Porter v. The United States of America et al

Filing 106

MEMORANDUM (Order to follow as separate docket entry)Based on this Courts application of Ford to the present record, appointment of an expert witness at this time would solely be for the purpose of assisting the Plaintiffs opposition to a summary jud gment motion. Porter has failed to come forward with an expert witness or any other competent medical evidence to support his assertions of negligence. Based on an application of standards announced in Ford, the Court feels that it would be an abus e of discretion to appoint an expert witness under Rule 706 at this stage of the proceedings. The Defendant is also entitled to entry of summary judgment with respect to this remaining FTCA claim. An appropriate Order will enter. re 94 MOTION for Summary Judgment filed by The United States of America Signed by Honorable Richard P. Conaboy on 3/27/18. (cc)

IN THE UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA

DAREN PORTER,

:
:
:
:
:
:
:
:
:

Plaintiff
v.
UNITED STATES OF AMERICA,
Defendant

CIVIL NO. 3:CV-15-142
(Judge Conaboy)

_________________________________________________________________
MEMORANDUM
Background
Daren Porter (Plaintiff), an inmate presently confined at
the United States Penitentiary, Florence, Colorado initiated this
pro se action pursuant to the Federal Tort Claims Act (FTCA).
Named as Defendant is the United States of America.
Plaintiff is serving a life sentence for first degree murder
which was imposed by a Michigan state court.

Porter was

transferred into the custody of the Federal Bureau of Prisons (BOP)
as “a contract boarder” in 1999.

Doc. 1, p. 1.

On May 18, 2010,

the BOP designated Plaintiff for placement in a Special Management
Unit (SMU) because of his unfavorable disciplinary history.

The

Plaintiff’s pending action asserts claims pertaining to his prior
confinement in the SMU at the United States Penitentiary,
Lewisburg, Pennsylvania (USP-Lewisburg).
By Memorandum and Order dated March 29, 2016, Defendant’s
motion for summary judgment was partially granted.

1

See Doc. 36.

Specifically, Plaintiff’s claims of: (1) negligent designation of
Porter into the SMU program by the BOP; (2) verbal harassment by
Correctional Officer White; and (3) improper assignment of
Plaintiff with a cell mate while his arm was in a sling were
dismissed without prejudice for non-exhaustion of administrative
remedies.

Summary judgment was also granted with respect to the

FTCA claims against Doctors Ball and Edinger as well as those
pertaining to non-BOP employees who treated the inmate at outside
hospitals.
Plaintiff contends that Officer White removed Porter from
his SMU cell on October 2, 2012 and escorted him to the shower
room.1

While Porter was handcuffed “behind his back”, White

allegedly “physically and forcefully slammed” him to the floor.
Doc. 1, ¶ 16.

Plaintiff suffered a broken right collarbone,

sprained ankle, and a few minor cuts as a result of this alleged
intentional assault and battery.2
Following the arrival of other correctional staff, Plaintiff
was taken to the inside shower area.

EMT Potter performed an

initial medical assessment of Porter’s injuries.

Despite making

repeated complaints of pain and shoulder injury to EMT Potter and
other correctional staff members, Porter was nonetheless placed in
ambulatory restraints “all night.”

Id. at ¶ 21.

Although

1. According to the Complaint, Correctional Officer White disliked
the Plaintiff, a Black inmate, because he was married to a White
woman. White was also allegedly verbally abusive to Plaintiff
during the escort.
2. Plaintiff was found not guilty of a misconduct charge filed by
White regarding the incident.
2

Plaintiff continued to complain of shoulder pain during checks
which were periodically conducted throughout the one night duration
of his placement in ambulatory restraints, no medical care was
provided.
The next day Plaintiff was removed from restraints and taken
for an x-ray.

It is asserted that Doctor Edinger, a prison

physician, reviewed the x-ray which revealed that the inmate had
broken his collarbone in multiple places.

The Plaintiff was

transferred to an outside hospital for further treatment.

