Boring v. Sanders et al

Filing 51

ORDER ADOPTING REPORT AND RECOMMENDATIONS in its entirety 50 Report and Recommendations. GRANTING IN PART to the extent that the Plaintiff's state law medical malpractice and negligence claims are dismissed for failing to file a Certificate of Merit 29 Motion to Dismiss for Failure to State a Claim. The matter is REMANDED to MJ Carlson for further pretrial management. Signed by Honorable John E. Jones, III on 8/13/13. (pw)

Boring v. Sanders et al

Doc. 51

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ROBERT C. BORING,
Plaintiff,
v.
DR. SANDERS, et al.,
Defendants.

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1:12-cv-419
Hon. John E. Jones III
Hon. Martin C. Carlson

ORDER
August 13, 2013
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
This matter is before the Court on the Report and Recommendation
(“R&R”) of Chief Magistrate Judge Martin C. Carson (Doc. 50), filed on July 23,
2013, which recommends that we grant the Defendants’ supplemental Motion to
Dismiss Motion to Dismiss (Doc. 29) in part, thereby dismissing pro se Plaintiff
Robert C. Boring’s state law medical negligence and malpractice claims.
Objections to the R&R were due by August 9, 2013 and to date, none have been
filed. Accordingly, this matter is ripe for our review. For the reasons set forth
below, the Court will adopt the R&R in its entirety.

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I.

STANDARD OF REVIEW
When, as here, no objections are made to a magistrate judge’s report and

recommendation, the district court is not statutorily required to review the report
before accepting it. Thomas v. Arn, 474 U.S. 140, 149 (1985). According to the
Third Circuit, however, “the better practice is to afford some level of review to
dispositive legal issues raised by the report.” Henderson v. Carlson, 812 F.2d 874,
878 (3d Cir. 1987). “[T]he court need only satisfy itself that there is no clear error
on the face of the record in order to accept the recommendation.” Fed. R. Civ. P.
72(b), advisory committee notes; see also Henderson, 812 F.2d at 878-79 (stating
“the failure of a party to object to a magistrate's legal conclusions may result in the
loss of the right to de novo review in the district court”); Tice v. Wilson, 425 F.
Supp. 2d 676, 680 (W.D. Pa. 2006); Cruz v. Chater, 990 F. Supp. 375-78 (M.D. Pa.
1998); Oldrati v. Apfel, 33 F. Supp. 2d 397, 399 (E.D. Pa. 1998). The Court’s
examination of the matters sub judice confirms the Magistrate Judge’s
determinations.
II.

BACKGROUND
This action was filed by pro se Plaintiff Robert C. Boring (“Plaintiff” or

“Boring”) on March 6, 2012. Plaintiff is a state inmate who is confined at the
State Correctional Institution at Rockview. Boring’s complaint advances an
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Eighth Amendment medical deliberate indifference claim and a related negligence
claim, arising out of the eye care which Boring alleges he has received while in
custody. According to the facts contained in Plaintiff’s complaint, in December of
2010, while in custody, he received surgery to remove cataracts from his right eye.
Following that surgery, Boring requested that surgery be scheduled to remove the
cataracts from his left eye. Boring alleges that Dr. Sanders refused to schedule
this second cataract surgery, telling Boring that his overall vision was now
adequate and that further surgery was not required under prison medical policies.
Boring then appealed the denial of this request to Health Care Administrator
Williams, who agreed with Dr. Sanders and stated that Boring’s overall vision was
adequate in light of the successful surgery on Plaintiff’s right eye. Boring then
filed grievances with Deputy Marsh, Superintendent Lamas and Ms. Varner,
challenging the determinations of Dr. Sanders and Williams. All of Boring’s
grievances were denied, deferring to the judgment of the medical personnel’s
determination on the issue of medical necessity for further cataract surgery in
Boring’s case. Dissatisfied with this outcome, Boring filed the instant litigation.
By previous Order, we adopted this prior recommendation of Magistrate
Judge Carlson:

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With respect to the non-medical correctional officials who simply
responded to Boring’s grievances and deferred to the judgment of
medical personnel on a question of the medical necessity of further
surgery, the motions to dismiss should be granted. As for the medical
personnel named in Boring’s complaint, the motions to dismiss
should be denied, but without prejudice to the filing of a properly
documented summary judgment motion.
(Doc. 33 pp. 3-4). Thus, Defendants Lamas, Marsh and Varner were dismissed as
Defendants to this action leaving Defendants Dr. Sanders and Williams as the
remaining Defendants in the case.
Thereafter, the remaining Defendants filed a supplemental Motion to
Dismiss directed at Plaintiff’s state law medical negligence and malpractice
claims, arguing that these claims fail inasmuch as Plaintiff has not filed a
Certificate of Merit (“COM”) as required by the Pennsylvania Rules of Civil
Procedure. As noted above, Magistrate Judge Carlson recommends that the
Motion be granted and these state law claims be dismissed. For the reasons that
follow, we agree.
III.

DISCUSSION
Medical malpractice or negligence claims brought under Pennsylvania law

require the filing of a COM pursuant to Pennsylvania Rule of Civil Procedure
1042.3. The COM must include a statement from a licensed professional that
there exists “a reasonable probability that the care, skill or knowledge exercised or
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exhibited in the treatment, practice or work that is the subject of the complaint, fell
outside acceptable professional standards and that such conduct was the cause in
bringing about the harm.” Courts have concluded that the requirements of Rule
1042.3 are substantive in nature, and the filing of a COM is a prerequisite to
maintaining a medical malpractice or negligence claim in Pennsylvania. LiggonReading v. Estate of Sugarman, 659 F. 3d 258 (3d Cir. 2011).
As noted by Magistrate Judge Carlson, Plaintiff did file a document entitled
“Certificate of Merit,” however this document is not a COM as required by the
rule. The certificate does not contain any statements by licensed professionals,
and is simply not compliant with the rule. Accordingly, the Magistrate Judge
recommends that the Plaintiff’s state law medical malpractice and negligence
claims be dismissed, and we agree. Plaintiff’s failure to timely file an appropriate
COM necessarily dooms these claims. Plaintiff may, however, still proceed on his
§1983 claim of deliberate indifference to his medical needs, and this matter shall
be referred back to Magistrate Judge Carlson for pre-trial management of that
claim.
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1.

The Report and Recommendation (Doc. 50) of Magistrate Judge
Carlson is ADOPTED in its entirety.
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2.

The Defendants’ Supplemental Motion to Dismiss (Doc. 29) is
GRANTED IN PART to the extent that the Plaintiff’s state law
medical malpractice and negligence claims are dismissed for failing
to file a Certificate of Merit.

3.

This matter is REMANDED to Magistrate Judge Carlson for further
pre-trial management.

s/ John E. Jones III
John E. Jones III
United States District Judge

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