Porter v. The United States of America et al

Filing 36

MEMORANDUM (Order to follow as separate docket entry) The pending Complaint potentially includes multiple claims of medical negligence. The first of those such assertions raised by Plaintiff is that EMT Potter, a prison staff member, allowed Plainti ff to be placed in ambulatory restraints and failed to properly evaluate his shoulder injury. Next, Plaintiff contends that members of the prisons medical staff who conducted two hour assessments of his condition while he was in ambulatory restraint s were also negligent for failure to investigate and treat his broken collarbone. The Complaint also references actions by Porters orthopedic surgeon, Doctor Ball and by Doctor Edinger, a prison staff physician who had Plaintiff transferred to an ou tside hospital after reviewing his initial x-ray. Staff at the outside hospital were also allegedly negligent because they simply put Plaintiffs arm in a sling and returned him to the prison. See Doc. 1, p. 8. Following Plaintiffs return to USP-Le wisburg, Doctor Edinger referred him for evaluation by Doctor Ball. There are also claims which seem to assert that there was a delay of weeks in arranging the evaluation by Doctor Ball. See id.Since Plaintiff has not submitted a Rule 1042.3 certi ficate of merit or otherwise indicated that he has retained an expert witness, this Court agrees that based upon the facts asserted regarding Doctor Edinmger it is appropriate for this court to dismiss any FTCA medical malpractice/negligence claims against Doctor Edinger 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 Correctional Ins titution, Allenwood, 2005 WL 1259950 * 3 (M.D. Pa. May 27, 2005)(Muir, J.).The only exception to Rule 1042.3 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 com prehension 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 Sim pson, 2005 WL *6; Arrington, 2006 WL 860961 *7.Based upon Plaintiffs allegation that when first seen by Doctor Edinger the physician stated how did no one notice this, the bone was sticking upwards and stabbing into my flesh, the negligence claims ag ainst EMT Potter and the other medical staff who assessed Plaintiff while he was in ambulatory restraints arguably fall with the above described exception to Rule 1042.3. See Doc. 1, p. 13. Accordingly, the request for dismissal of those medical ne gligence claims under Rule 1042.3 will be denied. Likewise, the apparent claim that there was a delay of weeks before Plaintiff was seen by Doctor Ball also conceivably fits within the recognized exception to Rule 1042.3 and will also be allowed to proceed.Assault/Motion to View TapesWith respect to the incident of October 2, 2012, the Defendant maintains that any allegation of assault with respect to the force used by Correctional Officer White and the placement of ambulatory restraints should not be allowed to proceed because the undisputed record shows that those actions were reasonable and in accordance with BOP policy. See Doc. 22, p. 20.In support of its argument the Defendant provided this Court with three videotapes pertaining to the events at issue which ere filed under seal. The Defendant added that Porter would be afforded opportunity to view those videotapes at his current place of incarceration. See Doc. 19, 9.Porter has filed a motion requesting that he be provided o pportunity to view the submitted videotapes in order to verify their authenticity. See Doc. 33. The motion is unopposed.Since the Defendant previously expressed its intention to allow Plaintiff opportunity to review the videotape evidence, the uno pposed motion will be granted. Moreover, the remaining summary judgment arguments will be dismissed without prejudice an may be reasserted after Porter has had opportunity to review the videotapes. An appropriate Order will enter.re 11 MOTION for Summary Judgment filed by The United States of America Signed by Honorable Richard P. Conaboy on 3/29/16. (cc)

IN THE UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

DAREN PORTER,
Plaintiff

v.

CIVIL NO. 3:CV-lS-142

UNITED STATES OF AMERICA,

(Judge Conaboy)

Defendant

. Z , 2016
MEMORANDUM
Background

L~I

Ul Y CLERK

Daren Porter (Plaintiff), an inmate presently confined at
the Allenwood united States Penitentiary, White Deer, Pennsylvania
(USP-Allenwood), initiated this pro se action pursuant to the
Federa l Tort Claims Act (FTCA).

