THOMAS v. FEDERAL BUREAU OF PRISONS et al

Filing 58

MEMORANDUM OPINION re 56 MOTION to Appoint Counsel MOTION to Appoint Expert filed by BRUCE A. THOMAS, 46 MOTION to Dismiss re 41 Amended Complaint MOTION for Summary Judgment filed by UNITED STATES ET AL, DIANE KENGERSKY, FEDERAL BUREAU OF PRISONS, MICHAEL WALT, FCI MCKEAN'S HEALTH SERVICES ET AL. An appropriate order to follow. Signed by Magistrate Judge Susan Paradise Baxter on 8/28/17. (lrw)

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

BRUCE A. THOMAS,
Plaintiff
v.
FEDERAL BUREAU OF PRISONS, et al,
Defendants.

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Civil Action No. 15-209
Magistrate Judge Baxter

OPINION1

SUSAN PARADISE BAXTER, United States Magistrate Judge:

A.

Relevant Procedural and Factual History

Bruce A. Thomas (“Plaintiff”) initiated this pro se action on August 19, 2015, by
submitting for filing a motion for leave to proceed in forma pauperis accompanied by a
complaint, and naming as Defendants the Federal Bureau of Prisons (“BOP”) and “Health
Services et al.” ECF No. 3. Plaintiff’s complaint alleged that Defendants were deliberately
indifferent to Plaintiff’s pain and need for hernia care, and delayed necessary treatment during
his incarceration at the Federal Correctional Institution, McKean (“FCI – McKean”). Defendants
timely responded to Plaintiff’s complaint with a motion to dismiss pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure, for failure to state a claim upon which relief could be
granted. In particular, Defendants contended that while the legal basis of Plaintiff’s precise
claim was difficult to discern, Plaintiff is barred from recovery by his failure to properly exhaust

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The parties have consented to having a United States Magistrate Judge exercise jurisdiction over this matter. See
28 U.S.C. § 636 et seq. (ECF Nos. 4, 23).

available administrative remedies prior to filing suit, his failure to bring suit against the
appropriate parties and, to the extent he sought to bring a negligence claim with regard to
medical care and treatment, his failure to file a Certificate of Merit as required by Pennsylvania
state law. ECF Nos. 24, 25.
In response, Plaintiff filed a motion to amend his complaint and a “declaration”
challenging Defendants’ assertion that he failed to exhaust administrative remedies, attaching
correspondence indicating that the United States Department of Justice received his
“administrative tort claim” on September 22, 2014.2 ECF No. 30-1 p. 7.
The Court granted Plaintiff’s motion, and Plaintiff filed his amended complaint on
January 3, 2017, more than two and one-half years after his hernia repair surgery. ECF Nos. 40,
41. The amended complaint brings new claims under Bivens v. Six Unknown Named Agents of
the Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and names four new defendants, including
the “United States, et al,” as “over seer of Federal Bureau of Prisons;” Dr. Michael Walt, D.O.,
Clinical Director at FCI – McKean; and Diane Kengersky, a physician assistant employed at FCI
– McKean (collectively, with the BOP and FCI – McKean Health Services, the “Federal
Defendants”). Plaintiff also named as a defendant Dr. Nathaniel Graham, “a surgeon for
Bradford Regional Medical Center.” 3 ECF No. 41, pp. 1-3.

2

Based upon the correspondence submitted, Plaintiff’s claim was considered for settlement pursuant to the Federal
Tort Claims Act (FCTA), 28 U.S.C. § 2672, and was denied on March 24, 2015. ECF No. 30-1, p. 8.
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Counsel for the Federal Defendants confirms that Dr. Nathaniel Graham is not a federal employee, and is currently
unrepresented in this matter. See, ECF No. 47, n.1. The Court notes that Plaintiff has failed to direct service of the
complaint to Dr. Graham, and that more than 90 days have passed since the filing of Plaintiff’s amended complaint
and since the filing of Defendants’ response confirming Dr. Graham’s unrepresented and unrelated status. As a
result, in accordance with Rule 4(m), the Court will direct Plaintiff to show cause within twenty (20) days why Dr.
Graham should not be dismissed from this action. In issuing the Order, the Court is cognizant of the fact that
Plaintiff joined Dr. Graham as a defendant in this action at a time beyond the expiration of all applicable statutes of
limitations for any alleged negligence, and that this delay may negatively impact the viability of any claim asserted
by Plaintiff against him. See, e.g., Singletary v. Pennsylvania Dep’t of Corr., 266 F.3d 186, 203 (3d Cir. 2001).

