BALLARD v. WILLIAMS et al

Filing 62

ORDER ADOPTING REPORT AND RECOMMENDATIONS: IT IS HEREBY ORDERED THAT: (1)The Report and Recommendation is ADOPTED.(2)Plaintiffs claims against Defendants Palakovich and Zobitne are DISMISSED. Plaintiff is given thirty (30) days from the date of this Order to file an amended complaint against these Defendants. (3)Plaintiffs medical malpractice claims against the Medical Defendants are DISMISSED without prejudice for failure to comply with Pa. R. Civ. P. 1042.3.(4) This matter is RECOMMITTED to the Magistrate Judge. Signed by Honorable A. Richard Caputo on 10/25/11. (jam, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TODD DARRELL BALLARD,
Plaintiff,

CIVIL ACTION NO. 3:10-CV-1456

v.
(JUDGE CAPUTO)
CO 1 WILLIAMS, et al.,
(MAGISTRATE JUDGE CARLSON)
Defendants.

MEMORANDUM

Presently before the Court is the Report and Recommendation of Magistrate Judge
Martin C. Carlson. (Doc. 38). The Report recommends that the Defendants’ Motion to
Dismiss the Complaint (Docs. 25, 28) be granted, in part, and denied, in part. The Court will
adopt the Report and Recommendation in full and will recommit the matter to the Magistrate
Judge for further proceedings.
I. Background
Plaintiff, a former inmate of the State Correctional Institution at Camp Hill proceeding
pro se, initiated this action on June 28, 2010, alleging various Constitutional violations and
a state-law tort claim stemming from a prison cell altercation on March 30, 2008.
Specifically, Plaintiff alleges that Corrections Officer Defendants Williams, Martin, and
Fulton used excessive force in intervening in the altercation, causing the Plaintiff to be
assaulted and suffer injuries, including a burn on his head from a hot radiator and a fractured
right hand. (Am. Compl. ¶¶ 1-3, Doc, 19). Sergeant Stockholm is also named as a

Defendant for, after having been called to the scene, failing to intervene in the incident. (Id.
at ¶ 4). Furthermore, Ballard claims that corrections staff stole some of his personal
property, and he alleges that Defendants Zobitne and Palakovich failed to adequately
investigate his complaints about the alleged assault and stolen property after he filed a
grievance regarding the March 30, 2008 incident. These Defendants are collectively known
as the “Corrections Defendants.”1
Additionally, Ballard alleges inadequate medical treatment on the part of four of the
Prison’s physicians assistants, Linda Diebert, Kristin Barbacci, Colleen Newfield, and a “Jane
Doe” Defendant, whom Ballard claims is “a medical staff employee at SCI-Camp Hill,” whom
Ballard claims took pictures of his injuries following the March 30, 2008 incident, but
otherwise failed to provide any medical treatment for the injuries. (Am. Compl. ¶ 5, Doc. 19).
Collectively, these four Defendants are known as the “Medical Defendants.”
The Corrections Defendants have made a Motion to Dismiss alleging that the
Plaintiff’s Action falls outside of the two-year statute of limitations provided by 42 U.S.C. §
1983 under Pennsylvania’s personal injury statute. (Doc. 25). Additionally, they have also
moved to dismiss the claims against Defendants Palakovich and Zobitne on the grounds that
Plaintiff has failed to state a cognizable claim against them upon which relief can be granted.
Separately, the Medical Defendants have also moved to dismiss Plaintiff’s claims. (Doc. 28).
They argue that the Plaintiff’s Eighth Amendment claims of deliberate indifference to his
medical needs are time-barred or inappropriate as failing to exhaust all available
administrative remedies.

Furthermore, to the extent that Plaintiff is bringing medical

1

The “Corrections Defendants” include CO 1 Williams, CO Joseph Martin, CO Victor
Fulton, David Stockholm, John A. Palakovich, CO 1 Bryan Stubbs and Renee Zobitne.
2

