Peraza v. United States Of America
MEMORANDUM (Order to follow as separate docket entry)In light of his failure to present any valid reason as to why an expert witness is not required or show that he has retained an expert witness, it is appropriate for this Court to dismiss his FTCA claim of negligent medical care without prejudice. See Osorio v. United States, 2007 WL 2008498 *2 (W.D. Pa. July 5, 2007); see also Henderson v. Pollack, 2008 WL 282372 *4 (M.D. Pa. Jan 31, 2008)(Caldwell, J.)(citing Hartman v. Low Security Correct ional Institution, Allenwood, 2005 WL 1259950 *3 (M.D. Pa. May 27, 2005)(Muir, J.). For the reasons set forth herein, Defendants motion for summary judgment will be granted. An appropriate Order will enter.Signed by Honorable Richard P. Conaboy on 9/27/13. (cc)
IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA,
This pro se Federal Tort Claims Act (FTCA) complaint was
filed by Paul Peraza, an inmate presently confined at the United
States Penitentiary, Florence, Colorado (USP-Florence).
Defendant is the United States of America.1
Plaintiff’s action regards events which purportedly
transpired during his prior confinement at the Allenwood United
States Penitentiary, White Deer, Pennsylvania (USP-Allenwood) which
lasted from March 29, 2009 until April 28, 2011.
According to the Complaint, on or about June 4, 2010
Plaintiff was left “unattended” in a strip cage “while grossly
intoxicated” by Correctional Officers Dunkelberger and Hicks. Doc.
1, ¶ IV(1).
When “he was later checked” by Correctional Officer
Yarger, Peraza allegedly requested permission to use the bathroom
Under the FTCA, sovereign immunity is waived against
persons suing the federal government for the commission of various
torts. See Simon v. United States, 341 F. 3d 193, 200 (3d Cir.
2003). The only proper Defendant for purposes of an FTCA claim is
the United States of America. See 28 U.S.C. § 2679(d).
or in the alternative to be provided a urinal.
refused his request, Plaintiff states that he was forced to urinate
on the floor.
The next time Peraza saw Yarger he purportedly informed the
officer that there was urine on the cage floor.
It is asserted
that Yarger did not take any action to clean up the urine and again
left Plaintiff unattended despite the fact that the prisoner was
Peraza claims that he subsequently slipped in
the urine and hit his head on the concrete floor.
suffered a gash which required sutures.
Following this incident, Peraza was placed in four point
restraints by five correctional officers while still “grossly
intoxicated” and “clearly disoriented.”2
Id. at p. 4.
purportedly left unattended in that position and “was overtaken
with alcohol poisoning” which required him to undergo emergency
treatment at an outside hospital.3
monetary damages for disfigurement, loss of memory and
A copy of the May 23, 2012 denial of Plaintiff’s
administrative tort claim which accompanies the Complaint describes
Peraza as being both intoxicated and combative. See Doc. 1,
Four point restraints involves placing an inmate in a supine
position on his bed and binding his hands in soft restraints to the
corners of his bed. See Kee v. Hasty, 2004 WL 807071 1, n. 3.
(S.D. N.Y. April 14, 2004).
Peraza theorizes that due to a a combination of his head
injury, four point restraints, high level of intoxication, and
being left unattended he suffered alcohol poisoning.
concentration, as well as emotional distress suffered as a result
of the incident.4
Presently pending is Defendant’s motion to dismiss or in the
alternative for summary judgment.
See Doc. 30.
The motion is ripe
Defendant claims that it is entitled to entry of dismissal
or in the alternative summary judgment on the grounds that: (1)
Plaintiff has failed to establish a viable negligence claim; (2)
Peraza’s slip and fall claim is barred by Pennsylvania’s
comparative negligence statute; (3) the Defendant did not owe a
duty to Plaintiff under
assumption of risk doctrine;6 and (4)
Peraza failed to submit a required certificate of merit.
The Complaint further contends that Plaintiff developed a
urinary tract infection due to negligent treatment provided to him
at the hospital. However, this claim does not implicate negligent
treatment by any federal official and thus will not be considered.
