Holton v. United States of America

Filing 52

MEMORANDUM (Order to follow as separate docket entry) re 40 MOTION for Judgment on the Pleadings filed by United States of America, 50 REPORT AND RECOMMENDATIONS re 40 MOTION for Judgment on the Pleadings filed by United States of America.We will adopt the report and recommendation as the decision of the court, as supplemented and modified by this memorandum opinion.An appropriate order follows. Signed by District Judge Joseph F Saporito, Jr on 3/11/25. (ms)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
RUBEN C. HOLTON,
Plaintiff,

CIVIL ACTION NO. 4:22-CV-00070

v.

(SAPORITO, J.)
(CARABALLO, M.J.)

UNITED STATES OF AMERICA,
Defendant.

MEMORANDUM
Now before the court is a report and recommendation of United
States Magistrate Judge William I. Arbuckle 1, in which he recommends
that the defendant’s motion for judgment on the pleadings (Doc. 40) be
denied. (Doc. 50). After careful consideration, and for the reasons set
forth herein, we will adopt the report and recommendation, as modified
herein, as the decision of the court and grant the motion in part and deny
it in part.

Since Magistrate Judge Arbuckle issued his Report and
Recommendation, this case has been reassigned to Magistrate Judge
Phillip J. Caraballo as the referral judge on February 13, 2025.
1

I.

Factual Background 2

The plaintiff, former federal inmate Ruben C. Holton, initiated this

pro se Federal Tort Claims Act (“FTCA”) case on January 13, 2022,
against the United States of America and three additional individuals:
(1) health service administrator Bret Bosious; (2) physician Ellen
Liebson-Mace; and (3) Mary M. Spiese. 3 In his complaint, the plaintiff
describes a series of events occurring over a twenty-one day period in
February and March of 2021. During this period, the plaintiff contracted
COVID-19, and allegedly received inadequate treatment. On February
22, 2021, the plaintiff went to sick-call after experiencing chest pain and
difficulty breathing. The plaintiff alleges that defendant Spiese
“teased/mocked” the plaintiff rather than taking his vitals or
administering a COVID-19 test. The plaintiff then sent a message via the
TRULINCS system to various members of the prison to inform them of
the incident, receiving a reply from one of the doctors that same day

2 While all facts are taken from the plaintiff ’s complaint (Doc. 1),

we have included Judge Arbuckle’s recitation of those facts in this section
of the memorandum. See (Doc. 33; Doc. 50).
3 All three individual defendants have been dismissed from the
plaintiff ’s complaint. See (Doc. 33). Nevertheless, they are still referred
to as defendants in this section.
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stating that the plaintiff would be seen in the future. The next day, the
plaintiff alleges he went to sick-call again with worsening chest pain,
where the examining physician told the plaintiff to return if his condition
worsened. He further alleges that the physician did not take his
temperature and did not test him for COVID-19.
On February 24, 2021, the plaintiff received an email from
defendant Liebson-Mace informing the plaintiff that his email had been
forwarded to the clinical director and administration. The warden of the
prison additionally responded to the plaintiff ’s email, noting that the
plaintiff ’s chest pain was found to be reproducible. The plaintiff denies
this statement as no examination occurred on February 22, 2021. That
same day, the plaintiff sent an additional message to defendant Brosious,
requesting a switch of his health care provider from defendant Spiese.
Defendant Brosious responded to the plaintiff, informing him that his
email was forwarded to the clinical director and administration.
On March 2, 2021, the plaintiff tested positive for COVID-19. The
plaintiff was subsequently placed in isolation that same day. He was
released from isolation on March 15, 2021. The plaintiff alleges that he
was not tested for COVID-19 at any point during his isolation or before