malpractice claims against them, the Medical Defendants assert that these claims must be
dismissed because Plaintiff has failed to file a timely certificate of merit as required by Rule
1042.3 of the Pennsylvania Rules of Civil Procedure.
The Magistrate Judge recommended the Corrections Defendants’ Motion be denied
in respect to their contention that Plaintiff’s claims against them was time-barred. The
Magistrate Judge further recommended that Plaintiff’s claims against Defendants Palakovich
and Zobitne be dismissed, though would allow Ballard an opportunity to amend his claims
against those two Defendants. Further, the Magistrate Judge recommended that Plaintiff’s
claims for medical malpractice against the Medical Defendants be dismissed without
prejudice for failure to comply with Pa. R. Civ. P. 1042.3. However, the Magistrate Judge
recommended that the Medical Defendants’ Motions be denied in all other respects.
Plaintiff has filed an Objection to the Report and Recommendation (Doc. 44), and
both sets of Defendants have filed briefs in opposition to that Objection (Docs. 47 and 48).
For the reasons below, the Court will adopt the Report and Recommendation in full and will
recommit the matter to the Magistrate Judge for further proceedings.
II. Discussion
A. Legal Standard for Reviewing a Report and Recommendation
Where objections to the Magistrate Judge’s report are filed, the court must conduct
a de novo review of the contested portions of the report, Sample v. Diecks, 885 F.2d 1099,
1106 n.3 (3d Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(c)), provided the objections are both
timely and specific, Goney v. Clark, 749 F.2d 5, 6–7 (3d Cir. 1984). In making its de novo
review, the court may accept, reject, or modify, in whole or in part, the factual findings or

3

legal conclusions of the magistrate judge. See 28 U.S.C. § 636(b)(1); Owens v. Beard, 829
F. Supp. 736, 738 (M.D. Pa. 1993). Although the review is de novo, the statute permits the
court to rely on the recommendations of the magistrate judge to the extent it deems proper.
See United States v. Raddatz, 447 U.S. 667, 675–76 (1980); Goney, 749 F.2d at 7; Ball v.
United States Parole Comm’n, 849 F. Supp. 328, 330 (M.D. Pa. 1994). Uncontested
portions of the report may be reviewed at a standard determined by the district court. See
Thomas v. Arn, 474 U.S. 140, 154 (1985); Goney, 749 F.2d at 7. At the very least, the court
should review uncontested portions for clear error or manifest injustice. See, e.g., Cruz v.
Chater, 990 F. Supp. 375, 376–77 (M.D. Pa. 1998).
Here, the Court reviews the portions of the Report and Recommendation which the
Plaintiff objects to de novo. The remainder of the Report and Recommendation is reviewed
for clear error.
B. Legal Standard for a Motion to Dismiss
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in
whole or in part, for failure to state a claim upon which relief can be granted. When
considering a Rule 12(b)(6) motion, the Court’s role is limited to determining if a plaintiff is
entitled to offer evidence in support of their claims. See Scheuer v. Rhodes, 416 U.S. 232,
236 (1974). The Court does not consider whether a plaintiff will ultimately prevail. See id.
A defendant bears the burden of establishing that a plaintiff’s complaint fails to state a claim.
See Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).
“A pleading that states a claim for relief must contain . . . a short and plain statement
of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). The statement

4

required by Rule 8(a)(2) must give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam)
(quoting Twombly, 550 U.S. at 555). Detailed factual allegations are not required. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, mere conclusory statements
will not do; “a complaint must do more than allege the plaintiff’s entitlement to relief.” Fowler
v. UPMC Shadyside, 578 F.3d 203, 211. Instead, a complaint must “show” this entitlement
by alleging sufficient facts. Id. “While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.” Ashcroft v. Iqbal, 129 S. Ct. 1937,
1950 (2009).
As such, the inquiry at the motion to dismiss stage is “normally broken into three
parts: (1) identifying the elements of the claim, (2) reviewing the complaint to strike
conclusory allegations, and then (3) looking at the well-pleaded components of the complaint
and evaluating whether all of the elements identified in part one of the inquiry are sufficiently
alleged.” Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
Dismissal is appropriate only if, accepting as true all the facts alleged in the complaint,
a plaintiff has not pleaded “enough facts to state a claim to relief that is plausible on its face,”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), meaning enough factual allegations
“‘to raise a reasonable expectation that discovery will reveal evidence of’” each necessary
element, Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly,
550 U.S. at 556). “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.” Iqbal, 129 S.
Ct. at 1949. “When there are well-pleaded factual allegations, a court should assume their