Named as sole Defendant is the

united States of America.
It is undisputed that 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

Bur eau o f Pri so ns (BOP ) a s "a co ntra c t boarder" in 1 999 .
p. 1.

Doc.

1,

On May 18, 2010, the BOP d e signated Plaintiff for placement

In a Special Management Unit (SMU).

The initial portion of the

Complaint contends that this designation was improper and
constituted ne gligence because the agreement between Michigan and
the BOP provided that Porter should be r e turned to state custody if

1

it was determined that he could not adjust adequately to placement
in general population at a BOP facility.
On November 29, 2010, Plaintiff was transferred to the SMU
at the united States Penitentiary, Lewisburg, Pennsylvania (USP­
Lewisburg) .

See id. at p. 3 .

It is next alleged that on October

2, 2012 Correctional Officer B . White subjected Plaintiff to
racially motivated verbal harassment in the USP-Lewisburg SMU.
White ' s remarks allegedly falsely accused Porte r of b e ing a rapi st
and child molester with the intention of inciting an altercation
between Plaintiff and his cell mate .

Officer White next removed

Porter from his cell and escorted him to the shower room.

While

Po rter was handcuffed "behind his back" , White a ll eged ly "slammed "
him to the fl oo r.

Id . at p. 5.

Plaintiff suffered a broken right

collarbone, sprained ankle, and lacerations as a result of this
alleged intentional assault.
Despite making repeated complaints of pain and injury to his
shoulder to EMT Potter and other correctional staff members, Por t er
was nonetheless placed in ambulatory restraints for a prolonged
period.

Although Plaintiff continued to complain of shoulder pain,

through the duration of his placement in ambulatory restraints no
medical care was provided.

The Complaint next maintains

Correction a l Officer White fabricated a misconduct charge against
Potter in an effort to cover up his excessive use of force.

However, Plaintiff was found not guilty of those charges following
an institutional disciplinary hearing .
The next day Plaintiff was removed from restraints and taken
for an x-ray .

It is asserted tha t Doctor Edinger, a prison
2

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

Edinger directed that

Porter be transported to an outside hospital for further treatment.
However, the staff at the outside hospital al
PIa

iff arm in a sling and sent hm back to the

pp. 7-8.

dly "only put
son."

Id. at

Following his return to USP-Lewisburg, Plaintiff was

again seen by Doctor Edinger who felt that surgery was required.
and referred Porter for evaluation by an outside orthopedic
specialist, Doctor Ball.
forced to 1

However, Plaintiff asserts that he was

in pain for weeks while awa

ing further treatment

for his shoulder.
During that same period, the Complaint contends that two
USP-Lewisburg lieutenants tried to force Plaintiff into acc

ing a

cell mate despite the fact that the inmate was unable to defend
himself since

s arm was

a Sling.

Porter asserts that he was

eventually assigned a cell mate who required a lower bunk.

As a

result, Porter was forced to climb into an upper bunk despite the
fact that his

ght arm was in a sling.

In addition the cell mate

purportedly stole Porter's food because the

iff was unable to

defend himself.
Surgery was eventually performed on Porter by Doctor Ball
which included the placement of a rod and screws.

Despite the

surgery, Plaintiff still has pain and only limited mobility of his
right arm.

The Complaint asserts that all of the above described

actions were negligent.
The Defendant has responded to
motion for summary judgment.
ripe for consideration.

See Doc. 11.

Complaint by filing a
The opposed motion is

Also pending before the Court is
3

Plaintiff's motion requesting permission to view video tape
evidence which has been provided to the Court under seal by the
Defendant.

Doc. 33.

This motion has not been opposed.
Discussion

Defendant claims
the grounds that:

entitle~ent

to entry of summary judgment on

(1) Plaintiff failed to file an administrative

tort claim regarding some of his allegations;
not support the assault and battery claim;

(2) the record does

(3) a certificate of

merit has not been filed regarding the medical negligence claims;
and (4) the Defendant bears no liability for medical care provided
Doc. 2 2, P . 9.

by an independent contractor.
Standard of Review

Summary judgment is proper if "-che pleadings, -che

scovery

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 ent
P. 56(c);
Cir. 2001).

led to a judgment as a matter of law."

