Robles v. Casey et al

Filing 59

ORDER - IT IS HEREBY ORDERED that MJ Blewitt's 45 Report and Recommendation is ADOPTED IN PART and Dft Bohinski's 30 Motion to Dismiss is GRANETD w/ respect to all 8th Amendment claims. The motion is DENIED as to the medical malpractice claims raised against Dft. Bohinski. The case will be referred back to MJ Blewitt for all further pre-trial proceedings. Signed by Chief Judge Yvette Kane on Feb. 6, 2012. (sc)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CARLOS ROBLES,
Plaintiff
v.
J.J. CASEY, et al.,
Defendants

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1:10-cv-2663
(Chief Judge Kane)
(Magistrate Judge Blewitt)

MEMORANDUM ORDER
Pending before the Court is the Report and Recommendation of Magistrate Judge
Thomas Blewitt (Doc. No. 45), which recommends that Defendant Bohinski’s motion to dismiss
(Doc. No. 30) be granted and that Defendant Bohinski be dismissed with prejudice from the
case. Plaintiff Robles has filed an objection to the Report and Recommendation. (Doc. No. 49.)
For the reasons stated more fully herein, the Court will adopt the Report and Recommendation in
part.
I.

BACKGROUND
On December 9, 2010, Plaintiff filed the instant Section 1983 action alleging violations

of the Eighth Amendment. (Doc. No. 17.) Plaintiff first alleged that his rights under the Eighth
Amendment had been violated because of an incident in which chemicals splashed into his eyes
while working in the prison kitchen. (Id. at 12-13.) Plaintiff, who is incarcerated, alleged that he
was denied proper medical care for the injury by Defendant Bohinski. (Id.) Plaintiff further
alleged that his Eighth Amendment rights had been violated when his doctor, Defendant
Bohinski, failed to provide proper medical care by inadequately treating his cataracts and
glaucoma. (Id. at 12.)
On August 12, 2011, Defendant Bohinski filed a motion to dismiss pursuant to Rule
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12(b)(6) of the Federal Rules of Civil Procedure. (Doc. No. 30.) In the motion, Defendant
argued that the Eighth Amendment claims raised by Plaintiff should be dismissed for failure to
exhaust administrative remedies. (Id. at 3.) Defendant further argued that if the Eighth
Amendment claim for failure to adequately treat Plaintiff’s glaucoma and cataracts is construed
as a medical malpractice claim, it must still be dismissed because Plaintiff failed to file a proper
certificate of merit. (Id. at 5.)
On January 4, 2012, Judge Blewitt issued a Report and Recommendation, recommending
that Defendant’s motion to dismiss be granted. (Doc. No. 45.) First, Judge Blewitt found that
the medical malpractice claim must fail because Plaintiff failed to file a proper certificate of
merit. (Id. at 11.) Judge Blewitt also recommended that the Eighth Amendment claims raised by
Plaintiff against Defendant be dismissed because Plaintiff failed to comply with administrative
exhaustion requirements. (Id. at 20.)
II.

STANDARD OF REVIEW
A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the complaint.

Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In reviewing a motion to dismiss, a court
may “consider only the allegations in the complaint, exhibits attached to the complaint, matters
of public record, and documents that form the basis of a claim.” Lum v. Bank of America, 361
F.3d 217, 221 n.3 (3d Cir. 2004). The motion will only be properly granted when, taking all
factual allegations and inferences drawn therefrom as true, the moving party is entitled to
judgment as a matter of law. Markowitz v. Ne. Land Co., 906 F.2d 100, 103 (3d Cir. 1990). The
burden is on the moving party to show that no claim has been stated. Johnsrud v. Carter, 620
F.2d 29, 33 (3d Cir. 1980). Thus, the moving party must show that Plaintiff has failed to “set