Doctor

Edinger, who felt that surgery was required, subsequently referred
Porter for evaluation by an outside orthopedic specialist, Doctor
Ball.
Ball conducted an evaluation on October 10, 2012 and
performed surgery on October 19, 2012 which included the placement
of a rod and screws.

As previously noted, the FTCA claims against

Doctors Ball and Edinger and outside hospital staff were previously
dismissed.
In sum, Plaintiff has two surviving FTCA claims: (1) he was
subjected to an assault and battery by White on October 2, 2012,
and (2) EMT Potter and other prison staff were negligent for not
providing Plaintiff with immediate treatment for his broken
shoulder and allowing him to be held overnight in ambulatory
restraints.
Presently pending is the Defendant’s second motion for
summary judgment.

See Doc. 94.

The opposed motion is ripe for

consideration.

3

Discussion
Defendant claims entitlement to entry of summary judgment on
the grounds that: (1) video recordings of the incident show that
the force used by Officer White was reasonable and did not
constitute assault and battery; (2) the placement of Porter in
ambulatory restraints following medical approval was reasonable and
consistent with BOP; policy; (3) the summary judgment records
demonstrates that Porter cannot establish a prima facie medical
negligence claim.

See Doc. 98, p. 17.

Standard of Review
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
Cir. 2001).

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
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.

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).

4

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
its complaint.
(1986).

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).

Summary

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
trial.”

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)).
FTCA
As previously discussed by this Court’s March 29, 2016
Memorandum and Order, the FTCA provides a remedy in damages for
tortious conduct by employees of the United States.
United States, 341 F. 3d 193, 200 (3d Cir. 2003).

See Simon v.
The only proper

Defendant for purposes of an FTCA claim is the United States of
America.

See 28 U.S.C. § 2679(d). Generally, an FTCA claim is

limited to recovery of the sum certain amount requested in the

5

underlying administrative claim.

See McMichael v. United States,

856 F.2d 1026, 1035 (8th Cir. 1988).3
A federal district court in considering a FTCA action must
apply the law of the state in which the alleged tortious conduct
occurred, in this case, Pennsylvania.

28 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).

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).
Liability under the FTCA only exists for conduct by
government employees while acting within their scope of employment.
Matsko v. United States, 372 F.3d 556, 559 (3d Cir.

2004).

When

determining if a defendant was acting within the scope of his
employment at the time of the underlying incident, courts must look
to the law of the state where the incident occurred.

Doughty v.

United States Postal Service, 359 F. Supp.2d 361, 365 (D.N.J.
2005).

3.

Specifically, 28 U.S.C § 2675(b) provides:
Action under this section shall not be instituted for
any sum in excess of the claim presented to the federal
agency, except where the increased
amount is based on newly discovered evidence not
reasonably discoverable at the time of presenting the
claim to the federal agency, or upon allegation and
proof of intervening facts, relating to the amount of
the claim.

6

The FTCA also provides a remedy in damages for the simple
negligence of employees of the United States to protect federal
inmates.

United States v. Muniz, 374 U.S. 150, 150 (1963).

presenting a FTCA claim, a plaintiff must show:

In

(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.
362, 364 (W.D. Pa. 1961).

Mahler v. United States, 196 F. Supp.

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.

See 18 U.S.C. § 4042

A plaintiff is required under Pennsylvania law, 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).

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).
Assault/Battery
Defendant contends that while Correctional Officer White was
escorting the Plaintiff back to his cell following a medical
evaluation on October 2, 2012, the inmate made repeated verbal
threats.4

In response, White gave Porter verbal directives to calm

down and took a tighter hold on the prisoner to control his
movement. See Doc. 98, p. 9.

After White gave Plaintiff an

additional verbal warning in response to another threat, the inmate

4. The medical assessment was purportedly undertaken because
Porter had been involved in an altercation with his cell mate.
7

allegedly “suddenly pulled away from Officer White in the direction
of a stairway.”

Id.

According to the Defendant, White perceived that action as
an attempt by Plaintiff to strike the officer in the chest with his
left shoulder and elbow.
Porter to the floor.

