Regassa v. Brininger et al

Filing 91

MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable Matthew W. Brann on 8/26/16. (km)

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

ADMASSU REGASSA,
Plaintiff
v.
C. BRININGER, ET AL.,
Defendants

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CIVIL NO. 4:CV-14-1122
(Judge Brann)

MEMORANDUM
August 26, 2016
Background
Admassu Regassa , an inmate presently confined at the United States
Penitentiary, Marion, Illinois filed his pro se combined Bivens1/Federal Tort
Claims Act (FTCA) action regrading his prior confinement at the United States
Penitentiary, Lewisburg, Pennsylvania (USP-Lewisburg).2
By Memorandum and Order dated September 4, 2015, Defendants’ motion
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.
388 (1971).
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The FTCA provides a remedy in damages for the simple negligence of
employees of the United States See United States v. Muniz, 374 U.S. 150, 152
(1963).
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for summary judgment was partially granted. See Doc. 44. Summary judgment
was granted in favor of the Defendants with respect to: (1) the Bivens claims
against them in their official capacities; (2) all Bivens claims asserted against
Warden Thomas, Associate Warden Wilson, and Captain Entzel on the basis of
lack of personal involvement; and (3) the unsupported claims of conspiracy. In
addition, Regassa was directed to file and serve an amended complaint which
complied with Federal Rules of Civil Procedure 8 and 20, clearly identified his
surviving FTCA and Bivens claims, and addressed the concerns set forth in the
Court’s Memorandum. Plaintiff thereafter filed an amended complaint. See Doc.
45.
Named as Defendants in the amended complaint are the United States of
America and the following twenty-three (23) USP Lewisburg officials:
Correctional Officers C. Brininger, S. Argueta, A. Kranzel, J. Oldt, M. Erb, E.
Kulp; N. Beaver, C. Wise, S. Buebendorf, J. Eck, and D. Johnson; Nurse Gregory
George; Lieutenants Sherman, Saylor, A. Miller, Seeba, Carrasquilo, and Dowkus;
Physician’s Assistant (PA) Francis Fasciana; Doctor Kevin Pigos; Counselor M.
Edinger; Disciplinary Hearing Officers (DHO) A. Jordan and B. Chambers.

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The FTCA portion of the amended complaint asserts that prior to a July 8,
2013 disciplinary hearing, Plaintiff was threatened with physical harm by
Counselor Edinger, Brininger, Kranzel, and Kulp. See Doc. 45, ¶ 63. Following
conclusion of the hearing, Regassa claims that he was physically assaulted by
Correctional Officers Brininger, Kranzel and Kulp and other unidentified officers
in a second floor hallway near the shower area. Brininger allegedly threw Regassa
to the floor and along with other officers repeatedly kicked and stomped the inmate
for approximately three minutes. Plaintiff asserts that he suffered multiple injuries.
The amended complaint concludes that this use of force constituted assault and
battery. 3
Regassa also contends that following the incident he remained in ambulatory
restraints for approximately three (3) days and was issued a falsified misconduct
charge for assaulting Brininger. The Amended Complaint asserts that the use of
ambulatory restraints was negligence and also constituted an assault. In addition,
Regassa claims that he was provided with negligent medical care for his injuries
resulting from the July 8, 2013 incident. Regassa elaborates that the prison’s
medical staff should have loosened his restraints, failed to treat his wounds, and

Plaintiff also asserts that the officers involved in the assault attempted to
cover up their actions by filing a false report.
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denied his requests for x-rays therapy, pain medication and a complete evaluation.
Presently pending is Defendant United States of America’s motion to
dismiss and or in the alternative for summary judgment with respect to the FTCA
portion of the amended complaint. See Doc. 47. The opposed motion is ripe for
consideration.
Discussion
The Moving Defendant asserts that Plaintiff’s medical negligence FTCA
claim should be dismissed because of his failure to file a proper certificate of merit
as required by Pennsylvania Rule of Civil Procedure 1042.3 . Since the motion
fails to address Plaintiff’s other FTCA claims (i.e. assault and battery) it will be
construed as only seeking partial relief.
Motion to Dismiss
The Moving Defendant’s 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.

