The opinion of the court was delivered by: JAMES McCLURE, Senior District Judge
This action pursuant to the Federal Tort Claims Act ("FTCA")
was initiated by Noremberg Borja ("Plaintiff") regarding his
prior confinement at the Allenwood Low Security Correctional
Institution, White Deer, Pennsylvania
("LSCI-Allenwood").*fn1 Named as Defendants are
LSCI-Allenwood Warden Susan Gerlinski and the United States of
America. The required filing fee has been paid and the Plaintiff
is represented by counsel.
Plaintiff states that while confined at the Federal Detention
Center, Miami, Florida ("FDC-Miami") he developed a rash "that
intermittently developed into pustules." Record document no. 1, ¶
8. After being transferred to LSCI-Allenwood "the pustules spread throughout his body making him unsightly and
causing others to refuse any contact with him." Id. Following
the taking of a biopsy, LSCI-Allenwood medical staff allegedly
misdiagnosed his condition as being perforating collagenosis, a
rare skin condition associated with kidney disease or diabetes.
Borja maintains that he retained a non-BOP specialist, Doctor
Mark Lebwohl who reviewed his biopsy records and concluded that
he is actually suffering from a condition known as prurigo
nodularis. Despite the fact that Dr. Lebwohl's diagnosis was
forwarded to Warden Gerlinski, LSCI-Allenwood medical staff
failed to provide the treatment recommended by Dr. Lebwohl. His
complaint asserts that the Defendants' failure to provide proper
treatment constituted negligence. Plaintiff seeks compensatory
Presently pending is the Defendants' motion requesting entry of
summary judgment. See Record document no. 6. The motion is ripe
Defendants' sole argument maintains that they are entitled to
an entry of summary judgment on the basis of the contractor
exception to the FTCA. Summary judgment is appropriate if the
"pleadings, depositions, answers to interrogatories, admissions
on file, together with affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56(c).
[T]he plain language of Rule 56(c) mandates the entry
of summary judgment, after adequate time for
discovery and upon motion, against a party who fails
to make a showing sufficient to establish the
existence of an element essential to that party's
case, and on which that party will bear the burden of
proof at trial. In such a situation, there can be "no
genuine issue as to any material fact," since a
complete failure of proof concerning an essential
element of the nonmoving party's case necessarily
renders all other facts immaterial. The moving party
is "entitled to a judgment as a matter of law"
because the nonmoving party has failed to make a
sufficient showing on an essential element of her
case with respect to which she has the burden of
proof. "[T]he standard [for granting summary
judgment] mirrors the standard for a directed verdict
under Federal Rule of Civil Procedure 50(a). . . ."
Celotex Corp. v. Catrett, 477 U.S. 317
, 322-23, (1986).
The moving party bears the initial responsibility of stating
the basis for its motion and identifying those portions of the
record which demonstrate the absence of a genuine issue of
material fact. The moving party can discharge that burden by
"`showing' . . . that there is an absence of evidence to support
the nonmoving party's case." Celotex, supra,
106 S.Ct. at 2553 and 2554. Once the moving party has satisfied its burden,
the nonmoving party must present "affirmative evidence" to defeat
the motion, consisting of verified or documented materials.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).
Issues of fact are "genuine only if a reasonable jury, considering the evidence presented could find
for the nonmoving party." Childers v. Joseph, 842 F.2d 689,
693-94 (3d Cir. 1988). Only disputes over facts that might affect
the outcome of the suit will preclude the entry of summary
judgment. Id. In evaluating a motion for summary judgment, the
entire record must be examined in the light most favorable to the
Defendants acknowledge that the Plaintiff entered federal
custody on October 8, 1996 and was held at FDC-Miami until May
27, 1998. While at FDC-Miami, Borja was treated for skin
problems. Plaintiff was transferred to LSCI-Allenwood and arrived
at that facility on June 15, 1998. He remained confined at
LSCI-Allenwood until January 31, 2003. Borja was thereafter
deported to Columbia.
The FTCA provides a remedy in damages for the simple negligence
of employees of the United States with regards to their
protection of federal inmates. United States v. Muniz,
374 U.S. 150, 150 (1963). A plaintiff pursuing an FTCA claim must show:
(1) that a duty was owed to him by a defendant; (2) a negligent
breach of said duty; and (3) that the negligent breach was the
proximate cause of the plaintiff's injury/loss. Mahler v. United
States, 196 F. Supp. 362, 364 (W.D. Pa. 1961), aff'd,
306 F.2d 713 (3d Cir.), cert. denied, 371 U.S. 923 (1962). It is
additionally noted that the United States of America is the only
proper Defendant for purposes of the FTCA. "[I]t is well understood that government's activities are not
performed exclusively by the government's employees and that
independent contractors and subcontractors conduct a broad array
of functions on the government's behalf." Norman v. United
States, 111 F. 3d 356, 358 (3d Cir. 1997). A federal employee
for purposes of the FTCA is defined as an employee of any federal
agency but does not include any contractor with the United
States. Richardson v. Philadelphia Authority for Industrial
Development, 2004 WL 1614882 *2 (E.D. Pa. July 16, 2004).
The United States has not waived its immunity and cannot be
sued with respect to negligent or wrongful act committed by an
independent contractor. United States v. Orleans, 425 U.S. 807,
814 (1976). Thus, there is "an independent-contractor exemption"
in the FTCA. Norman, 111 F. 3d at 357. Under this exemption, if
the negligence causing the injury was that of an independent
contractor there is no basis for liability under the FTCA.
The Court of Appeals for the Third Circuit has established that
the test as to whether a defendant is a federal employee or an
independent contractor depends on the federal government's power
"to control the detailed physical performance of the contractor."
Id. If there is no day to day supervisory control exerted over
the person's daily operations by the federal government, the
individual is considered an independent contractor. See id.
In the present case, Borja's claims are twofold. First, he
contends that there was a negligent, erroneous diagnosis of his
skin condition. Second, he claims that after he provided prison
officials with the correct diagnosis, the LSCI-Allenwood ...