White admittedly responded by taking

Other nearby correctional officers arrived

and assisted White.
The Defendant argues that White acted in accordance with BOP
training which directs escorting officers to regain control of a
prisoner who pulls away by placing the inmate on the ground.

Since

the record shows that the force exercised by White was objectively
reasonable and only that which was necessary to gain control of the
inmate, the Defendant asserts that it is entitled to entry of
summary judgment with respect to the assault and battery claim.
In support of its argument, the Defendant has submitted a
declaration under penalty of perjury by USP-Lewisburg Attorney
Advisor Michael Romano and accompanying institutional records which
show that Plaintiff is a convicted murder with an extensive
disciplinary history while in federal custody including past
misconducts for assault, fighting, possession of a weapon, and
threatening bodily harm.

See Doc 977-1, Exhibit 1.

Moreover, the

records show that Plaintiff was suspected of involvement in an
altercation with his cell mate immediately prior to the incident
involving Officer White.

See id., p. 76.

Also submitted by the Defendant is a copy of BOP Program
Statement § 552.20 which provides that prison staff must use only
that amount of force necessary to gain control of an inmate. See
id. at p. 50. The policy adds that a BOP employee may not use force
8

beyond that which is reasonably necessary to subdue an inmate and
only after attempts to gain voluntary cooperation from the prisoner
have failed.

This BOP policy further provides that staff may use

force for self defense.
In a declaration under penalty of perjury, Officer White
states that on October 2, 2012 Plaintiff was removed from his cell
for a medical assessment based upon an indication that the inmate
had been involved in an altercation with his cell mate.

See id.,

p. 148. Following the assessment, White escorted Inmate Porter to
another housing unit.

When Plaintiff made a verbal threat during

the escort, White directed the Plaintiff to calm down.

While

making their way down a corridor Porter allegedly threatened to
kick the officer and was again told to cooperate.

When the inmate

made additional verbal threats, White admits that out of concerns
over Plaintiff’s conduct he took a firmer hold of the inmate in
order to control his movement.
Upon entering the cell block, White avers that Potter
“pulled away from me”, an action which White “perceived as an
attempt to strike him in the chest with his left shoulder and
elbow.”

Id. at p. 149. Officer White acknowledges that he

responded by placing the Plaintiff on the floor.
Other supporting institutional records provided by the
Defendant include a written report of the incident by Correctional
Officer White.

See id., p. 82.

Therein, White describes Porter as

being agitated and irritated during the escort.

The officer adds

that Plaintiff became aggressive and attempted to pull away from my
grasp.

In doing so, White contends that Porter threw his left

shoulder and elbow into my chest.

White adds “I then regained
9

control of the inmate by placing him on the floor with the least
amount of force necessary.”

Id.

Correctional Officer Admire also

submitted a statement stating that he personally observed the
incident and reiterates White’s version of the events.
p. 83.

See id. at

Video footage of the incident has also been submitted by

the Defendant and reviewed by the Court.
The United States waives immunity for certain intentional
torts committed by prison guards.
133 S.Ct. 1441, 1444 (2013).
torts.

See Millbrook v. United States,

Assault and battery are intentional

Liability under the FTCA only exists for conduct by

government employees while acting within their scope of employment.
Matsko v. United States, 372 F.3d 556, 559 (3d Cir.

2004).

The

undisputed record shows that Correctional Officer White was acting
within the scope of his employment as the underlying events
transpired as he was escorting Plaintiff to a cell.
Under Pennsylvania state law, “an intentional attempt to
inflict physical injury on another constitutes assault and the
actual infliction of such injury, however minor, constitutes
battery.”

Fulks ex rel. Daniel v. Gasper, 439 F. Supp.2d 372, 379

(M.D. Pa. 2006); Heverly v. Simcox, 2006 WL 2927262 *9
Oct. 11, 2006)(Jones, J.).

(M.D. Pa.