By Order dated April 3, 2013, Plaintiff was granted
thirty (30) days following resolution of his motion to compel
discovery in which to file a response to Defendants’ dispositive
motion. Plaintiff’s second motion to compel was partially granted
by Order dated August 23, 2013. Hence, Plaintiff’s response to the
dispositive motion was due September 23, 2013.
Pennsylvania’s assumption of the risk doctrine bars
recovery “if a defendant can show that the injured party knew of
the dangerous condition, which was both obvious and avoidable, yet
still voluntarily encountered it.” Harris v. Kellogg, Brown & Root
Services, Inc., 724 F.3d 458, 470 (3d Cir. Aug. 1, 2013). The
defendant must show that the nature and extent of the risk were
fully appreciated and that the plaintiff voluntarily proceeded to
face that risk.” Barnes v. American Tobacco, Co., 161 F.3d 127 (3D
Standard of Review
Defendants’ pending dispositive motion is supported by
evidentiary materials outside the pleadings.
Federal Rule of Civil
Procedure 12(d) provides in part as follows:
If, on a motion under Rule 12(b)(6) or
12(c), matters outside the pleading are
presented to and not excluded by the
court, the motion must be treated as one
for summary judgment under Rule 56. All
parties must be given reasonable
opportunity to present all the material
that is pertinent to the motion.
Fed. R. Civ. P. 12(b)(d).
The Court will not exclude the
evidentiary materials accompanying the Defendant's motion.
the motion will be treated as solely seeking summary judgment.
Latham v. United States, 306 Fed. Appx. 716, 718 (3d Cir.
2009)(when a motion to dismiss has been framed alternatively as a
motion for summary judgment such as in the present case, the
alternative filing “is sufficient to place the parties on notice
that summary judgment might be entered.”)
Summary judgment is proper if “the pleadings, the discovery
and disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that the
movant is entitled to a judgment as a matter of law.”
Fed. R. Civ.
P. 56(c); See also Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d
A factual dispute is “material” if it might affect the
outcome of the suit under the applicable law.
Lobby, Inc., 477 U.S. 242, 248 (1986).
Anderson v. Liberty
A factual dispute is
“genuine” only if there is a sufficient evidentiary basis that
would allow a reasonable fact-finder to return a verdict for the
Id. at 248.
The court must resolve all doubts
as to the existence of a genuine issue of material fact in favor of
the non-moving party.
Saldana, 260 F.3d at 232; see also Reeder v.
Sybron Transition Corp., 142 F.R.D. 607, 609 (M.D. Pa. 1992).
Unsubstantiated arguments made in briefs are not considered
evidence of asserted facts.
Versarge v. Township of Clinton, 984
F.2d 1359, 1370 (3d Cir. 1993).
Once the moving party has shown that there is an absence of
evidence to support the claims of the non-moving party, the nonmoving party may not simply sit back and rest on the allegations in
See Celotex Corp. v. Catrett, 477 U.S. 317, 324
Instead, it must “go beyond the pleadings and by [its] own
affidavits, or by the depositions, answers to interrogatories, and
admissions on file, designate specific facts showing that there is
a genuine issue for trial.”
Id. (internal quotations omitted); see
also Saldana, 260 F.3d at 232 (citations omitted).
judgment should be granted where a party “fails to make a showing
sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden at
Celotex, 477 U.S. at 322-23.
“‘Such affirmative evidence
– regardless of whether it is direct or circumstantial – must
amount to more than a scintilla, but may amount to less (in the
evaluation of the court) than a preponderance.’”
Saldana, 260 F.3d
at 232 (quoting Williams v. Borough of West Chester, 891 F.2d 458,
460-61 (3d Cir. 1989)).
Slip and Fall
Defendant’s initial argument is that Plaintiff has failed to
state or establish a negligence claim with respect to his slip and
See Doc. 34, p. 9.
The Defendant explains that entry of
summary judgment is appropriate since prison staff did not know of
any unreasonable risk to Plaintiff’s safety prior to his fall.