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Fed. R. Civ. P. 12(b)(d).
This Court will not exclude the evidentiary materials accompanying the
Moving Defendant's motion. Thus, the motion will be treated as solely seeking
partial summary judgment. See 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
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. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). 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.
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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 its complaint. See Celotex Corp. v. Catrett,
477 U.S. 317, 324 (1986). 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)).
Certificate of Merit
Under the FTCA, sovereign immunity is waived against persons suing the
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federal government for the commission of various torts. See Simon v. United
States, 341 F. 3d 193, 200 (3d Cir. 2003). 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.
A plaintiff pursuing 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) that the negligent
breach was the proximate cause of the plaintiff's injury/loss. Mahler v. United
States, 196 F. Supp. 362, 364 (W.D. Pa. 1961). The only proper Defendant for
purposes of an FTCA claim is the United States of America. See 28 U.S.C. §
2679(d). Except in limited circumstances, an FTCA claim in federal court is
limited to recovery of the sum certain amount requested in the underlying
administrative claim. See McMichael v. United States, 856 F.2d 1026, 1035 (8th
Cir. 1988).
It is well-settled that a federal district court addressing an FTCA action must
apply the law of the state in which the alleged tortious conduct occurred. 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). However, in cases such as this
which involve federal prisoners, it has been recognized that the government's duty
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of care is one of ordinary diligence. See 18 U.S.C. § 4042; 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).
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. See Simpson v. Bureau of Prisons, 2005
WL 2387631 *5 (M.D. Pa. Sept. 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. The Rule 1042.3
certificate must certify that either: (1) an appropriate licensed professional has

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) (Conner, J.).
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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. A party seeking dismissal under
Rule 1042.7 must serve the opposing party with a notice of its intention to move
for dismissal thirty days prior to doing so. See Schmigel v. Uchal, 800 F.3d 113,
121-24 (3d Cir. 2015).5
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 Boiler & 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

Schmigel, which was announced well after the filing of this action, also held
that the thirty day notice requirement was substantive law which had to be provided to
a plaintiff before dismissal of an action could occur. Schmigel was announced
approximately six weeks prior to the filing of the pending dispositive motion. The
Defendant thereafter requested an enlargement of time to ensure compliance with
Schmigel before proceeding with its request for dismissal. See Doc. 61.
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with Pennsylvania substantive law. Arrington, 2006 WL 860961 at *7. In
addition, Plaintiff’s incarceration or pro se status is not a viable basis upon which
to excuse non-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 applies to incarcerated and pro se plaintiffs and
constitutes a rule of substantive state law to which plaintiffs in federal court must
comply).
A review of the docket shows that Regassa was served with a notice of intent
to seek dismissal under Rule 1042.3, dated November 13, 2015. See Doc. 50-2.
Plaintiff acknowledged receipt of that notice by letter dated November 18, 2015.
See Doc. 53. Regassa thereafter filed a one page handwritten certificate of merit
which simply reasserted his pending claims and generally states that he has
suffered “severe multiple internal and external injuries” Doc. 56, p. 1. This
“certificate” did not identify any medical expert and Plaintiff has not submitted a
report from any medical expert.
In order to ensure full compliance with the thirty day notice requirement, a
second thirty day notice of intent to seek dismissal for failure to file a certificate of
merit was sent by the Moving Defendant to Regassa at his current place of
confinement. Plaintiff submitted in response an opposing brief vaguely arguing
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that expert testimony is unnecessary because his injuries were obvious and he was
provided with an untimely COM notice. See Doc. 84.
It is noted that the undisputed docket entries clearly show that Plaintiff was
provided with the thirty day notice required under Schmigel, a decision which was
not announced until well after the initiation of this action. In fact, Regassa was
provided with two such notices and he filed a proposed certificate of merit. I
conclude that Regassa was clearly given an abundance of time in which to file a
proper certificate of merit. Moreover, the Moving Defendant’s supporting brief
which sought dismissal under Rule 1042.3 was filed months after Plaintiff first
received notice of intent that such dismissal would be pursued. In sum, Regassa’s
contention that the thirty day notice was untimely lacks merit.
Second, in order to state a prima facie case of negligence under the FTCA
with respect to Plaintiff’s vague contention of suffering unaddressed multiple
severe internal and external injuries, it is the conclusion of this Court that Regassa
must come forward with expert testimony to support his claim that the treatment
and decisions afforded to him following the July 8, 2013 incident by the USPLewisburg medical staff deviated from acceptable medical standards; Regassa must
also show that the deviation was the proximate cause of his injuries. Regassa’s
alternative self-serving assertion that expert testimony is not required is not
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compelling particularly given his unsupported contention that he suffered severe
multiple internal and external injuries.
In light of Plaintiff’s failure to present any valid reason as to why an expert
witness is not required, 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
Correctional Institution, Allenwood, 2005 WL 1259950 *3 (M.D. Pa. May 27,
2005)(Muir, J.). For the reasons set forth herein, Defendant’s motion for partial
summary judgment will be granted. An appropriate Order will enter.

BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
United States District Judge

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