2

Through his amended complaint, Plaintiff alleges that he received inadequate care and
delayed surgical treatment for a hernia, which has resulted in continuing pain. ECF No. 41, p. 4.
Plaintiff contends that the treatment delay was the result of deliberate indifference on the part of
the individual defendants, or the result of policies and procedures promulgated by the United
States or the Bureau of Prisons. Plaintiff seeks compensatory damages, a change in prison
medical policies, and continued care and pain management.
The Federal Defendants now move for the dismissal of the amended complaint or,
alternatively, the entry of summary judgment in their favor, citing inter alia: (1) the application
of sovereign immunity as a bar to Plaintiff’s Bivens claims against the United States and its
agencies; (2) Plaintiff’s failure to exhaust administrative remedies through the prison grievance
process as a bar to his Bivens claims against all individual Federal Defendants; and, (3) the
absence of any evidence of deliberate indifference to Plaintiff’s serious medical condition.4
The Court ordered Plaintiff to respond to Defendants’ motion, and advised Plaintiff of the
Court’s intention to consider Defendants’ alternative request for entry of summary judgment

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Because of the disposition of issues related to sovereign immunity, exhaustion of administrative remedies, and
state law pleading requirements, the Court need not reach Defendants’ arguments related to the absence of evidence
of deliberate indifference. However, for purposes of completeness, and as relevant to Plaintiff’s motion for the
appointment of a medical expert, the Court has reviewed Plaintiff’s medical records and the declaration of FCIMcKean Clinical Director Dr. Michael J. Walt. ECF No. 47-4 – 47-7. These records indicate that Plaintiff was
under the continued care of prison and outside medical providers beginning with his first hernia-related complaint at
FCI – McKean in September 2013. Plaintiff’s medical records show that prison medical providers initially
determined that his condition did not require immediate surgical intervention, and that he could be treated
effectively with continued monitoring, a hernia belt, anti-inflammatories and pain medication. ECF No. 47-5. In
November 2013, surgery was deemed non-emergent but necessary because of a change in the size of the hernia. A
preoperative exam revealed that Plaintiff was suffering active hyperthyroidism, a condition that could pose
complications from anesthesia. Plaintiff was retested in January to confirm his hypothyroid status, and then
scheduled for nuclear radiology exams to determine the cause. These studies were completed in April 2014, and a
benign nodule was identified. It was determined that the nodule would not present an additional risk to Plaintiff and
surgical repair of his hernia was scheduled for May 8, 2014. In the intervening time period, there was no change in
Plaintiff’s condition, and surgery remained non-emergent. After surgery, Plaintiff experienced scrotal swelling and
a hematoma at the surgical site. The hematoma was drained, and as noted by Dr. Walt, such a condition can be
expected to normally occur with hernia repairs. In 2015, Plaintiff was diagnosed with epididymitis (inflammation of
the testicle), but Dr. Walt indicates that this is a condition wholly unrelated to his hernia or its repair. Id.

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pursuant to Rule 56 of the Federal Rules of Civil Procedure. ECF No. 49. Renchenski v.
Williams, 622 F.3d 315, 340 (3d Cir. 2010).
In response, Plaintiff has filed a “Declaration” with an amendment to his claims. Plaintiff
seeks to reassert a claim pursuant to the FTCA against certain Federal Defendants, and to
preserve his Bivens claim against all individual defendants. Plaintiff has also filed a motion for
the appointment of counsel and the appointment of a medical expert, for purposes of preparing a
Certificate of Merit. ECF Nos. 51, 56.
B. Standards of Review
1. Motion to Dismiss
A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6)
must be viewed in the light most favorable to the plaintiff and all the well-pleaded allegations of
the complaint must be accepted as true. Erickson v Pardus, 551 U.S. at 93-94. A complaint must
be dismissed pursuant to Rule 12(b)(6) if it does not allege “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).
To assess the sufficiency of a complaint under Twombly and Iqbal, a court must: “First,
… ‘tak[e] note of the elements a plaintiff must plead to state a claim.’ Second … identify
allegations that, ‘because they are no more than conclusions, are not entitled to the assumption of
truth.’ Finally, ‘where there are well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise to an entitlement for relief.’”

