Gomez v. Cullen et al

Filing 49

MEMORANDUM (Order to follow as separate docket entry 50 ) re 38 MOTION to Dismiss MOTION for Summary Judgment - See Memorandum for further details. Signed by Honorable Yvette Kane on 6/7/21. (dmn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JORGE GOMEZ,
Plaintiff,
v.
THOMAS CULLEN, et al.,
Defendants

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No. 1:20-cv-01637
(Judge Kane)

MEMORANDUM
Presently before the Court is the motion to dismiss and/or for summary judgment (Doc.
No. 38) filed by Defendants Thomas Cullen (“Cullen”), J.B. Foster (“Foster”), Ryan Parkyn
(“Parkyn”), K. Sorrell (“Sorrell”), B. Zalno (“Zalno”), George Robinson (“Robinson”), 1 and the
United States of America. The motion is fully briefed and ripe for disposition.
I.

BACKGROUND
On September 10, 2020, pro se Plaintiff Jorge Gomez (“Plaintiff”), who is presently

confined at the Federal Correctional Institution Allenwood-Medium (“FCI Allenwood-Medium”)
in White Deer, Pennsylvania, initiated the above-captioned action by filing a complaint pursuant
to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388
(1971), against Defendants Thomas, Parkyn, and Foster. (Doc. No. 1.) The above-captioned
action is proceeding on Plaintiff’s second amended complaint (Doc. No. 17) pursuant to Bivens
and the Federal Tort Claims Act (“FTCA”). Plaintiff raises Eighth Amendment and negligence
claims related to his incarceration at FCI Allenwood-Medium as well as the Federal Correctional
Institution Ray Brook (“FCI Ray Brook”) in Ray Brook, New York. (Doc. No. 17.)

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Pro se Plaintiff Jorge Gomez refers to Robinson as John Doe in his second amended complaint.
(Doc. No. 17 at 7.) Defendants’ filings have identified John Doe as Robinson.

Defendants filed their motion to dismiss and/or for summary judgment on March 1, 2021.
(Doc. No. 38.) They filed their supporting materials on March 11, 2021. (Doc. Nos. 42, 43.)
Plaintiff filed responses to the motion on March 15 and 24, 2021. (Doc. Nos. 44, 46.)
Defendants filed a reply brief on April 1, 2021. (Doc. No. 47.) The motion to dismiss and/or for
summary judgment is, therefore, ripe for disposition.
II.

LEGAL STANDARDS
A.

Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(1)

Defendants Zalno, Cullen, and Parkyn move for dismissal of Plaintiff’s second amended
complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, asserting that the
Court lacks subject-matter jurisdiction because sovereign immunity bars Plaintiff’s official
capacity claims against them and because Defendant Zalno is entitled to statutory immunity.
(Doc. No. 43 at 19-21.) The plaintiff bears the burden of demonstrating that subject-matter
jurisdiction exists. See Lightfoot v. United States, 564 F.3d 625, 627 (3d Cir. 2009). When
ruling on a Rule 12(b)(1) motion, the Court “must accept as true the allegations contained in the
plaintiff’s complaint, except to the extent federal jurisdiction is dependent on certain facts.” See
Fed. Realty Inv. Trust v. Juniper Props. Group, No. 99-3389, 2000 WL 45996, at *3 (E.D. Pa.
Jan. 21, 2000 (citing Haydo v. Amerikohl Mining, Inc., 830 F.2d 494, 496 (3d Cir. 1987)).
B.

Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(2)

Federal Rule of Civil Procedure 12(b)(2) permits a defendant to bring a motion
challenging the court’s right to exercise personal jurisdiction over it. See Fed. R. Civ. P.
12(b)(2). Once “the defendant raises the question of personal jurisdiction, the plaintiff bears the
burden to prove, by a preponderance of the evidence, facts sufficient to establish personal
jurisdiction.” See Carteret Sav. Bank, FA v. Shushan, 954 F.2d 141, 146 (3d Cir. 1992). At the

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pleading stage, a plaintiff is required only to establish a prima facie case of personal jurisdiction
over the defendant, and the court must accept the plaintiff’s allegations as true and construe
disputed facts in the plaintiff’s favor. See Metcalfe v. Renaissance Marine, Inc., 566 F.3d 324,
330 (3d Cir. 2009); Carteret Sav. Bank, 954 F.2d at 146. Further, a court may consider the
parties’ affidavits and other evidence when making determinations regarding personal
jurisdiction. See Metcalfe, 566 F.3d at 330; Connell v. CIMC Intermodal Equip., No. 1:16-cv714, 2016 WL 7034407, at *1 (M.D. Pa. Dec. 2, 2016).
“A federal court may assert personal jurisdiction over a nonresident of the state in which
the court sits to the extent authorized by the law of the state.” Carteret Sav. Bank, 954 F.2d at
144-45 (quoting Provident Nat’l Bank v. Cal. Fed. Sav. & Loan Ass’n, 819 F.2d 434, 436 (3d
Cir. 1987)). Pennsylvania’s long-arm statute permits the Court to exercise personal jurisdiction
“to the fullest extent allowed under the Constitution of the United States.” 42 Pa. Cons. Stat.
§ 5322(b). Therefore, in its exercise of personal jurisdiction, this Court is constrained only by
the Due Process Clause of the United States Constitution, which requires that a defendant has
“certain minimum contacts with [the forum state] such that maintenance of the suit does not
offend traditional notions of fair play and substantial justice.” See O’Connor v. Sandy Lane
Hotel Co., Ltd., 496 F.3d 312, 316 (3d Cir. 2007) (quoting Int’l Shoe Co. v. Washington, 326
U.S. 310, 316 (1945)). Requiring “minimum contacts” between the defendant and the forum
state gives “fair warning” to a defendant that he or she may be called to defend a lawsuit in that
state. See Marten v. Godwin, 499 F.3d 290, 296 (3d Cir. 2007) (quotation omitted).
Two types of personal jurisdiction comport with these notions of due process: specific
and general jurisdiction. See Daimler AG v. Bauman, 134 S. Ct. 746 (2014). Specific
jurisdiction encompasses cases “in which the suit ‘aris[es] out of or relate[s] to the defendant’s

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contacts with the forum.’” See id. at 754 (citations omitted). A court’s determination as to
whether the exercise of specific jurisdiction is proper entails a three-part inquiry: (1) “the
defendant must have ‘purposefully directed [its] activities’ at the forum”; (2) “the litigation must
‘arise out of or relate to’ at least one of those activities”; and (3) “if the prior two requirements
are met, a court may consider whether the exercise of jurisdiction otherwise ‘comport[s] with
‘fair play and substantial justice.’” See O’Connor, 496 F.3d at 317 (alterations in original)
(citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985); Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984); Grimes v. Vitalink Commc’ns Corp., 17 F.3d
1553, 1559 (3d Cir. 1994)). General jurisdiction, however, may be exercised by a court when a
non-resident’s “affiliations with the State are so ‘continuous and systematic’ as to render them
essentially at home in the forum State.” See id. (citations omitted).
C.

Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6)

Federal notice and pleading rules require the complaint to provide the defendant notice of
the claim and the grounds upon which it rests. See Phillips v. Cty. of Allegheny, 515 F.3d 224,
232 (3d Cir. 2008). The plaintiff must present facts that, accepted as true, demonstrate a
plausible right to relief. See Fed. R. Civ. P. 8(a). Although Federal Rule of Civil Procedure
8(a)(2) requires “only a short and plain statement of the claim showing that the pleader is entitled
to relief,” a complaint may nevertheless be dismissed under Federal Rule of Civil Procedure
12(b)(6) for its “failure to state a claim upon which relief can be granted.” See Fed. R. Civ. P.
12(b)(6).
When ruling on a motion to dismiss under Rule 12(b)(6), the Court accepts as true all
factual allegations in the complaint and all reasonable inferences that can be drawn from them,
viewed in the light most favorable to the plaintiff. See Ashcroft v. Iqbal, 556 U.S. 662, 679

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(2009); In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010). To prevent
dismissal, all civil complaints must set out “sufficient factual matter” to show that their claims
are facially plausible. See Iqbal, 556 U.S. at 678; Fowler v. UPMC Shadyside, 578 F.3d 203,
210 (3d Cir. 2009). The plausibility standard requires more than a mere possibility that the
defendant is liable for the alleged misconduct: “[W]here the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct, the complaint has alleged – but it has
not ‘show[n]’ – ‘that the pleader is entitled to relief.’” See Iqbal, 556 U.S. at 679 (citing Fed. R.
Civ. P. 8(a)(2)).
Accordingly, the United States Court of Appeals for the Third Circuit has identified the
following steps that a district court must take when reviewing a 12(b)(6) motion: (1) identify the
elements that a plaintiff must plead to state a claim; (2) identify any conclusory allegations
contained in the complaint that are “not entitled” to the assumption of truth; and (3) determine
whether any “well-pleaded factual allegations” contained in the complaint “plausibly give rise to
an entitlement to relief.” See Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)
(internal citations and quotation marks omitted). The Third Circuit has specified that in ruling on
a Rule 12(b)(6) motion to dismiss for failure to state a claim, “a court must consider only the
complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly
authentic documents if the complainant’s claims are based upon these documents.” See Mayer v.
Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. v. White
Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)).
In the context of pro se prisoner litigation, the court must be mindful that a document
filed pro se is “to be liberally construed.” See Estelle v. Gamble, 429 U.S. 97, 106 (1976). A
pro se complaint, “however inartfully pleaded,” must be held to “less stringent standards than

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formal pleadings drafted by lawyers” and can be dismissed for failure to state a claim only if it
appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that
would entitle him to relief. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
D.

Motion for Summary Judgment

Federal Rule of Civil Procedure 56(a) requires the Court to render summary judgment “if
the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” See Fed. R. Civ. P. 56(a). “[T]his standard provides
that the mere existence of some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the requirement is that there be no
genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
A disputed fact is “material” if proof of its existence or nonexistence would affect the
outcome of the case under applicable substantive law. See id. at 248; Gray v. York Newspapers,
Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An issue of material fact is “genuine” if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party. See Anderson, 477
U.S. at 257; Brenner v. Local 514, United Bhd. of Carpenters & Joiners of Am., 927 F.2d 1283,
1287-88 (3d Cir. 1991).
When determining whether there is a genuine issue of material fact, the Court must view
the facts and all reasonable inferences in favor of the nonmoving party. See Moore v. Tartler,
986 F.2d 682 (3d Cir. 1993); Clement v. Consol. Rail Corp., 963 F.2d 599, 600 (3d Cir. 1992);
White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988). In order to avoid summary
judgment, however, the nonmoving party may not rest on the unsubstantiated allegations of his
or her pleadings. When the party seeking summary judgment satisfies its burden under Rule 56
of identifying evidence that demonstrates the absence of a genuine issue of material fact, the

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nonmoving party is required to go beyond his pleadings with affidavits, depositions, answers to
interrogatories, or the like in order to demonstrate specific material facts that give rise to a
genuine issue. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The party opposing the
motion “must do more than simply show that there is some metaphysical doubt as to the material
facts.” See Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). When Rule
56 shifts the burden of production to the nonmoving party, that party must produce evidence to
show the existence of every element essential to its case that it bears the burden of proving at
trial, for “a complete failure of proof concerning an essential element of the nonmoving party’s
case necessarily renders all other facts immaterial.” See Celotex, 477 U.S. at 323; see also
Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992).
As noted supra, when determining whether an issue of material fact exists, the Court must
consider the evidence in the light most favorable to the nonmoving party. See White, 862 F.2d at
59. In doing so, the Court must accept the nonmovant’s allegations as true and resolve any
conflicts in his favor. See id. (citations omitted). However, a party opposing a summary
judgment motion must comply with Local Rule 56.1, which specifically directs the oppositional
party to submit a “statement of the material facts, responding to the numbered paragraphs set
forth in the statement required [to be filed by the movant], as to which it is contended that there
exists a genuine issue to be tried”; if the nonmovant fails to do so, “[a]ll material facts set forth in
the statement required to be served by the moving party will be deemed to be admitted.” See
L.R. 56.1. A party cannot evade these litigation responsibilities in this regard simply by citing
the fact that he is a pro se litigant. These rules apply with equal force to all parties. See Sanders
v. Beard, Civ. No. 09-1384, 2010 WL 2853261, at *5 (M.D. Pa. July 20, 2010) (stating that pro
se parties “are not excused from complying with court orders and the local rules of court”);

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Thomas v. Norris, Civ. No. 02-01854, 2006 WL 2590488, at *4 (M.D. Pa. Sept. 8, 2006)
(explaining that pro se parties must follow the Federal Rules of Civil Procedure).
E.

Bivens Action

A Bivens civil rights action asserted under § 1331 is evaluated using the same standards
applicable to a § 1983 civil rights action. See Paton v. LaPrade, 524 F.2d 862, 871 (3d Cir.
1975); Veteto v. Miller, 829 F. Supp. 1486, 1492 (M.D. Pa. 1992). To state a claim under
Bivens, a plaintiff must allege that he was deprived of a federal right by a person acting under
color of federal law. See Young v. Keohane, 809 F. Supp. 1185, 1199 (M.D. Pa. 1992).
III.

STATEMENT OF MATERIAL FACTS 2
A.

Facts Regarding Plaintiff’s Medical Care

Defendant Zalno is a Commissioned Corps Officer in the United States Public Health
Service who worked at FCI Allenwood during all relevant times. (Doc. No. 42 ¶¶ 1-2.)

