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September 6, 2005.


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 damages.

  Presently pending is the Defendants' motion requesting entry of summary judgment. See Record document no. 6. The motion is ripe for consideration.*fn2


  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 nonmoving party.

  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 ...

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