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Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011)(internal quotation marks
omitted)(quoting Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010).
2. Summary Judgment
Federal Rule of Civil Procedure 56(a) provides that summary judgment shall be granted
if the “movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” When applying this standard, the court must examine
the factual record and reasonable inferences therefrom in the light most favorable to the party
opposing summary judgment. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986).
The moving party has the initial burden of proving the absence of evidence supporting
the non-moving party’s claims. Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Andreoli v.
Gates, 482 F.3d 641, 647 (3d Cir. 2007); UPMC Health System v. Metropolitan Life Ins. Co.,
391 F.3d 497, 502 (3d Cir. 2004). The burden then shifts to the non-movant to come forward
with specific facts showing a genuine issue for trial. Fed. R. Civ. P. 56(e); Williams v. Borough
of West Chester, Pa., 891 F.2d 458, 460-461 (3d Cir. 1989)(the non-movant must present
affirmative evidence - more than a scintilla but less than a preponderance – which supports each
element of his claim to defeat a properly presented motion for summary judgment). The nonmoving party must go beyond the pleadings and show specific facts by affidavit or by
information contained in the filed documents (i.e., depositions, answers to interrogatories and
admissions) to meet his burden of proving elements essential to his claim. Celotex, 477 U.S. at
322. See also Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).
When considering a motion for summary judgment, the court is not permitted to weigh
the evidence or to make credibility determinations, but is limited to deciding whether there are

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any disputed issues and, if there are, whether they are both genuine and material. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
3. Pro Se Pleadings and Filings
Pro se pleadings and filings, “however inartfully pleaded,” must be held to “less stringent
standards than formal pleadings drafted by lawyers” Haines v. Kerner, 404 U.S. 519, 520 (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. Brierley, 414
F.2d 552, 555 (3d Cir. 1969) (A petition prepared by a prisoner ... may be inartfully drawn and
should be read “with a measure of tolerance”); Freeman v. Department of Corrections, 949 F.2d
360 (10th Cir. 1991). Under our liberal pleading rules, 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) (overruled on other grounds). 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).
When considering a motion for summary judgment, however, the traditional flexibility
toward pro se pleadings does not require the Court to indulge evidentiary deficiencies. See Mala
v. Crown Bay Marina, Inc., 704 F.3d 239, 249 (3d Cir. 2013) citing Brooks v. Kyler, 204 F.3d
102, 108 n. 7 (3d Cir.2000) (indicating that pro se litigants still must present at least affidavits to
avoid summary judgment). Accordingly, because Plaintiff is a pro se litigant, this Court will
consider the facts and make inferences where it is appropriate.
C.

Discussion

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1. Plaintiff’s Motion for Counsel and Appointment of Medical Expert
Presently before the Court is Plaintiff’s Motion for Appointment of Expert Witness and
Counsel, ECF No. 56, in which Plaintiff indicates that he requires a medical expert to prepare a
Certificate of Merit in order to pursue a medical negligence claim against Defendants. In
addition, for the fifth time in this action, Plaintiff seeks the appointment of counsel.
With regard to the appointment of a medical expert, the Prison Litigation Reform Act
(“PLRA”), 28 U.S.C. § 1915, which governs proceedings in forma pauperis such as this, does
not provide for the appointment of medical personnel or any other individual to assist a plaintiff
in the prosecution of his or her case. Hodge v. U.S. Dep’t of Justice, 372 F. App’x 264, 268 (3d
Cir. 2010) (“District Court also properly denied Hodge’s motion for a government funded
medical expert because the court lacked authority to grant the request. See Boring v.
Kozakiewicz, 833 F.2d 468, 474 (3d Cir.1987) (finding no authority for court to pay for indigent
plaintiff's expert witnesses).”; Hakeem v. Salaam, 260 F. App’x 432, 435 (3d Cir. 2008)(holding
District Court did not err in denying prisoner’s motion for appointment of a medical expert: “In
Boring v. Kozakiewicz, we held that there is no statutory authority for payment of expert witness
fees in civil suits for damages.”).
As succinctly stated by the District Court for the Middle District of Pennsylvania:
28 U.S.C. § 1915[ ] contains no provision authorizing the Court to order
private litigants to receive the assistance of investigators or medical expert
witnesses at no cost . . . . [A] review of case law construing § 1915 reveals
that numerous courts have recognized the limitations of federal courts to
relieve indigent litigants from the costs of litigating civil claims, and have
repeatedly rebuffed efforts by pro se litigants to shift those costs to the
public. See, e.g ., Brooks v. Quinn, 257 F.R.D. 515, 417 (D. Del. 2009)
(“Although plaintiff is proceeding in forma pauperis, the court has no
authority to finance or pay for a party’s discovery expenses.... It is
plaintiff’s responsibility to pay for the costs associated with the taking of a
deposition.”); Augustin v. New Century TRS Holding, Inc., No. 08–326,
2008 U.S. Dist. LEXIS 96236, at *7–9 (W.D. Pa. Nov. 25, 2008) (denying
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plaintiff’s IFP application to cover costs for discovery requests); Badman v.
Stark, 139 F.R.D. 601, 605 (M.D. Pa.1991) (28 U.S.C. § 1915 does not
require the government to advance funds for deposition expenses); Toliver
v. Community Action Comm’n to Help the Econ., 613 F. Supp. 1070, 1072
(S.D.N.Y. 1985) (no clear statutory authority for the repayment of
discovery costs for IFP plaintiff); Sturdevant v. Deer, 69 F.R.D. 17, 19
(E.D. Wis.1975) (concluding that 28 U.S.C. § 1915 “does not extend to the
cost of taking and transcribing a deposition”); Ebenhart v. Power, 309 F.
Supp. 660, 661 (S.D.N.Y.1969) (“Grave doubts exist as to whether [28
U.S.C. § 1915] authorizes this court to order the appropriation of
Government funds in civil suits to aid private litigants in conducting pretrial discovery”); see also Tabron v. Grace, 6 F.3d 147, 159 (3d Cir. 1993)
(“There is no provision in [28 U.S.C. § 1915] for the payment by the
government of the costs of deposition transcripts, or any other litigation
expenses, and no other statute authorizes courts to commit federal monies
for payment of the necessary expenses in a civil suit brought by an indigent
litigant”).
Victor v. Fowler, 2011 WL 722387, at *1 (M.D. Pa. Feb. 18, 2011). As such, Plaintiff’s motion
for appointment of a medical expert, ECF No. 56, is denied.
In addition, Plaintiff has renewed his motion for the appointment of counsel. However, it
does not appear that Plaintiff is adding any new averments to those set forth in his previous
motions (ECF Nos. 8, 28, 37, and 43), nor has he offered the Court any basis for exercising its
discretion that has not already been considered.
Therefore, for the reasons set forth in the Court’s Memorandum Order dated September
16, 2015, and because consideration of the factors set forth in Tabron v. Grace, 6 F.3d 147 (3d
Cir. 1993), does not warrant the appointment of counsel in this instance, the Court declines to
exercise its discretion and request counsel to represent plaintiff in the prosecution of this action.
See Parham v. Johnson, 126 F.3d 454, 457 (3d Cir. 1997).
2. Defendants’ Motion to Dismiss/Summary Judgment
Plaintiff has filed a Declaration, wherein he appears to concede that he failed to exhaust
any Bivens claims, stating, “I would like to change this claim to a Federal Tort Claim if it’s

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correcting the lack of subject matter jurisdiction through my motion to amend.” ECF No. 51, p.
2. Plaintiff adds, “if necessary, .... I can use the Bivens against the named individual defendants
due to me exhausting administrative remedies.” Id. (emphasis in original). Accordingly, the
Court will consider Defendants’ motion to dismiss or, in the alternative, motion for summary
judgment as to both Plaintiffs’ Bivens claims, and those claims asserted under the FTCA.
a. Bivens Claims – Sovereign Immunity
Defendants argue that Defendants United States, BOP, and FCI-McKean are not proper
defendants in a Bivens action and should be dismissed from this case. The Court agrees.
“It is axiomatic that the United States may not be sued without its consent and that the
existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206,
212 (1983) citing United States v. Sherwood, 312 U.S. 584, 586 (1941). “Absent a waiver,
sovereign immunity shields the Federal Government and its agencies from suit.” F.D.I.C. v.
Meyer, 510 U.S. 471, 475 (1994) citing Loeffler v. Frank, 486 U.S. 549, 554 (1988); Federal
Housing Admin. v. Burr, 309 U.S. 242, 244 (1940). “A plaintiff attempting to sue any
government agency, such as the Federal Bureau of Prisons or a specific prison, ‘may not rely on
the general federal question jurisdiction ... but must identify a specific statutory provision that
waives the government’s sovereign immunity.’” Manns v. Bureau of Prisons, 2006 WL
3813926, at *2 (W.D. Pa. Dec. 26, 2006) quoting Clinton County Commissioners v. United
States Environmental Protection Agency, 116 F.3d 1018, 2021 (3d Cir. 1997).
Bivens does not act as a waiver of the Federal Government’s sovereign immunity, and
Bivens actions against federal entities are routinely dismissed for lack of subject-matter
jurisdiction. See, e.g., Kearse v. Bureau of Prisons, 2006 WL 2405721, at *3 (W.D. Pa. Aug. 18,
2006); Johnstone v. United States, 980 F. Supp. 148, 151 (E.D. Pa. 1997) (explaining that Bivens

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actions “may only be maintained against federal officers; sovereign immunity bars such actions
against the United States or agencies thereof”). Accordingly, Plaintiff’s Bivens claims against
Defendants United States, BOP, and FCI-McKean are dismissed from this case for lack of
jurisdiction.
b. Bivens claims – Individual Federal Defendants and Exhaustion
Defendants also seek judgment in their favor as to Plaintiff’s Bivens claims alleged
against the individual Federal Defendants, Dr. Walt and PA Kengersky, for failing to exhaust
available administrative remedies in accordance with the Prison Litigation Reform Act
(“PLRA”), 42 U.S.C. § 1997e. In particular, Defendants assert that Plaintiff’s claim of deliberate
indifference is barred by his failure to fully comply with and exhaust available prison
administrative remedies capable of addressing his complaint. ECF No. 47, pp. 9-11. Plaintiff
disputes this contention, pointing to his submission of an administrative tort claim to the Bureau
of Prisons as constituting full and complete exhaustion. ECF No. 51, p. 4. However, as more
fully set forth below, administrative exhaustion of a Bivens claim must occur through the prison
grievance system, and not through the separate administrative process for submission of a claim
under the FCTA.
The PLRA, 42 U.S.C. § 1997e(a) provides:
no action shall be brought with respect to prison conditions under section 1983 of
this title ... by a prisoner confined in any jail, prisons, or other correctional facility
until such administrative remedies as are available are exhausted.

Id.
As an initial matter, it is not a plaintiff’s burden to affirmatively plead exhaustion. Jones
v. Bock, 549 U.S. 199, 217 (2007) (“... failure to exhaust is an affirmative defense under the
PLRA, and … inmates are not required to specially plead or demonstrate exhaustion in their
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complaints.”). Instead, the failure to exhaust must be asserted and proven by the defendants. Ray
v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002).
The requirement that an inmate exhaust administrative remedies applies to all inmate
suits regarding prison life, including those that involve general circumstances as well as
particular episodes. Porter v. Nussle, 534 U.S. 516 (2002); Concepcion v. Morton, 306 F.3d 1347
(3d Cir. 2002) (for history of exhaustion requirement). Administrative exhaustion must be
completed prior to the filing of an action. McCarthy v. Madigan, 503 U.S. 140, 144 (1992).
Federal courts are barred from hearing a claim if a plaintiff has failed to exhaust all the available
remedies. Grimsley v. Rodriquez, 113 F.3d 1246 (Table), 1997 WL 2356136 (Unpublished
Opinion) (10th Cir. May 8, 1997). The exhaustion requirement is not a technicality, rather it is
federal law which federal district courts are required to follow. Nyhuis v. Reno, 204 F.3d 65, 73
(3d Cir. 2000) (by using language “no action shall be brought,” Congress has “clearly required
exhaustion”).
The PLRA also requires “proper exhaustion” meaning that a prisoner must complete the
administrative review process in accordance with the applicable procedural rules of that
grievance system. Woodford v. Ngo, 548 U.S. 81, 87-91 (2006) (“Proper exhaustion demands
compliance with an agency's deadlines and other critical procedural rules ...”). Importantly, the
exhaustion requirement may not be satisfied “by filing an untimely or otherwise procedurally
defective ... appeal.” Id. at 83; see also Spruill v. Gillis, 372 F.3d 218, 228-29 (3d Cir. 2004)
(utilizing a procedural default analysis to reach the same conclusion) (“ Based on our earlier
discussion of the PLRA's legislative history, [...] Congress seems to have had three interrelated
objectives relevant to our inquiry here: (1) to return control of the inmate grievance process to
prison administrators; (2) to encourage development of an administrative record, and perhaps

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settlements, within the inmate grievance process; and (3) to reduce the burden on the federal
courts by erecting barriers to frivolous prisoner lawsuits.”).
Analysis of exhaustion may not be made absent an understanding of the administrative
process available to federal inmates. “Compliance with prison grievance procedures, therefore, is
all that is required by the PLRA to ‘properly exhaust.’ The level of detail necessary in a
grievance to comply with the grievance procedures will vary from system to system and claim to
claim, but it is the prison’s requirements, and not the PLRA, that define the boundaries of proper
exhaustion.” Jones v. Bock, 549 U.S. at 218. See also Spruill, 372 F.3d at 231 (having concluded
that the PLRA includes a procedural default component, the Court then indicated that “prison
grievance procedures supply the yardstick for measuring procedural default.”).
Under the Bureau of Prisons’ regulations, an inmate must first attempt to informally
resolve any dispute with institution staff. 28 C.F.R. § 542.13. If informal resolution fails, the
inmate may raise his complaint to the Warden of the institution in which he is confined, within
twenty calendar days of the date that the basis of the complaint occurred. 28 C.F.R. §§ 542.13,
542.14. If the Warden denies the administrative remedy request, the inmate may file an appeal
with the Regional Director within twenty days of the date of the Warden’s response. 28 C.F.R.
§§ 542.14, 542.15. If the Regional Director denies the appeal, the inmate may appeal that
decision to the General Counsel for the Federal Bureau of Prisons within thirty calendar days
from the date of the Regional Director’s response. Id.
The evidence of record establishes that Plaintiff filed four administrative remedy requests
related to medical treatment, and one administrative tort claim pursuant to the FTCA. ECF No.
47-1. Each of Plaintiff’s four requests for administrative remedy was denied at the institutional
level, with three of the denials accompanied by explanations concerning his care. ECF Nos. 47-

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1, 47-5. One request, No. 771839, was appealed to the regional level and then denied. Upon
appeal to the national level, the request was rejected because Plaintiff failed to sign his appeal.
Plaintiff was instructed that he could resubmit his appeal, but he failed to do so. ECF No. 47-1, ¶
6. As such, the evidence of record demonstrates that Plaintiff failed to properly exhaust the
prison administrative remedy process as to his claims against Defendants Walt and PA
Kengersky.
Plaintiff has not produced any evidence to the contrary, as he must do in order to survive
a well-supported motion for summary judgment. Celotex. Instead, Plaintiff counters that he
exhausted all necessary remedies through the filing of an administrative tort claim. See ECF No.
30-1, p. 4; ECF No. 51, p. 4. Such an argument lacks merit. The case law clearly establishes that
the PLRA’s exhaustion requirement is not met by exhausting an FTCA claim. Ramos v. HawkSawyer, 212 F. App’x. 77, 79 (3d Cir. 2006) (administrative tort claim filed by federal inmate
did not satisfy administrative exhaustion requirement of PLRA for Bivens claims against prison
officials); Powell v. Wright, 2017 WL 750483, at *6 (W.D. Pa. Feb. 24, 2017). Accordingly,
because Plaintiff’s resort to the FTCA exhaustion procedures is not sufficient to exhaust
administrative remedies pursuant to the PLRA for purposes of filing a Bivens claim, Defendants’
motion for summary judgment is granted as to Plaintiff’s deliberate indifference claims.
c. FTCA Jurisdiction – Individual Defendants
To the extent Plaintiff now seeks to reassert FTCA claims against any individual
defendant, see, Declaration, ECF No. 51, p. 2, such claims are also barred. The FTCA provides
a limited waiver of sovereign immunity for certain torts committed by federal employees;
however, the United States is the only proper defendant in an action brought under the FTCA. 28
U.S.C. § 2679; see, e.g., Good v. Ohio Edison Co., 149 F.3d 413, 418 (6th Cir.1998); Kennedy v.

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United States Postal Serv., 145 F.3d 1077, 1078 (9th Cir.1998); Mars v. Hanberry, 752 F.2d 254,
255 (6th Cir.1985). Thus, Plaintiff’s FTCA claims against individual Federal Defendants Walt
and PA Kengersky are dismissed.
d. Certificate of Merit
Plaintiff’s initial complaint against the BOP and Health Services (FCI McKean) appeared
to assert a claim regarding delayed hernia care under the FTCA, which Defendants addressed
through their motion to dismiss filed March 6, 2016. ECF No. 3, p. 3, ECF No. 25. Defendants
argued that Plaintiff was precluded from proceeding with his FTCA claim because he failed to
file a Certificate of Merit as required by Pennsylvania law. ECF No. 25, p. 13. Although he has
not yet filed a Certificate of Merit, Plaintiff now declares that through his operative (amended)
complaint, he is asserting a negligence claim pursuant to the FTCA against certain of the Federal
Defendants regarding the propriety of his medical care. ECF No. 51.
As a federal district court addressing an FTCA action, we must apply the law of the state,
in this case Pennsylvania, in which the alleged tortious conduct occurred. Pennsylvania Rule of
Civil Procedure 1042.3 mandates the filing of a certificate of merit in professional negligence
claims within 60 days of the filing of a complaint. This requirement has been held as substantive
law to be applied by federal courts. See Liggon-Redding v. Estate of Sugarman, 659 F.3d 258,
265 (3d Cir. 2011). Thus, in order to present a prima facie case of negligence under
Pennsylvania state law against a medical professional related to care provided, 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 any alleged deviation constituted a substantial factor
in causing the Plaintiff’s injury. This requirement is mandatory and applies to incarcerated and

14

pro se plaintiffs. Crawford v. McMillan, 660 F. App’x 113, 116 (3d Cir. 2016)(failure to comply
with Rule 1042.3 of the Pennsylvania Rules of Civil Procedure is fatal to prisoner’s claims of
malpractice and professional negligence).
In this matter, Plaintiff has been aware of the requirement for a Certificate of Merit since
at least March 2016, when Defendants first raised the omission as grounds for dismissal.
Because Plaintiff has not submitted a proper Rule 1042.3 certificate of merit within 60 days of
the filing of his “declaration,” it is appropriate for this court to dismiss any FTCA medical
malpractice/negligence claims. See Hodge v. U.S. Dep’t of Justice, 372 F. App’x 264, 267 (3d
Cir. 2010)(dismissal appropriate where plaintiff fails to submit certificate of merit, in its absence,
FTCA claim fails as a matter of law). See also Osorio v. United States, 2007 WL 2008498 *2
(W.D. Pa. July 5, 2007); Peraza v. Helton, 2016 WL 6442254, at *6–7 (M.D. Pa. Nov. 1, 2016).

D. Conclusion
For each of the reasons set forth above, Plaintiff will be ordered to show cause why
Defendant Nathaniel Graham has not been served, despite the expiration of well over 60 days
since the filing of Plaintiff’s amended complaint identifying Dr. Graham as a defendant, and the
Federal Defendants’ confirmation of Dr. Graham’s unrelated and unrepresented status. In
addition, Plaintiff’s motion for appointment of counsel and medical expert, ECF No. 56, is
denied. Finally, Defendants’ motion to dismiss or, in the alternative, motion for summary
judgment is granted as to Plaintiff’s Bivens and FTCA claims asserted against all Federal
Defendants. An appropriate order follows.

/s/ Susan Paradise Baxter
SUSAN PARADISE BAXTER
U.S. Magistrate Judge
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cc:

All counsel of record via CM/ECF
Bruce A. Thomas
09349028
Butner Federal Medical Center
Inmate Mail/Parcels
PO Box 1500
Butner, NC 27509

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