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The Local Rules provide that in addition to the requirement that a party file a brief in
opposition to the moving party’s brief in support of its motion, “[t]he papers opposing a motion
for summary judgment shall include a separate, short and concise statement of material facts
responding to the numbered paragraphs set forth in the statement [of material facts filed by the
moving party] . . . as to which it is contended that there exists a genuine issue to be tried.” See
M.D. Pa. L.R. 56. 1. The Rule further requires the inclusion of references to the parts of the
record that support the statements. See id. Finally, the Rule states that the statement of material
facts required to be served by the moving party will be deemed to be admitted unless
controverted by the statement required to be served by the opposing party. See id.
Unless otherwise noted, the background herein is derived from Defendants’ Rule 56.1
statement of facts. (Doc. No. 42.) Although Plaintiff has included a statement of facts within his
brief in opposition (Doc. No. 46), this statement fails to correspond to the statement of facts filed
by Defendants. The averments set forth by Plaintiff are entirely independent of those in
Defendants’ statement and do not contain specific references to the parties of the record
supporting the statements. Plaintiff’s statement of facts, therefore, does “not comply with Local
Rule 56.1’s requirement of parity between the two filings.” See Edens v. White, No. 1:18-cv678, 2020 WL 1531220, at *1 n.1 (M.D. Pa. Mar. 31, 2020). Accordingly, the Court deems the
facts set forth by Defendants to be undisputed. See Fed. R. Civ. P. 56(e)(2); M.D. Pa. L.R. 56.1;
United States v. Alberto, No. 3:18-cv-1014, 2020 WL 730316, at *2 (M.D. Pa. Feb. 13, 2020)
(concluding that “[f]ailure to file this [responsive statement of material facts] results in
admission of the moving party’s statement of facts”).
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Plaintiff arrived at FCI Allenwood on May 7, 2018, and Defendant Cullen examined him
on May 14, 2018. (Id. ¶ 3.) Defendant Cullen noted that Plaintiff “had a pre-existing colitis
diagnosis and mesalamine prescription.” (Id. ¶ 4.) During the examination, Defendant Cullen
noted that Plaintiff “indicated that his GI symptoms were improved, but he was still experiencing
cramping and mucus in his bowel movements.” (Id. ¶ 5.) Defendant Cullen “ordered extensive
bloodwork and cultures and a consultation with a gastroenterologist.” (Id. ¶ 6.)
Plaintiff saw the gastroenterologist on May 23, 2018. (Id. ¶ 7.) The gastroenterologist
recommended that Plaintiff “take Flagyl, an antibiotic, and undergo a colonoscopy if the
medication was ineffective.” (Id. ¶ 8.) Subsequently, Defendant Zalno ordered Flagyl and
another medication so that Plaintiff could prepare for the colonoscopy. (Id. ¶ 9.) Plaintiff saw
Defendant Zalno on June 22, 2018, at which time he “complained his medication was not
helping and questioned whether he needed a colonoscopy.” (Id. ¶¶ 10-11.) Plaintiff “denied any
changes or concerns about his condition,” and Defendant Zalno told Plaintiff to continue his
medication. (Id. ¶¶ 12-13.)
Plaintiff had the colonoscopy done in July of 2018. (Id. ¶ 14.) It “indicated a benign
colonic mucosa, negative for dysplasia.” (Id.) Colon biopsies “did not show any signs of colitis,
contrary to the prior diagnosis.” (Id. ¶ 15.) The gastroenterologist recommended that Plaintiff
try a fiber supplement. (Id. ¶ 16.) Based on the gastroenterologist’s report, Defendant Cullen
“opined that [Plaintiff’s] colonoscopy did not reveal and serious concerns requiring further
treatment.” (Id. ¶ 17.)
Plaintiff saw Defendant Zalno for a chronic care appointment on November 7, 2018. (Id.
¶ 18.) He reported “some continued mucous with his bowel movements.” (Id. ¶ 19.) Defendant
Zalno reviewed Plaintiff’s commissary food list, and Plaintiff admitted his diet could be

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improved because he was eating ice cream, Doritos, mayonnaise, candy, and other unhealthy
food. (Id. ¶¶ 20-21.) Plaintiff “denied taking the recommended fiber supplement and declined to
start cholesterol medication.” (Id. ¶ 22.) Defendant Zalno provided a commissary slip for fiber.
(Id. ¶ 23.)
Plaintiff saw a Physician’s Assistant (“PA”) on January 23, 2019, for a non-urgent sick
call. (Id. ¶ 24.) The PA arranged for Plaintiff to see Defendant Zalno. (Id. ¶ 25.) On January
28, 2019, Plaintiff saw Defendant Zalno and “explained he experienced pain after bowel
movements, but denied having bloody stools, diarrhea, constipation, nausea, vomiting, fever, or
chills.” (Id. ¶ 26.) Plaintiff “indicated that he still had not tried fiber tablets or powder, as
recommended, by his gastroenterologist.” (Id. ¶ 27.)
On March 20, 2019, Plaintiff was evaluated by the gastroenterologist, who
“recommended a flex sigmoid colonoscopy to address [Plaintiff’s] purported rectal and anal
discomfort.” (Id. ¶ 28.) The gastroenterologist recommended that Plaintiff “stop taking
mesalamine, which was promptly discontinued.” (Id. ¶ 29.) Plaintiff saw Defendant Cullen on
April 3, 2019, for a chronic care appointment. (Id. ¶ 30.) “It was noted that [Plaintiff’s] recent
lab work indicated hyperlipidemia, unrelated to his GI issues, but no other concerns.” (Id. ¶ 31.)
Defendant Cullen “recommended dietary and exercise improvements, but [Plaintiff] indicated
that he wanted to get his bowel situation fixed first.” (Id. ¶ 32.)
Plaintiff had his flex sigmoid colonoscopy in May of 2019. (Id. ¶ 33.) It “did not reveal
any concerning medical abnormalities.” (Id.) Plaintiff’s “biopsies were normal and the
gastroenterologist recommended a pelvic MRI, which was promptly ordered.” (Id. ¶ 34.) On
July 1, 2019, Plaintiff saw Defendant Zalno and reported “continued pain after bowel
movements.” (Id. ¶ 35.) Plaintiff “reported having loose stools, but no blood in stool, changes