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his release. He additionally alleges that no one checked on him while in
isolation on March 4, March 7, March 13, and March 14. Moreover, the
plaintiff contends that he consistently faced a denial of medical care after
being released from isolation well into the fall of 2021.
The plaintiff alleges that officials at FCI Schuylkill posted signs
from the CDC around the institution instructing inmates to seek medical
attention if they experienced trouble breathing or persistent pain or
pressure in the chest. The plaintiff states that he followed those
instructions but was denied sick-call and a COVID-19 test on both
February 22, 2021, and February 23, 2021. The plaintiff alleges that FCI
Schuylkill “ranked #1 in the Nation in positive COVID-19 infections” at
this time. The plaintiff additionally cites to pages 61–62 in the FCI
Schuylkill Orientation Handbook which states that inmates have the
right to health services based on the local procedures at their institution,
including medical sick call, the right to address any concerns regarding
their health care to any member of the institutional staff, and the right
to complain of pain and have their pain assessed and treated.
The plaintiff alleges that as a direct and proximate result of the
defendants’ negligence, he contracted COVID-19, had lingering COVID-

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19 symptoms, and suffered pain of mind and body. The plaintiff seeks at
minimum $850,000.00 pre- and post-judgment interest, and cost of suit.
II.

Procedural History

The Court previously adopted a report and recommendation by
Judge Arbuckle in its entirety concerning the underlying action. (Doc.
34). The report and recommendation involved a motion to dismiss filed
by the United States (Doc. 24), arguing that the Court should dismiss the
plaintiff ’s complaint because the plaintiff failed to file a Certificate of
Merit (COM) in compliance with Pa. R. Civ. P. 1042.3. (Doc. 25). Moreover,
the United States argued that the plaintiff additionally failed to state a
valid negligence claim upon which relief could be granted, and that the
plaintiff ’s complaint lacked subject matter jurisdiction. (Id.). Both parties
fully briefed the motion (Doc. 25; Doc. 30; Doc. 31), and on August 31,
2023, Judge Arbuckle recommended that the defendant’s motion be
denied. (Doc. 33). Judge Mannion adopted Judge Arbuckle’s report and
recommendation in its entirety on September 25, 2023, after neither
party filed any objections. (Doc. 34).
Judge Arbuckle’s findings, and Judge Mannion’s adoptions of those
findings, concerning the validity of the plaintiff ’s negligence claims and

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the plaintiff ’s failure to file a COM remain key issues in the current
report and recommendation before the Court. Judge Arbuckle first found
that the plaintiff ’s failure to file a COM in accordance with Rule 1042.3
of the Pennsylvania Rules of Civil Procedure was not a basis to dismiss
his FTCA claims. See (Doc. 33, at 23). As the Third Circuit held, “Rule
1042.3’s certificate of merit requirement does not apply in FTCA cases.”
(Id.) (quoting Wilson v. United States, 79 F.4th 312, 316 (3d Cir. 2023)).
Therefore, the plaintiff was not required to file a COM to advance his
professional negligence claim. Second, Judge Arbuckle found that the
plaintiff asserted both medical malpractice claims and ordinary
negligence claims against the defendants. (Id., at 24). Specifically, Judge
Arbuckle held that plaintiff ’s medical malpractice claims stemmed from
the defendants’ alleged failure “to follow generally accepted medical
standards” when they failed to test the plaintiff for COVID-19 after
complaining of COVID-19 symptoms. (Doc. 50, at 13). Moreover, Judge
Arbuckle further explained that the plaintiff additionally asserted
ordinary negligence claims because FCI Shuylkill failed to “provide
suitable quarters and provide for the safekeeping [and] car[e]” of the

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plaintiff pursuant to 18 U.S.C. § 4042. (Doc. 33, at 24).4 Therefore, Judge
Arbuckle found that that plaintiff asserted two independent negligence
claims rather than a singular claim. 5
On November 16, 2023, the United States filed a motion for
judgment on the pleadings with an accompanying supporting brief. (Doc.
40; Doc. 41). It argued that the plaintiff “has alleged no causal connection
between the alleged breaches (failure to administer COVID-19 test) and
his purported injury (COVID-19 infection).” (Doc. 50, at 14) (quoting Doc.
41, at 4). Moreover, the United States further argued that “no plausible
case could be made that a medical provider’s failure to test a person for
a viral infection could cause the very viral infection for which the provider
did not test.” (Doc. 41, at 6). Both parties fully briefed the matter (Doc.
41; Doc. 42; Doc. 43), and on October 28, 2024, Judge Arbuckle filed his

