Boomer v. United States of America, Dept of Justice et al

Filing 88

MEMORANDUM (Order to follow as separate docket entry) re 18 MOTION to Dismiss Signed by Honorable Richard P. Conaboy on 9/30/15. (cc)

IN THE UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

RODNEY BOOMER,
Plaintiff

v.

CIVIL NO. 3:CV-14-1692

FILED
SCRANTO

(Judge Conaboy)
CHARLES SAMUELS, ET AL.,
Defendants

s:p 3 0 2015
MEMORANDUM

Background

sently conf

Rodney Boomer, an inmate
States Pen

at t

iary, Lewisburg, Pennsylvania (USP-Lewisburg),

recently filed this pro se action pursuant to t
Claims Act (FTCA).
fil

United

An Amended Complaint

Federal Tort

(Doc. 10) was previously

The United States of America is the sole Defendant in this

matter.
Plaintiff states that he was arrested and taken
custody on February 21, 2006.

According to t

o fe

ral

Amended Complaint

state and federal law enforcement authorities involved in Boomer's
arrest

lsely indi

in the paperwork relat

case that he had cooperated with authorities.

to his criminal
Doc. 10,

<[[

3.

While confined at the Federal Correctional Institut
Gilmer, West Virginia (FCI-Gilmer)

in 2008 Plaintiff allegedly

discovered that this false accusation of police c

ration could

ry computer system.

be accessed via the inmate law I
1

Plaintiff

states that he notified the Bureau of Prisons

(BOP)

the false accusation had placed his life in danger.

in writing that
However, his

notification was disregarded and he was transferred to the
Hazelton United States Penitentiary, Bruceton Mills, West Virginia
(USP-Hazelton) during 2009.
Inmates at USP-Hazleton purportedly discovered the false
police cooperation information and Plaintiff "almost lost his life"
and was placed in solitary confinement.

Id.,

~

8.

Boomer also

allegedly had items of personal property including legal papers
stolen.

See id. at

~

12.

Plaintiff contends that USP-Hazleton

officials also disregarded his requests voicing concerns for his
safety.
Next, Boomer was transferred to the United States
Penitentiary, Coleman, Florida (USP-Coleman) and upon his arrival
he informed prison officials of the life threatening risks caused
by the false cooperation information.

The Amended Complaint

maintains that Plaintiff was again almost killed at USP-Coleman, as
the result of that incident he was once again placed in solitary
confinement.

In addition, some of Boomer's personal property items

were again purportedly stolen.
Plaintiff states that he was then transferred to the Allenwood
United States Penitentiary, White Deer, Pennsylvania (USP­
Allenwood) where his voiced concerns for his personal safety were
again allegedly ignored by prison staff.

2

As a result, the Amended

Complaint maintains that thereafter another life threatening
inci

which again resulted in Boomwer's placement in

t

He was also similarly subject

solitary

to

rty including "certain federal case

personal

ft of

rs."

at

p 15.

Plaintiff was next transferred to the United States
tentiary, Tucson, Arizona (USP-Tuscon).

While at

Plaintiff's life was again threatened which res

in a transfer

where he placed in the prison's

to USP-

ility

al

Unit (SMU). On August 23, 2013, Plaintiff cIa

es of his federal case papers.

turn over

y transpi

aIle

refus

A second a

ercat

on October 22, 2013 when Boomer was accus

by

r 1, 2013, Plaintiff states that his cell mate

On
h

assault

after expressing a belief that Boomer

tali

rated

As a result of this attack, Plaintiff was

with lawen

for a concussion, facial fractures
. at

hand and

~

20.

a broken le

The Amended

that these assaults are occurring because prison offi
cont

to

isoner of cooperating with authorities.

another

ho

was

in an altercation with his cell mate after

invol

nt

1

int
als are

failing to protect his safety by
requests
New York

ing

protection and housing h
ty inmates who are aware of t

ration rumor.

3

se

The Amended Complaint also asserts that Plaintiff is not

oper medical care for his seizure condition, slow

provided with

speech, memory loss, neck and back pain, and a toe nail cond
See id. at p. 12.

