United States District Court, M.D. Pennsylvania
September 6, 2005.
NOREMBERG BORJA, Plaintiff,
SUSAN GERLINSKI, ET AL., Defendants.
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 medical
staff failed to follow the recommended course of treatment.
A. Negligent Diagnosis
Plaintiff's complaint claims that his skin condition was
misdiagnosed. Prior to his arrival at LSCI-Allenwood on June 15,
1998, Borja had a history of skin lesions and underwent treatment
for a skin condition. On June 17, 1998, he was given a steroid
cream and prescribed an antihistamine for a rash on his upper
torso and buttocks. His next involvement with the prison medical
staff occurred on September 29, 1998 when he underwent treatment,
including an evaluation at an outside hospital, for a severe
On February 12, 1999, Plaintiff sought treatment with respect
to "a general rash over his entire torso." Record document no. 7,
p. 3. He was "observed with multiple round erythematous lesions
at various stages of development." Id. The prison medical staff
prescribed him medication and he was told to return for a
follow-up appointment in two (2) weeks. According to the Defendants, Borja
did not appear for his follow-up appointment. Borja sought
assistance on March 25, 1995 for a recurrence of his rash. The
Plaintiff allegedly agreed that his prior rash had improved
through use of the previously prescribed medications. His
prescription for Keflex was renewed and Borja was told to return
for follow-up care in two weeks if needed. He purportedly did not
Over a year later, on June 27, 2000, Plaintiff was again seen
by the prison medical staff for a rash. He was assessed as having
chronic bacterial dermatisis and prescribed Augmentin (an
antibiotic), hydroxyzine, and calamine lotion. Blood testing was
also ordered. During a return visit on July 11, 2000, it was
noted that his rash was improved but not resolved. His calamine
lotion and hydroxyzine treatment was continued.
The Plaintiff was seen by the LSCI-Allenwood Clinical Director
Doctor Ansari, on August 9, 2000. Doctor Ansari noted the
presence of many skin lesions and recommended a referral to a
dermatologist and a skin biopsy. It is undisputed that on October
6, 2000, Dr. Ansari performed a punch skin biopsy. Skin samples
were then sent to the Geisinger Medical Laboratories for
analysis. In a Surgical Pathology Report dated October 16, 2000,
the Geisinger Medical Laboratories ("Geisinger") made a diagnosis of Reactive Perforating Collagenosis. See
id. at p. 6. Borja was subsequently informed of the results and
diagnosis by Doctor Ansari, who added that there was no available
treatment for that condition. However, Ansari did prescribe an
antibiotic. The LSCI-Allenwood medical staff continued to provide
Plaintiff with treatment for the skin condition as diagnosed by
On March 1, 2002, Doctor Robert Long, M.D., a contract
dermatologist, evaluated the Plaintiff pursuant to a request from
Doctor Ansari. Long noted that the rash was "clinically
consistent with reactive perforating collagenosis." Id. at p.
It is undisputed that the alleged negligent diagnosis of
Plaintiff's skin condition was made by both Geisinger and Doctor
Long. While the LSCI-Allenwood medical staff may have specified
the requirements of the testing to be performed by Geisinger,
such action does not shed the status of Geisinger and Doctor Long
as independent contractors. See Robb v. United States,
80 F.3d 884, 887 (4th Cir. 1996). Neither Geisinger nor Doctor
Long are identified as being employees of the federal government.
There is also no indication that the federal government exercised
any control over the performance of those Defendants. This is
simply not a case where the United States managed the duties or
oversaw the daily routine of either Geisinger or Doctor Long.
See Ryan, 304 F. Supp. 2d at 685. Since there was no day to day supervisory control exercised by
the federal government over Geisinger and Doctor Long, under the
Norman and Robb standards, any claim premised upon the
alleged negligent diagnosis made by Geisinger and Long is barred
by the independent contractor exception to the FTCA.
B. Failure to Follow Recommended Course of Treatment
Borja also alleges that LSCI-Allenwood medical staff members
were negligent for their failure to follow a course of treatment
recommended by his privately retained specialist. Specifically,
the Plaintiff alleges that he retained Mark Lebwohl, M.D.,
Chairman of the Dermatology Department at the Mount Sinai Medical
Center, to undertake a review of his skin biopsy records. Doctor
Lebwohl concluded that the prior diagnosis of Plaintiff's
condition was incorrect and that he was actually suffering from
"prurigo nodularis." Record document no. 1, ¶ 9.
By letter dated July 31, 2002, Doctor Lebwohl recommended that
Borja be treated with an "intralesional injection of
corticosteroids and topical application of corticosteroids."
Id. Plaintiff asserts that Warden Gerlinski was immediately
notified of the contrary diagnosis and recommendation of a
different course of treatment. Borja contends that the failure of LSCI-Allenwood medical staff
to follow this new recommended course of treatment by a qualified
specialist constituted negligence.
Defendants acknowledge that Doctor Long spoke with Doctor
Lebwohl and as a result of their meeting recommended that
Plaintiff be given steroids for treatment. A second punch biopsy
was performed on December 11, 2002 and sent to Geisinger for
analysis. The findings made by Geisinger were inconclusive and an
additional biopsy was recommended. The additional biopsy was
undertaken on January 10, 2003. However, Plaintiff was released
to immigration officials and left LSCI-Allenwood before the
results of the latest biopsy were obtained.
However, as previously noted, Defendants seek entry of summary
judgment based solely on their independent contractor argument.
Defendants' factual assertions regarding actions taken by Doctor
Long and the LSCI-Allenwood medical staff after being apprised of
Doctor Lebwohl's contrary diagnosis have no bearing on the issue
of whether this portion of the complaint is barred by the
independent contractor exception.
The claim that LSCI-Allenwood medical staff failed to follow
Doctor Lebwohl's prescribed course of treatment clearly asserts
negligent conduct by federal employees, and therefore is not precluded by the independent
contractor exception. This claim will be allowed to proceed.
IT IS HEREBY ORDERED THAT:
1. Defendants' summary judgment motion (Record
document no. 4) is GRANTED IN PART.
2. Summary judgment is granted with respect to the
allegations of negligent diagnosis by Geisinger
Medical Laboratories and Doctor Robert Long.
3. Plaintiff's claim that the failure of
LSCI-Allenwood Medical staff to follow Doctor
Lebwohl's recommended course of treatment constituted
negligence will be allowed to proceed.
4. Since the United States of America is the only
proper Defendant for purposes of the FTCA, it will be
deemed the sole remaining Defendant.
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