For example, the plaintiff alleges that the defendant was
“negligent in failing to properly [and] satisfactorily looking into [the
plaintiff ’s] complaint of Chest Pain/Difficulty Breathing.” (Doc. 1, ¶ 5i).
5 As stated above, Judge Arbuckle’s report and recommendation
concerned additional claims. First, Judge Arbuckle found that the Court
had jurisdiction to hear the plaintiff ’s FTCA claim. Second, he
recommended that all claims against the individual defendants (Health
Service Administrator Bret Brosious, Physician Ellen Liebson Mace, and
Nurse Practitioner Mary M. Spiese) be dismissed. Therefore, once Judge
Mannion adopted the report and recommendation, these individuals
were dismissed from the case.
4

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report and recommendation, recommending that the defendant’s motion
be denied. (Doc. 50, at 17). First, Judge Arbuckle found that the United
States incorrectly treated the plaintiff ’s medical malpractice claim as an
ordinary negligence claim. See (Doc. 50, at 14) (“Rather inexplicably, the
United States now treats this claim as an ordinary negligence claim.
However, … we made clear in our Report and Recommendation, that
Plaintiff is bringing a medical malpractice claim for the failure to
administer COVID-19 tests.”). Further, Judge Arbuckle reasoned that,
“even if the Court were persuaded by the United States’ argument, we
cannot recommend granting its Motion for Judgment on the Pleadings
when the claim its Motion is predicated upon is not a claim in this
lawsuit.” (Id., at 15). Second, Judge Arbuckle emphasized that the
plaintiff not only alleged his injury concerned his contraction of COVID19, but also that he “dealt [and] is still suffering with lingering perminate
[sic] symptoms” and “suffered pain of mind [and] body.” (Id., at 16)
(quoting Doc. 1, ¶ 6). He noted that the “United States makes no
arguments that no plausible case could be made that failure to utilize a
diagnostic test increased the risk of having lingering and permanent
symptoms or suffering pain of mind and body,” as its argument only

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focused on the plaintiff ’s contraction of COVID-19, rather than any
additional

symptoms.

(Id.,

at

17).

Therefore,

Judge

Arbuckle

recommended the denial of the defendant’s motion.
On November 7, 2024, the United States filed its objections to Judge
Arbuckle’s report and recommendation. (Doc. 51). This matter is now ripe
for review.
III.

Standard of Review

“When objections to a report and recommendation have been filed,
the court must make a de novo determination of those portions of the
report to which specific objections are made.” Thompson v. Smeal, 54 F.
Supp. 3d 339, 342 (M.D. Pa. 2014). “When conducting a de novo review,
the court may accept, reject, or modify, in whole or in part, the factual
findings or legal conclusions of the magistrate judge.” United States v.

McLaughlin, 607 F. Supp. 3d 522, 529 (M.D. Pa. 2022); see also 28 U.S.C.
§ 636(b)(1); M.D. Pa. L.R. 72.3; Thompson, 54 F. Supp. 3d at 342. A de

novo determination, however, is not required if the objections are not
specific. Goney v. Clark, 749 F.2d 5, 6–7 (3d Cir. 1984) (per curiam);

McLaughlin, 607 F. Supp. 3d at 529. At a minimum, uncontested portions
of the report and recommendation and general objections must be

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reviewed for clear error or manifest injustice. McLaughlin, 607 F. Supp.
3d at 529–30; Thompson, 54 F. Supp. 3d at 341–42; Cruz v. Chater, 990
F. Supp. 375, 376–77 (M.D. Pa. 1998).
The defendant has moved for judgment on the pleadings under Rule
12(c) of the Federal Rules of Civil Procedure. Rule 12(c) provides that
“[a]fter the pleadings are closed—but early enough not to delay trial—a
party may move for judgment on the pleadings.” Fed. R. Civ. P. 12(c).
“Under Rule 12(c), a court must accept all factual averments as true and
draw all reasonable inferences in favor of the non-moving party.” U.S.