Fed. R. Civ.

also Saldana v. Kmart Corp., 260 F.3d 228, 231 32 (3d
A factual dispute is "material" if it migh-c affect the

outcome of the suit under the applicable law.
Lobby, Inc., 477 U.S. 242, 248 (1986).
"genuine" only if

is a sufficien-c

Anderson v. Liberty

A factual dispute is
ry

sis that

would allow a reasonable fact-finder to return a verdict for the
non-moving party.

. 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.

, 260 F.3d at 232; see

Reeder v.

Sybron Transition Corp., 142 F.R.D. 607, 609 (M.D. Pa. 1992).
Unsubstantiated arguments

~ade

in briefs are not considered

4

evidence of asserted facts.

Versarge v. Township of Clinton, 984

F.2d 1359, 1370 (3d Cir. 1993).
Once the moving party has shown

there is an absence of

to support the claims of the non-moving party, the non­
party may not simply sit back and rest on the allegations in
s complaint.
(1986).

Celotex Corp. v. Catrett, 477 U.S. 317, 324

Instead, it must "go

affidavits, or by the

~eyond

suff

s and

ient to establish

existence of an e

y's case, and on

trial."

Celotex, 477 U.S. at 322-23.

amount to more than a sc

Summary

where a party "fails to make a show

that

ss of whether

[its] own

(internal quotations omitted); see

260 F.3d at 232 (citations omitted).

should be grant

~y

specific facts showing that there is

issue for trial."

j

e

itions, answers to interrogatories, and

sions on file, des

==~====,

the

that party

essential to
11

r the burden at

"'Such affirmative evidence

is direct or circumstantial - must
illa, 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

The FTCA provides a remedy in damages for
negligence of employees of
~===,

United States.

374 U.S. 150, 150 (1963).

immunity is waived against

simple
United States v.

Under the FTCA, sovereign

sons suing the federal government for

the commission of various torts.

See Simon v. United States, 341

F. 3d 193, 200 (3d Cir. 2003).

5

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

(2) a ne

(1) that a

igent 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.

The only proper Defendant

of an FTCA claim is the United States of America.
2679(d).

purposes
28 U.S.C. §

Except for limited circumstances, an FTCA claim in

federal court is limited to recovery of the sum certain amount
requested in the underlying administrative claim.

McMichael v.

United States, 856 F.2d 1026, 1035 (8 th Cir. 1988).
It is well-settled that a federal district court addressing
an FTCA action must apply the

of the state, in this case

Pennsylvania,

which the alleged tortious conduct occurred.

U.S.C.

(1996); Toole v. United States, 588 F.2d 403, 406

§

1346(b)

28

(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).
federal

However, in cases such as this which involve

soners, it has been recognized that the government's

duty of care is one of ordinary diligence.
Turner, 679 F. Supp. at 443.

1.

See 18 U.S.C. § 4042;

The applicable law with respect to

Specifically, 28 U.S.C § 267S(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
reasonab
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 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).2
Exhaustion

Defendant acknowledges that Porter filed an administrative
tort claim regarding his pending claims of being assaulted by
Correctional Officer white on or about October 2, 2012 and his
related allegations of negligent delay and denial of medical
treatment for injuries sustained in that attack.

However, the

Defendant argues that Plaintiff filed this action before exhausting
administrative tort claims regarding his negligence claims that:
(1) the BOP's designation of Plaintiff into the SMU program;

(2)

verbal harassment by CO White; and (3) Plaintiff was forced to
accept a cell mate and sleep in a upper bunk while his arm was in a
sling.

See Doc. 22, p. 20.
Plaintiff's opposing brief does not address the failure to

exhaust argument.
An action filed pursuant to the FTCA must first be submitted
in writing to the appropriate federal agency as an administrative
tort claim.