To establish liability it must be shown

that the officer acted intentionally but also that the officer knew
that the force applied was not reasonable under the circumstances
or excessive.

Tarlecki v. Mercy Fitzgerald Hospital, 2002 WL

1565568 *2 (E.D. Pa. July 15, 2002).
Also submitted for consideration is video footage from two
stationary surveillance cameras.
audio.

It is noted that the video lack

The video evidence has been reviewed by this Court in a
10

light most favorable to the Plaintiff, See Tindell v. Beard, 351
Fed. Appx. 591, 596 (3d Cir. 2009)(consideration of video footage
when considering summary judgment argument is appropriate).

The

footage captures the entire take down incident and is not
susceptible to multiple reasonable interpretations.

See Scott v.

Harris, 550 U.S. 372, 380 (2007).
Specifically, the footage shows Plaintiff passing through a
unit door way with Officer White on his left side.

The Plaintiff

is handcuffed with his hands behind his back and White is grasping
the inmate.

Another correctional officer, presumably Admire, is a

short distance behind the pair.

Upon entering the housing unit,

Plaintiff clearly turns away from the escorting officer towards an
open stairway leading up to another level.

Porter does not make

any apparent physical contact with White, but he clearly tries to
pull away and head in a different direction.
White responds by forcing the inmate to the ground and
holding him there until other guards intervene.

The video does not

reflect that White slammed the inmate to the floor and the
correctional officer does not punch, kick, or otherwise strike the
prisoner.

Rather, the correctional offices simply forced the

inmate as well as himself to the floor
As such the undisputed evidence establishes that the action
taken by Officer White was reasonable under the circumstances and
was not excessive.

This is cleary a case where a correctional

officer reasonably perceived that a prisoner was making an
aggressive move and use only that force which was necessary to
regain control.

The request for summary judgment on the

allegations of assault and battery will be granted.
11

Ambulatory Restraints
It is undisputed that Plaintiff was placed in ambulatory
restraints for a period of fifteen (15) hours.

BOP Program

Statement § 552.20 provides that physical restraints are authorized
to gain control over an inmate assault another individual, becomes
violent or displays signs of imminent violence.

See Doc. 97-1, p.

50.
A significant limitation on FTCA claims is imposed by 28
U.S.C. § 2680(a), which provides that liability may not be premised
on a claim against a government employee which is

“based upon the

exercise or performance or the failure to exercise or perform a
discretionary function or duty.” “Conduct is not discretionary
unless it involves an element of judgment or choice.’
United States,

Koch v.

814 F. Supp. 1221, 1227 (M.D. Pa. 1993).

Federal

employees such as correctional officers employed by the Bureau of
Prisons simply “do not have discretion to violate mandatory
requirements” or constitutional rights.

Koch, 814 F. Supp. at

1228.
In Berkovitz v. United States, 486 U.S. 531 (1988), the
United States Supreme Court adopted a two part inquiry with respect
to § 2680(a).

First, a court must decide if "a federal statute,

regulation or policy specifically prescribes a course of action for
an employee to follow."

Id. at 536.

If so, "the employee has no

rightful option but to adhere to the directive."

Id.

The second

part of the inquiry provides that if the decision was one “which
balances competing considerations or identifiable policy factors
such as budgetary considerations, safety concerns, allocation of
limited resources, etc. may be discretionary.”
12

Koch, 814 F. Supp

at 1227, citing Johnson v. United States, Department of the
Interior, 949 F.2d 332, 340 (10th Cir. 1991).
Ambulatory restraints are soft and hard equipment which
allow the inmate to eat, drink, and take care of basis human needs
without staff intervention.

See id. at p. 60. The use of

ambulatory restraints should cease when it is determined that the
inmate has regained self-control. Under BOP regulation, a medical
assessment is performed prior to the application of restraints and
any injuries should be immediately treated.

See id. at p. 66.

With respect to the first prong of Berkovitz, 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

See Cohen v. United States,

1338,1343 (11th Cir. 1998).