Fid. & Guar. Co. v. Tierney Assoc., Inc., 213 F. Supp. 2d 468, 469 (M.D.
Pa. 2002) (citing Soc’y Hill Civic Ass’n v. Harris, 632 F.2d 1045, 1054 (3d
Cir. 1980)); see also Westport Ins. Corp. v. Black, Davis & Shue Agency,

Inc., 513 F. Supp. 2d 157, 163 (M.D. Pa. 2007) (“When deciding a motion
for judgment on the pleadings, the court is directed to view ‘the facts
presented in the pleadings and the inferences drawn therefrom in the
light most favorable to the nonmoving party.’”) (quoting Hayes v. Cmty.

Gen. Osteopathic Hosp., 940 F.2d 54, 56 (3d Cir. 1991)). In deciding a Rule
12(c) motion, we may also consider “matters of public record, and
authentic documents upon which the complaint is based if attached to

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the complaint or as an exhibit to the motion.” Chemi SpA v.

GlaxoSmithKline, 356 F. Supp. 2d 495, 496–97 (E.D. Pa. 2005); see also
Kilvitis v. Cty. of Luzerne, 52 F. Supp. 2d 403, 406 (M.D. Pa. 1999) (“In
deciding a Rule 12(c) motion, however, a court may take judicial notice of
any matter of public record.”). Ultimately, “[a] party moving for judgment
on the pleadings under Rule 12(c) must demonstrate that there are no
disputed material facts and that judgment should be entered as a matter
of law.” U.S. Fid. & Guar., 213 F. Supp. 2d at 469–470 (citing Jablonski v.

Pan Am. World Airways, Inc., 863 F.2d 289, 290–91 (3d Cir. 1988), and
Inst. For Sci. Info., Inc. v. Gordon & Breach, Sci. Publishers, Inc., 931 F.2d
1002, 1005 (3d Cir. 1991)).
IV.

Discussion

The crux of Judge Arbuckle’s report and recommendation concerns
the defendant’s failure to distinguish the plaintiff ’s medical malpractice
claim and the plaintiff ’s ordinary negligence claim. Specifically, as Judge
Arbuckle observed, “[t]he United States’ arguments for judgment on the
pleadings focus on Plaintiff ’s failure to allege causation under the
requirements of an ordinary negligence claim” concerning the
defendant’s alleged-failure to administer COVID-19 tests. (Doc. 50, at

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15). “Plaintiff [,however,] does not bring an ordinary negligence claim for
the failure to administer COVID-19 tests” but instead “a medical
malpractice claim for the failure to administer COVID-19 tests.” (Id., at
13–14). Therefore, Judge Arbuckle recommended denying the motion
because the defendant based its motion on a claim that is not a claim in
this action. See (Id., at 15). We do not dispute this finding, as the
defendant indeed mischaracterized the plaintiff ’s failure to administer
COVID-19 tests as one sounding in ordinary negligence, rather than
medical malpractice. Nonetheless, while we agree that this technicality
warrants denial of the defendant’s motion, we additionally find that the
defendant’s substantive argument remains unaddressed. Indeed, the
defendant’s argument was (Doc. 41), and still remains (Doc. 51), that the
plaintiff has failed to allege a causal nexus between his alleged injuries
and the defendant’s purported breaches. We will therefore use this
opportunity to directly address the defendant’s argument in this
memorandum rather than potentially addressing the issue in later stages
of the underlying action.
Medical malpractice claims and ordinary negligence claims clearly
constitute independent claims. Nevertheless, regardless of the difference,

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Pennsylvania law establishes:
[F]or a party to prevail in a negligence action, ordinary
or professional, the elements are identical: the plaintiff
must establish (1) the defendant owed a duty of care to
the plaintiff, (2) that duty was breached, (3) the breach
resulted in the plaintiff ’s injury, and (4) the plaintiff
suffered an actual loss or damages. 6

Balter v. United States, No. 3:09-CV-1409, 2014 WL 1365905, at *25
(M.D. Pa. Apr. 7, 2014) (quoting Merlini ex rel. Merlini v. Gallitzin Water

