Thomas v. Mace-Leibson et al
Filing
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MEMORANDUM re dfts' mtn to Dismiss 50 (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 2/15/17. (ma)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ALPHONSO THOMAS,
Plaintiff
vs.
ELLEN MACE-LEIBSON,
et al.,
Defendants
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CIVIL NO. 1:14-CV-02316
(Judge Rambo)
MEMORANDUM
Background
On December 5, 2014, Alphonso Thomas, an inmate
formerly confined at the Federal Correctional
Institution at Schuylkill, Minersville, Pennsylvania
(“FCI-Schuylkill”)1 filed a Bivens-styled action
pursuant to 28 U.S.C. § 1331.
The named defendants were
several individuals presently or formerly employed at
the FCI-Schuylkill. In the complaint Thomas alleged that
he received inadequate medical and dental care in
violation of his rights under the Eighth Amendment to
Thomas is presently in the custody of the Bureau of
Prisons’ Residential Reentry Management program located
in Washington, D.C. The Bureau of Prisons’ online
inmate locator indicates that Thomas is scheduled to be
released on April 1, 2017.
1.
the United States Constitution. He contended that the
defendants were deliberately indifferent to his serious
medical and dental needs.
The named Defendants were
served with the complaint and on June 22, 2015, filed a
motion to dismiss and/or for summary judgment. (Doc.
22.)
By memorandum and order of December 1, 2015, the
court granted Defendants motion to dismiss and/or for
summary judgment. (Doc. 37, 38.)
Specifically, Thomas’s
complaint was dismissed with leave to file an amended
complaint raising a claim of medical and dental
malpractice solely against the United States under the
Federal Tort Claims Act (“FTCA”).2
On January 12, 2016,
The FTCA provides a remedy in damages 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 United States] while acting within the
scope of his office or employment, under circumstances
where the United States, if a private person, would be
liable to the claimant in accordance with the law of
the place where the act or omission occurred.” 28
U.S.C. § 1346(b)(1). In cases involving federal
prisoners, this court has recognized that the
government's duty of care is one of ordinary diligence.
See 18 U.S.C. § 4042; Turner, 679 F. Supp. at 443. In
presenting a FTCA claim in this jurisdiction, a
plaintiff must show: (1) that a duty was owed to him by
a defendant; (2) a negligent breach of said duty; and
(3) that the negligent breach was the proximate cause
of the plaintiff's injury or loss. Mahler v. United
2.
(continued...)
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Thomas filed an amended complaint against the United
States in which he claims that staff at FCI-Schuylkill
provided him with negligent medical and dental care.
On
April 29, 2016, the United States filed a motion to
dismiss the amended complaint based on Thomas’ failure
to file an appropriate Certificate of Merit (“COM”)
pursuant to Pennsylvania Rule of Civil Procedure 1042.3.
The motion is fully briefed and for the reasons set
forth below will be granted.
Motion to Dismiss
Fed.R.Civ.P. 12(b)(6) authorizes dismissal of a
complaint for “failure to state a claim upon which
relief can be granted.”
Under Rule 12(b)(6), we must
“accept all factual allegations as true, construe the
2.
(...continued)
States, 196 F. Supp. 362, 364 (W.D. Pa. 1961), aff'd
306 F.2d 713 (3d Cir. 1962), cert. denied, 371 U.S. 923
(1962). As a prerequisite to suit under the FTCA, a
claim must first be presented to the federal agency and
be denied by the agency.
The court incorporates herein the reasoning set
forth in the memorandum of December 1, 2015. The court
noted in the memorandum that Thomas had sixty (60) days
from the filing of the malpractice claim to file a
certificate of merit pursuant to Pennsylvania Rule of
Civil Procedure 1042.3.
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complaint in the light most favorable to the plaintiff,
and determine whether, under any reasonable reading of
the complaint, the plaintiff may be entitled to relief.”
Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d
Cir.2009) (quoting Phillips v. County of Allegheny, 515
F.3d 224, 231 (3d Cir.2008)).
While a complaint need
only contain “a short and plain statement of the claim,”
Fed.R.Civ.P. 8(a)(2), and detailed factual allegations
are not required, Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929
(2007), a complaint must plead “enough facts to state a
claim to relief that is plausible on its face.”