Hence, the BOP has the

ability to exercise its judgment on how its duty under § 4042 is to
be fulfilled.
While the BOP imposes a duty upon its employees to use
reasonable care and ordinary diligence to protect the safety of
inmates. Restraints may be employed at the discretion of prison
officials

to the extent necessary to gain control over inmates who

have destroyed property; inflicted injury upon self; become violent
or display signs of imminent violence.
The challenged decision making of the non-medical prison
officials in this case clearly involved an element of choice.
Given Plaintiff’s conduct on the date in question, the
determination to apply ambulatory restraints, was based upon
consideration of legitimate issues of correctional safety.
Moreover, the imposition of ambulatory restraints was given medical
13

approval.

In light of those considerations, this Court agrees that

the discretionary function exception is applicable to any claims
regarding the decision making by USP-Lewisburg non-medical staff
with respect to the use of ambulatory restraints against Porter.
See Donaldson v. United States, 281 Fed. Appx. 75, 77 (3d Cir.
2008)(discretionary function exception applies to prisoner’s claim
against federal prison officials).
There have been no facts presented which could support a
claim that Plaintiff’s conduct at USP-Lewisburg did not warrant
intervention by prison staff on the relevant date.

For example,

prior to the incident Plaintiff was suspected of having been
involved in an altercation with a cell mate and evidence presented
by the Defendant shows Porter acting in an aggressive manner prior
to the imposition of ambulatory restraints on October 2, 2012.
Second, the videotape also clearly shows that the restraints were
applied only after a favorable medical assessment by EMT Potter.
The determination as to whether ambulatory restraints, should be
employed against Porter was clearly a discretionary decision.
Based upon the summary judgment record, the challenged decision
making by USP-Lewisburg non-medical staff falls within the
discretionary function exception.

Accordingly, entry of summary

judgment in favor of the Defendant under the discretionary function
exception is warranted with regards to any claim regarding the
placement of Porter in ambulatory restraints by correctional
officers.
Medical Assessments
Under BOP regulations, a medical assessment is performed
prior to the application of restraints and any injuries should be
14

immediately treated.

See Doc. 97-1, p. 66.

BOP regulations

further provide that an inmate in ambulatory restraints is checked
by correctional staff every fifteen minutes, a lieutenant every two
hours, and by medical staff twice each eight hour shift.

During

those medical checks the prison’s health services staff are
required to examine an inmate’s injuries and any other significant
findings.

See id. at p. 63.

This Court’s March 29, 2016 Memorandum and Order noted that
Porter’s allegation that Doctor Edinger, upon first seeing the
Plaintiff the same day he was released from restraints, stated that
he couldn’t understand how no one noticed Porter’s broken
collarbone as the bone was sticking upwards and stabbing into his
flesh arguably alleged an exception to Pennsylvania Rule 1042.3
which requires the filing of a certificate of merit.5
As previously discussed, the Complaint contends that an
initial medical assessment by EMT Potter following the October 2,
2012 incident was negligent because it allowed Plaintiff to be

5. 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.
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).
15

placed in ambulatory restraints and failed to properly evaluate the
inmate’s shoulder injury.

Plaintiff further contends that members

of the prison’s medical staff who thereafter conducted periodic
assessments of his condition during the fifteen (15) hours he was
in ambulatory restraints were also negligent for failure to
properly investigate and treat his untreated

fractured clavicle.

The Defendant presently argues that it is entitled to sentry
of summary judgment because no BOP staff member erroneously
diagnosed or unnecessarily delayed Plaintiff’s diagnosis and
treatment.

See Doc. 98, p. 32.

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.
Arrington v. Inch, 2006 WL 860961 *7 (M.D. Pa. March 30, 2006)
(Conner, J.)(a Plaintiff pursuing an FTCA claim must comply with
Pennsylvania substantive law). In order to prove his negligence
claim under Pennsylvania state law, Porter must establish that the
USP-Lewisburg medical staff deviated from acceptable medical
standards when they made medical assessments and to show that said
deviation constituted a substantial factor in causing the
Plaintiff’s injury.
A submitted copy of a written report of the initial medical
assessment conduct by EMT Potter acknowledges that Plaintiff
complained that his jaw and shoulder were broken.
Attachment K, p. 106.

