JACKSON v. UNITED STATES
MEMORANDUM (Order to follow as separate docket entry). Signed by Honorable Christopher C. Conner on 11/17/2021. (mw)
Case 1:20-cv-00165-CCC-CA Document 27 Filed 11/17/21 Page 1 of 9
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JAITEE L. JACKSON,
UNITED STATES OF AMERICA,
CIVIL ACTION NO. 1:20-CV-165
Plaintiff Jaitee L. Jackson (“Jackson”) commenced this action pursuant to
the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671 et seq., alleging that
he received inadequate medical care while incarcerated at the United States
Penitentiary, Lewisburg, Pennsylvania (“USP-Lewisburg”).1 (Doc. 2). The sole
named defendant is the United States of America. The United States moves to
dismiss the complaint based on Jackson’s failure to file a certificate of merit
(“COM”) that complies with Rule 1042.3 of the Pennsylvania Rules of Civil
Procedure. (Doc. 20). For the reasons set forth below, the court will grant the
Factual Background & Procedural History
Jackson sets forth a tort claim for “negligence or medical malpractice”
against the United States alleging that staff at USP-Lewisburg delayed his access to
prescription medication. (Doc. 2 at 5). Jackson alleges that he suffers from chronic
Jackson initiated this action in the United States District Court for the
Eastern District of Pennsylvania. The action was subsequently transferred to the
Middle District of Pennsylvania. (See Docs. 5, 6).
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ulcerative colitis. (Id.) On September 5, 2018, while housed at USP-Lewisburg,
Jackson was prescribed the drug Mesalamine to treat his ulcerative colitis. (Id.)
Jackson asserts that Mesalamine must be approved at the Central Office Level and
must be properly managed in order to avoid any delay in receiving the prescription.
(Id. at 6).
On January 7, 2019, Jackson presented to the chronic care clinic and was
advised that he would continue to receive Mesalamine to treat his ulcerative colitis.
(Id. at 5-6). After this appointment, Jackson alleges that defendant failed to
properly monitor his medication for the remainder January 2019, February 2019,
and the majority of March 2019. (Id. at 6). As a result, Jackson asserts that his
prescription expired on or about March 20, 2019, resulting in a six-day lapse in
medication. (Id. at 7). Due to the alleged lapse in medication, Jackson suffered an
ulcerative colitis flare-up, consisting of inflammation of his large colon, severe
abdominal pain, and blood and mucus in his stool. (Id. at 8).
On March 26, 2019, Jackson’s prescription was approved and renewed. (Id.)
During this time, Jackson was also prescribed a steroid for a period of five days to
treat his flare-up. (Id.) Jackson alleges that his rectal bleeding resolved, but he
continued to experience abdominal pain, loose stools, and mucus in his stools
through May 23, 2019. (Id.)
Case 1:20-cv-00165-CCC-CA Document 27 Filed 11/17/21 Page 3 of 9
The United States now moves to dismiss the complaint. (Doc. 20). Jackson
failed to respond to defendant’s motion and the time for responding has now
passed.2 Therefore, the motion is deemed unopposed and ripe for resolution.
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the
dismissal of complaints that fail to state a claim upon which relief can be granted.
FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6),
the court must “accept as true all [factual] allegations in the complaint and all
reasonable inferences that can be drawn therefrom, and view them in the light most
favorable to the plaintiff.” Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007)
(quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). 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).
Federal notice and pleading rules require the complaint to provide “the
defendant notice of what the . . . claim is and the grounds upon which it rests.”
Phillips v. Cnty. of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (quoting Bell Atl.
Jackson was directed to file a brief in opposition to defendant’s motion to
dismiss and was admonished that failure to file an opposition brief would result in
defendant’s motion being deemed unopposed. (Doc. 22) (citing M.D. PA. LOCAL
RULE OF COURT 7.6).
Case 1:20-cv-00165-CCC-CA Document 27 Filed 11/17/21 Page 4 of 9
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To test the sufficiency of the complaint
in the face of a Rule 12(b)(6) motion, the court must conduct a three-step inquiry.
See Santiago v. Warminster Twp., 629 F.3d 121, 130-31 (3d Cir. 2010). In the first
step, “the court must ‘tak[e] note of the elements a plaintiff must plead to state a
claim.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Next, the factual
and legal elements of a claim should be separated; well-pleaded facts must be
accepted as true, while mere legal conclusions may be disregarded. Id.; see also
Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). Once the wellpleaded factual allegations have been isolated, the court must determine whether
they are sufficient to show a “plausible claim for relief.” Iqbal, 556 U.S. at 679
(citing Twombly, 550 U.S. at 556); Twombly, 550 U.S. at 555 (requiring plaintiffs to
allege facts sufficient to “raise a right to relief above the speculative level”). A claim
“has facial plausibility when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678.