Alternatively, it is argued that Defendant did not know that
Plaintiff would fail to protect himself from a risk he created.
The FTCA provides a remedy in damages for the simple
negligence of employees of the United States.
Muniz, 374 U.S. 150, 150 (1963).
See United States v.
Under the FTCA, sovereign
immunity is waived against persons suing the federal government for
the commission of various torts.
F. 3d 193, 200 (3d Cir. 2003).
See Simon v. United States, 341
A plaintiff pursuing an FTCA claim
(1) that a duty was owed to him by a defendant; (2) a
negligent breach of said duty; and (3) that the negligent breach
was the proximate cause of the plaintiff's injury/loss.
United States, 196 F. Supp. 362, 364 (W.D. Pa. 1961).
It is well-settled that a federal district court addressing
an FTCA action must apply the law of the state, in this case
Pennsylvania, in which the alleged tortious conduct occurred.
U.S.C. § 1346(b) (1996); Toole v. United States, 588 F.2d 403, 406
(3d Cir. 1978); O'Neal v. Department of Army, 852 F. Supp. 327,
334-35 (M.D. Pa. 1994); Turner v. Miller, 679 F. Supp. 441, 443
(M.D. Pa. 1987).
However, in cases such as this which involve
federal prisoners, it has been recognized that the government's
duty of care is one of ordinary diligence.
Turner, 679 F. Supp. at 443.
See 18 U.S.C. § 4042;
The applicable law with respect to
the burden and quantum of proof under the FTCA remains that of the
state in which the alleged tortious conduct occurred.
United States, 682 F. Supp. 23, 25 (M.D. Pa. 1987).
Under Pennsylvania law, a plaintiff is required to show that
the defendant's negligence was the proximate cause of his injury by
a preponderance of the evidence.
Baum v. United States, 541 F.
Supp. 1349, 1351 (M.D. Pa. 1982).7
inmates as being invitees.
Pennsylvania law recognizes
See Graf v. County of Northhampton, 654
A.2d 131, 134 (Pa. Cmwlth. 1995).
As a result, an inmate/invitee
who seeks to establish liability for physical harm caused by a
condition on the land must show that the possessor of the land: (1)
knows or by the exercise of reasonable care would discover the
condition and should realize that it involves an unreasonable risk
of harm to the invitee; (2) should expect that the invitee will not
discover or realize the danger or will fail to protect himself
Pennsylvania law defines proximate cause as causation
which was a substantial factor in bringing about the injury. Hamil
v. Bashline, 392 A.2d 1280, 1284 (Pa. 1978).
against it; and (3) fails to exercise reasonable care to protect
the invitee against the danger.
Carrender v. Fitterer, 469 A.2d
120, 123 (Pa. 1983).
The mere existence of a harmful condition or the happening
of an accident does not by itself raise a presumption of
Moultrey v. Great A & P Tea Co., 422 A.2d 593, 596,
n.5 (Pa. Super. 1980).
Under Pennsylvania law, a plaintiff is
required to show that the defendant's negligence was the proximate
cause of his injury by a preponderance of the evidence.
F. Supp. at 1351.
Thus, “[a]n invitee must prove either the
proprietor of the land had a hand in creating the harmful
condition, or he had actual or constructive notice of such
Swift v. Northeastern Hospital, 690 A.2d 719, 722 (Pa.
A supporting declaration submitted under penalty of perjury
by USP-Allenwood Lieutenant Matthew Saylor provides that after
observing Peraza entering the prison dining hall for lunch, he
suspected that the prisoner was intoxicated and directed a
correctional officer to perform a breathalyzer test.
1, p. 16. ¶ 5.
See Doc. 36-
Peraza refused to take the breathalyzer and was
escorted while in hand restraints to the prison’s Special Housing
Unit (SHU) and placed in a holding cell pending further
A declaration by Lieutenant James Marr states that Peraza
was escorted to the SHU at approximately 12:45 p.m.
placed in a holding cell Peraza refused an order by Marr to have
his restraints removed and stood in a corner of the holding cell
where he proceeded to urinate on the floor.
