Michtavi v. Scism et al

Filing 38

ORDER- 1. The Report and Recommendation (Doc. 31) of Magistrate JudgeBlewitt is ADOPTED in part and REJECTED in part to the following extent:a. All claims for money damages against the Defendants in their official capacities are DISMISSED. b. Plainti ffs Bivens claims against Defendant Dr. Chopra are DISMISSED. Dr. Chopra shall be TERMINATED as a party to this action.c. Plaintiffs Bivens claims against U.S. Public Health Service are DISMISSED. In the event Plaintiff ascertains the identity of a p otential individual defendant who was employed by both USPHS and the BOP and involved in the wrongdoings against him that Plaintiff alleges, he may seek leave to add claimsagainst such an individual to this action. d. Plaintiffs FTCA claims against U .S. Public Health Services and employees thereof are DISMISSED. These claims shall be pursued as against the United States. e. Plaintiffs FTCA medical negligence/malpractice claims are DISMISSED for failure to file a COM. f. Claim II is DISMISSED as against Dr. Chopra only. g. Claims III and IV are DISMISSED with leave to amend. h. Plaintiffs requests for declaratory judgment with respect to past conduct of the Defendants are dismissed. 2. The Plaintiff shall file an amended complaint in conformity with the rulings hereinabove within thirty (30) days of the date of this Order. 3. This matter is REMANDED to Magistrate Judge Blewitt for pre-trial management. (eo)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SHEMTOV MICHTAVI,

:
:
:
:
:
:
:
:
:

Plaintiff,
v.
WILLIAM SCISM, et al.,
Defendants.

1:12-cv-1196
Hon. John E. Jones III
Hon. Thomas M. Blewitt

ORDER
January 30, 2013
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
Pending before the Court is a Report and Recommendation (“R&R”) of
Magistrate Judge Thomas M. Blewitt (Doc. 31) filed on October 9, 2012, which
makes several recommendations regarding pro se Plaintiff Shemtov Michtavi’s
(“Plaintiff” or “Michtavi”) claims. After being granted an extension of time to do
so, Plaintiff filed objections to the R&R on November 27, 2012. (Doc. 35).
Accordingly, the R&R is ripe for our review.
I.

STANDARD OF REVIEW
When objections are filed to the report of a magistrate judge, the district

court makes a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objections are made. 28 U.S.C. §
1

636(b)(1); United States v. Raddatz, 447 U.S. 667, 674-75 (1980). The court may
accept, reject, or modify, in whole or in part, the magistrate judge’s findings or
recommendations. Id. Although the standard of review is de novo, 28 U.S.C. §
636(b)(1) permits whatever reliance the district court, in the exercise of sound
discretion, chooses to place on a magistrate judge’s proposed findings and
recommendations. Raddatz, 447 U.S. at 674-75; see also Mathews v. Weber, 423
U.S. 261, 275 (1976); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984).
II.

BACKGROUND
On June 22, 2012, Plaintiff, an inmate at the Low Security Correctional

Institution at Allenwood, Pennsylvania, filed a complaint asserting Bivens1 civil
rights claims against several defendants as well as a Federal Tort Claims Act
(“FTCA”) claim. Plaintiff also filed an application to proceed in forma pauperis.
Magistrate Judge Blewitt recommended in a previous R&R that the in forma
pauperis application be denied and that Plaintiff’s complaint be dismissed without
prejudice because this Court has previously barred Plaintiff from filing any further
suits in forma pauperis under the PLRA’s three-strike rule. Rather than dismiss
the complaint, we ordered that Plaintiff pay the filing fee within a specific period

1

Bivens v. Six Unknown Named Agents of the Fed. Bur. of Narcotics, 403 U.S. 388, 91 S.
Ct. 1999 (1971).
2

of time or face dismissal of the complaint. Plaintiff paid the requisite fee, and this
matter was remanded to Magistrate Judge Blewitt for pre-trial management.
Thereafter, on October 9, 2012, Magistrate Judge Blewitt issued the instant
R&R. Magistrate Judge Blewitt reviewed the Plaintiff’s complaint pursuant to the
Prison Litigation Reform Act, 28 U.S.C. § 1915A, which requires the Court to
screen complaints in civil actions in which a prisoner seeks redress from a
governmental entity or officer or employee of a governmental entity. Pursuant to
28 U.S.C. § 1915A(b), courts must dismiss any portion of the complaint that is (1)
frivolous, malicious, or fails to state a claim upon which relief may be granted; or
(2) seeks monetary relief against from a defendant who is immune from such relief.
After screening Plaintiff’s complaint, the Magistrate Judge makes the following
recommendations within his R&R.
(1)