Auth., 602 Pa. 346, 354, 980 A.2d 502, 506 (Pa. 2009)) (emphasis added).
While professional negligence additionally concerns an “unwarranted
departure from generally accepted standards of medical practice[s],” id.
(quoting Grossman v. Barke, 868 A.2d 561, 566 (Pa. Super. Ct. 2005)), the
basic element of ordinary negligence and professional negligence remains
the same: the purported breach must cause the plaintiff ’s injury. The
plaintiff here has alleged two distinct injuries. First, the plaintiff alleges
that the defendant’s breaches resulted in him “contract[ing] COVID-19.”
(Doc. 1, ¶ 6). Second, the plaintiff contends that he additionally suffered
“lingering perminate [sic] symptoms” of COVID-19 and “pain of mind &
body.” (Id.). The defendant has moved to dismiss the plaintiff ’s claims,

We must note that for purposes of the underlying action,
“professional negligence” is synonymous with “medical malpractice.”
6

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arguing that the plaintiff has not alleged the necessary facts that the
defendant’s conduct either caused the plaintiff to contract COVID-19, or
in turn, caused the lingering and permanent symptoms of the disease.
After reviewing the record before us, we agree with the defendant in part
and disagree with the defendant in part. While we find that the plaintiff
has failed to plead sufficient facts to show a nexus between his

contraction of his COVID-19 infection and the defendant’s purported
breaches, we additionally find that the plaintiff has successfully pled
adequate facts to show a nexus between his lingering and permanent

symptoms of COVID-19 and the defendant’s alleged breaches.
A.

Plaintiff ’s Alleged COVID-19 Contraction Injury

The plaintiff alleges the defendant’s breaches resulted in him
“contract[ing] COVID-19,” (Doc. 1, ¶ 6), with “lingering perminate [sic]
symptoms” and “pain of mind & body.” (Id.). When looking at the record
before us, however, we find that the plaintiff has failed to plead any facts
that support his alleged injury concerning contracting COVID-19.
For example, we first look at the plaintiff ’s allegations in his
medical malpractice claim. The plaintiff argues, as the Court previously
reaffirmed, that the defendant “failed to follow generally accepted

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medical standards” when it failed to test the plaintiff for COVID-19 after
complaining of symptoms. (Doc. 50, at 13); (Doc. 1, ¶ 5). This breach, as
the plaintiff argues, resulted in him “contract[ing] COVID-19.” (Doc. 1, ¶
6). However, even assuming the truth of the plaintiff ’s allegations, we do
not see how a failure to test the plaintiff for COVID-19 potentially
resulted in the plaintiff contracting COVID-19. A COVID-19 test merely
informs a patient whether the patient contracted the disease; it otherwise
plays no part in the probability of contracting COVID-19. 7 In turn, even
if the defendant had tested the plaintiff for COVID-19, that
determination still would have no bearing on the plaintiff ’s contraction
of the illness. These allegations fail to identify any specific facts that
show that the plaintiff ’s injury would not have happened but for the
defendant’s allegedly negligent conduct.
Moreover, the plaintiff admits in his complaint that he started
showing symptoms of COVID-19 prior to the defendant’s alleged breach

7 As the defendant stated in its objections, “[t]he occurrence of a

suspected COVID-19 infection is logically antecedent to the medical need
to diagnose or treat it, meaning that there can be no causal link between
the alleged failure to diagnose or treat an infection and the inception of
the infection.” (Doc. 51, at 5).
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of duty. 8 In other words, the plaintiff inherently alleges he contracted
COVID-19 before the defendant’s alleged breach. Ordinary and
professional negligence claims, however, necessitate that the alleged
breach cause the plaintiff ’s injury. See Balter, 2014 WL 1365905, at *25.
Therefore, we find that the plaintiff has failed to allege sufficient facts
for his contention that the defendant’s failure to follow generally accepted
medical standards in testing him for COVID-19 somehow caused the
plaintiff to contract COVID-19. Thus, we must grant the defendant’s
motion for judgment on the pleadings concerning the plaintiff ’s medical
malpractice claim for the plaintiff ’s COVID-19 injury.
Indeed, this logic additionally applies to the plaintiff ’s ordinary
negligence claims concerning the defendant’s failure to provide for the
plaintiff ’s safekeeping and care. The plaintiff alleges that the defendant
was “negligent in failing to properly [and] satisfactorily look into [the
plaintiff ’s] complaint of Chest Pain/Difficulty Breathing.” (Doc. 1, ¶ 5i).
As we have previously found, however, the plaintiff ’s complaint indicates
that he contracted COVID-19 before attempting to seek treatment from