Marrr states that he
never heard Plaintiff make a request to use a toilet or urinal.
Correctional Officer David Robatin has likewise submitted a
declaration acknowledging that he was working the SHU on June 4,
Robatin avers that approximately 1:00 p.m. he heard “a
commotion coming from the [SHU] holding cell.”
Id. at p. 38, ¶ 4.
Robatin states he immediately responded and saw Plaintiff lying on
the floor of his cell.
A declaration by Senior Officer Specialist David Hughes
states that while assigned to the SHU on the day in question he
observed Plaintiff standing in the corner of the holding cell at
approximately 12:45 p.m. with his hands handcuffed behind his back.
See id., at p. 28, ¶¶ 4-5.
When Hughes asked Perzaza what he was
doing, the inmate replied that he was urinating.
Hughes adds that
“at no time did I hear the Plaintiff request to use a toilet or ask
for a urinal.”
Id. at ¶ 7.
Hughes adds that the Plaintiff
stepped back, he slipped and fell hitting his head on the floor and
wall and suffered a laceration above his left eye.
According to Hughes’ declaration, as well as a submitted
videotape of the incident8, when officers attempted to transport
The videotape footage, which has been viewed by the
Court, begins at 1:12 p.m. at which point Plaintiff has already
fallen and is seated in a wheelchair outside the holding cell
Plaintiff to the infirmary he was combative.
actions included the yelling of obscenities, spitting at the
officers, attempts to bite two correctional officers, and
resistance to medical treatment.
Due to his unruly behavior,
Plaintiff was placed in four point restraints.
Peraza admits that he was highly intoxicated on June 4, 2010
in clear violation of prison rules.
condition was self induced.
He does not dispute that his
Plaintiff also acknowledges that he
urinated on the floor of his holding cell creating the condition
upon which he slipped and fell.9
However, Plaintiff claims that the creation of the risk was
not due to his drunken misadventure but rather caused by
Correctional Officer Yarger’s refusal to provide him with access to
a toilet or urinal.10
In a declaration submitted under penalty of
perjury, Yarger admits that he escorted Plaintiff to the SHU
holding cell and then requested that Peraza submit to breathalyzer
Yarger generally denies having any involvement with
respect to the other issues raised by Plaintiff.
awaiting transfer. See Doc. 36, Exhibit 10-1.
The parties admit that pursuant to prison policy, urinals
are to be given to inmates upon request and urine is to be cleaned
up as soon as possible.
Since Plaintiff does not dispute that he refused to
allow his hand restraints to be removed it is unclear as to how he
envisioned himself using a urinal. Likewise, he offers no
explanation as to why it would have been reasonable to allow him
out of the cell to use a toilet given his non-compliant behavior.
failure to definitively deny that Peraza asked him for the use of a
toilet or a urinal, the Court finds that there is an a factual
dispute as to whether Plaintiff requested the use of a toilet or
urinal from Yarger.
Despite that factual dispute, the undisputed record shows
that after being placed in the holding cell the Plaintiff was noncompliant and refused to allow his hand restraints to be removed.
Based upon those actions, it is apparent to this Court that poor
decision making by the Plaintiff impeded his ability to use either
a urinal or obtain access to a toilet.
Defendant further asserts that the urine could not have been
cleaned up immediately due to the Plaintiff’s intoxicated
According to the evidence submitted by Defendant,
Plaintiff was escorted to the SHU at approximately 12:45 p.m.
approximately 1:00 p.m., Correctional Officer David Robatin heard a
commotion coming from the holding cell and discovered that the
Plaintiff had fallen in his cell.
See Doc. 36-1, p. 38 ¶ 4.
submitted videotape shows that by 1:12 p.m. Plaintiff was out of
the holding cell and seated in a wheelchair.
Based upon that
approximated time line, the events relevant to Peraza’s slip and
fall transpired within a brief period.
Clearly, there is no
evidence which could support a claim that Peraza was either denied
access to a toilet or urinal for a prolonged period or that the
urine remained on the floor for an unreasonable period of time.