See Doc. 97-1,

Potter opines that Plaintiff acted as if in

pain before the EMT even physically examined his right shoulder,
there no negative deformity of the right shoulder, and the clavicle

16

appeared solid and intact.

Despite those initial findings, Potter

ordered that x-rays taken of the shoulder and jaw the next day.
A declaration under penalty of perjury by Potter similarly
acknowledging that he conducted a medical assessment of Porter
following the incident with Officer White.

See id. at p. 112.

Potter states he observed and treated an abrasion above the
Plaintiff’s right eye and examined the inmate’s jaw in response to
a complaint of pain.

The EMT also admits that Plaintiff complained

of pain in the right clavicle but that the clavicle appeared solid
and intact during a physical exam.
During a subsequent ambulatory restraint check, Potter
states that Plaintiff was laying on his right side applying weight
to the injured shoulder.

Potter directed Plaintiff not to apply

weight to the shoulder that was bothering him.
A copy of an ambulatory restraint check by MLP Francis
Fasciana conducted of the morning of October 3, 2012 indicates that
Porter complained of right shoulder pain.

See id. at p. 139.

However, none of the other written periodic restraint checks which
have also been provided to the Court note any complaint of shoulder
pain by Inmate Porter.
The Defendant has also provided a declaration under penalty
of perjury by Doctor Edinger who confirms that he saw the Plaintiff
on October 3, 2012 (the day after the incident) for complaints of
shoulder and jaw pain.

Edinger states that x-rays revealed a

“comminuted (broken in multiple places) and displaced fracture of
the right clavicle and a possible new fracture of the right side of

17

his mandible.”6

Id. at p. 160.

Per Edinger’s directive, the

Plaintiff was taken to an outside hospital where it was determined
that he had a clavicle fracture.

Porter was returned to the prison

that same day with his right arm in a sling and a prescription for
pain medication.

Edinger does not address the Plaintiff’s

assertion that the doctor stated that the clavicle injury was
apparent.
A videotape of the initial assessment by EMT Potter has also
been submitted.

The videotape starts at 6:03 p.m. with Plaintiff

shown lying on the floor with his hands handcuffed in the rear.
Porter is lifted to his feet by his arms.
of shoulder injury at that juncture.

He voices no complaints

The prisoner’s back is

briefly shown at that time and there is no visible indication of a
shoulder injury.
The Plaintiff while bent over is then walked a few feet to a
shower area where he is wanded with a metal detector and his
clothes are removed.

A correctional officer has his hand on

Plaintiff’s right shoulder area.

During this period Plaintiff is

silent and does not appear to be in pain.

EMT Potter is shown

treating an abrasion above the Plaintiff’s right eye and examining
the inside of the prisoner’s mouth.

While doing so Plaintiff cries

out in pain stating that he thinks his jaw I broken.
physically examines the jaw area.

Potter

Potter does not examine

Plaintiff’s shoulder at that point.
After EMT Potter backs away, Porter’s hand restraints are
moved from the back to the front and a clean shirt is placed on
6. According to Dr. Edinger Plaintiff had a history of multiple
jaw fractures.
18

him.

During this procedure, Plaintiff cries out in pain and states

three times that he thinks his collarbone is broken.

Plaintiff

also requests to be seen by a doctor.
EMT Potter then reenters the shower checks the newly applied
restraints and conducts a brief examination of Plaintiff’s shoulder
area. Potter’s back is to the camera and his exact actions
be determined.

cannot

During this period, Porter cries out in pain at one

and the EMT indicates that he was not even touching the Plaintiff.
Porter is then escorted down a hallway and placed in a cell.
Plaintiff is able to walk on his own and he is again silent.
last seen sitting upright on a bed in the cell.

He is

Next the videotape

shows a debriefing during which EMT Potter states that although
Plaintiff made complaints of pain in his jaw the inmate’s physical
actions were unusual for someone with a broken jaw.