8

See (Doc. 1-1, ¶ 5a) (“On 2-22-2021, Plaintiff went to sick-call

complaining of chest pain & difficulty breathing.”).
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the defendant, implying that the plaintiff contracted his COVID-19
injury before the defendant’s alleged breach. As a practical matter, an
injury that arises before an alleged breach cannot be said to have been
caused by that breach. Therefore, on this fact alone, the plaintiff ’s
allegations fail to state a plausible ordinary negligence claim for the
contraction of COVID-19.
Nonetheless, even if we assume that the plaintiff had not
contracted COVID-19 before his inspection, the defendant’s alleged
breach still fails to have any bearing on the plaintiff ’s alleged injury.
Similar to a COVID-19 test, a medical inspection merely indicates
whether a plaintiff may or may not have a particular medical ailment; it
does not contribute towards the contraction of a disease. Indeed, the
plaintiff has failed to allege any facts to allow a reasonable factfinder to
find that the defendant’s failure to investigate the plaintiff ’s symptoms
directly caused the plaintiff to contract COVID-19. For this reason, the
plaintiff additionally fails to state a claim concerning his COVID-19
injury.
The plaintiff ’s allegations that his contraction of COVID-19
stemmed from the defendant’s failure to follow guidance from both the

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CDC and its own orientation handbook further fails for parallel reasons.

See (Doc. 1-1, ¶ 5f) (“Defendant posted signs up from the CDC stating:
Seek medical attention immediately if you or someone you love has
emergency warning signs.”); see also (Doc. 1-1, ¶ 5g) (stating the
handbook provides that “[the plaintiff has] the right to health services …
includ[ing] Medical Sick Call … and all support services.”). The plaintiff ’s
contraction of COVID-19 seemingly occurred before the plaintiff
attempted to seek medical attention. Moreover, even if we accept that the
plaintiff had not contracted COVID-19 at that point, the plaintiff has still
failed to allege sufficient facts that allow a reasonable factfinder to find
that defendant’s breach caused his injury of contracting COVID-19. For
example, the plaintiff has failed to allege an employee originally exposed
him to COVID-19, or how an employee’s failure to adhere to medical
guidelines exposed him to COVID-19. See Brown v. United States, No.
1:22-CV-00404, 2023 WL 2632811, at *15 (M.D. Pa. Mar. 24, 2023)
(finding that the plaintiff had failed to “trace[] his exposure to any
specific, negligent act or omission to any particular individual at FCI
Schuylkill”). Without sufficient facts alleging that his exposure to
COVID-19 was caused by the defendant, the plaintiff has failed to provide

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a causal nexus between the defendant’s actions and contracting COVID19. For these reasons, we will grant the defendant’s motion for judgment
on the pleadings concerning the plaintiff ’s ordinary and professional
negligence claims for his COVID-19 contraction injury.

B.
Plaintiff ’s Alleged Prolonged and Lingering COVID-19
Symptoms
Our analysis, however, does not end there. As Judge Arbuckle
succinctly noted, “Plaintiff alleges as injury not just that he contracted
COVID-19, but also that he ‘dealt [and] is still suffering with lingering
perminate [sic] symptoms,’ and that, he ‘suffered pain of mind [and]
body.’” (Doc. 50 at 16) (quoting Doc. 1-1, ¶ 6). Indeed, we believe that the
crux of the plaintiff ’s complaint engages with potential negligent actions
that may have prolonged or enhanced the symptoms of COVID-19 rather
than the contraction of the disease itself. The defendant attempts to
convince the Court that we should additionally grant its motion for
judgment on the pleadings for the plaintiff ’s claims concerning these
prolonged and enhanced symptoms. It argues that these injures “are not
additional injuries at all[,]” but “instead, part-and-parcel with (and the
physical manifestation of) a COVID-19 infection.” (Doc. 51, at 6). We
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disagree with this interpretation.
General delays in treatment for illnesses can certainly embody
causation for injuries separate from the illness itself. See, e.g., Rouse v.