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forth sufficient information to outline the elements of his claim or to permit inferences to be
drawn that those elements exist.” Kost, 1 F.3d at 183 (citations omitted). A court, however,
“need not credit a complaint’s ‘bald assertions’ or ‘legal conclusions’ when deciding a motion to
dismiss.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906, 908 (3d Cir. 1997). Indeed, the
Supreme Court has held that while the 12(b)(6) standard does not require “detailed factual
allegations,” there must be a “‘showing,’ rather than a blanket assertion of entitlement to relief. .
. . ‘[F]actual allegations must be enough to raise a right to relief above the speculative level.’”
Phillips v. County of Allegheny, 515 F.3d 224, 231-32 (3d Cir. 2008)(quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). Put otherwise, a civil complaint must “set out ‘sufficient
factual matter’ to show that the claim is facially plausible.” Fowler v. UPMC Shadyside, 578
F.3d 203, 210 (3d Cir. 2009) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1955 (2009)).
The Magistrate Act, 28 U.S.C. § 636, and Federal Rule of Civil Procedure 72(b), provide
that any party may file written objections to a magistrate’s proposed findings and
recommendations. In deciding whether to accept, reject, or modify the Report and
Recommendation, the Court is to make a de novo determination of those portions of the Report
and Recommendation to which objection is made. 28 U.S.C. § 636(b)(1).
III.

DISCUSSION
On January 19, 2012, Plaintiff filed an objection to the Report and Recommendation.

(Doc. No. 49.) Plaintiff objects to Judge Blewitt’s finding that Plaintiff has failed to exhaust
administrative remedies. (Id. at 2.) Specifically, Plaintiff objects to Judge Blewitt’s reasoning
that Defendant Bohinski needed to be named in prison grievance proceedings in order to comply
with Prison Litigation Reform Act requirements. (Id.) Plaintiff does not object to any other

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portion of the Report and Recommendation.
A.

Exhaustion of Administrative Remedies

Section 1997e(a) of the Prison Litigation Reform Act provides that: “No action shall be
brought with respect to prison conditions under section 1983 of this title . . . until such
administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The Third
Circuit has held that the Prisoner Litigation Reform Act “requires full and procedurally proper
exhaustion of all available administrative remedies as a prerequisite to prisoner suits challenging
prison conditions under federal law.” Womack v. Smith, 310 F. App’x 547, 550 (3d Cir. 2009).
The Supreme Court has broadly interpreted this exhaustion requirement concluding that it
“applies to all inmate suits about prison life, whether they involve general circumstances or
particular episodes, and whether they allege excessive force or some other wrong.” Porter v.
Nussle, 534 U.S. 516, 532 (2002).
Plaintiff’s Eighth Amendment claim premised on Defendant Bohinski’s alleged failure to
provide proper medical care for Plaintiff’s glaucoma and cataracts must fail for failure to
properly exhaust administrative remedies. Plaintiff has filed a total of four grievances while
incarcerated, and none of those grievances have mentioned either Defendant Bohinski or the
purported failure of Defendant Bohinski to properly treat Plaintiff’s cataracts and glaucoma.
(Doc. No. 31-1 at 3.) Indeed, Plaintiff has not simply failed to exhaust his administrative
remedies with respect to this claim, he has failed to even begin seeking administrative remedies.
Plaintiff has not satisfied the administrative exhaustion requirement of the Prisoner Litigation
Reform Act with respect to his Eighth Amendment failure to provide proper medical care claim,
and the claim should therefore be dismissed.

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Plaintiff’s Eighth Amendment claim for denial of proper medical care related to the
kitchen incident must also fail for lack of administrative exhaustion. Plaintiff filed a grievance
with the prison related to the kitchen incident, but he did not mention Defendant Bohinski.
(Doc. No. 31-1 at 3.) Plaintiff instead referred only to the “medical staff” in his grievance. (Id.
at 20-21.) Judge Blewitt found that this failed to satisfy PLRA’s exhaustion requirement
because a grievance proceeding that fails to expressly identify a party is insufficient to exhaust
administrative remedies with respect to claims made against that party. (Doc. No. 45 at 23.)
Plaintiff objects to Judge Blewitt’s reasoning, and argues that the Third Circuit’s decision
in Spruill v. Gillis, 372 F.3d 218 (3d Cir. 2004), should control this case. (Doc. No. 49 at 2-3.)
The Court disagrees. Spruill is readily distinguishable from the instant action. In Spruill, the
plaintiff failed to name a party in his grievance, but that party was expressly identified in the
grievance officer’s response. Spruill, 372 F.3d at 234. The Third Circuit found that the purpose
of identifying a party in a grievance is to give that party notice of his or her alleged wrongdoing,
and held that “the prison can excuse an inmate’s failure to do so by identifying the unidentified
persons and acknowledging that they were fairly within the compass of the prisoner’s
grievance.” Id. Here, Plaintiff did not identify Defendant Bohinski in the grievance, and the
grievance officer did not identify Defendant in his response. (Doc. No. 31-1 at 19, 23.)
Accordingly, Defendant Bohinski did not receive the requisite notice of his purported
wrongdoings, and Plaintiff’s lack of administrative exhaustion cannot be excused. Finding no
merit in Plaintiff’s objection, the Court adopts this portion of Judge Blewitt’s Report and
Recommendation.
B.