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in appetite or diet, abdominal pain, fever, chills, or urinary issues.” (Id. ¶ 36.) Defendant Zalno
reviewed the colonoscopy results with Plaintiff. (Id. ¶ 37.)
Plaintiff had a pelvic MRI on July 24, 2019. (Id. ¶ 38.) The results “did not indicate any
GI pathology.” (Id.) On July 29, 2019, a lieutenant called Defendant Zalno to see Plaintiff. (Id.
¶ 39.) Plaintiff “was in a wheelchair and complained that staff were not treating his rectal pain.”
(Id. ¶ 40.) Plaintiff “explained that he had pain after a bowel movement at midnight.” (Id. ¶ 41.)
Defendant Zalno examined Plaintiff, who denied “bloody stools, black stool, constipation,
nausea, vomiting, chest pain, weakness, fever, chills, and fatigue.” (Id. ¶ 42.) Plaintiff told
Defendant Zalno “that his pain dissipated while he was laying on the exam bed.” (Id. ¶ 43.)
Plaintiff also appeared anxious during the examination. (Id. ¶ 44.) Defendant Zalno discussed
the possibility of anti-anxiety medication, which Plaintiff “seemed agreeable to take.” (Id. ¶ 45.)
An EMT saw Plaintiff later that day at the request of Plaintiff’s housing unit officer. (Id.
¶ 46.) Plaintiff “complained of localized abdominal pain that worsened with movement or when
in certain positions.” (Id. ¶ 47.) He also noted that he had not had his daily bowel movement.
(Id. ¶ 48.) The EMT provided Mylanta and told Plaintiff to “rest, eat bland foods, and follow-up
if his condition worsened.” (Id. ¶ 49.) On July 31, 2019, Plaintiff saw Defendant Zalno again.
(Id. ¶ 50.) Plaintiff “reported loose stools, but explained that Mylanta helped as well as gas
medication from the commissary.” (Id. ¶ 51.) Plaintiff asked about starting anti-anxiety
medication. (Id. ¶ 52.) Later that day, Defendant Cullen “approved an order for fluoxetine to
treat [Plaintiff’s] anxiety.” (Id. ¶ 53.)
On October 4, 2019, Plaintiff saw Defendant Zalno for a chronic care appointment. (Id.
¶ 54.) Plaintiff “reported continued diarrhea, which he said he believed to be related to eating
spicy food at mainline.” (Id. ¶ 55.) Defendant Zalno advised Plaintiff “to avoid aggravating

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foods,” and Plaintiff requested a special diet without spices for the first time. (Id. ¶¶ 56-57.)
Defendant Zalno referred him to a dietician for consultation. (Id. ¶ 58.) Plaintiff also agreed to
increase his fluoxetine dosage, and Plaintiff “denied any bloody stools, black stools, abdominal
pain, fever, chills, or other symptoms.” (Id. ¶ 60.) Defendant Zalno “transferred out of FCI
Allenwood on November 13, 2019.” (Id. ¶ 61.)
On February 6, 2020, a Bureau of Prisons (“BOP”) dietician reviewed Plaintiff’s medical
information and commissary list and “provided information to FCI Allenwood staff on how to
best control [Plaintiff’s] GI issues.” (Id. ¶ 62.) On February 18, 2020, a PA evaluated Plaintiff,
who “indicated he was still having diarrhea once a day with subsequent rectal pain, although
[Plaintiff] acknowledged to the PA that his colonoscopy and MRI results were normal.” (Id.
¶ 64.) Plaintiff stated that his fluoxetine was helping. (Id. ¶ 65.) The PA reviewed the
dietician’s recommendations with Plaintiff. (Id. ¶ 66.)
Defendant Cullen saw Plaintiff on February 25, 2020, for a chronic care appointment.
(Id. ¶ 67.) Plaintiff “stated that he was taking his medication, feeling good, and had no
complaints.” (Id. ¶ 68.) Defendant Cullen “reviewed [Plaintiff’s] lab results with him, which
were unremarkable.” (Id. ¶ 69.) Two days later, Plaintiff “received a slip for a low fiber diet,
per the dietician’s recommendation.” (Id. ¶ 70.) Based on Defendant Cullen’s review of
Plaintiff’s medical records, his conversations with Plaintiff, and his conversations with other
BOP medical staff, Defendant Cullen believes that Plaintiff “has received appropriate and timely
diagnostic testing, medical treatment, and medication, in line with professional standards[,] while
at FCI Allenwood.” (Id. ¶ 71.)

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IV.

DISCUSSION
Defendants assert the following arguments in support of their motion to dismiss and/or

for summary judgment: (1) the Court lacks personal jurisdiction over Defendants Foster, Sorrell,
and Robinson; (2) the Court lacks subject matter jurisdiction over Plaintiff’s official capacity
claims against Defendants Cullen, Parkyn, and Zalno as well as his individual capacity claims
against Defendant Zalno; (3) Plaintiff failed to allege sufficient facts demonstrating that
Defendant Parkyn was personally involved in his medical treatment; (4) the record demonstrates
that Defendant Cullen was not deliberately indifferent to Plaintiff’s medical needs; (5)
Defendants Parkyn and Cullen are entitled to qualified immunity; and (6) judgment should be
granted in the United States’ favor because Plaintiff has not established a prima facie medical
negligence claim. (Doc. No. 43 at 15.) The Court considers these arguments in turn below.
A.

Personal Jurisdiction over Defendants Foster, Sorrell, and Robinson

Defendants Foster, Sorrell, and Robinson are employees at FCI Ray Brook in Ray Brook,
New York. (Doc. No. 17.) They assert that they are entitled to dismissal because Plaintiff’s
second amended complaint is devoid of any facts suggesting that they “are residents of the
Commonwealth of Pennsylvania, they work in the Commonwealth, or they transact business in
the Commonwealth.” (Doc. No. 43 at 18.) They argue further that Plaintiff “has failed to
demonstrate that it would be fair to require the FCI Ray Brook defendants to appear in the
Middle District of Pennsylvania to defend this action.” (Id.) Finally, they maintain that the
Middle District of Pennsylvania is an improper venue for Plaintiff’s claims against them. (Id. at
18-19.)
As noted supra, once “the defendant raises the question of personal jurisdiction, the
plaintiff bears the burden to prove, by a preponderance of the evidence, facts sufficient to

13

establish personal jurisdiction.” See Carteret Sav. Bank, FA, 954 F.2d at 146. Plaintiff has
neither addressed nor explained how Defendants Foster, Sorrell, and Robinson have any contacts
with the Commonwealth of Pennsylvania such that they would reasonably anticipate being
brought into court here. Moreover, Plaintiff has failed to prove that they have the requisite
minimum contacts to subject them to the jurisdiction of this Court. See Mellon Bank (East)
PSFS, Nat’l Ass’n v. DiVeronica Bros., Inc., 983 F.2d 551, 554 (3d Cir. 1993) (noting that
“[w]here the defendant has raised a jurisdictional defense, the plaintiff bears the burden of
establishing either that the cause of action arose from the defendant’s forum-related activities
(specific jurisdiction) or that the defendant has ‘continuous and systematic’ contacts with the
forum state (general jurisdiction)”).
In response, Plaintiff appears to assert that equitable tolling stops the statute of limitations
from running (Doc. No. 46 at 8-9), but this argument has no bearing on whether this Court can
exercise personal jurisdiction over Defendants Foster, Sorrell, and Robinson. Plaintiff also
asserts that because he has named the United States as a Defendant, it can “take [the] place in
each defendant’s individual capacity up and above to follow under personal jurisdiction.” (Id. at
9.) Plaintiff, however, cannot maintain a Bivens suit against the United States because such suits
are barred by sovereign immunity. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 72 (2001).
Accordingly, Plaintiff cannot maintain his Bivens claims against Defendants Foster, Sorrell and
Robinson in this Court because this Court lacks personal jurisdiction over those Defendants. See
Smith v. Fed. Bureau of Prisons, No. 3:15-cv-1013, 2016 WL 2932098, at *7-8 (M.D. Pa. May
19, 2016) (concluding the same regarding an inmate-plaintiff’s claims against a BOP employee
at the Central Office in Washington, D.C.).