5

veracity and then determine whether they plausibly give rise to an entitlement to relief.”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009).
In deciding a motion to dismiss, the Court should consider the allegations in the
complaint, exhibits attached to the complaint, and matters of public record. See Pension
Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). The
Court may also consider “undisputedly authentic” documents when the plaintiff’s claims are
based on the documents and the defendant has attached copies of the documents to the
motion to dismiss. Id. The Court need not assume the plaintiff can prove facts that were not
alleged in the complaint, see City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 263
& n.13 (3d Cir. 1998), or credit a complaint’s “‘bald assertions’” or “‘legal conclusions,’” Morse
v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington Coat
Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)).
C. Dismissal of Claims Against Defendants Palakovich and Zobitne
Plaintiff first contests the Magistrate Judge’s determination that his claims against
Defendants Palakovich and Zobitne should be dismissed. (Objection at 2, Doc. 44).
Plaintiff’s claims against Defendants Palakovich and Zobitne are apparently based
upon their alleged mishandling of Plaintiff’s grievances stemming from the March 30, 2008
incident.2 Specifically, Plaintiff argues in his Objection that these two Defendants were
expressly notified of the prison’s alleged failure to address his requests for medical treatment
and claims of stolen property. (Id.). Yet, they “ignored/refused to supervise and provide
adequate help/treatment” and “also refused to rectify discrepancies in regards to the true
2

Plaintiff specifically alleges Palakovich and Zobitne violated his rights as established under
the Eighth and Fourteenth Amendments to the United States Constitution. (Objection at 2, Doc. 44).
6

worth of the Plaintiff’s property that was stolen.” (Id.).
As the Report and Recommendation correctly points out, “an inmate has no
constitutional right to a grievance procedure,” and denial of a grievance does “not infringe
upon [an inmate’s] constitutional right to petition the government for redress.” Caldwell v.
Beard, 324 Fed. Appx. 186, 189 (3d Cir. 2009). “Prisoners do have a constitutional right to
seek redress of their grievances from the government, but that right is the right of access to
the courts, and this right is not compromised by the failure of the prison to address his
grievances.” Wilson v. Horn, 971 F. Supp. 943, 947 (E.D. Pa. 1997). Therefore, the Court
notes that while redress for the alleged failure of the grievance system is not itself actionable
as a constitutional violation, the predicate grievance itself, not apparently sought in the
instant case, may be pursued through other channels.
However, the Magistrate Judge failed to consider that "[i]t is also possible to establish
section 1983 supervisory liability by showing a supervisor tolerated past or ongoing
misbehavior." Argueta v. United States Immigration & Customs Enforcement, 643 F.3d 60,
72 (3d Cir. 2011) (citing Baker v. Monroe Township, 50 F.3d 1186, 1191 n.3 (3d Cir. 1995).
While merely mishandling a grievance may not be a constitutional violation, “a supervisor
may be personally liable under § 1983 if he or she participated in violating the plaintiff's
rights, directed others to violate them, or, as the person in charge, had knowledge of and
acquiesced in his subordinates' violations.” A.M. v. Luzerne County Juvenile Det. Ctr., 372
F.3d 572, 586 (3d Cir. 2004).
In his response brief, Plaintiff suggests that this may well be the sort of liability he is
seeking against Palakovich and Zobitne, averring that their actions were “tantamount to

7

supervisory liability.” (Doc. 51 at 2). Admittedly, this claim is difficult to glean from Plaintiff’s
Amended Complaint. He merely states that Defendant Zobitne, as Unit Manager, had
disregarded the Plaintiff’s request and never responded back. (Am. Compl. at 5, Doc. 19).
And, although the exact hierarchy at the prison is not explained, this claim could serve as
the foundation for supervisor liability. As for Defendant Palakovich, the allegations are even
more barren, though it is clear that Ballard is claiming that Defendant Palakovich acted
intentionally in depriving Plaintiff of his property. (Id.). As such, both of these potential
claims are insufficient to survive the Motion to Dismiss, even under the liberal pro se
pleading standard,3 as additional factual recitations are required. However, as explained
below, Plaintiff will be given leave to amend.
In specific regard to Ballard’s requests for medical treatment, “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.” Spruill v. Gillis, 372 F.3d 218,
236 (3d Cir. 2004). In his Objection, Ballard does not allege that there was any concrete
reason for either Defendant to believe that the prison doctors were mistreating him, nor does
Plaintiff’s Amended Complaint. Instead, he merely avers that Defendant Zobitne had
disregarded Plaintiff’s grievances as he apparently never responded back or investigated.
(Compl. at 5, Doc, 19). However, deliberate indifference is not automatically established
where a prison employee “fail[s] to respond directly to the medical complaints of a prisoner
3