The purported ne

i

ion.

nt medical care

seizure medication Dilant

denial of

ing

and failure to

s
de a

neurological evaluation.
Present

pending is Defendant's mot
Doc. 18.

summary j

to dismiss and for
s

motion is ripe for

consideration.
Discussion
Motion to Dismiss

Defendant's

ng disposit

evidentiary mate

motion is supported by

als outside the

Federal Rule of Ci

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 summa
judgment under
Rule 56. All parties must
n reasonable
ty to present all
mate
1 that is
to the motion.
Fed. R. Civ. P. 12 (b) (d).
This Court

11 not exclude the

accompanying the Defendant's motion.

ntiary materials
Thus, t

treated as solely seeking summary judgment.
States, 306 Fed.
dismiss has been f

716, 718

ir motion will be
Latham v. United

(3d Cir. 2009) (when a motion to

alternatively as a motion for summary

4

1

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

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
Cir. 2001).

A factual dispute is "material" if it might affect the

outcome of the suit under the applicable law.
Lobby,

Inc.

(3d

I

477 u.S. 242, 248

(1986).

Anderson v. Liberty

A factual dispute

lS

"genuine" only if there is a sufficient evidentiary basis that
would allow a reasonable fact-finder to return a verdict for the
non-moving party.

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.
Sybron Transition Corp.

Saldana, 260 F.3d at 232; see also Reeder v.
I

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 non­
moving party may not simply sit back and rest on the allegations in

5

into

its

Inst

(1986) .

See Celotex CorD.

V.

Catrett, 477 U.S. 317, 324

, it must "go beyond the

ngs and by [its] own

ts, or by the depositions, answers to interrogatories, and

affi

admissions on file, designate specific facts showing that there is
issue for trial."

a

~~~=,

Id.

(internal

260 F.3d at 232 (citations

ations omitted); see
tted).

Summary

should be granted where a party "fails to make a showing

j

suf

cient to establish the existence of an element essential to

that

y's case, and on which that party

trial."

~=====,

477 U.S. at 322-23.

"

11 bear the burden at

,

affirmat

ess of whether it is direct or circumstant

re

amount to more than a scintilla, but may amount to

1

evidence
must

ss (in the

evaluation of the court) than a preponderance.'"
at 232

260 F.3d

ing Williams v. Borough of West Chester, 891 F.2d 458,

460 61 (3d Cir. 1989)).
FTCA
The FTCA provides a remedy in damages for
negl

of employees of the United States.
374 U.S. 150, 150 (1963).

simple
See United States v.

r the FTCA, sovereign

y is waived against persons

federal government for

the commission of various torts.
F. 3d 193, 200

(3d Cir. 2003).

A plaintiff pursuing an FTCA claim must show:
was owed to him by a defendant;

(2) a negli
6

(1) that a duty

breach of said

duty; and (3) that the neg 1

breach was the proximate cause of

the plaintiff's injury/loss.

362, 364

(W.O. Pa. 1961).

only proper Def

for purposes

of an FTCA cIa

is the United States of America.

2679 (d) .

for limited

See 28 U.S.C.

§

rcumstances, an FTCA claim in

federal court is limited to recovery of the sum certain amount
requested in the underlying
~~~~~~~~,

istrative claim.l

See MCMichael

856 F.2d 1026, 1035 (8 t t Cir. 1988).2

It is well settled that a federal district court addressing an
FTCA action must apply the law of

state, in this case

Pennsylvania, in which the aIle
U.S.C.

§

1346(b)

tortious conduct occurred.

(1996); Toole v. United States, 588 F.2d 403,

(3d Cir. 1978);

8

334-35 (M.D. Pa. 1994);
(M.D. Pa. 1987).

679 F.

441, 443
ch involve

federal prisoners, it has been recognized that
ligence.

406

F. Supp. 327,

However, in cases such as this

duty of care is one of ordinary

28

government's
18 U.S.C.

§

4042;

Since the only relief available under the FTCA is for
compensatory
es, the requests
unctive relief set forth
in the Amended
int will be
ssed without
judice.
2

Specifically, 28 U.S.C § 2675(b) provides:
Action under this section shall not be instituted for any
sum in excess of the cIa
sen ted to t
federal
agency, except where the
ased
amount is based on
y
scovered evidence not
reasonably discoverable at the time of presenting the
c
to the federal
, or upon allegat
and proof
of intervening facts, relating to the amount of the
cIa

7

Turner,

679 F. Supp. at 443.

The applicable law with respect to

the burden and quantum of proof under the FTCA remains that of the
state in which the alleged tortious conduct occurred.