Plantier, 182 F.3d 192, 197 (3d Cir. 1999) (finding injuries where a prison
official “delays necessary medical treatment based on a non-medical
reason” or “prevents a prisoner from receiving needed or recommended
medical treatment.”). In turn, allegations of lingering and permanent
symptoms from delayed treatment constitute valid independent causes
of action separate from the underlying medical condition. See Natale v.

Camden Cnty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003) (quoting
Nicini v. Morra, 212 F.3d 798, 815 n.14 (3d Cir. 2000)) (noting liability for
inadequate medical care where there was “objective evidence that [a]
plaintiff had serious need for medical care” and prison officials ignored
the evidence); see also Monmouth Cnty. Corr. Institutional Inmates v.

Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987) (citing Ancata v. Prison Health
Servs., 769 F.2d 700, 704 (11th Cir. 1985)) (finding injuries where
“necessary medical treatment is delayed for non-medical reasons.”).
These types of actions extend to negligence claims under the increased
risk of harm standard. See Corrigan v. Methodist Hosp., 234 F. Supp. 2d

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494, 501 (E.D. Pa. 2002), aff ’d, 107 F. App’x 269 (3d Cir. 2004) (discussing
increased risk of harm standard); See also, e.g., Mitzelfelt v. Kamrin, 526
Pa. 54, 584 A.2d 888, 892 (1990). Therefore, the plaintiff may allege
ordinary and professional negligence claims for his prolonged and
permanent COVID-19 symptoms, including pain of mind and body,
provided that he produces sufficient facts that make plausible the causal
nexus between those injuries and the defendant’s purported breaches. We
find the plaintiff has done so here.
Under an increased risk of harm standard, Pennsylvania law
“permits recovery where a defendant’s negligence increased the risk of
harm to a plaintiff, even if the plaintiff cannot show conclusively that no
injury would have occurred in the absence of negligence.” Grundowski v.

United States, No. CIV.A. 3:07-2207, 2012 WL 1721781, at *7 (M.D. Pa.
May 16, 2012) (quoting Lempke v. Osmose Util. Servs., Inc., No. 11-1236,
2012 WL 94497, at *3 (W.D. Pa. Jan. 11, 2012)). “If the plaintiff can show
an increased risk of harm, then the case may be submitted to a jury to
determine whether the increased risk of harm was a substantial factor in
causing the injury.” Id. (citing Lempke, 2012 WL 94497, at *3) (citations
omitted). Once a plaintiff establishes evidence of conduct giving rise to

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an increased risk of harm, that evidence can provide the basis for
factfinders to conclude that such increased risk was a substantial factor
in bringing about the resultant harm. Id. (citing Corrigan v. Methodist

Hosp., 234 F. Supp. 2d 494, 502 (E.D. Pa. 2002)). Injuries under the
increased risk of harm standard apply to both ordinary negligence and
professional negligence claims. Id. (citing Fenney v. Disston Manor Pers.

Care Home, Inc., 2004 Pa. Super. 114, 849 A.2d 590, 594) (applying the
increased risk of causation theory to ordinary negligence actions); see

also Hamil v. Bashline, 481 Pa. 256, 272, 392 A.2d 1280, 1286 (1978)
(applying the increased risk of causation theory to professional
negligence claims). Here, the plaintiff must allege sufficient facts to allow
a factfinder to conclude that the defendant’s negligent act or omission
increased the risk of permanent and prolonged COVID-19 symptoms.
The plaintiff argues in his ordinary negligence claim that the
defendant breached its duty when it failed to “provide suitable quarters
and provide for the safekeeping [and] car[e]” of the plaintiff pursuant to
18 U.S.C. § 4042. (Doc. 1, ¶ 5k). Moreover, in his professional negligence
claim, the plaintiff alleges that the defendant breached its duty by failing
to “follow generally accepted medical standards” when it failed to test the