The FTCA “provides a mechanism for bringing a state law tort action against
the federal government in federal court,” and the “extent of the United States’
liability under the FTCA is generally determined by reference to state law.” In re
Orthopedic Bone Screw Prod. Liab. Litig., 264 F.3d 344, 362 (3d Cir. 2001) (quoting
Molzof v. United States, 502 U.S. 301, 305 (1992)). In the instant case, Jackson
Case 1:20-cv-00165-CCC-CA Document 27 Filed 11/17/21 Page 5 of 9
asserts claims of medical negligence under the FTCA.3 Where a federal court is
presented with a claim brought under the FTCA, it applies the law of the state in
which the alleged tortious conduct occurred. See 28 U.S.C. § 1346(b). Here, the
allegedly tortious conduct occurred in Pennsylvania.
In Pennsylvania, medical negligence, or medical malpractice, is defined as
“the unwarranted departure from generally accepted standards of medical practice
resulting in injury to a patient, including all liability-producing conduct arising from
the rendition of professional medical services.” Toogood v. Owen J. Rogal, D.D.S.,
P.C., 824 A.2d 1140, 1145 (Pa. 2003) (citing Hodgson v. Bigelow, 7 A.2d 338 (Pa.
1939)). The existence of an injury, by itself, does not prove a doctor’s negligence.
Mitchell v. Shikora, 209 A.3d 307, 315 (Pa. 2019) (citations omitted). Rather, to
establish a cause of action for negligence under Pennsylvania law, a plaintiff must
prove the following elements: (1) a duty or obligation recognized by law; (2) a
breach of that duty; (3) a causal connection between the conduct and the resulting
injury; and (4) actual damages. See Northwestern Mut. Life Ins. Co. v. Babayan,
430 F.3d 121, 139 (3d Cir. 2005) (citing In re TMI, 67 F.3d 1103, 1117 (3d Cir. 1995)).
Although Jackson labels his complaint as a “negligence or medical
malpractice” action (Doc. 2 at 5, emphasis supplied), it is clear that Jackson’s claims
arise out of a relationship with healthcare professionals and sound in medical
malpractice. See Ditch v. Waynesboro Hosp., 917 A.2d 317, 322 (Pa. Super. Ct. 2007)
(quoting Grossman v. Barke, 868 A.2d 561, 570 (Pa. Super. 2005)) (medical
malpractice claims are distinguished from ordinary negligence claims based on two
characteristics: (1) “medical malpractice can occur only within the course of a
professional relationship” and (2) “claims of medical malpractice necessarily raise
questions involving medical judgment”). A review of Jackson’s administrative
claims confirms that he is pursuing a medical malpractice claim. (Doc. 2 at 12-22).
Case 1:20-cv-00165-CCC-CA Document 27 Filed 11/17/21 Page 6 of 9
Under Rule 1042.3 of the Pennsylvania Rules of Civil Procedure, a plaintiff
seeking to raise medical malpractice claims must file a valid certificate of merit.
That rule states, in pertinent part:
(a) In any action based upon an allegation that a licensed professional
deviated from an acceptable professional standard, the attorney for the
plaintiff, or the plaintiff if not represented, shall file with the complaint
or within sixty days after the filing of the complaint, a certificate of
merit signed by the attorney or party that either
(1) 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 complaint, fell outside
acceptable professional standards and that such conduct was a
cause in bringing about the harm, or
(2) the claim that the defendant deviated from an acceptable
professional standard is based solely on allegations that other
licensed professionals for whom this defendant is responsible
deviated from an acceptable professional standard, or
(3) expert testimony of an appropriate licensed professional is
unnecessary for prosecution of the claim.
PA. R. CIV. P. 1042.3(a). The requirements of Rule 1042.3 are substantive in nature
and, therefore, federal courts in Pennsylvania must apply these prerequisites of
Pennsylvania law when assessing the merits of a medical malpractice claim. See
Liggon-Redding v. Estate of Sugarman, 659 F.3d 258, 262-65 (3d Cir. 2011); Iwanejko
v. Cohen & Grigsby, P.C., 249 F. App’x 938, 944 (3d Cir. 2007) (nonprecedential).
This requirement applies with equal force to counseled complaints and to pro se
medical malpractice actions brought under state law. See Hodge v. Dep’t of Justice,
372 F. App’x 264, 267 (3d Cir. 2010) (nonprecedential) (affirming district court’s
dismissal of medical negligence claim for failure to file a certificate of merit).