That all claims for money damages against Defendants in their official
capacities be dismissed because they are barred by the doctrine of
sovereign immunity;2

(2)

That the Plaintiff’s FTCA claim against Defendant U.S. Public
Health Service be dismissed because only the United States is a proper

2

Plaintiff concedes that this recommendation is correct, and as such it shall be adopted
without further discussion.
3

defendant in an FTCA claim and that Plaintiff’s Bivens claims be
dismissed as against U.S. Public Health Service;
(3)

That Plaintiff’s Bivens claims against Dr. Chopra be dismissed
because Dr. Chopra was a private physician working in private
practice when he operated on Plaintiff in 2010;

(4)

That Plaintiff’s claims arising out of his January 20, 2010 surgery be
dismissed as time-barred;

(5)

That Plaintiff’s FTCA claim be dismissed because Plaintiff failed to
file a timely certificate of merit (“COM”) regarding the medical
negligence claims;

(6)

That Plaintiff’s Eighth Amendment denial of medical care claims
pertaining to his post-operative care and his retrograde ejaculation and
impotence claims be permitted to proceed against all Defendants with
the exception of Defendant Dr. Chopra;

(7)

That Plaintiff’s Eighth Amendment denial of medical care claims
pertaining to his ankle pain (Claim III) and foot pain (Claim IV) be
dismissed without prejudice but with leave to amend; and

(8)

That Plaintiff’s request for declaratory relief, to the extent that he is
seeking to have past conduct of the Defendants be declared
4

unconstitutional, be dismissed. Prospective requests for declaratory
relief shall be permitted to proceed.
The Plaintiff agrees with some portions and objects to other parts of the
Magistrate Judge’s recommendations. Plaintiff requests leave to amend his
complaint to correct pleading deficiencies highlighted by the Magistrate Judge in
the R&R. We shall discuss each recommendation and the Plaintiff’s response
thereto in seriatim.
III.

DISCUSSION
A.

Claims against U.S. Public Health Services

Magistrate Judge Blewitt recommends that Plaintiff’s claims against U.S.
Public Health Services (“USPHS”) be dismissed because Plaintiff’s FTCA claim
can only be asserted against the United States.3 Plaintiff agrees with this
recommendation, however, he asserts that he should be given leave to assert Bivens
claims against individual employees of (“USPHS”) in their individual capacity,
essentially arguing that these individuals are tantamount to BOP employees and
thus can be sued under Bivens.

3

When federal employees are sued for damages for harms caused in the course of their
employment, the Federal Tort Claims Act, 28 U.S.C.S. §§ 1346, 2671-2680, generally authorizes
substitution of the United States as the defendant.
5

In Hui v. Castaneda, 130 S. Ct. 1845 (2010), the United States Supreme
Court squarely held that “PHS officers and employees are not personally subject to
Bivens actions for harms arising out of” [or]. . . “harms caused in the course of
their employment.” Thus it is clear that Plaintiff cannot maintain a Bivens claim
against a USPHS employee. Plaintiff contends in his objections that “some of the
U.S. Public Health Service employees” are simultaneously employees of the
Federal Bureau of Prisons.” (Doc. 36, p. 2). We sincerely doubt the veracity of
this speculation made by Plaintiff, however, in the interest of fairness and caution,
in the event Plaintiff ascertains the identity of a potential individual defendant who
was employed by both USPHS and the BOP and involved in the wrongdoings
against him that Plaintiff alleges, he may seek leave to add claims against such an
individual to this action. However, based on the clear holding of Hui, we shall
adopt Magistrate Judge Blewitt’s recommendation that all claims against USPHS
and any individual employees thereof be dismissed.
B.

Bivens Claims Against Private Physician Dr. Chopra

Plaintiff names Dr. Chopra, a Urologist working in private practice at
Bloomsburg Hospital, as a Defendant in this action. Plaintiff alleges that Dr.
Chopra, who performed laser surgery on Plaintiff’s prostate on January 20, 2010,
failed to use proper anesthesia during the surgery causing him pain. Plaintiff
6

