Njos v. United States Of America et al

Filing 134

ORDER ADOPTING REPORT AND RECOMMENDATIONS - IT IS ORDERED THAT: 1. The Court ADOPTS the Report and Recommendation 129 , of Magistrate Judge Carlson;2. Defendants motion 101 to dismiss, or in the alternative, for summary judgment, is GRANTED; and 3. The Clerk is directed to enter judgment in favor of Defendant and against Plaintiff, and to CLOSE this case. Signed by Honorable Yvette Kane on 7/28/17. (rw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SCOTT NJOS,
Plaintiff
v.
UNITED STATES OF AMERICA,
Defendant

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No. 3:14-cv-01960
(Judge Kane)
(Magistrate Judge Carlson)

ORDER
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
Before the Court is the June 22, 2017 Report and Recommendation of Magistrate Judge
Carlson (Doc. No. 129), converting Defendant’s motion to dismiss, or in the alternative, motion for
summary judgment, to a motion for summary judgment pursuant to Federal Rule of Civil Procedure
56, and recommending that the Court grant Defendant summary judgment on Plaintiff Scot Njos’
medical malpractice and negligence claims brought under the Federal Tort Claims Act. (Doc. No.
101.) Specifically, in his Report and Recommendation, Magistrate Judge Carlson finds that
Plaintiff’s medical malpractice claims fail as a matter of law, reasoning that the certificate of merit
submitted by Plaintiff, consisting of letters which he solicited from a licensed psychologist, is
legally insufficient and not in comportment with the requirements of Pennsylvania Rule of Civil
Procedure 1042.3. (Doc. No. 129 at 24.) Further, Magistrate Judge Carlson finds that Plaintiff’s
property owner tort claim and ordinary negligence claim to be mislabeled medical malpractice
claims, which are likewise subject to dismissal as a matter of law. (Id. at 26-32.)
Plaintiff objects to the Report and Recommendation.1 (Doc. Nos. 132.) By the Court’s
reading of these objections, it appears that Plaintiff generally disputes Magistrate Judge Carlson’s
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Defendant has filed a brief in opposition to Plaintiff’s objections, wherein Defendant maintains
that Magistrate Judge Carlson properly determined that the United States is entitled to judgment as a
matter of law because Plaintiff failed to file a proper certificate of merit. (Doc. No. 133.)
Defendant also notes that Plaintiff’s objections are “irrelevant and have no legal significance
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recitation of the events giving rise to his Federal Tort Claims Act lawsuit, particularly Magistrate
Judge Carlson’s focus on Plaintiff’s history of institutional misconduct, and Magistrate Judge
Carlson’s recommendations as to Plaintiff’s legally infirm medical malpractice claims. Having
reviewed these objections in conjunction with Magistrate Judge Carlson’s Report and
Recommendation, the Court finds that Magistrate Judge Carlson correctly and comprehensively
resolved the substance of Plaintiff’s objections in the Report and Recommendation itself.2 Thus,
the Court will not write separately to address Plaintiff’s objections and will adopt Magistrate Judge
Carlson’s Report and Recommendation in its entirety.
ACCORDINGLY, on this 28th day of July 2017, upon independent review of the record
and the applicable law, IT IS ORDERED THAT:
1. The Court ADOPTS the Report and Recommendation (Doc. No. 129), of
Magistrate Judge Carlson;
2. Defendant’s motion to dismiss, or in the alternative, for summary judgment
(Doc. No. 101), is GRANTED; and
3. The Clerk is directed to enter judgment in favor of Defendant and against
Plaintiff, and to CLOSE this case.
s/ Yvette Kane
Yvette Kane, District Judge
United States District Court
Middle District of Pennsylvania

because a finding in his favor on those issues will not change the fact that this is a medical
malpractice action and he has failed to file a [certificate of merit] as required.” (Id. at 2 n.2.)
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With respect to Plaintiff’s objection that Magistrate Judge Carlson exhibited bias through his
presentation of the factual background of this case as it related to Plaintiff’s institutional history of
misconduct in the Report and Recommendation, the Court notes that it has detected nothing from its
review of the Report and Recommendation that could even arguably raise an inference of bias.
Harriott v. City of Wilkes Barre, 640 F. App'x 191, 194 (3d Cir. 2016) (citing Liteky v. United
States, 510 U.S. 540, 555 (1994) (“[J]udicial rulings alone almost never constitute a valid basis for a
bias or partiality motion.”)).
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