Id. at
570, 550 U.S. 544, 127 S.Ct. 1955 at 1974, 167 L.Ed.2d
929.
“The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a
sheer possibility that a defendant has acted
unlawfully.”
Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct.
1937, 1949, 173 L.Ed.2d 868,
(2009) (quoting Twombly,
550 U.S. at 556, 127 S.Ct. at 1965.) “[L]abels and
conclusions” are not enough, Twombly, 550 U.S. at 555,
127 S.Ct. at 1964-65, and a court
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“‘is not bound to
accept as true a legal conclusion couched as a factual
allegation.’” Id., 127 S.Ct. at 1965 (quoted case
omitted).
In resolving the motion to dismiss, we thus
“conduct a two-part analysis.” Fowler, supra, 578 F.3d
at 210. First, we separate the factual elements from the
legal elements and disregard the legal conclusions. Id.
at 210-11.
Second, we “determine whether the facts
alleged in the complaint are sufficient to show that the
plaintiff has a “‘plausible claim for relief.’” Id. at
211 (quoted case omitted).
Although the court is generally limited in its
review to the facts contained in the complaint, it may
also consider matters of public record, orders, exhibits
attached to the complaint and items appearing in the
record of the case. Oshiver v. Levin, Fishbein, Sedran &
Berman, 38 F.3d 1380, 1384 n. 2 (3d Cir.1994); see also
In re Burlington Coat Factory Sec. Litig., 114 F.3d
1410, 1426 (3d Cir.1997).
A court may dismiss a case when a plaintiff
fails to file the required COM. See, e.g., Stroud v.
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Abington Mem. Hosp., 546 F.Supp.2d 238, (E.D.Pa.2008);
Bresnahan v. Schenker, 498 F.Supp.2d 758, 762
(E.D.Pa.2007); McElwee Group, LLC v. Mun. Auth. of
Elverson, 476 F.Supp.2d 472, 475 (E.D.Pa.2007) (holding
that “failure to submit the certificate is a possible
ground for dismissal by the district court, when
properly presented to the court in a motion to dismiss).
Discussion
It is well-settled that a federal district court
in considering a FTCA action must apply the law of the
state, in this case Pennsylvania, in which the alleged
tortious conduct occurred.
28 U.S.C. § 1346(b) (1996);
Toole v. United States, 588 F.2d 403, 406 (3d Cir.
1978); O'Neal v. Department of Army, 852 F. Supp. 327,
334-35 (M.D. Pa. 1994); Turner v. Miller, 679 F. Supp.
441, 443 (M.D. Pa. 1987).
In cases involving federal
prisoners, this court has recognized that the
government's duty of care is one of ordinary diligence.
See 18 U.S.C. § 4042; Turner, 679 F. Supp. at 443.
The
applicable law with respect to the burden and quantum of
proof under the FTCA remains that of the state in which
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the alleged tortious conduct occurred.
Hosic v. United
States, 682 F. Supp. 23, 25 (M.D. Pa. 1987). In order to
present a prima facie case of medical malpractice under
Pennsylvania law, “as a general rule, a plaintiff has
the burden of presenting expert opinions that the
alleged act or omission of the defendant physician or
hospital personnel fell below the appropriate standard
of care in the community, and that the negligent conduct
caused the injuries for which recovery is sought.”
Simpson v. Bureau of Prisons, No. 02–2213, 2005 WL
2387631, at *5 (M.D.Pa. Sept.28, 2005) This requirement
is imposed upon malpractice plaintiffs like Thomas by
Pennsylvania Rule of Civil Procedure 1042.3, which
requires the filing a valid certificate of merit along
with the professional negligence claim.
Furthermore,
the requirement of filing the certificate is clearly
applicable to not only diversity cases under 28 U.S.C. §
1332 but cases brought pursuant to 28 U.S.C. § 1331 and
the FTCA.
See Smith v. United States, 498 F. App’x 120,
121 (3d Cir. 2012).3
3.
The Court of Appeals stated that “[t]he FTCA
(continued...)
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The present action as stated above was filed on
December 5, 2014, and the amended complaint was filed on
January 12, 2016.