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Defendants also maintain that this Court is an improper venue for Plaintiff’s Bivens
claims against Defendants Foster, Sorrell, and Robinson. (Doc. No. 43 at 18-19.) Because the
Court has determined that it lacks personal jurisdiction over these Defendants, the Court “must
decide whether to dismiss Plaintiff’s [claims against them] or transfer [them] to another court
that can exercise personal jurisdiction over Defendants.” See Magill v. Elysian Global Corp.,
No. 1:20-cv-6742, 20201 WL 1221064, at *8 (D.N.J. Apr. 1, 2021). The applicable provision is
set forth in 28 U.S.C. § 1631, which governs transfers when there is a “want of jurisdiction.”
See Chavez v. Dole Food Co., 836 F.3d 205, 224 (3d Cir. 2016) (explaining that when a court
determines that it lacks personal jurisdiction over defendants, the determination of whether to
dismiss or transfer is governed by 28 U.S.C. § 1631 and not 28 U.S.C. § 1406(a), which concerns
improper venue). This section provides in relevant part:
[Where a] court finds that there is a want of jurisdiction, the court shall, if it is in
the interest of justice, transfer such action or appeal to any other such court . . . in
which the action or appeal could have been brought at the time it was filed or
noticed, and the action or appeal shall proceed as if it had been filed in or noticed
for the court to which it is transferred on the date upon which it was actually filed
in or noticed for the court from which it was transferred.
See 28 U.S.C. § 1631.
In the instant case, Plaintiff’s claims against Defendants Foster, Sorrell, and Robinson
concern actions they took at FCI Ray Brook while Plaintiff was incarcerated there. FCI Ray
Brook is located in Essex County, New York, within the Northern District of New York. See 28
U.S.C. § 112(a). The Third Circuit has “interpreted section 1631 to permit the transfer of all or
only part of an action.” See D’Jamoos ex rel. Estate of Weingeroff v. Pilatus Aircraft Ltd., 566
F.3d 94, 110 (3d Cir. 2009). Moreover, the Court may sua sponte transfer a case under § 1631.
See Danziger & De Llano, LLP v. Morgan Verkamp LLC, 948 F.3d 124, 132 (3d Cir. 2020).
The Court “shall” transfer a matter “if [doing so] is in the interest of justice.” See 28 U.S.C.
15

§ 1631. In the instant case, the Court finds that it is in the interest of justice to transfer Plaintiff’s
Bivens claims against Defendants Foster, Sorrell, and Robinson to the United States District
Court for the Northern District of New York for further adjudication there. The Court, therefore,
declines to grant Defendants’ motion to dismiss such claims for lack of personal jurisdiction and
will instead transfer them sua sponte pursuant to 28 U.S.C. § 1631.
B.

Subject-Matter Jurisdiction

Plaintiff indicates that he is bringing suit against Defendants Cullen, Parkyn, and Zalno in
both their individual and official capacities. (Doc. No. 17 at 1-2, 10-11.) The doctrine of
sovereign immunity, however, bars suits against the United States unless the Government has
waived that immunity. See FDIC v. Meyer, 510 U.S. 471, 483 (1994). Sovereign immunity
extends to individual officers acting in their official capacities, absent an explicit waiver. See
Treasurer of N.J. v. U.S. Dep’t of Treasury, 684 F.3d 382, 395 (3d Cir. 2012). Bivens, however,
does not waive sovereign immunity with respect to claims brought against federal employees
sued in their official capacities. See Malesko, 534 U.S. at 72. Thus, Plaintiff’s official capacity
claims against Defendants Cullen, Parkyn, and Zalno are essentially claims against the United
States that are subject to dismissal because of sovereign immunity. See Brooks v. Bledsoe, 682
F. App’x 164, 169 (3d Cir. 2017).
Defendant Zalno asserts further that she is entitled to statutory immunity from Plaintiff’s
claims against her in her individual capacity due to her position as a commissioned officer in the
United States Public Health Service. (Doc. No. 43 at 21.) Pursuant to 42 U.S.C. § 233(a),
members of the Public Health Service are immune from suit under Bivens if the injury for which
compensation is sought resulted from the performance of a medical function while acting within
the scope of their office or employment. See Hui v. Castaneda, 559 U.S. 799, 805-06 (2010)

16

(concluding that the Public Health Service Act, 42 U.S.C. § 233(a), precludes Bivens actions
against Public Health Service personnel for constitutional violations arising out of their official
duties). In the instant case, Plaintiff alleges that Defendant Zalno denied adequate medical
treatment while performing her duties as a PA at FCI Allenwood-Medium. The record, however,
establishes that Defendant Zalno is a Commissioned Officer of the United States Public Health
Service who had been assigned to FCI Allenwood-Medium during all relevant times. Defendant
Zalno, therefore, is entitled to statutory immunity from Plaintiff’s Bivens claims, and the Court
lacks subject-matter jurisdiction over such claims.
C.

Eighth Amendment Bivens Claims

The Eighth Amendment prohibits the infliction of cruel and unusual punishment of
prisoners. See Farmer v. Brennan, 511 U.S. 825, 834 (1994) (noting that “[t]o violate the Cruel
and Unusual Punishment Clause, a prison official must have a sufficiently culpable state of
mind. . . . In prison-conditions cases that state of mind is one of ‘deliberate indifference’ to
inmate health or safety.”). An Eighth Amendment claim includes both objective and subjective
components. See Wilson v. Seiter, 501 U.S. 294, 298 (1991). Serious hardship to the prisoner is
required to satisfy the Eighth Amendment’s objective component. See id. The subjective
component is met if the person or persons causing the deprivation acted with “a sufficiently
culpable state of mind.” See id. In the context of medical care, the Eighth Amendment “requires
prison officials to provide basic medical treatment to those whom it has incarcerated.” See
Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). In order to establish an Eighth Amendment
deliberate indifference claim, a claimant must demonstrate “(i) a serious medical need, and (ii)
acts or omissions by prison officials that indicate deliberate indifference to that need.” See
Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003).

17

Deliberate indifference has been found “where the prison official (1) knows of a
prisoner’s need for medical treatment but intentionally refuses to provide it; (2) delays necessary
medical treatment based on a non-medical reason; or (3) prevents a prisoner from receiving
needed or recommended medical treatment.” See Rouse, 182 F.3d at 197. The “deliberate
indifference” prong of the Eighth Amendment test requires that the defendant actually know of
and disregard “an excessive risk to inmate health or safety.” See Farmer, 511 U.S. at 837.
Circumstantial evidence may establish subjective knowledge if it shows that the excessive risk
was so obvious that the official must have known about it. See Beers-Capitol v. Whetzel, 256
F.3d 120, 133 (3d Cir. 2001) (citing Farmer, 511 U.S. at 842). Moreover, “[i]f a prisoner is
under the care of medical experts . . . a non-medical prison official will generally be justified in
believing that the prisoner is in capable hands.” See Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir.
2004). Accordingly, “absent a reason to believe (or actual knowledge) that prison doctors or
their assistants are mistreating (or not treating) a prisoner, a non-medical prison official . . . will
not be chargeable with the Eighth Amendment scienter requirement of deliberate indifference.”
See id.
The second prong of the Eighth Amendment inquiry is whether the plaintiff’s medical
needs were serious. A serious medical need is “one that has been diagnosed by a physician as
requiring treatment or one that is so obvious that a lay person would easily recognize the
necessity for a doctor’s attention.” See Monmouth Cty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d
326, 347 (3d Cir. 1987). Not every condition is a serious medical need; instead, the serious
medical need element contemplates a condition of urgency, namely, one that may produce death,
degeneration, or extreme pain. See id. Moreover, because only egregious acts or omissions
violate this standard, mere medical malpractice cannot result in an Eighth Amendment violation.