Case 1:20-cv-00165-CCC-CA Document 27 Filed 11/17/21 Page 7 of 9
The Pennsylvania Supreme Court has noted that “[b]ecause the negligence
of a physician encompasses matters not within the ordinary knowledge and
experience of laypersons[,] a medical malpractice plaintiff must present expert
testimony to establish the applicable standard of care, the deviation from that
standard, causation and the extent of the injury.” Toogood, 824 A.2d at 1145. A
very narrow exception applies “where the matter is so simple or the lack of skill or
care is so obvious as to be within the range of experience and comprehension of
even non-professional persons.” Hightower-Warren v. Silk, 698 A.2d 52, 54 n.1
(Pa. 1997). However, three conditions must be met before the doctrine of res ipsa
loquitur4 may be invoked: “(a) either a lay person is able to determine as a matter of
common knowledge, or an expert testifies, that the result which has occurred does
not ordinarily occur in the absence of negligence; (b) the agent or instrumentality
causing the harm was within the exclusive control of the defendant; and (c) the
evidence offered is sufficient to remove the causation question from the realm of
Res ipsa loquitur is a rule of evidence permitting an inference of negligence
from the circumstances surrounding the injury. Quinby v. Plumsteadville Family
Practice, Inc., 589 Pa. 183, 907 A.2d 1061, 1071 (Pa. 2006). The Pennsylvania
Supreme Court has adopted res ipsa loquitur as articulated in the Restatement
(Second) of Torts § 328D. Id. (citation omitted). Under § 328D, it may be inferred
that the harm suffered was caused by the negligence of the defendant when: (a) the
event is the kind which does not ordinarily occur in the absence of negligence; (b)
the evidence sufficiently eliminates other possible causes, including the conduct of
the plaintiff and third parties; and (c) the indicated negligence is within the scope of
the defendant’s duty to the plaintiff. If the court determines that these
prerequisites are met, it is for the jury to determine whether an inference of
negligence should be drawn. Toogood, 824 A.2d at 1149-50 (holding that before res
ipsa loquitur may be invoked, plaintiffs must meet the three § 328D conditions).
Case 1:20-cv-00165-CCC-CA Document 27 Filed 11/17/21 Page 8 of 9
conjecture, but not so substantial that it provides a full and complete explanation of
the event.” Toogood, 824 A.2d at 1149-50.
The United States seeks to dismiss Jackson’s medical malpractice claim
based on his failure to comply with Pennsylvania’s certificate of merit
requirements. On July 21, 2020, counsel for the United States mailed Jackson a
notice of intent to dismiss pursuant to Pennsylvania Rule 1042.6. (See Doc. 16).
Jackson filed a purported COM on August 3, 2020. (Doc. 18). In his COM, Jackson
summarizes the allegations of the complaint and states that the United States
“breached its duty of care” in treating his ulcerative colitis. (Id. at 1). Jackson’s
COM fails to comply with the requirements of Pennsylvania Rule 1042.3 in that it
does not attest 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 not necessary. PA. R. CIV. P. 1042.3(a)(1), (3).
Nor does Jackson attest that any claim that the United States deviated from an
acceptable, professional standard is based solely on allegations that other licensed
professionals for whom the defendant is responsible deviated from an acceptable
professional standard. PA. R. CIV. P. 1042.3(a)(2).
Jackson requires expert testimony to establish that medical staff at USPLewisburg were negligent in providing medical care for his ulcerative colitis. His
claim involves an alleged six-day lapse in prescription medication, which resulted in
an ulcerative colitis flare-up. His injury concerns complex issues relating to the
standard of care and causation, which he cannot establish without expert
Case 1:20-cv-00165-CCC-CA Document 27 Filed 11/17/21 Page 9 of 9
testimony. Toogood, 824 A.2d at 1151. This is not a case where a licensed medical
professional’s deviation from the standard of care and that deviation’s causation of
injury are obvious and within the realm of a layperson. Accordingly, the United
States’ motion to dismiss the medical malpractice claim will be granted based on
Jackson’s failure to file a COM that substantially complies with the requirements of
Rule 1042.3. See, e.g., Booker v. United States, 366 F. App’x 425, 427 (3d Cir. 2010)
(nonprecedential) (the usual consequence for failing to file a certificate of merit that
complies with Rule 1042.3 is dismissal of the claim without prejudice).
Leave to Amend
Generally, “plaintiffs who file complaints subject to dismissal . . . should
receive leave to amend unless amendment would be inequitable or futile.” Grayson
v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002). Because the exceptions to
filing a certificate of merit under Pennsylvania law do not apply to Jackson’s claims,
his FTCA claim fails as a matter of law. Therefore, the court concludes that
granting leave to amend would be futile.
We will grant defendant’s motion (Doc. 20) to dismiss. An appropriate order
/S/ CHRISTOPHER C. CONNER
Christopher C. Conner
United States District Judge
Middle District of Pennsylvania
November 17, 2021
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