The record reveals and Defendants
admit that Thomas exhausted his FTCA administrative
remedies on July 20, 2015, when the Northeast Regional
Office of the Federal Bureau of Prison denied his
administrative appeal.
In the administrative tort claim
Thomas alleged that staff at FCI-Schuylkill failed to
provided him with adequate medical and dental care for
3.
(...continued)
requires a court to apply the tort laws of the state in
which the alleged tort arose. Here, the alleged tort of
medical malpractice occurred in Pennsylvania and
Pennsylvania's law applies. Pennsylvania law requires a
plaintiff alleging medical malpractice to file a COM.
The certificate must attest either that an appropriate
licensed professional supplied a written statement that
there exists a reasonable probability that the care
provided fell outside acceptable professional
standards, or that expert testimony of an appropriate
licensed professional is unnecessary. This requirement
is a substantive rule and applies even where, as here,
the claim is brought in federal court.” 498 F. App’x
at 121-122 (citations omitted).
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trigeminal neuralgia4 and dental caries resulting in
continuous pain and unnecessary teeth extractions.
The United States argue that Thomas’ FTCA claim
against it should be dismissed for failure to file an
appropriate COM. Under Rule 1042.3(a) a party filing an
action based upon an allegation of professional
negligence is required to file a COM stating that
(1) an appropriate licensed professional has
has supplied a written statement that there
exists a reasonable probability that the care,
skill or knowledge exercised or 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 harm, or
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(3) expert testimony of an appropriate licensed
professional is unnecessary for prosecution of
the claim.
“Trigeminal neuralgia is a chronic pain condition
that affects the trigeminal nerve, which carries
sensation from your face to your brain. If you have
trigeminal neuralgia, even mild stimulation of your
face - such as from brushing your teeth or putting on
makeup - may trigger a jolt of excruciating pain. You
may initially experience short, mild attacks. But
trigeminal neuralgia can progress and cause longer,
more-frequent bouts of searing pain.” Trigeminal
neuralgia, Definition, Mayo Clinic Staff,
http://www.mayoclinic.org/diseases-conditions/trigemina
l-neuralgia/basics/definition/CON-20043802 (Last
accessed February 7, 2017).
4.
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On March 2, 2016, within sixty days of the filing of the
amended complaint Thomas filed a COM which states in
toto as follows:
PLEASE TAKEN (sic) NOTICE, that Plaintiff,
Alphonso Thomas, states that a Certificate
of Merit (“COM”) is not required to prosecute
his Federal Tort Claim Action under 28 U.S.C.
§ 2671 because this Court has exclusive, not
diversity, jurisdiction over such claims against
the United States, and expert testimony by
an appropriate medical professional is
unnecessary for prosecution of the tort claims.
(Doc. 44.)
Pursuant to Pa. R. Civ. P. 1042.3, a plaintiff
is required to file a COM from a medical expert with
respect to a professional negligence claim against the
United States or as provided in subsection (a)(3)
indicate that expert testimony is not necessary because
it is the type of case that does not require expert
testimony because the alleged wrongdoing can be assessed
by laymen.
Subsection (a)(3) is only applicable when
the case “is so simple or the lack of skill or care so
obvious as to be within the range of experience and
comprehension of even non-professional persons.”
Hightower-Warren v. Silk, 698 A.2s 52, 54 n.1 (Pa.
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1997)(citation omitted).
This case involves a question
of the medical judgments of the staff who treated Thomas
at FCI-Schuylkill.
Based on the allegations in the
amended complaint it is clear that this is not a case
that can be decided by the trier of fact without the
benefit of expert testimony.
Thomas is arguing the
adequacy of the medical and dental treatment that he
received and an underlying factor in this case involves
the professional judgment of those individuals who
treated Thomas.
Consequently, Thomas’ amended complaint which
raises professional negligence claims against the
United States will be dismissed for failure to file a
COM indicating that an appropriate licensed professional
has supplied a written statement that there
exists a reasonable probability that the care, skill or
knowledge exercised or exhibited in the treatment,
practice or work that is the subject of the amended
complaint, fell outside acceptable professional
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standards and that such conduct was the cause in
bringing about harm to him.
An appropriate order will be entered.
s/Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge
Dated: February 15, 2017
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