18

See White v. Napoleon, 897 F.2d 103, 108-10 (3d Cir. 1990); see also Estelle v. Gamble, 429
U.S. 97, 106 (1976) (noting that “medical malpractice does not become a constitutional violation
merely because the victim is a prisoner.”).
Additionally, prison medical authorities are given considerable latitude in the diagnosis
and treatment of inmate patients, see Young v. Kazmerski, 266 F. App’x 191, 194 (3d Cir.
2008), and a doctor’s disagreement with the professional judgment of another doctor is not
actionable under the Eighth Amendment. See White, 897 F.2d at 108-10. Furthermore, it is well
settled that an inmate’s dissatisfaction with a course of medical treatment, standing alone, does
not give rise to a viable Eighth Amendment claim. See Taylor v. Norris, 36 F. App’x 228, 229
(8th Cir. 2002); Abdul-Wadood v. Nathan, 91 F.3d 1023, 1024-25 (7th Cir. 1996); Sherrer v.
Stephens, 50 F.3d 496, 497 (8th Cir.1994); Brown v. Borough of Chambersburg, 903 F.2d 274,
278 (3d Cir. 1990) (“[A]s long as a physician exercises professional judgment his behavior will
not violate a prisoner’s constitutional rights.”); see also Pearson v. Prison Health Servs., 850
F.3d 528, 535 (3d Cir. 2017) (“[W]hen medical care is provided, we presume that the treatment
of a prisoner is proper absent evidence that it violates professional standards of care.”).
1.

Defendant Parkyn

Defendant Parkyn asserts that Plaintiff’s claims against him are subject to dismissal
because Plaintiff has failed to allege that Defendant Parkyn was personally involved in the
alleged violations of his Eighth Amendment rights. (Doc. No. 43 at 24-25.) In his second
amended complaint, Plaintiff alleges that in September of 2018, he spoke with Defendant Parkyn
in the “prison chow hall” and told him about his difficulties with eating spicy food. (Doc. No. 17
at 10.) Plaintiff maintains that Defendant Parkyn said that he had talked to Defendant Cullen and

19

that Plaintiff’s colonoscopy report indicated that there were no signs of colitis, and that even if
Plaintiff had colitis there was no special diet for that condition. (Id.)
The Court agrees that Plaintiff’s second amended complaint fails to allege facts
suggesting that Defendant Parkyn was personally aware that Plaintiff had a serious medical need
and that he knew of and disregarded an excessive risk to Plaintiff’s health. See Rode v.
Dellarciprete, 845 F.3d 1195, 1207 (3d Cir. 1988) (noting that “a defendant in a civil rights
action must have personal involvement in the alleged wrongs”). In response, Plaintiff avers that
Defendant Parkyn is “personally involve[d] in [a] superior capacity.” (Doc. No. 46 at 10.)
Liability, however, “cannot be predicated solely on the operation of respondeat superior.” See
Rode, 845 F.3d at 1207. Moreover, with respect to supervisory liability, there are two theories:
“one under which supervisors can be liable if they established and maintained a policy, practice
or custom which directly caused [the] constitutional harm, and another under which they can be
liable if they participated in violating plaintiff’s rights, directed others to violate them, or, as the
person[s] in charge, had knowledge of and acquiesced in [their] subordinates’ violations.” See
Santiago v. Warminster Twp., 629 F.3d 121, 129 n.5 (3d Cir. 2010) (internal quotation marks
omitted) (alteration in original). As to the second theory, a plaintiff must show that each
defendant personally participated in the alleged constitutional violation or approved of it. See
C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 173 (3d Cir. 2005); see also Ashcroft v. Iqbal,
556 U.S. 662, 677 (2009). With respect to the first theory of supervisory liability, “the plaintiff
must establish that: (1) existing policy or practice creates an unreasonable risk of constitutional
injury; (2) the supervisor was aware that the unreasonable risk was created; (3) the supervisor
was indifferent to that risk; and (4) the injury resulted from the policy or practice.” See Merring

20

v. City of Carbondale, 558 F. Supp. 2d 540, 547 (M.D. Pa. 2008) (citing Sample v. Diecks, 885
F.2d 1099, 1118 (3d Cir. 1989)).
In the instant case, Plaintiff has failed to allege that Defendant Parkyn had knowledge of
and acquiesced in any alleged violations of Plaintiff’s Eighth Amendment rights by his
subordinates. See A.M., 372 F.3d at 586. Moreover, Plaintiff fails to identify a policy that
allegedly caused the violation of his constitutional rights. See McTernan v. City of York, 56
F.3d 636, 658 (3d Cir. 2009). Plaintiff’s claims against Defendant Parkyn, therefore, are subject
to dismissal.
2.

Defendant Cullen

In the instant case, Defendants do not challenge whether Plaintiff had a serious medical
need. Rather, Defendant Cullen asserts that a Plaintiff’s medical records support a conclusion
that Plaintiff’s arguments amount to no more than disagreement with the medical treatment he
received, and that such disagreement is insufficient to maintain an Eighth Amendment claim.
(Doc. No. 43 at 28-29.)
In his second amended complaint, Plaintiff suggests that Defendant Cullen violated his
rights by not providing proper medication and a proper diet. (Doc. No. 17 at 11.) He asserts that
Defendant Cullen was aware of his “serious medical needs, and delayed or withheld treatment.”
(Id. at 143.) Contrary to Plaintiff’s suggestions, however, the record clearly establishes that
Defendant Cullen provided care to Plaintiff for his condition. Plaintiff first saw Defendant
Cullen shortly after arriving at FCI Allenwood-Medium, at which time Defendant Cullen ordered
“extensive bloodwork and cultures and a consultation with a gastroenterologist.” (Doc. No. 42
¶¶ 3-6.) Plaintiff saw Defendant Cullen again on April 3, 2019, for a chronic care appointment.
(Id. ¶ 30.) Defendant Cullen recommended dietary and exercise improvements to Plaintiff. (Id.

21

¶ 32.) Moreover, on July 31, 2019, Defendant Cullen approved an order for fluoxetine to treat
Plaintiff’s anxiety. (Id. ¶¶ 50-53.) Finally, Plaintiff saw Defendant Cullen on February 25,
2020, for another chronic care appointment. (Id. ¶ 67.) At that time, Plaintiff reported “that he
was taking his medication, feeling good, and had no complaints.” (Id. ¶ 68.) Defendant Cullen
reviewed Plaintiff’s lab results, which were unremarkable. (Id. ¶ 69.)
In response, Plaintiff avers that if Defendant Cullen had followed the Adirondack
Medical Center’s recommendation of a special diet, Plaintiff would not have suffered pain and
discomfort. (Doc. No. 46 at 11-13.) Plaintiff, however, has provided no evidence to support
these allegations, and he cannot survive summary judgment by relying on unsupported
assertions, conclusory allegations, or mere suspicions. See, e.g., Williams v. Borough of W.
Chester, 891 F.2d 458, 460 (3d Cir. 1989) (noting that the party opposing summary judgment
must raise “more than a mere scintilla of evidence in its favor”). Furthermore, Plaintiff, as a
prisoner, is not entitled to the treatment of his choice. See Reed v. Cameron, 380 F. App’x 160,
162 (3d Cir. 2010). Moreover, there is no viable claim for an Eighth Amendment violation
where one provider disagrees with or does not follow another doctor’s recommendations. See
White, 897 F.2d at 110.
Plaintiff’s disagreement with Defendant Cullen regarding the appropriate medical care
for his condition does not support a claim of cruel and unusual punishment. See Farmer, 685 F.
Supp. at 1339. Moreover, a complaint that a physician or a medical department “has been
negligent in diagnosing or treating a medical condition does not state a valid claim of medical
mistreatment under the Eighth Amendment [as] medical malpractice does not become a
constitutional violation merely because the victim is a prisoner.” See Estelle, 429 U.S. at 106.
In the instant case, the record does not establish that Defendant Cullen knew of Plaintiff’s need

22

for medical treatment and intentionally refused to provide it, delayed necessary medical
treatment for a non-medical reason, or prevented Plaintiff from receiving needed or
recommended medical treatment. Consequently, the Court will grant Defendant Cullen
summary judgment as to Plaintiff’s Eighth Amendment claim concerning medical care.
3.

Qualified Immunity

Defendants Cullen and Parkyn argue, in the alternative, that they are entitled to qualified
immunity because the record establishes that their conduct “was objectively reasonable and
lawful.” (Doc. No. 43 at 29.) “Qualified immunity shields federal and state officials from
money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or
constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged
conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (citing Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). To determine whether a right was clearly established, the Court must ask
“whether it would be clear to a reasonable officer that his conduct was unlawful in the situation
he confronted.” See Schmidt v. Creedon, 639 F.3d 587, 598 (3d Cir. 2011). “If it would not
have been clear to a reasonable officer what the law required under the facts alleged, then he is
entitled to qualified immunity.” Id. Stated differently, for a right to be clearly established,
“existing precedent must have placed the statutory or constitutional question beyond debate.”
See al-Kidd, 563 U.S. at 741. As the Supreme Court recently noted, “[t]his demanding standard
protects ‘all but the plainly incompetent or those who knowingly violate the law.’” See District
of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting Malley v. Briggs, 475 U.S. 335, 341
(1986)). Accordingly, “there must be sufficient precedent at the time of action, factually similar
to the plaintiff’s allegations, to put [the] defendant on notice that his or her conduct is

23

constitutionally prohibited.” See Mammaro v. N.J. Div. of Child Prot. & Permanency, 814 F.3d
164, 169 (3d Cir. 2016) (quoting McLaughlin v. Watson, 271 F.3d 566, 572 (3d Cir. 2001)).
The United States Supreme Court’s decision in White v. Pauly, 137 S. Ct. 548 (2017),
clarifies the Court’s inquiry in this regard. In that case, the Supreme Court reaffirmed that its
case law “do[es] not require a case directly on point” for a right to be clearly established, but
“existing precedent must have placed the statutory or constitutional question beyond debate.” 3
See id. at 551 (internal quotation marks omitted) (quoting Mullenix v. Luna, 136 S. Ct. 305, 308
(2015)). The Supreme Court reiterated that the clearly-established law “must be ‘particularized’
to the facts of the case,” and cautioned that the fact that a case presents a unique set of facts and
circumstances is an “important indication” that a defendant’s conduct at issue did not violate a
“clearly established” right. See id. at 552 (quoting Anderson v. Creighton, 483 U.S. 635, 640
(1987)).
As discussed supra, the record before the Court establishes that Plaintiff’s claims against
Defendant Cullen amount to no more than a disagreement with the medical treatment provided,
which does not rise to the level of an Eighth Amendment violation. As such, Defendant Cullen
is entitled to qualified immunity. Moreover, nothing in the record suggest that Defendant Parkyn
was not “justified in believing that [Plaintiff was] in capable hands” because he was receiving
medical treatment. See Spruill, 372 F.3d at 236. Likewise, there is no suggestion that Defendant
Parkyn believed or had actual knowledge that the medical staff at FCI Allenwood-Medium were
either mistreating or not treating Plaintiff. See id.; see also Deshields v. Moclock, No. 1:18-cv1709, 2019 WL 4082674, at *4 (M.D. Pa. Aug. 29, 2019) (noting that summary judgment is

3

There may be the rare “obvious case,” however, where “a body of case law” is not necessary.
See Brosseau v. Haugen, 543 U.S. 194, 199 (2004).
24

appropriate “with respect to Eighth Amendment claims against health care administrators
because they are not physicians and cannot assess the reasonableness of the treatment chosen by
prison doctors”) (citing McAleese v. Owens, 770 F. Supp. 255, 263 (M.D. Pa 1991)).
Accordingly, Defendants Cullen and Parkyn are entitled to summary judgment on the basis that
the doctrine of qualified immunity shields them from Plaintiff’s claims.
D.

FTCA Claims

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.” See 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, Plaintiff asserts claims of medical negligence under the FTCA.
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). In this case, the
allegedly tortious conduct occurred in Pennsylvania, and, therefore, the Court refers to
Pennsylvania tort law to assess the extent of the United States’ potential liability for Plaintiff’s
medical negligence claims. To maintain a negligence claim under Pennsylvania law, a plaintiff
must demonstrate: “(1) a duty on the part of the defendant to conform to a certain standard of
conduct with respect to the plaintiff; (2) a breach of that duty by the defendant; (3) a causal
connection between the defendant’s conduct and the injury suffered by the plaintiff; and (4)
actual loss or damage suffered by the plaintiff.” See Harris v. Oz Directional Drilling, Inc., No.
3:13-cv-2580, 2016 WL 4578150, at *3 (M.D. Pa. June 30, 2016), report and recommendation
adopted, 2016 WL 4698635 (M.D. Pa. July 19, 2016). Furthermore, to maintain a prima facie
case of medical negligence, “as a general rule, a plaintiff has the burden of presenting expert

