Murchison v. United States of America et al

Filing 16

ORDER ADOPTING IN PART, REJECTING IN PART REPORT AND RECOMMENDATIONS for 12 ; all defendants claims are dismissed with the exception of a Federal Tort Claim Act against defendant United States; Murchison is ordered to file a certificate of merit by 9/9/2016. Signed by Honorable Matthew W. Brann on 8/18/16. (see order for further/complete details) (lg)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
KENNETH MURCHISON,

:
:
Plaintiff,
:
:
v.
:
:
UNITED STATES OF AMERICA, :
WARDEN THOMAS,
:
USP - LEWISBURG,
:
DR. PIGOS,
:
NAMES OF UNKNOWN STAFF
:
MEMBERS AT USP, LEWISBURG, :
EVANGELICAL COMMUNITY
:
HOSPITAL AT LEWISBURG
:
:
Defendants.
:

Civil Action No. 4:16-CV-0206
(Judge Brann)

(Magistrate Judge Schwab)

ORDER
August 18, 2016
BACKGROUND:
On February 9, 2016, Plaintiff, Kenneth Murchison, filed the instant action
against the above named defendants.1 Murchison is becoming a “frequent-filer” in
this Court. This is the fourth case brought by Murchison that I have presided over
in my relatively short federal judicial career.

1

ECF No. 1.
1

Murchison’s first case, docketed to 3:11-CV-1944, was dismissed both for
failure to state a claim upon which relief may be granted and because he had failed
to exhaust his administrative remedies. The United States Court of Appeals for the
Third Circuit affirmed the dismissal on appeal.
Murchison’s second case, docketed to 3:11-CV-2285, a Federal Tort Claims
Act action, hereinafter “FTCA,” was also dismissed both on the merits and for
failure to exhaust administrative remedies. The Third Circuit again affirmed.
The third action, docketed to 4:13-CV-2587, raises both FTCA and
constitutional claims, is still pending in this Court.
The current action was reviewed by Magistrate Judge Susan E. Schwab, and
a report and recommendation is pending. The magistrate judge recommended
dismissal of all claims with the exception of the FTCA claim. Because the
undersigned has undertaken an independent review of the report and
recommendation and agrees with the recommended dismissals, the Court will not
rehash the sound reasoning of the magistrate judge as to the recommended
dismissals. However, the undersigned must respectfully reject the suggestion that
the FTCA medical malpractice claim survives, at least as it is cuurently plead.
The magistrate judge noted most of the deficiencies in the complaint and, on
May 3, 2016, provided Murchison twenty-eight (28) days to file an amended
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complaint in compliance with her order. He did not file an amended complaint
when given the opportunity; accordingly, there will be no further opportunity to
amend those claims that the magistrate judge already identified as failing to state a
claim.
On July 11, 2016, the magistrate judge issued a report and recommendation
to the undersigned recommending that the action be dismissed in its entirety, with
the exception of the FTCA claim against the United States. Murchison has not
filed objections.
The magistrate judge suggested that Murchison had stated an FTCA claim
against the United States based on Murchison’s allegations that based on an alleged
lack of proper care post-surgery, while housed at USP-Lewisburg, Murchison
developed an infection and was required to undergo a second surgery at
Evangelical Community Hospital in Lewisburg, Pennsylvania. 2
However, federal inmates are not relieved of the responsibility to file a
Certificate of Merit under Pennsylvania law. The Third Circuit has affirmed that
certificates of merit are required, even from federal inmates, stating,
The FTCA requires a court to apply the tort laws of the state in which the
2

Although Murchison noted the date of his colonoscopy as June 23, 2014 and the date of
a second surgery to deal with the alleged infection as August 13, 2014, it is not clear precisely
what date he had the first surgery and on what date he returned to USP-Lewisburg for surgical
post-care.
3

alleged tort arose. Gould Elec. Inc. v. United States, 220 F.3d 169, 179
(3d Cir.2000). Here, the alleged tort of medical malpractice occurred in
Pennsylvania and Pennsylvania's law applies. Pennsylvania law requires
a plaintiff alleging medical malpractice to file a [certificate of merit]
“COM.” The certificate must attest either that an appropriate licensed
professional supplied a written statement that there exists a reasonable
probability that the care provided fell outside acceptable professional
standards, or that expert testimony of an appropriate licensed
professional is unnecessary. Pa. R. Civ. P. 1042.3(a)(1) & (3). This
requirement is a substantive rule and applies even where, as here, the
claim is brought in federal court. See Liggon-Redding v. Estate of
Sugarman, 659 F.3d 258, 264-65 (3d Cir.2011).3
Accordingly, the Court will adopt the report and recommendation, in part,
with the addition that Murchison file a certificate of merit.
Additionally, the magistrate judge ordered service prior to the undersigned
having completed review of the report and recommendation and the statutorily
required screening of the complaint in accordance with 28 U.S.C. §§ 1915 and
1915A. This resulted in defendants recommended to be dismissed being served
with process. Because of this, the time to answer for the only remaining
defendant, the United States, will be stayed pending the filing of a certificate of
merit. Should a certificate of merit be filed, the standard time to answer in
accordance with the Federal Rules of Civil Procedure will began to run as of that
date.

3

Baumgardner v. Ebbert, 535 F. App'x 72, 77 (3d Cir. 2013)
4

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1.
1.

The report and recommendation of Magistrate Judge Schwab is
ADOPTED in part and REJECTED in part. July 11, 2016, ECF No.
12.

2.

All defendants and claims are DISMISSED from the action, with the
exception of a Federal Tort Claim Act against defendant United
States.

3.

Murchison is ordered to file a certificate of merit to the docket, in
compliance with Pennsylvania law, by September 9, 2016. If no
certificate of merit is filed, the action will summarily be dismissed. If
a certificate of merit is filed, then the United States should file an
answer to the complaint or any motions in accordance with the
Federal Rules; the filing period shall commence on the date the
certificate of merit is filed.
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
United States District Judge

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