Hossic v.

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).3
Certificate of Merit

Defendant's initial argument contends that plaintiff's claims
of medical negligence should be dismissed because he failed to file
the required certificate of merit.

See Doc. 31, p. 15.

As discussed above, 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. 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.

3 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).
8

28, 2005) (Vanaskie, C.

J.)

.4

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.
Rule 1042.3 certificate must certify that either:

(1)

The

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 In
diversity.
1322740 *1

Schwalm v. Allstate Boliler & Construction, 2005 WL
(M.D. Pa. May 17,2005) (Caputo,

Sciolla, 345 F. Supp.2d 508, 509-10

J.);

Scaramuzza v.

(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.

In

The only exception to this rule lS 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) (Conner, J.).
9

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

cal testimony.

2008 WL 2383072 *3 (M. D. Pa. June 9, 2008) (Rule
ies to incarcerated and pro se

1042.3

iffs and

state law to which plaintiffs

constitutes a rule of substant
federal court must comply) .

Since Plaintiff has not submitted a Rule 1042.3 certificate of
merit or otherwise indicated

t he has ret a

is appropriate for this court to di

witness,
medical rna

~~~~~======-======,

2007); see

claims without

ice/negl

2007 WL 2008498 *2

an expert
ss his FTCA
judice.

(W.O. Pa. July 5,

Henderson v. Pollack, 2008 WL 282372 *4

Jan 31, 2008) (Caldwell, J.) (c

See

(M.D. Pa.

ing Hartman v. Low Security

Correctional Institution, Allenwood, 2005 WL 1259950 * 3 (M.D. Pa.
May 27, 2005) (Muir, J.).
Exhaustion

De

ndant alternatively argues that Plaintiff filed this
strative tort cl

action before exhausting an

regarding his

medical care at USP-Lewisburg. See Doc. 31, p. 18.
An act

filed pursuant to t

5

FTCA must first be submitted

of this determination as well as
non­
In 1
exhaustion argument set forth
low, Defendant's remaining argument
that Plaintiff's medical negligence FTCA claims lac
merit will
not be addressed.
Nonetheless, the Court points out that
undisputed medical records submitted by Defendant show that Boomer
has rece
extensive treatment while at USP-Lewi
including
an MRI,
tations with an outside orthopedic specialist, as
well as an ear, nose, and throat
ialist.
10

in writing to the appropriate
tort claim.

28 U.S.C.

§

ral agency as an administrat
2675.

It has been recognized t

although an administrative tort claim does not need to include
"every possible theory of liabilityU a plaintiff cannot present one
claim to an agency and then initiate suit based on a different set
of facts.

Roma v. United States, 344 F.3d 352, 362 (3d Cir. 2003).

The Defendant contend that Plaintiff filed an initial
administrative tort claim relating to his medical care at USPLewisburg was denied on September 11, 2014, after this matter was
filed.

A second administrative tort claim by Boomer following his

initiation of this matter which also concerned his USP-Lewisburg
medical care was still pending at the time this dispositive motion
was filed.
Since Plaintiff did not receive a final administrative den

I

of either of those two administrative tort claims from the BOP
before commencing this action on August 1, 2014
by Boomer to comply

there was failure

th the exhaustion requirement.

Statute of Limitations

Defendant next argues that all of Plaintiff's pending claims
relating to conduct which transpired at federal correctional
facilities other than USP Lewisburg were not initiated with

the

applicable statute of limitations and are therefore subject to
dismissal on the basis of untimeliness.

Doc. 31, p. 21

6
Boomer's Original Complaint is dated August 1, 2014.
Under
the standards announced in Houston v. Lack, 487 U.S. 266 (1988),
his action will be deemed filed as of that date.

11

The statute of limitations for submitting an administrative
tort claim to the agency is two (2) years.

. at

A court may not extend the six month time per

§

2401(b).

See United

444 U.S. 111, 117-18 (1979).

The time

limitations contained in the FTCA are jurisdictional in nature.
879 F. Supp

889, 892 (C.D. Ill.

1994) .

Thus, a plaintiff's failure to sue within the period of limitations
recognized by

§

2401 deprives a court of subject matter

The

(4 th Cir. 1994).

30 F.3d 514

jurisdiction.
ine for seeking j

after the agency's final de