The Court acknowledges that “[e]ven in the formal litigation context, pro se litigants are
held to a lesser pleading standard than other parties.” Fed. Express Corp. v. Holowecki, 552 U.S.
389, 402 (2008).
8

who was already being treated by the prison doctor.” Durmer v. O'Carroll, 991 F.2d 64, 69
(3d Cir. 1993). “If 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.” Spruill,
372 F.3d at 218.
The Court agrees with the Magistrate Judge’s analysis that Plaintiff’s claims against
Palakovich and Zobitne fail to state a cognizable claim upon which relief may be granted,
and therefore will dismiss all claims against these two Defendants. However, the Court also
agrees that leave to amend is appropriate in this instance. “[I]f a complaint is subject to a
Rule 12(b)(6) dismissal, a district court must permit a curative amendment unless such an
amendment would be inequitable or futile.” Phillips v. County of Allegheny, 515 F.3d 224,
245 (3d Cir. 2008) (citation omitted). Furthermore, Federal Rule of Civil Procedure Rule
15(a) directs the Court to “freely give leave when justice so requires.” This principle applies
even in situations where Plaintiffs do not seek such a leave to amend, though a court may
ultimately dismiss if the Plaintiff does not ultimately submit such an amended pleading.
Phillips, 515 F.3d at 245. Therefore, the Court will afford Plaintiff an opportunity to amend
his Complaint.
D. Dismissal of Medical Malpractice Claims for Plaintiff’s Noncompliance with Rule
1042.3 of the Pennsylvania Rules of Civil Procedure
Plaintiff’s second objection concerns the Magistrate Judge’s finding that his claims
against the Medical Defendants should be dismissed for failure to comply with Pennsylvania
Rules of Civil Procedure Rule 1042.3. (Objection at 3, Doc. 44).

9

This Rule provides in pertinent part:
Rule 1042.3. Certificate of Merit
(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 rule applies to pro se and represented plaintiffs alike and
constitutes a rule of substantive state law with which plaintiffs in federal court must comply.”
Perez v. Griffin, No. 1:06-CV-1468, 2008 WL 2383072, at *3 (M.D. Pa. June 9, 2008).
The Defendants made clear their intention to seek dismissal of the Complaint if the
Plaintiff failed to file such a Certificate of Merit (“COM”) as provided above. (Doc. 17). After
receiving an extension of time to file the COM until November 8, 2010 (Doc. 22), on
November 2, 2010, Plaintiff ultimately filed a “Motion for Pleading Special Matters.” (Doc.
34). In response to this filing, the Magistrate Judge commented that it was unclear what
exactly Ballard was seeking in his Motion, and denied it to the extent that it was a further
request for additional time to file. (Doc. 37 at 4). However, the Magistrate Judge elected to
“construe this pleading as Ballard’s effort to comply with Rule 1042.3 by certifying that he will
10

not rely upon any expert testimony to support his claim, and will leave the question of the
adequacy of this certificate of merit for resolution at another time.” (Id.). However, in his
Report and Recommendation, the Magistrate Judge simply opined that Plaintiff’s “failure to
comply with Rule 1042.3 is now a bar to this state-law claim.” (Report and Recommendation
at 20, Doc. 38).
The Magistrate Judge never endeavored on an analysis to determine whether the
Plaintiff’s attempted COM sufficed for his malpractice action. Plaintiff argues that the
Magistrate Judge misconstrued his November 2nd Motion and failed to acknowledge his
submission of a COM. (Doc. 44 at 3). The Court is inclined to agree. Upon closer
inspection of the November 2nd Motion, it is clear that Ballard was attempting to satisfy the
third prong of Pa. R. Civ. P. 1042.3 in which a COM may be predicated on a declaration that
expert testimony will not be necessary in a particular case.4 Though he does not style his
Motion explicitly as a “Certificate of Merit,” Plaintiff specifically requests in his Motion that the
Court permit the case to proceed, citing both the Rule and case law for the proposition that
“expert testimony of an appropriate licensed profession is unnecessary for the prosecution
of the claim.” (Doc. 34 at 1-2).
“We construe pro se filings liberally, and hold them ‘to less stringent standards than
formal pleadings drafted by lawyers.’” Bivings v. Wakefield, 316 Fed. Appx. 177, 181 (3d Cir.
2009) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)). Thus, while I am inclined to find
that Plaintiff filed a sufficient COM with the Court, I will reserve judgment on this issue as