further alleges that during the surgery, Dr. Chopra created a hole which caused
Plaintiff’s sperm to leak into his bladder (i.e. retrograde ejaculation). Dr. Chopra
saw Plaintiff twice regarding the retrograde ejaculation issue and prescribed
medicine for him to alleviate the condition, however Plaintiff alleges that prison
staff would not authorize either medication prescribed by Dr. Chopra.
Magistrate Judge Blewitt recommends that Plaintiff’s Bivens claims against
Dr. Chopra be dismissed with prejudice because Dr. Chopra is a private individual
and is not amenable to suit under Bivens. See Corr. Servs. Corp. v. Malesko, 534
U.S.. 61, 66-67 (2001). We agree. In Malesko, the Supreme Court refused to
extend liability under Bivens to private individuals, noting that “[t]he purpose of
Bivens is to deter individual federal officers from committing constitutional
violations.” Id. at 70. The Plaintiff does not dispute that Dr. Chopra was a private
physician employed at a private hospital when he performed the surgery on
Plaintiff. Accordingly, he cannot be subject to liability under Bivens. All
constitutional claims against Dr. Chopra shall, therefore, be dismissed.

C.

Timeliness of Claims Related to January 20, 2010 Surgery

7

Claim I in Plaintiff’s complaint asserts an Eighth Amendment deliberate
indifference claim against Defendants for an alleged failure to use general
anesthesia during Plaintiff’s January 20, 2010 prostate surgery. The instant action
was filed on June 22, 2012. Thus, Magistrate Judge Blewitt recommends that this
claim be dismissed because it is barred by the 2-year statute of limitations applied
to civil rights actions in Pennsylvania. 42 Pa. Cons. Stat. Ann. § 5524(7); Kost v.
Kozakiewicz, 1 F. 3d 176, 190 (3d Cir. 1993).
In his objection to this recommendation, Plaintiff essentially submits that the
statute of limitations for this claim should be tolled while he attempted to
administratively exhaust the claim. While the Third Circuit has not spoken directly
on this issue, it is the trend of courts in this and other circuits to toll the applicable
statute of limitations while a prisoner completes the mandatory exhaustion process.
See Paluch v. Sec’y Pennsylvania Dep’t of Corrections, 442, Fed. Appx. 690 (3d
Cir. 2011); see also Shakuur v. Costello, 230 Fed. Appx. 199 (3d Cir. 2007);
Brown v. Valloff, 422 F. 3d 926 (9th Cir. 2005); Johnson v. Rivera, 272 F. 3d 519
(7th Cir. 2001); Brown v. Morgan, 209 F. 3d 595 (6th Cir. 2000); Harris v.
Hegmann, 198 f. 3d 153 (5th Cir. 1999). Thus, we shall reject the Magistrate

8

Judge’s recommendation to dismiss this claim based on statute of limitations
grounds.4
D.

Dismissal of FTCA Claim - Failure to File COM

Magistrate Judge Blewitt recommends that we dismiss Plaintiff’s FTCA
medical negligence/malpractice claims for failure to use general anesthesia in his
2010 surgery and for alleged improper post-surgery treatment for his retrograde
ejaculation and impotence conditions based on Plaintiff’s failure to file a
Certificate of Merit (“COM”). It is undisputed that the Plaintiff has not filed a
COM. Plaintiff contends that because he is a pro se incarcerated litigant, he has no
access to an independent medical expert to provide a COM for him.
It is well-recognized that to pursue a medical negligence/malpractice claim
in the federal courts in Pennsylvania, a plaintiff must file a COM pursuant to Pa. R.
C. P. 1042.3(a)(1). See Iwanejko v. Cohen & Grigsby, P.C., 249 Fed. Appx. 938,
944 (3d Cir. 2007)(holding that district courts must “appl[y] Rule 1042.3 as a
substantive state law”). This rule applies equally to both pro se and represented
Plaintiffs. See Hodge v. United States, 2009 U.S. Dist. LEXIS 78146 (M.D. Pa.
Aug. 31, 2009); Maruca v. Hynick, 2007 U.S. Dist. LEXIS 13302 (M.D. Pa. Feb.

4

If, as this litigation progresses, it becomes evident that Plaintiff cannot seek the
protection of equitable tolling (if, for instance, he was not pursuing administrative remedies),
then the Defendants are free to argue that this claim is barred by the statute of limitations.
9

27, 2007). The Third Circuit has recognized that this rule may well cause a
significant “dilemma” for pro se prisoner-plaintiffs who cannot proceed in a civil
action with out an expert witness, but that the rule applies to this type of litigant
nonetheless. See Boring v. Kozakiewicz, 833 F. 2d 468, 474 (3d Cir. 1987).
Furthermore, while F.R.E. 706(a) provides that the “court may appoint any expert
witnesses agreed upon by the parties, and may appoint expert witnesses of its own
selection,” the policy behind this rule is promote the jury’s factfinding ability” and
does not permit the Court to appoint an expert “for the purposes of aiding an
indigent litigant, incarcerated or not.” Brown v. James, 2008 U.S. Dist. LEXIS
17665, *5 (M.D. Pa. Mar. 6, 2008); Kerwin v. Varner, 2006 U.S. Dist. LEXIS
90691, *7 (M.D. Pa. Dec. 15, 2006).
Accordingly, based on the foregoing, we shall dismiss Plaintiff’s FTCA
claims for medical negligence/malpractice for failure to file a COM.
E.