It is undisputed that: (1) Plaintiff was placed in the SHU
holding cell at approximately 12:45 p.m.; (2) he was intoxicated,
and non-compliant as evidenced by the fact that his hands were
handcuffed behind him because he refused to allow them to be
removed; (3) within minutes of his arrival Peraza urinated on the
floor of the holding cell; (3) Plaintiff was clearly aware of the
presence of urine on the floor; (4) within at most minutes he
thereafter slipped and fell in the urine while still intoxicated.
Although liberal standards must be applied to pro se
litigants, this is clearly not a case where urine was left on a
cell floor for an unreasonable period of time.
refused to allow his hand restraints to be removed, it is equally
apparent that even if one had been provided he could not have used
Rather, this is simply a case where the Plaintiff as a
result of his self-induced intoxication, made an ill advised
decision to refuse the removal of his hand restraints and chose to
urinate on the floor of his cell thus, creating a risk.
Due to his
intoxicated and agitated condition, Peraza then failed to exercise
reasonable care which caused him to slip in his own urine and fall.
Based upon those considerations, the Complaint is simply
insufficient to assert a cognizable negligence claim under the
controlling Pennsylvania state legal standards.
of summary judgment in favor of Defendants with respect to Peraza’s
FTCA claim that his slip and fall was the result of negligence by
USP-Allenwood staff is appropriate.
Defendant further argues that “if this Court were to find
that Peraza can establish a negligence claim, then Peraza is barred
from recovery due to the comparative negligence statute.”
Specifically, they assert that Plaintiff’s negligence with
respect to his slip and fall claim “exceeds that of all alleged
negligence of the prison staff (well over 50%).”
Id. at p. 16.
Under Pennsylvania’s comparative negligence statute, 42 Pa.
Cons. Stat. Ann. § 7102, a plaintiff’s negligence bars recovery
only when it is greater than that of the defendant.
v. CSX Transp. Inc., 196 Fed. Appx. 65 (3d Cir. 2006).
recognizes that comparative negligence is ordinarily an issue for
Nonetheless, assuming that Yarger could be deemed
negligent by denying a request by Plaintiff to use a urinal upon
the prisoner’s arrival in the SHU, it is apparent for the
considerations listed above, that negligence of the Plaintiff,
stemming from his drunken, belligerent behavior (including his
decision to not allow removal of his hand restraints) and his ill
conceived decision to urinate on the floor of his cell, exceeds all
alleged negligence attributed to the prison staff.
Defendant asserts that Peraza needs expert testimony to
support his allegation that the medical treatment provided to him
on June 4, 2010 deviated from acceptable medical standards, and to
show that the deviation was the proximate cause of his injuries.”
Doc. 34, p. 19.
The Defendant concludes that because Plaintiff has
failed to either file a certificate of merit as required by
Pennsylvania Rule of Civil Procedure 1042.3 or seek an extension of
time in which to do so, his FTCA claim of medical negligence cannot
On March 7, 2013, Plaintiff responded to this argument by
executing and filing a certificate pursuant to Pennsylvania Rule of
Civil Procedure 1042.3(a)(3) stating that expert testimony by an
appropriate licensed professional was not required in this matter
as all claims are based on established and thoroughly documented
procedure and practice.
See Doc. 45.
The Complaint indicates that the USP-Allenwood medical staff
was negligent by allowing Peraza to be placed in four point
restraints while intoxicated and after having suffered a head
Plaintiff concludes that this negligence caused him to
suffer alcohol poisoning which required him to undergo emergency
medical care at an outside hospital.
In order to present a prima facie case of medical
malpractice/negligence under Pennsylvania state law, a plaintiff
has the burden of presenting expert testimony by an appropriate
licensed professional who can testify to a reasonable degree of
medical certainty that the actions or omissions of the defendant
deviated from acceptable medical standards, and that said deviation
constituted a substantial factor in causing the Plaintiff’s injury.
Simpson v. Bureau of Prisons, 2005 WL 2387631 *5 (M.D. Pa. Sept.