See 28 U.S.C.

§

2675.

It has been recognized that

2.
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).
7

although an administrat

tort claim does not need to include

"every possible theory of Ii

lity" 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).

There is no indication whatsoever that Porter filed an
administrative tort claim with the BOP his pending negligence
claims that:
program was

ion of PIa

(1) the BOP's desi
igent;

iff into the SMU

(2) verbal harassment by CO White; and (3)

requiring Plaintiff to accept a cell mate while his arm was in a
sling.

Accordingly, there was f

lure by Plaintiff to comply with

the exhaustion requirement regarding those three allegations.

This

unopposed request for summary judgment will be granted. 3

Doctor Ball
It is undisputed that Plaintiff was referred to Doctor Ball
an outside orthopedic specialist. Doctor Ball saw Plaintiff on
October 10, 2013 and

reco~~ended

surgery on the inmate's clavicle.

Surgery was performed by Doctor Ball at an outside hospital on
October 19, 2013.
Defendant contends that s

e Doctor Ball is not an employee

of the United States, the Complaint to the extent that

seeks to

assert an FTCA claim of medical negligence against Doctor Ball is
subject to dismissal.

Doc. 22, p. 39.

Plaintiff's opposing

brief does not address this argument.
Based upon this Court's review of the Compla

there are no

facts which would clearly show that Porter wishes to pursue a
3.
In the event, Plaintiff can establish that he initiated and
completed to final review an administrative tort claim regarding
any of the three claims c
above, he may file a reconsideration
motion within fourteen (14) days of the date of this Memorandum.
8

claim against Doctor Ball.

medical negl

s, since

the parties both describe the Doctor was being an outs
not employed by

physician

BOP this Court agrees that the Defendant is not
FTCA for the actions of Doctor Ball since he is

liable under

clearly an independent contractor.

This unopposed

t

for

summary judgment will be granted.
same reasons any negligence FTCA cl

For

by

inaction by medical staff at an outs

Plaintiff

y simply placed the prisoner's

hospital

arm in

him to the prison likewise cannot proceed

a sling and

because there are no facts alleged showing that those outside
hospital staff members were employed by the BOP.
Certificate of Merit

t

Defendant's

1 argument contends that

a

iff's

claims of medical negligence should be dismissed because he failed
to file the

ired certificate of merit.

See Doc. 31, p. 15.

above, a federal district court addressing an

As discus

FTCA action must apply the law of the state, in this case
Pennsylvania,

which the alleged tortious conduct occurred. In

order to present a

case of medical malpract

Inegligence under Pennsylvania state law, a plaintiff has the
burden of

testimony by an appropriate licensed

professional who can tes
certainty that the
from acceptable

fy to a reasonable degree of medical
or omissions of the defendant deviated

al standards, and that said deviation

constituted a substant

factor in causing the Plaintiff's

j

Simpson v. Bureau of Prisons, 2005 WL 2387631 *5 (M.D. Pa. Sept.
28, 2005) (Vanaskie, C.J.).
9

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:

The

(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
in diversity.

Schwalm v. Allstate Boliler & Construction, 2005 WL

1322740 *1 (M.D. Pa. May 17, 2005)(Caputo, J.); Scaramuzza v.
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.
(M.D. Pa. March 30, 2006)

Arrington v. Inch, 2006 WL 860961 *7

(Conner, J.).

In additi o n,

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.

See Perez v. Griffin, 2008 WL

2383072 *3 (M.D. Pa. June 9, 2008) (Rule 1042.3 a pplies to
incarcerated and pro se plaintiffs and constitutes a rule of

10

substantive state law to which plaintiffs in federal court must
comply).
The pending Complaint potential
of medical negligence.

