NEIDIG v. MEDICAL STAFF et al
Filing
67
MEMORANDUM OPINION AND ORDER that 53 MOTION for Summary Judgment filed by UNITED STATES OF AMERICA, is granted. Judgment is granted in favor of the United States and against Plaintiff. IT IS FURTHER ORDERED that MOTION for Jury Trial and Request for Expert Testimony filed by CHARLES NEIDIG, JR. is denied. The Clerk of Courts is directed to close this case. Signed by Judge Susan Paradise Baxter on 3/17/10. (lrw)
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CHARLES NEIDIG, JR. Plaintiff vs. UNITED STATES OF AMERICA, Defendant.
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C.A.No. 07-229Erie Magistrate Judge Baxter
MEMORANDUM OPINION 1
Mag. J. Susan Paradise Baxter
I.
Procedural History Plaintiff, formerly a prisoner incarcerated at FCI McKean, filed the instant action pro se.2
Plaintiff alleges that unnamed staff at FCI McKean negligently delayed in diagnosing and treating his appendicitis and that the United States of America should be held liable for the medical negligence of its employees under the Federal Tort Claims Act.3 As relief, Plaintiff seeks: That due to the deliberate indifference buy [sic] the staff at McKean Federal In accordance with the provisions of 18 U.S.C. § 636(c)(1), the parties have voluntarily consented to have a United States Magistrate Judge conduct proceedings in this case, including entry of a final judgment. See Documents # 6 (Plaintiff's consent filed September 13, 2007); Document # 16 (consent of Defendants "Medical Staff" and "Staff - FCI McKean" filed January 22, 2008); Document # 36 (consent of Defendant United States filed October 28, 2008). At the time of the filing of the complaint, Plaintiff was incarcerated, but has since been released from custody. Plaintiff originally raised both a Bivens claim for violations of his constitutional rights and a negligence claim under the FTCA. By Opinion and Order dated July 16, 2008, the Bivens claim was dismissed due to Plaintiff's failure to exhaust his administrative remedies in accordance with the requirements of the Prison Litigation Reform Act. See Document # 28. 1
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Correctional Institution which resulted in excessive and unnecessary pain and suffering as a result of negligent medical care, which almost resulted in "death." A "sum certain" for compensatory damages is requested in the amount of 1.5 million dollars for negligent medical care resulting in excessive and unnecessary pain and suffering nearly resulting in death. Document # 5, page 5. Defendant United States has filed a motion for summary judgment [Document #53] and in support of that motion, Defendant has obtained the expert opinion of Jamie Stern, M.D. [Document # 56-6, 56-7]. Plaintiff has filed a brief in opposition to the pending motion [Document # 59]. Plaintiff has also requested that this Court appoint an expert witness on his behalf.4 By Order dated October 20, 2009, this Court directed that the Clerk of Courts seek counsel on behalf of Plaintiff. Four such requests were made and all four requests were declined. See Documents ## 62, 63, 64, and 65. By Order dated December 18, 2009, I vacated the order directing the appointment of counsel explaining:
T h is Court only has the power to request representation for civil plaintiffs, u n like criminal cases where counsel may be appointed by the court. If no co u n sel agrees to take a civil case when requested, an order appointing co u n sel is appropriately vacated until and if an attorney is found for the case. That is the case here. If Plaintiff finds counsel willing to represent him on his own, he may renew his motion without prejudice. Nonetheless, th e case must proceed toward resolution. As this case is fully briefed, an Opinion on the motion for summary ju d gm en t will be issued in due course.
Document # 66. Since December of 2009, neither party has filed any additional papers in this case. The
Plaintiff seeks the appointment of an expert witness pursuant to the Federal Rules of Evidence. That request must be denied. See Hakeem v. Salaam, 260 Fed.Appx. 432, 435 (3d Cir. 2008); Ford v. Mercer County Correctional Center, 171 Fed.Appx. 416, 420 (3d Cir. 2006) ("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."); Hodge v. United States, 2009 WL 2843332, at *5 (M.D. Pa.) ("It is well established that plaintiffs proceeding in forma pauperis including pro se inmates such as Plaintiff Hodge are responsible for their expert witness fees in civil actions"). Since his release from incarceration many months ago, Plaintiff was able to seek out his own expert witness. 2
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dispositive motion is fully briefed and is ripe for disposition by this Court.
II.
Standards of Review A. Pro Se Litigants
Pro se pleadings, "however inartfully pleaded," must be held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520-521(1972). If the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or litigant's unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969)(petition prepared by a prisoner may be inartfully drawn and should be read "with a measure of tolerance"); Smith v. U.S. District Court, 956 F.2d 295 (D.C.Cir. 1992); Freeman v. Department of Corrections, 949 F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, during the initial stages of litigation, a district court should construe all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997). See, e.g., Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)(discussing Fed.R.Civ.P. 12(b)(6) standard); Markowitz v. Northeast Land Company, 906 F.2d 100, 103 (3d Cir. 1990)(same). Because Plaintiff is a pro se litigant, this Court will consider facts and make inferences where it is appropriate.
B.
Motion for summary judgment
Federal Rule of Civil Procedure 56(c)(2) provides that summary judgment shall be granted 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 judgment as a matter of law." Rule 56(e) further provides that when a motion for summary judgment is made and supported, "an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must by affidavits or as otherwise provided in this rule set out 3
specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party." A district court may grant summary judgment for the defendant when the plaintiff has failed to present any genuine issues of material fact. See Fed.R.Civ.P. 56(c); Krouse v. American Sterilizer Company, 126 F.3d 494, 500 n.2 (3d Cir. 1997). The moving party has the initial burden of proving to the district court the absence of evidence supporting the non-moving party's claims. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Country Floors, Inc. v. Partnership Composed of Gepner and Ford, 930 F.2d 1056, 1061 (3d Cir. 1990). Further, "[R]ule 56 enables a party contending that there is no genuine dispute as to a specific, essential fact
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