With respect

to Plaintiff’s shoulder area, Potter notes that Porter did not make
any complaints of shoulder pain until halfway through the process,
the inmate recoiled in pain before the EMT even touched the
relevant shoulder area, and that upon physical examination of the
area no real deformity was noted.

Despite those observations,

Potter states that he did order x-rays of both the shoulder and jaw
for the following morning.
It is undisputed that upon Plaintiff’s release from
restraints the following morning, x-rays were taken of his shoulder
area and he was evaluated by Doctor Edinger.
evaluation,

Based upon Edinger’s

Plaintiff was transported that same day to an outside

hospital for further treatment of a suspected clavicle fracture.
Porter was returned to the prison that same day with a sling and a
prescription for pain medication.
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Under Pennsylvania state law, in order to present a prima
facie case of medical malpractice, medical negligence, a plaintiff
has the burden of presenting an expert witness 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.).

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).

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.)
It is undisputed that USP-Lewisburg owed Porter a duty to
provide him with timely and appropriate medical care for his
shoulder.

Based upon the factual evidence submitted by the

Defendant, Porter has not established that there are issues of
material fact as to whether the actions taken by the USPLewisburg medical staff, particularly EMT Potter, constituted an
obvious lack of skill or want of care.

First, Porter has not

presented any facts showing that his overnight placement in
ambulatory restraints aggravated his shoulder injury.7

Second,

given that the injury occurred in the evening and an x-ray was
7. Clearly, whith his hands shackled in front Porter’s arm
movements were limited almost as if his right arm was in a sling.
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taken the following day Plaintiff has not asserted that it was
possible for an x-ray to have been taken earlier at USPLewisburg. Moreover, even if such an x-ray had been taken
Plaintiff has not indicated that there was beneficial treatment
which could have been provided immediately.
The factual record, specifically the periodic assessments
of Porter during the overnight period do not show that the
Plaintiff was in constant pain or that he his injury was
aggravated

as a result of either the ambulatory restraint

placement or the failure to have an immediate x-ray. These
shortcomings are bolstered by the fact that when taken to an
outside hospital the following day the Plaintiff was released
back to the prison after being given a pain medication
prescription and a sling.
Based upon the above concerns, this Court is satisfied
that Porter’s case does fall under the limited exception
recognized in Berman.

Thus, this is clearly the type of case

where the Plaintiff, in order to state a prima facie case of
negligence under controlling Pennsylvania state law,

must come

forward and provide expert medical testimony showing that the
decisions and actions by the USP-Lewisburg medical staff deviated
from acceptable standards of the profession.

Porter has failed

to do so.
Plaintiff’s opposing brief suggests that an expert witness
should be appointed to assist him.

See Doc. 103, p. 6. This

Court does have the discretion to appoint an expert witness under
Federal Rule of Evidence 706.

“The policy behind this rule is to

promote the jury’s factfinding ability.”
21

Ford v. Mercer County

Correctional Center, 171 Fed. Appx. 416, 420 (3d Cir. 2006).
The Court of Appeals added that “[a] trial judge does not abuse
his discretion in declining to appoint an independent expert
solely to benefit a party who has otherwise failed to gather such
evidence as would suffice to overcome summary judgment.”

Id.

Based on this Court’s application of Ford to the present
record, appointment of an expert witness at this time would
solely be for the purpose of assisting the Plaintiff’s opposition
to a summary judgment motion.

Porter has failed to come forward

with an expert witness or any other competent medical evidence to
support his assertions of negligence.

Based on an application of

standards announced in Ford, the Court feels that it would be an
abuse of discretion to appoint an expert witness under Rule 706
at this stage of the proceedings.

The Defendant is also entitled

to entry of summary judgment with respect to this remaining FTCA
claim.

An appropriate Order will enter.

S/Richard P. Conaboy
_______________________RICHARD P. CONABOY
United States District Judge

DATED: MARCH 27 , 2018

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