Medical Malpractice and Negligence Claims

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Plaintiff’s complaint does not raise any claim of ordinary negligence; rather, all
negligence claims raised by Plaintiff are rooted in professional liability and medical malpractice.
Under Pennsylvania law, any medical malpractice claim must be accompanied by a certificate of
merit that must be filed within sixty days of the filing of the complaint. Pa. R. Civ. P.
1042.3(a)(1). When a plaintiff fails to file a timely certificate of merit, a defendant may seek to
have a judgment of non pros entered. Pa. R. Civ. P. 1042.6. In federal courts, a judgment of non
pros is “the equivalent of a dismissal without prejudice;” as such, claims that are not time barred
may be refiled. Booker v. United States, 366 F.App’x 425, 427 (3d Cir. 2010), see also Bucci v.
Detroit Fire & Marine Ins. Co., 167 A. 425, 427-28 (Pa. Super. Ct. 1933) (finding that a non pros
judgment does not bar a plaintiff from filing a second claim against a defendant so long as the
statute of limitations has not expired). Plaintiff filed his second amended complaint on March
29, 2011, yet a certificate of merit was not filed until nearly six months later on September 7,
2011.1 (Doc. Nos. 17, 34.)
In spite of Plaintiff’s failure to file a certificate of merit within the time called for by Rule
1042.3, the Court declines to dismiss this action on these grounds. In the present matter,
Defendant is alleging that Defendant Bohinski committed medical malpractice in the summer of
2010. (Doc. No. 17.) To that end, Pennsylvania’s two-year statute of limitations for medical
malpractice claims, would not serve to bar Plaintiff’s claims until at least the summer of 2012.

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The Court notes that Plaintiff’s certificate of merit, which states that a medical
professional is unnecessary to prosecute his claim, precludes Plaintiff from introducing such
evidence at trial. See McCool v. Dep’t of Corr. of Pa., 984 A.2d 565, 571 n.9 (Pa. Commw. Ct.
2009) (noting that where a plaintiff files a certificate of merit under subdivision (a)(3) that “the
attorney is bound by the certification and, subsequently, the trial court shall preclude the plaintiff
from presenting testimony by an expert on the questions of standard of care and causation”
(quoting Pa. R. Civ. P. 1042.3(a)(3)).)
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42 Pa. Cons. Stat. § 5524. Accordingly, dismissal based on the untimely filing of the certificate
of merit, which Plaintiff filed eight days after Defendant Bohinski raised the issue, would result
in nothing more than the redocketing of the documents already filed in this case. Such a result
would provide no benefit to Defendant Bohinski and would only serve to delay this matter.
Therefore, in as much as Plaintiff has raised a malpractice claim against Defendant Bohinski, the
medical malpractice claim will not be dismissed. See, e.g., Keybank Nat’l Ass’n v. Reidbord,
No. 05-144, 2005 U.S. Dist. LEXIS 29936 (W.D. Pa. 2005) (accepting an untimely certificate of
merit because the underlying claim could be timely refiled and dismissing the claim would
amount to “needless paper shuffling”).
IV.

CONCLUSION
ACCORDINGLY, on this 6th day of February 2012, IT IS HEREBY ORDERED

THAT Magistrate Judge Blewitt’s Report and Recommendation (Doc. No. 45) is ADOPTED
IN PART, and Defendant Bohinski’s Motion to Dismiss (Doc. No. 30) is GRANTED with
respect to all Eighth Amendment claims. The motion is DENIED as to the medical malpractice
claims raised against Defendant Bohinski. This case will be referred back to Magistrate Judge
Blewitt for all further pre-trial proceedings.
S/ Yvette Kane
Yvette Kane, Chief Judge
United States District Court
Middle District of Pennsylvania

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