subject to government
supervision.
Plaintiff’s arguments, although fairly well
articulated and on point with regard to the relevant legal issue,
are merely that – arguments.
Plaintiff fails to contradict the
clear language of the agreement between Defendant Sieber and the
Bureau of Prisons which overwhelmingly indicates Defendant Sieber
15. Plaintiff asserts that he submitted “an affidavit under the
penalty of perjury stating that he witnessed such supervision on
numerous occasions.” (Pl.’s Sur-Reply 4.) However, no such
affidavit is attached to Plaintiff’s Sur-Reply or the duplicate
of his Sur-Reply. Moreover, the docket does not reflect that any
such affidavit was ever filed.
31
is an independent contractor.
Therefore, based on the Court’s determination that the
FTCA’s independent contractor exception is applicable in this
particular instance, the Court holds that the United States
cannot be held liable for any alleged negligence on the part of
Defendant Sieber because he is not a federal employee.
Because
the Court lacks subject matter over Plaintiff’s FTCA claim, the
Court grants the United States’s motion to dismiss that claim
pursuant to Rule 12(b)(1) and terminates the United States as a
party in this case.
V.
MOTION TO STRIKE PLAINTIFF’S CERTIFICATE OF MERIT
Having granted the United States’s motion to dismiss the
FTCA claim for lack of subject matter jurisdiction, the Court
notes that the only remaining claim in this action is Plaintiff’s
Eighth Amendment deliberate indifference claim against Defendant
Sieber.
On August 3, 2011, Plaintiff filed a Certificate of
Merit pursuant to Pennsylvania Rule of Civil Procedure 1042.3(a)
and Federal Rule of Civil Procedure 11.
Certificate of Merit [Doc. No. 48] 1.)
(See generally, Pl.’s
Plaintiff apparently
filed this Certificate of Merit and the attached Medical Report
Form because he seeks to demonstrate that the “care, skill and
knowledge exercised and exhibited in treating plaintiff’s eye
disease at F.C.I. Ft. Dix fell out side [sic] acceptable
professional standards and that such conduct was the cause of
32
[Plaintiff’s] blindness via Defendants.”
(Id. at 5.)
Defendant Sieber filed a motion [Doc. No. 56] seeking to
strike Plaintiff’s Certificate of Merit.
Defendant Sieber argues
that the Certificate of Merit should be stricken because: (1)
“Pennsylvania law is not applicable in this case and the
‘Certificate’ does not satisfy Pennsylvania law” even if
Pennsylvania law controlled in this matter; and (2) even if the
Court construes Plaintiff’s Certificate of Merit as having been
filed pursuant to New Jersey’s Affidavit of Merit statute,
Plaintiff’s Certificate “fails to satisfy the standard set forth
in [the statute] ... and fails to demonstrate that Plaintiff has
arguably meritorious claims against Dr. Sieber.”
(Legal Br. in
Supp. of Def. Sieber’s Mot. to Strike Pl.’s Certificate of Merit
[Doc. No. 56-1] 2, 4.)
Therefore, Defendant Sieber seeks to
strike Plaintiff’s Certificate of Merit.
At this stage of the case, the only pending claim is an
Eighth Amendment claim for deliberate indifference against
Defendant Sieber.
An Eighth Amendment claim regarding medical
care entails a different analysis from a state law claim for
medical malpractice.
To prevail on a claim under the Eighth
Amendment, a plaintiff must show that defendants were
deliberately indifferent to a serious medical need.
Farmer v.
Brennan, 511 U.S. 825, 842 (1994); Estelle v. Gamble, 429 U.S.
97, 104-05 (1976).
By contrast, under New Jersey law, to
33
establish a prima facie case of negligence in a medical
malpractice action, “a plaintiff must present expert testimony
establishing (1) the applicable standard of care; (2) a deviation
from that standard of care; and (3) that the deviation
proximately caused the injury.”
Teilhaber v. Greene, 320 N.J.
Super. 453, 465 (N.J. Super. Ct. App. Div. 1999) (citations
omitted).
As the Third Circuit has repeatedly held, “claims of
negligence or malpractice, without a showing of some more
culpable state of mind, do not establish deliberate indifference
for purposes of an Eighth Amendment claim.”
Horne v. United
States, 223 F. App’x 154, 157 (3d Cir. 2011).
Pursuant to New Jersey law, an Affidavit of Merit must be
obtained in “any action for damages for personal injuries ...
resulting from an alleged act of malpractice or negligence by a
licensed person in his profession or occupation,” which includes
a medical malpractice action.
N.J. STAT . ANN . § 2A:53A-27.
However, an Affidavit of Merit is not a prerequisite to state an
Eighth Amendment claim.
Planker v. Ricci, No. 07-2679, 2009 WL
2928951, at *4 (D.N.J. Sept. 9, 2009) (recognizing that an Eighth
Amendment claim “requires an inmate to show that prison officials
acted with deliberate indifference to his serious medical need.
‘Deliberate indifference’ [being] more than mere malpractice or
negligence; it [being] a state of mind equivalent to reckless
disregard of a known risk of harm” such that a claim for an
34
“Eighth Amendment violation does not require the Plaintiff file
an affidavit of merit.”); Coletta v. Bd. of Freeholders, No. 06585, 2007 WL 128893, at *9 n.5 (D.N.J. Jan. 12, 2007) (finding
that the plaintiff’s “failure to comply with the affidavit of
merit statute has no bearing on the Court’s analysis of [the]
Eighth Amendment claim ... because ‘the affidavit of merit
statute is not a prerequisite for a federal civil rights action
against a doctor who is deliberately indifferent to his or her
patient’s medical needs.’”) (citing Seeward v. Integrity, Inc.,
815 A.2d 1005, 1011 (N.J. App. Div. 2003)).
In the present action, whether Plaintiff complied with the
New Jersey Affidavit of Merit Statute, or even the Pennsylvania
Certificate of Merit Rule, is irrelevant and has no bearing on
the sole remaining claim in this action for an Eighth Amendment
violation.
See Coletta, 2007 WL 128893, at *9 n.5.
Accordingly,
Dr. Sieber’s motion to strike Plaintiff’s Certificate of Merit is
denied.
Having denied Defendant Sieber’s motion to strike, the
Court dismisses as moot Plaintiff’s motion [Doc. No. 61] seeking
a postponement regarding the motion to strike, and Plaintiff’s
motion [Doc. No. 62] seeking to modify the Certificate of Merit.
VI.
CONCLUSION
For the foregoing reasons, the United States’s motion to
dismiss pursuant to Rule 12(b)(1) for lack of subject matter
jurisdiction is granted on the basis of the independent
35
contractor exception to the FTCA.
Additionally, Plaintiff’s
motion for an extension of time to file a sur-reply is granted.
Defendant Sieber’s motion to strike Plaintiff’s Certificate of
Merit is denied, and Plaintiff’s motions for a postponement
regarding the motion to strike and to modify the Certificate of
Merit are dismissed as moot.
An Order consistent with this
Opinion will be entered.
Dated: March 20, 2012
At Camden, New Jersey
/s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
36
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