cial review is six (6) months

1 of the administrative tort claim.

Pascale v. United States, 998 F. 2d 186 (3d Cir. 1993).
statute of 1
denial.

tations begins to run from the

ling date of

United States Postal Service, 585 F. Supp. 55

(M.D. Pa. 1983), aff'd, 735 F.
As prev

This

1351 (3d Cir. 1984).

ly discussed Boomer's Original Complaint is dated

August 1, 2014 and his action will be deemed filed as of that
Defendant asserts that Plaintiff received a fi

e.

administrative

denial of a failure to protect/loss of property claim relating to
prisons other

USP-Lewi

on March 18, 2011.

received a second final administrative denial

0

loss/failure to protect related claim pertaini
federal prisons other than US
The De

concludes

a similar property
to his custody at

sburg on August 13, 2013.
since this action was not

commenced until August 1, 2014 a finding of unt
appropriate.

Boomer

liness is

Since Plaintiff did not file his instant action
12

within six (6) months after the final denial of those
administrative tort claims, this Court agrees that the claims that
officials at Plaintiff's prior federal correctional facilities
failed to protect his safety and were responsible for losses of his
personal property are untimely and subject to dismissal.
With respect to Boomer's claims of negligent medical care at
facilities other than USP-Lewisburg, Defendant notes that the
inmate filed three

(3) such administrative tort claims.

was denied on November 13, 2012.

The first

The second was denied on December

19, 2012 and the third on January 24, 2013.

As such,

Defendant

also seeks dismissal of those claims as being time barred.

See

Doc. 31, p. 22.
Once again since this action was not commenced within six (6)
months following final administrative denial of any of those three
tort claims, it is equally clear that Boomer's allegations of
negligent medical care at other federal correctional facilities are
also subject to dismissal as being untimely.
In conclusion, all of Plaintiff's pending claims relating to
conduct which allegedly transpired during his prior confinements at
federal prisons other than USP-Lewisburg are untimely and will not
be allowed to proceed.
Discretionary Function Exception

Defendant's final argument contends that Plaintiff's FTCA
failure to protect claims pertaining to his being assaulted by
fellow USP-Lewisburg prisoners are barred by the FTCA's
discretionary function exception.

See Doc. 31, p. 25.
13

On August 23, 2013,

PIa

iff states that he was involved in

an altercation with his USP-Lewisburg cell mate after he refused to
turn over copies of his

ral case papers.

A second altercation

transpired on October 22, 2013 when Boomer was purportedly accused
by another prisoner of cooperating with authorities.
On November I, 2013, a third more serious incident al

gedly

transpired when Plaintiff's cell mate assaulted him after
indicating his belief that Boomer had cooperated with law
enforcement.

The Amended Complaint contends that these assaults

took place because prison

0

cials failed to protect his safety by

negligently housing him with gang members and New York City inmates
who are aware of the false rumor that he cooperated with law
enforcement officials.
As previously discussed, a plaintiff presenting an FTCA claim,
must show:

(1) that a duty was owed to him by a defendant;

(2) a

negligent breach of said duty; and (3) the negligent breach was the
proximate cause of the

intiff's injury/loss.

The Un

ed States

is only liable under the FTCA for conduct by government employees
while acting within their scope of employment.
372 F.3d 556, 559 (3d Cir.

2004).

Matsko v. United

18 U.S.C.

4042

§

imposes a general duty of care on the BOP to safeguard its
prisoners.

However, the regulation does not dictate the manner by

which that duty is to be fulfilled.
151 F. 3d

1338,1343 (11 u: Cir. 1998).

Hence, the BOP has the

ability to exercise its judgment on how its duty under
be

filled.
14

§

4042 is to

A significant 1

tation on FTCA claims is imposed by 28

U.S.C. § 2680(a), which provides that liability may not be
on a claim against a government employee which is

sed

sed upon the

exercise or performance or the failure to exercise or perform a
discretionary function or duty.u
"Conduct is not
of judgment or

scretionary unless it involves an element

ce. '

1227 (M.D. Pa. 1993).

Koch v. United States,

814 F. S

In

. 1221,

486 U.S. 531

(1988), the united States

Court adopted a two part i

with respect to § 2680(a).