The f

includes multiple claims

of those such assertions raised

by Plaintiff is that EMT Potter, a prison staff member,

lowed

Plaintiff to be placed in ambulatory restraints and failed to
properly evaluate his shoulder injury.
that members of the

Next, Plaintiff contends

son's medical staff who conducted two hour

assessments of his condition while he was in ambulatory restraints
were also negligent for f

lure to investigate and treat his broken

collarbone.
The Complaint also references actions by Porter's orthopedic
surgeon, Doctor Ball and by Doctor Edinger, a prison staff
physician who had Plaintiff transferred to an outside hospital
after reviewing his initial x-ray.
were also allegedly negli

Staff at the outside hospital

because

simply

arm in a sling and returned him to the prison.
Following Pia
referred h

Plaintiff's
Doc. 1, p. 8.

iff's return to USP-Lewisburg, Doctor Edinger
for evaluation by Doctor Ball.

There are also claims

which seem to assert that there was a delay of weeks in arranging
the evaluation by Doctor Ball.

See

Since Plaintiff has not submitted a Rule 1042.3 certificate
of merit or otherwise indicated that he has retained an expert
witness, this Court agrees that based upon the facts asserted
regarding Doctor Edinmger

is appropriate for this court to

dismiss any FTCA medical malpractice/negligence cl

against

osorio v. United States,

Doctor Edinger without prejudice.

11

2007 WL 2008498 *2 (W.D. Pa. July 5, 2007)i see also Henderson v.
~~~=,

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, 2005)(Muir, J.).
The only exception to Rule 1042.3 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
rsons.

nonprofessional

U

Berman v. United States, 205 F. Supp.2d

362, 264 (M.D. Pa. 2002) (citing Brannan v. Lankenau HosEital, 490
Pa. 588 (1980).

However, the instances when expert opinions may be

unnecessary are rare.

SimEson, 2005 WL *6; Arrington, 2006 WL

860961 *7.
Based upon Plaintiff's allegation

when first seen by

Doctor Edinger the physician stated how did no one notice this, the
bone was sticking upwards and stabbing into my flesh, the
negligence claims against EMT Potter and the other medical staff
who assessed Plaintiff while he was

ambulatory restraints

arguably fall within the above described exception to Rule 1042.3.
Doc. 1, p. 13.

According

, the request for dismissal of those

medical negligence claims under Rule 1042.3

11 be denied.

Likewise, the apparent claim that there was a delay of weeks before
Plaintiff was seen by Doctor Ball also conceivably fits within the
recognized exception to Rule 1042.3 and will also be allowed to
proceed. 4

4.
Since this Court has already determined that any claims against
Doctor Ball and outside hospital staff are not properly pursued
under the FTCA the Rule 1042.3 argument with respect to those
individuals does not need to be addressed.
12

Assault/Motion to View Tapes

With respect to the incident of October 2, 2012, the
Defendant maintains that any allegation of assault with re
the force used by Correctional Officer Wh

to

and the placement of

ambulatory restraints should not be allowed to proceed because the
undisputed record shows that those actions were reasonable and in
accordance with BOP policy.
In support of
three videotapes
filed under seal.

See Doc. 22, p. 20.

s argument the Defendant provided this Court
aining to the events at issue which ere

The Defendant added

Porter would be

afforded opportunity to view those videotapes at his current place
Doc. 19, ,

of incarceration.
Porter has fi
opportunity to view
ir authenticity.

9.

a motion requesting that he be provided
submitted videotapes
Doc.

33.

order to veri

The motion is unopposed.

previously expressed its intention to

Since the De

Plaintiff opportunity to review the videotape evidence,
unopposed motion will be granted.

Moreover, the remaining summary

judgment arguments will be dismissed without prejudice an may be
reasserted after Porter has had opportunity to
videotapes. 5

the

An

united
DATED:

MARCH

rJ C(1?t;016

5.
Since the videotape evidence also appears to be relevant to EMT
Potter's initial medical assessment of Porter, it is also
e to withhold consideration of the D e ' s remaining
that the medical care provided to pI
while he was
in ambulatory restraints was appropriate.

13