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plaintiff for COVID-19 after he suffered potential symptoms of the
disease. (Id., ¶ 5j). In either claim, however, we conclude that the plaintiff
has alleged sufficient facts that make plausible the nexus between the
defendant’s negligent conduct and the increased risk of prolonged and
permanent COVID-19 symptoms.
We find that a reasonable factfinder could find the defendant’s
alleged failure to “properly & satisfactorily look into [the plaintiff ’s]
complaint of Chest Pain/Difficult Breathing” increased the risk of
permanent and prolonged symptoms. (Doc. 1, ¶ 5i). Indeed, a failure to
investigate potentially problematic symptoms could delay necessary
medical treatment, and in turn, increase the risk that COVID-19
symptoms would worsen without effective medical treatment. Moreover,
for similar reasons, we additionally find that a reasonable factfinder
could conclude that the defendant’s alleged failure to test the plaintiff for
COVID-19 departed from “generally accepted medical standards” and
directly increased the risk of lingering or permanent symptoms by
delaying necessary medical treatment. As stated above, a party moving
for judgment on the pleadings under Rule 12(c) must ultimately
“demonstrate that there are no disputed material facts and that

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judgment should be entered as a matter of law.” U.S. Fid. & Guar., 213 F.
Supp. 2d at 469–470 (citing Jablonski v. Pan Am. World Airways, Inc.,
863 F.2d 289, 290–91 (3d Cir. 1988), and Inst. For Sci. Info., Inc. v. Gordon

& Breach, Sci. Publishers, Inc., 931 F.2d 1002, 1005 (3d Cir. 1991)). The
defendant has failed to do so here. The plaintiff has pled sufficient facts
to support his ordinary and professional negligence claims for his
prolonged and permanent COVID-19 symptoms, and thus, we will deny
the defendant’s motion for judgment on the pleadings on this claim.9

9 We must note that the defendant believes this interpretation is

incompatible with the Court’s prior characterizations of Holton’s claims.
We disagree. The Third Circuit holds only that a plaintiff is not required
to file a Certificate of Merit (COM) to advance a claim of medical
malpractice under the FTCA. See generally Wilson v. United States, 79
F.4th 312 (3d Cir. 2023). This holding, however, does not excuse the
plaintiff ’s burden in proving the requisite elements of a medical
malpractice claim, including potential testimony from a medical expert
to prevail on that claim. At the pleading stage, however, a plaintiff need
only allege sufficient facts to sustain negligence claims for his purported
injuries. Here, we find the plaintiff has done so by alleging sufficient facts
to create a nexus between the defendant’s alleged negligence and his
prolonged and enhanced symptoms due to COVID-19. The defendant
contends that “[s]uch a claim, of course, could succeed only with an expert
opinion to establish to a reasonable degree of medical certainty that the
standard of care required an earlier test and that delayed diagnosis and
treatment of COVID-19 could cause or increase the risk of the alleged
permanent complications.” (Doc. 51, at 6) (emphasis included). Our
holding, however, does not impact the potential viability of the
defendant’s contention that the plaintiff needs to present expert

(continued on next page)

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V.

Conclusion

For the following reasons, we will adopt the report and
recommendation as the decision of the court, as supplemented and
modified by this memorandum opinion.
An appropriate order follows.

Dated: March 11, 2025

s/Joseph F. Saporito, Jr.

JOSEPH F. SAPORITO, JR.
United States District Judge

testimony to ultimately prevail on his claim. We merely note that it is not
an appropriate argument under 12(c) of the Federal Rules of Civil
Procedure, as this argument invokes matters outside the pleadings. See
Fed. R. Civ. Pro. 12(d) (“If, on a motion under … Rule 12(c), matters
outside the pleadings are presented to and not excluded by the court, the
motion must be treated as one for summary judgment under Rule 56.”).
Therefore, the defendant must pursue this argument under Rule 56 of
the Federal Rules of Civil Procedure in a motion for summary judgment.
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