rst, a court must decide if "a

federal statute, regulation or policy specifically prescr
e to follow."

course of action for an
"the employee has no ri
directive."

i

Id. at 536.

s a
If so,

ful option but to adhere to the
ral employees such as correctional officers

employed by the Bureau of Prisons simply "do not have discretion to
violate mandatory re

rements U or constitutional rights.

814 F. Supp. at 1228.
With respect to the first prong, while the BOP imposes a duty
upon its employees to use reasonable care and ordinary diligence to
protect the safety of

es,

re is no indication that there

was a specific federal statute or regulation or policy which
required the BOP to take a particular course of action to ensure
Boomer's safety from being assaulted by other inmates.
Donaldson v. United States, 281 Fed.
"BOP retains sufficient
fulfill U its duty of

scret

in

See

. 75 (3d Cir. 2008).

The

means it may use to

prisoners from being assaulted by
15

other inmates.

Id. at 77.

The Defendant ac

s that Plaintiff was assaulted by his
Boomer susta

cell mate on November I, 2013.

injuries in t

attack which required him to be hospitalized.

An exhibit submitted

by the Defendant also p

des that Boomer was observed fight

with other prisoners on

t 23, 2013 and October 22, 2013.

Doc. 30 2, Attachment 6, p. 15.

Furthermore, another written
ive Report dated

exhibit from the defendant, a Inmate Investi
February 22, 2014, admits
Boomer does exist."
Acc
Investi
arr

t"a threat to the safety of inmate

Doc. 30 3, Attachment 2, p. 4.

to a declaration under penalty

0

ive Administrator Suzanne Heath of US

pe

ury by Special
sburg, Boomer

at USP-Lewisburg on July 23, 2013 and was immediately

placed in the prison's SMU.

Doc. 30-2,

it B, p. 36.
than general

According to Heath, the SMU is more restrict
population and its res
to care

s are considered

gh risk and subject

monitoring.
notes that P

within the SMU which conta
private showers within

iff is presently

in X Block

double cells, la
cell.

r living areas and

An X Block inmate does not share

recreation with inmates who reside on other hous
fact only has recreation

his cell mate.

blocks and in

Moreover, Heath

states that Plaintiff presently only has contact with his cell mate
who has been deemed not to pose a threat to Boomer's safety.
If Plaintiff was immediately placed in X Block upon his
arrival it would certainly support the argument that the BOP used
16

reasonable care in an effort to protect Boomer from attacks by
other prisoners.

However,

is unclear to

is Court from the

record presented thus far as to how long Plaintiff has been in X
There is clearly no indication that Plaintiff has spent t

Block.

entire period of his USP

sburg incarceration in X block.

Second, Heath acknowledges that pursuant to a January 30, 2014
at assessment was

letter from Boomer a t
since Plaintiff aIle
to

eted.

s that he has been filing written complaints

tiple BOP officials for years alleging that he was at risk of

assault by other prisoners due to false in
cr

However,

rmation in his federal

nal case, there is clearly a question as to why a threat

assessment was not undertaken until February 2014.
further bolstered by Boomer's contentions t

This issue is
was previously

assaulted and/or threatened with harm by inmates at everyone of
mult

Ie federal correctional facilities where he was

viously housed and that

assaulted at USP-Lewisburg over two

months earlier on November 1, 2013.
acknowl
Lewisbu

s that it has i
who are to be

Furthermore, the BOP

ified several prisoners at USP­
separated from the Plaintiff.

Since it is unclear as to when Boomer was

aced in X Block

and why a threat assessment was not prepared on Boomer by the BOP
until February 2014, this Court cannot presently conclude that
based upon the undisputed

s the failure to protect claims

pertaining to Plaintiff's confinement at USP-Lewi
ion.

by the discretionary function

Given those concerns, the

motion for summary judgment will be denied with re
17

are barred

ct to this

argument and those I

ted failure to protect cIa

will be

allowed to proceed.
Upon disposition of the parties'
related motions,

recently submitted discovery

they will be granted an additional opportunity to

file dispositive motions and the Defendant may reassert the
scretionary function exception argument if it so chooses.
However, any such argument should address the concerns outlined
herein.

An appropriate Order will enter.

CONABOY
U ited States

DATED: SEPTEMBER

18