28, 2005)(Vanaskie, C.J.).11
Rule 1042.3 requires a person who brings a claim of medical
malpractice/negligence to file an appropriate certificate of merit
either with the complaint or within sixty (60) days thereafter. The
Rule 1042.3 certificate must certify that either: (1) an
appropriate licensed professional has supplied a written statement
that there exists a reasonable probability that the conduct which
is the subject of the complaint fell outside acceptable
professional standards and was a cause in bringing about the harm;
(2) the claim of deviation by defendant from an acceptable
professional standard is based solely upon allegations that other
licensed professionals for whom defendant is responsible deviated
from an acceptable professional standard; (3) expert testimony of
an appropriate licensed professional is unnecessary.
Courts within this circuit have recognized that Rule 1042.3
is substantive law and should be applied by federal courts sitting
Schwalm v. Allstate Boliler & Construction, 2005 WL
1322740 *1 (M.D. Pa. May 17, 2005)(Caputo, J.); Scaramuzza v.
The only exception to this rule is where the matter “is
so simple and the lack of skill or want of care is so obvious as to
be within the range of ordinary experience and comprehension of
even nonprofessional persons.” Berman v. United States, 205 F.
Supp.2d 362, 264 (M.D. Pa. 2002) (citing Brannan v. Lankenau
Hospital, 490 Pa. 588 (1980). However, the instances when expert
opinions may be unnecessary are rare. See Simpson, 2005 WL *6;
Arrington v. Inch, 2006 WL 860961 *7 (M.D. Pa. March 30, 2006)
Sciolla, 345 F. Supp.2d 508, 509-10 (E.D. Pa. 2004).
It has also
been held that a Plaintiff pursuing an FTCA claim must comply with
Pennsylvania substantive law.
Arrington, 2006 WL 860961 at *7.
addition, Plaintiff’s incarceration or pro se status is not a
viable basis upon which to excuse compliance with Rule 1042.3 or
the requirement of coming forth with expert medical testimony.
Perez v. Griffin, 2008 WL 2383072 *3 (M.D. Pa. June 9, 2008)(Rule
1042.3 applies to incarcerated and pro se plaintiffs and
constitutes a rule of substantive state law to which plaintiffs in
federal court must comply).
Peraza has not identified any medical expert or submitted a
report from any medical expert.
However, he has submitted a notice
vaguely indicating that the expert testimony is unnecessary.
order to state a prima facie case of negligence under the FTCA, it
is the conclusion of this Court that Peraza must come forward with
expert testimony to support his claim that the treatment and
decisions afforded to him on June 4, 2010 by the USP-Allenwood
medical staff deviated from acceptable medical standards, and to
show that the deviation was the proximate cause of his injuries.
Peraza’s bald self-serving assertion that expert testimony is not
required is not compelling.
In light of his failure to present any valid reason as to
why an expert witness is not required or show that he has retained
an expert witness, it is appropriate for this Court to dismiss his
FTCA claim of negligent medical care without prejudice.
v. United States, 2007 WL 2008498 *2 (W.D. Pa. July 5, 2007); see
also Henderson v. Pollack, 2008 WL 282372 *4 (M.D. Pa. Jan 31,
2008)(Caldwell, J.)(citing Hartman v. Low Security Correctional
Institution, Allenwood, 2005 WL 1259950 *3 (M.D. Pa. May 27,
For the reasons set forth herein, Defendant’s
motion for summary judgment will be granted.
An appropriate Order
S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: SEPTEMBER 27, 2013
Based upon the conclusions reached herein, a discussion
of Defendant’s assumption of the risk argument is not required.
The Court recognizes that Plaintiff may have only
recently received some discovery responses from the Defendant.
Moreover, although Peraza responded to one of the pending summary
judgment arguments by filing his “Certificate of Merit,” he has not
filed an opposing brief and may not have realized that the deadline
for doing so recently passed.
Accordingly, Plaintiff is advised that he may seek
reconsideration of the Court’s determinations herein by filing a
motion for reconsideration within fourteen (14) days of the date of
this Memorandum and Order.
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