25

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.” See Simpson v. Bureau of Prisons, No. 02-2213,
2005 WL 2387631, at *5 (M.D. Pa. Sept. 28, 2005).
Under Rule 1042.3 of the Pennsylvania Rules of Civil Procedure, plaintiffs seeking to
raise medical negligence 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. 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). This requirement applies with equal force to counseled complaints and to
pro se medical malpractice actions asserted under state law. See Hodge v. Dep’t of Justice, 372
F. App’x 264, 267 (3d Cir. 2010) (affirming district court’s dismissal of medical negligence
26

claim for failure to file a certificate of merit); Levi v. Lappin, No. 07-1839, 2009 WL 1770146,
at *1 (M.D. Pa. June 22, 2009).
Plaintiff has filed a certificate of merit, appearing to suggest that expert testimony is
unnecessary for prosecution of his medical negligence claims. (Doc. No. 16.) “Should a
plaintiff certify that expert testimony is unnecessary, ‘in the absence of exceptional
circumstances 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.’” See Rodriguez v. United States, No. 3:14-cv-1149, 2016 WL 4480761, at *4
(M.D. Pa. Aug. 23, 2016) (quoting Pa. R. Civ. P. 1042.3(a)(3), aff’d, 695 F. App’x 669 (3d Cir.
2017). In short, “the consequence of such a filing is a prohibition against offering expert
testimony later in the litigation, absent ‘exceptional circumstances.’” See Liggon-Redding, 659
F.3d at 265.
Moreover, the Supreme Court of Pennsylvania has noted that because “the negligence of
a physician encompasses matters not within the ordinary knowledge and experience of
laypersons a medical malpractice plaintiff [typically] must present expert testimony to establish
the applicable standard of care, the deviation from that standard, causation and the extent of the
injury.” See Toogood v. Owen J. Rogal, D.D.S., P.C., 824 A.2d 1140, 1145 (Pa. 2003). A very
narrow exception applies “where the matter 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.’ See
Hightower-Warren v. Silk, 698 A.2d 52, 54 n.1 (Pa. 1997). However, three (3) conditions must
be met before the doctrine of res ipsa loquitur 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 ordinary 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
27

remove the causation question from the realm of conjecture, but not so substantial
that it provides a full and complete explanation of the event.
See Toogood, 824 A.2d at 1149-50.
In the instant case, the Court agrees with Defendants that Plaintiff requires expert
testimony to establish that BOP medical staff at FCI Allenwood-Medium were negligent and that
their alleged failure to provide proper treatment, including a special diet, was the cause of his GI
issues. See Blank v. United States, No. 4:14-cv-502, 2016 WL 8116679, at *6 (N.D. Tex. Dec.
2, 2016) (concluding that the inmate-plaintiff was required to present expert testimony to support
his medical negligence claims concerning gastrointestinal illnesses). Plaintiff, therefore, “may
not rely upon Rule 1042.3(a)(3) or the doctrine of res ipsa loquit[u]r to carry his burden of proof
on the issues of negligence and causation that are central to this tort claim.” See Njos v. United
States, No. 3:15-cv-931, 2017 WL 6949812, at *7 (M.D. Pa. Oct. 17, 2017), report and
recommendation adopted, 2018 WL 453441 (M.D. Pa. Jan. 17, 2018).
In opposition to Defendants’ motion, Plaintiff avers that the food he ate at FCI Ray Brook
caused him to have a permanent disease and, therefore, no expert is needed to establish ordinary
negligence. (Doc. No. 46 at 13-15.) Specifically, he maintains that the negligence occurred
when he ate “unsanitary food” from the kitchen at FCI Ray Brook. (Id. at 13-14.) A review of
Plaintiff’s second amended complaint, however, leads the Court to conclude that he has asserted
two kinds of negligence claims—ordinary negligence claims concerning actions taken at FCI
Ray Brook and medical negligence claims concerning events at FCI Allenwood Medium. Thus,
despite Plaintiff’s efforts to “change and shift his legal claims,” the Court concludes that his
medical negligence claims require expert testimony and that Plaintiff “has not provided a
competent declaration from an appropriate licensed professional which satisfies the requirements

28

of Pennsylvania law.” See Njos, 2017 WL 6949812, at *8. Defendants, therefore, are entitled to
summary judgment with respect to Plaintiff’s FTCA medical negligence claims on this basis.
As noted supra, Plaintiff also asserts ordinary negligence claims concerning what
occurred at FCI Ray Brook. In their reply brief, Defendants assert that Plaintiff “cannot sue here
for alleged negligence that he claims occurred outside this district.” (Doc. No. 47 at 6.) They
assert that this Court is not the “proper venue because the events that he claims caused the
negligence occurred outside this district.” (Id. at 7.) The FTCA, however, has its own venue
statute, which provides that “[a]ny civil action on a tort claim against the United States under
subsection (b) of section 1346 of [Title 28 of the United States Code] may be prosecuted only in
the judicial district where the plaintiff resides or wherein the act or omission complained of
occurred.” See 28 U.S.C. § 1402(b). As noted supra, the Northern District of New York would
be where the “acts or omissions complained of occurred.” See id. With respect to Plaintiff’s
residence, although he is currently incarcerated within this district, “it is possible that under
Third Circuit law, his residence for venue purposes would be his ‘place of domicile before [his]
incarceration.’” See Sanchez-Mercedes v. Bureau of Prisons, 453 F. Supp. 3d 404, 427 (D.D.C.
2020 (quoting Keys v. Dep’t of Justice, 288 F. App’x 863, 866 (3d Cir. 2008)); see also Flanagan
v. Shively, 783 F. Supp. 922, 935 (M.D. Pa.), aff’d, 980 F.2d 722 (3d Cir. 1992) (noting that an
inmate does not become a resident of a state by virtue of his incarceration there). Plaintiff has
not provided no information about where he resided prior to his incarceration. However, liability
under the FTCA is based upon the law of the state where the event giving rise to liability
occurred. See 28 U.S.C. § 1346(b). Thus, New York law governs Plaintiff’s claims concerning
ordinary negligence at FCI Ray Brook. Accordingly, the Court will sua sponte transfer

29

Plaintiff’s FTCA ordinary negligence claims concerning events at FCI Ray Brook to the United
States District Court for the Northern District of New York for further adjudication there.
V.

CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss and/or for summary judgment

(Doc. No. 38) will be granted in part and denied in part. The motion will be granted as to: (1)
Plaintiff’s official capacity Bivens claims against Defendants Cullen and Parkyn and his official
and individual capacity claims against Defendant Zalno; (2) Plaintiff’s Eighth Amendment
Bivens claims against Defendants Cullen and Parkyn in their individual capacities; and (3)
Plaintiff’s FTCA medical negligence claims against the United States. The motion will be
denied to the extent Defendants seek dismissal of Plaintiff’s Bivens claims against Defendants
Foster, Sorrell, and Robinson. The Court will transfer Plaintiff’s Bivens claims against
Defendants Foster, Sorrell, and Robinson, as well as his FTCA ordinary negligence claims
concerning events at FCI Ray Brook, to the United States District Court for the Northern District
of New York for further proceedings. An appropriate Order follows.

30