4

The Court also notes that, to the extent Plaintiff files a Certificate of Merit under part (c),
Plaintiff will be precluded at trial from presenting expert testimony at trial. Note to Pa. R. Civ. P. No
1042.3(c)(3).
11

Plaintiff has squarely failed to comply with part (b) of the rule, providing that “a separate
certificate of merit shall be filed as to each licensed professional against whom a claim is
asserted.” Pa. R. Civ. P. 1042.3(b)(1). In so much as Plaintiff has not fulfilled this aspect
of the Pennsylvania Rules, the Court agrees with the Magistrate Judge that Rule 1042.3 has
not been satisfied.
Therefore, the Court will adopt the Magistrate Judge’s determination that the medical
malpractice claim must now be dismissed. (Doc. 38 at 22). “The failure to submit such a
certificate is, in state court, fatal to a plaintiff's claim: under Rule 1042.6, if, after 60 days, the
plaintiff has not submitted the certificate, the defendant can direct the prothonotary to enter
a judgment of non pros.” McElwee Group, LLC v. Mun. Auth. of Elverson, 476 F. Supp. 2d
472, 475 (E.D. Pa. 2007). However, there is no direct analog for such a disposition in the
federal courts, and “this lack of uniformity between federal and state enforcement of the
COM rule produces awkward procedural issues for a federal court adjudicating these
motions.” Keel-Johnson v. Amsbaugh, No. 1:07-CV-200, 2009 WL 648970 at *3 (M.D. Pa.
March 10, 2009).
However, “[u]nlike dismissal with prejudice, the entry of judgment non pros is a default
judgment that does not bar the plaintiff from commencing another suit upon the same cause
of action.” Bresnahan v. Schenker, 498 F. Supp. 2d 758, 762 (E.D. Pa. 2007) (citation
omitted). In fact, Pa. R. Civ. P. 3051, allows a plaintiff to avoid a non pros judgment where
they can demonstrate a compelling excuse for failing to follow Rule 1042.3. Womer v.
Hilliker, 589 Pa. 256, 272 (Pa. 2006). As such, federal courts have determined that the non
pros disposition “is effectively the same as a dismissal without prejudice.” Keel-Johnson,

12

2009 WL 648970 at *3. Therefore, the Magistrate Judge’s determination that, having
determined that Plaintiff had failed to meet the requirements of Rule 1042.3, the Plaintiff’s
claim should be dismissed without prejudice was not in clear error and the Court will adopt
this Recommendation.
III. Conclusion
In my review of the Magistrate Judge’s Report and Recommendation, I find that the
non-objected portions, specifically the Magistrate Judge’s determination that Plaintiff’s claims
are not time-barred, were not in clear error. As for the objected portions, I agree with the
Magistrate Judge’s ultimate determinations that Plaintiff’s claims against Defendants
Palakovich and Zobitne should be dismissed, but will grant Plaintiff leave to amend to correct
those allegations. As for the medical malpractice claims against the Medical Defendants,
Plaintiff’s claim will be dismissed without prejudice.
An appropriate order follows.

October 25, 2011
Date

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge

13

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TODD DARRELL BALLARD,
CIVIL ACTION NO. 3:10-CV-1456

Plaintiff,
v.

(JUDGE CAPUTO)
CO 1 WILLIAMS, et al.,
(MAGISTRATE JUDGE CARLSON)
Defendants.

ORDER
NOW this 25th day of October, 2011, after consideration of Magistrate Judge Martin
C. Carlson’s Report and Recommendation (Doc. 38), IT IS HEREBY ORDERED THAT:

(1)

The Report and Recommendation is ADOPTED.

(2)

Plaintiff’s claims against Defendants Palakovich and Zobitne are DISMISSED.
Plaintiff is given thirty (30) days from the date of this Order to file an amended
complaint against these Defendants.

(3)

Plaintiff’s medical malpractice claims against the Medical Defendants are
DISMISSED without prejudice for failure to comply with Pa. R. Civ. P. 1042.3.

(4)

This matter is RECOMMITTED to the Magistrate Judge.

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge