United States District Court, M.D. Pennsylvania
June 20, 2005.
RYAN ROHRBAUGH, Plaintiff,
YORK COUNTY PRISON, et al., Defendants.
The opinion of the court was delivered by: A. RICHARD CAPUTO, District Judge
Ryan Rohrbaugh, formerly an inmate successively confined at the
York County Prison ("YCP") in York, Pennsylvania, the State
Correctional Institution at Camp Hill ("SCI-Camp Hill"),
Pennsylvania, and State Correctional Institution at Albion
("SCI-Albion"), Pennsylvania, commenced this action, through
counsel, with a civil rights complaint filed pursuant to the
provisions of 42 U.S.C. § 1983. Named as Defendants are, inter
alia, (a) Millcreek Community Hospital ("Millcreek"), (b)
Wexford Health Sources, Inc. ("Wexford"), and (c) Prison Health
Services, Inc. ("PHS") (collectively "moving Defendants").
Presently pending are (1) Millcreek's motion to dismiss party
(Doc. 31) for lack of jurisdiction, (2) Millcreek's motion to
dismiss for lack of prosecution (Doc. 33), (3) Wexford's motion
to dismiss for failure to prosecute (Doc. 43), (4) Wexford's
motion for judgment of non pros (Doc. 44), (5) PHS' motion for
judgment of non pros (Doc. 45), (6) PHS' motion to dismiss for
lack of prosecution (Doc. 46), (7) Plaintiff's motion to set
aside Millcreek's judgment of non pros (Doc. 56), (8)
Plaintiff's motion to set aside Wexford's judgment of non pros
(Doc. 61), and (9) Plaintiff's motion to set aside PHS' judgment
of non pros (Doc. 63). For the following reasons, Millcreek's
motion to dismiss for lack of jurisdiction will be denied, moving Defendants' motions to dismiss for failure to prosecute
will be granted, moving Defendants' motions for entry of judgment
of non pros will be dismissed as moot, and Plaintiff's motions
for relief from judgments will be granted.
In January, 2003, Plaintiff was incarcerated at YCP for parole
violation. Plaintiff alleges that during his confinement at YCP,
he discovered a black mole on his back, which prompted him to
seek medical attention. Plaintiff consulted with a nurse, who
instructed him to wait to receive medical treatment until he was
transferred to a state correctional facility. In May, 2003,
Plaintiff was transferred to SCI-Camp Hill, and he was
subsequently transferred to SCI-Albion in August, 2003. Plaintiff
underwent medical examinations during the intake procedures at
both institutions, and he noted the black mole on his back to the
medical personnel at both examinations. Although the mole was
surgically removed from Plaintiff's back in November of 2003,
Plaintiff alleges that the mole was malignant, and the delay in
removal allowed the cancer to spread to other parts of his body.
Consequently, Plaintiff alleges that as a result of Defendants'
inadequate medical care he has endured substantial pain and
suffering, numerous surgeries, chemotherapy, radiation
treatments, and a shortened life expectancy, among other damages.
(Doc. 1 at ¶¶ 74-92.)
Millcreek claims that it is entitled to dismissal from the
action for lack of jurisdiction as well as Plaintiff's failure to
comply with Local Rule 8.1 (M.D.Pa.L.R. 8.1), and moving
Defendants seek judgment of non pros, or alternatively
involuntary dismissal for Plaintiff's failure to file a
certificate of merit, as required for Plaintiff's state tort
claims. Plaintiff asserts that the motions should be denied
because the Court may exercise supplemental jurisdiction over the
state court claims, and involuntary dismissal is inappropriate.
If dismissal is granted, Plaintiff seeks relief from the dismissal
of his state claims. The motions have been fully briefed and they
are ripe for disposition.
A. Motion to Dismiss Standard
In rendering a decision on a motion to dismiss, the Court must
accept the Plaintiff's allegations as true. White v. Napoleon,
897 F.2d 103, 106 (3d Cir. 1990). Moreover, a motion to dismiss
may only be granted if there is no reasonable reading of the
facts that would entitle Plaintiff to relief. Lum v. Bank of
America, 361 F.3d 217, 223 (3d Cir. 2004). The Court should
consider the allegations in the complaint, the exhibits attached
thereto, matters of public record, and "undisputedly authentic"
documents. See Angstadt v. Midd-West School Dist.,
377 F.3d 338, 342 (3d Cir. 2004); Pension Guar. Corp. White Consol.
Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). A complaint
that does not establish entitlement to relief under any
reasonable interpretation is properly dismissed without leave to
amend. Grayson v. Mayview State Hospital, 293 F.3d 103, 106 (3d
B. Supplemental Jurisdiction
Millcreek claims that the only averments against it relate to
state tort claims of negligence and medical malpractice, and
Millcreek should be dismissed for lack of jurisdiction over these
claims. Under 28 U.S.C. § 1367(a), subject to exceptions not
applicable here (See 28 U.S.C. § 1367 (b) and (c)), "in any
civil action of which the district courts have original
jurisdiction, the district courts shall have supplemental
jurisdiction over all other claims that are so related . . . that
they form part of the same case. . . ." 28 U.S.C. § 1367(a). All of the tort claims relate to inadequacy of medical
treatment provided to (or withheld from) Plaintiff by Defendants.
The issues of law and fact for each claim are intertwined. After
review of the complaint, the Court concludes that it may properly
exercise supplemental jurisdiction over the state tort claims in
this action. See Borough of West Mifflin v. Lancaster,
45 F.3d 780 (3d Cir. 1995).
C. Failure to Comply With M.D.Pa.L.R. 81
Millcreek also claims that Plaintiff's complaint should be
dismissed for Plaintiff's failure to comply with M.D.Pa. Local
Rule 8.1. Under Rule 8.1, the demand for judgment "shall not
claim any specific sum where unliquidated damages are involved."
Although Plaintiff has pled an amount in excess of $150,000.00,
he has not pled a sum certain in contravention of the local rule,
and the amount sought is not binding on the jury in this case.
Accordingly, this argument is without merit. See also
D. Failure to File Certificate of Merit
Each of the moving Defendants has filed a motion to dismiss
Plaintiff's complaint for failure to prosecute (Docs. 33, 43, and
46), pursuant to the provisions of FED.R.CIV.P. 41(b); they have
also filed motions for judgment of non pros*fn1 (Docs. 35,
44, and 45). The state court claims are governed by Pennsylvania
substantive law. See Erie R.R. Co. v. Tompkins, 304 U.S. 64,
78-80 (1938). Under Pennsylvania Rules of Civil Procedure, a
Plaintiff in an action claiming a licensed professional deviated
from a professional standard shall file a certificate of merit,
signed by Plaintiff's attorney, if represented by counsel, within
sixty (60) days after filing the complaint. Pa.R.C.P. 1042.3. If
a Plaintiff fails to file the required certificate within sixty (60) days of filing the
complaint, Defendants may file a praecipe for entry of a judgment
of non pros. Pa.R.C.P. 1042.6. Since there is no federal court
counterpart to a praecipe for entry of non pros, moving
Defendants have also sought involuntary dismissal pursuant to the
provisions of FED.R.CIV.P. 41(b).
It is undisputed that Plaintiff failed to file a certificate of
merit within the required sixty (60) day period, and he did not
file a motion for extension of the deadline to file such a
certificate. Under Rule 1042.6 the remedy for failure to file the
requisite certificate of merit would be entry of judgment of non
pros, rather than a dismissal with prejudice. Under the
provisions of FED.R.CIV.P. 41(b), a defendant may move for
dismissal of a claim for failure of the plaintiff to prosecute.
Consequently, since there is no provision for entry of non pros
in federal court, the motions to dismiss for failure to prosecute
under Rule 41(b) are warranted, and the motions for entry of non
pros will be dismissed as moot.
However, under Pennsylvania law Plaintiff may seek relief from
dismissal for failure to file the certificate of merit, pursuant
to the provisions of 42 Pa.C.S. 3051. To obtain relief from the
judgment of non pros, three factors must coalesce: (1)
Plaintiff must act promptly, (2) the failure to file the
certificate must be reasonably explained, and (3) the underlying
cause of action must be meritorious. The Court is convinced that
Plaintiff has acted promptly, and the underlying claim has
arguable merit. In reference to an explanation of the failure to
file, the Court is mindful that prisoners have a difficulty in
obtaining medical records from prison authorities. Furthermore,
Plaintiff has alleged that he was unsure that the requirements of
the state rules of procedure would be applicable in his federal
action. Although the Pennsylvania courts have held that the rule
is "plain on its face, and an attorney is charged with knowledge
of the law" Moore v. Luchsinger, 862 A.2d 631, 634 (Pa.Super. 2004), applicability of the statute to federal
proceedings is by no means clear. "Because the Third Circuit has
not yet expressly determined that Pennsylvania Rule of Civil
Procedure 1042.3 shall be applied as substantive law in [civil
rights actions], this Court finds plaintiff's failure to either
attach a certificate of merit to the original complaint, or to
file it within sixty (60) days, to be excusable." Scaramuzza v.
Sciolla, 345 F.Supp.2d 508, 511 (E.D.Pa. 2004). Moreover, the
Pennsylvania Superior Court has held that where a claim is
dismissed for failure to timely file a certificate of merit,
Plaintiff may refile the claim within the applicable statute of
limitations. Moore v. John A. Luchsinger, P.C., 864 A.2d 631,
634 (Pa.Super. 2004). This Court notes that Plaintiff has filed a
new action (Civil No. 3:05-CV-0916) reiterating the claims set
forth in this case, and he has filed the requisite certificate of
merit in the new action.
Since Plaintiff failed to timely file the certificate of merit,
and he did not request an extension of time to do so, Defendant's
motions for dismissal for failure to prosecute will be granted.
Nevertheless, since prisoners are limited in their ability to
access medical records, since there is no holding by the Third
Circuit Court of Appeals making the provisions of Pennsylvania
law applicable to federal court actions, and since Plaintiff has
satisfied the requirements to obtain relief from a judgment of
non pros under Pennsylvania law, Plaintiff's motions for relief
from judgments of non pros will be granted as well. An
appropriate Order follows. ORDER
AND NOW, THIS 20th DAY OF JUNE, 2005, in accordance with the
foregoing memorandum, IT IS HEREBY ORDERED THAT:
1. Millcreek Community Hospital's motion to dismiss
party (Doc. 31) for lack of jurisdiction is DENIED.
2. The motions of Millcreek Community Hospital,
Wexford Health Sources, Inc., and Prison Health
Services, Inc., to dismiss for failure to prosecute
(Docs. 33, 43, and 46) are GRANTED.
3. The motions of Millcreek Community Hospital,
Wexford Health Sources, Inc., and Prison Health
Services, Inc., for entry of judgment of non pros
(Docs. 35, 44, and 45) are DISMISSED as moot.
4. Plaintiff's motions to set aside Moving
Defendants' judgments of non pros (Docs. 56, 61,
and 63) are GRANTED.