Eighth Amendment Claim - Retrograde Ejaculation and
Impotence

We agree with the Magistrate Judge, and Plaintiff does not object, that
Plaintiff’s Eighth Amendment claims for deliberate indifference to serious medical
needs as set forth in Claim II as against Defendants Dr. Miller, PA Mutchler,
Spotts and former Warden Scism be permitted to proceed. Plaintiff does object to
10

the Magistrate Judge’s recommendation that this claim be dismissed as against Dr.
Chopra. However, for the reasons set forth above, we find that Plaintiff cannot
maintain a Bivens claim against Dr. Chopra, and as such this claim shall be
dismissed as against him.
F.

Claims III and IV - Leave to Amend

We agree with Magistrate Judge Blewitt’s recommendation to dismiss
Claims III and IV of Plaintiff’s complaint with leave to amend. These claims
concern ankle pain (Claim III) and foot pain (Claim IV) allegedly suffered by
Plaintiff and the Defendants’ alleged deliberate indifference to Plaintiff’s needs
concerning these ailments. As currently stated, Plaintiff’s allegations amount to
little more than his disagreement with the course of treatment prescribed by the
Defendants. However, disagreement with treatment plans do not establish an
Eighth Amendment claim. White v. Napoleon, 897 F. 2d 103 (3d Cir. 1990).
Plaintiff’s amended complaint must sufficiently describe how these conditions
were serious medical needs and precisely how the Defendants were deliberate to
these needs. Accordingly, Claims III and IV will be dismissed with leave to
amend.

11

G.

Requests for Declaratory Judgment

Magistrate Judge Blewitt recommends that Plaintiff’s requests for
declarations that past conduct of the Defendants was unconstitutional be dismissed
but that he be permitted to pursue a declaration his constitutional rights are being
violated by the Defendants’ failure to provide him with Psuedofel, medication
prescribed by Dr. Chopra for his retrograde ejaculation condition, inasmuch as that
complaint is ongoing. We agree. It is well established that plaintiffs are not
entitled to declarations that past conduct of defendants was unconstitutional. See
Brown v. Fauver, 819 F. 2d 395, 399-400 (3d Cir. 1987). However, to the extent
that Plaintiff is alleging that the conduct is ongoing and that he is still being
subjected to unconstitutional treatment, such as the alleged denial to provide him
with Psuedofel, he is entitled to pursue declarations to that effect.
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1.

The Report and Recommendation (Doc. 31) of Magistrate Judge
Blewitt is ADOPTED in part and REJECTED in part to the
following extent:
a.

All claims for money damages against the Defendants in their
official capacities are DISMISSED.

12

b.

Plaintiff’s Bivens claims against Defendant Dr. Chopra are
DISMISSED. Dr. Chopra shall be TERMINATED as a party
to this action.

c.

Plaintiff’s Bivens claims against U.S. Public Health Service are
DISMISSED. In the event Plaintiff ascertains the identity of a
potential individual defendant who was employed by both
USPHS and the BOP and involved in the wrongdoings against
him that Plaintiff alleges, he may seek leave to add claims
against such an individual to this action.

d.

Plaintiff’s FTCA claims against U.S. Public Health Services
and employees thereof are DISMISSED. These claims shall be
pursued as against the United States.

e.

Plaintiff’s FTCA medical negligence/malpractice claims are
DISMISSED for failure to file a COM.

f.

Claim II is DISMISSED as against Dr. Chopra only.

g.

Claims III and IV are DISMISSED with leave to amend.

h.

Plaintiff’s requests for declaratory judgment with respect to past
conduct of the Defendants are dismissed.

13

2.

The Plaintiff shall file an amended complaint in conformity with the
rulings hereinabove within thirty (30) days of the date of this Order.

3.

This matter is REMANDED to Magistrate Judge Blewitt for pre-trial
management.
s/ John E. Jones III
John E. Jones III
United States District Judge

14