The opinion of the court was delivered by: Chief Judge Vanaskie
John L. Boyd, an inmate formerly housed at the Allenwood United States Penitentiary ("USP-Allenwood") in White Deer, Pennsylvania, assisted by counsel, brings this Federal Tort Claims Act ("FTCA") claim, 28 U.S.C. § 2671, et seq., alleging that unidentified USP-Allenwood medical staff members and two optometrists, Drs. James Weyand and David DeRose, were negligent in failing to properly evaluate, diagnose or treat his glaucoma, purportedly resulting in irreversible loss of vision in his left eye. Included in Boyd's Complaint is a state medical malpractice claim lodged against the optometrists. The United States and the optometrists are represented by separate counsel.
Presently before the Court are two potentially dispositive motions: (1) the United States' motion for summary judgment (Dkt. Entry 9), asserting that Plaintiff cannot premise an FTCA claim on the alleged negligence of Weyand and DeRose because they were independent contractors, not government employees; and (2) Drs. Weyand and DeRose's motion to dismiss (Dkt. Entry 20), seeking the dismissal of Boyd's state law negligence claims due to his failure to file a Certificate of Merit as required by Pennsylvania law.
For the reasons that follow, the United States' motion for summary judgment will be denied and the optometrists' motion to dismiss will be granted.
Boyd contends that "[f]rom the period of January 14, 1995 through December 17, 2003, the medical staff at Allenwood Federal Penitentiary as well as Defendants Weyand and DeRose failed to properly treat and/or conduct comprehensive eye examinations sufficient to diagnose Plaintiff's progressive glaucoma." (Dkt. Entry 1, ¶ 14.) On December 17, 2003, Boyd was examined by ophthalmologist David Lightman, MD, who diagnosed Plaintiff with advanced glaucoma and permanent loss of vision in his left eye as well as increased intraocular pressure in his right eye. (Id. at ¶ 15.) Plaintiff alleges that it was Defendants DeRose and Weyand's "negligence set forth [in the Complaint] that was the direct and proximate cause of [his] injuries and damages." (Id. at ¶ 20.) On November 11, 2004, Boyd submitted a claim for Damage, Injury or Death to the Bureau of Prisons ("BOP"). (See Dkt. Entry 28-2, Plaintiff's Documents in Opposition to USA's Motion for Summary Judgment, Exhibit A.) On April 7, 2005, the BOP denied Boyd's Administrative Tort Claim, asserting that "[a]ll diagnostic studies and treatment recommendations made by the specialists who evaluated and monitored [Boyd's] condition were provided. There is no evidence to suggest that negligence on the part of any Bureau of Prisons' employee resulted in Mr. Boyd's alleged personal injury." (Dkt. Entry 1, Exhibit A.) No Certificate of Merit pursuant to Pennsylvania Rule of Civil Procedure 1042.3 has been filed in this matter, nor has Plaintiff sought an enlargement of time to do so.
III. Applicable Standards
A. Motion for Summary Judgment
Summary judgment will be granted if the record establishes that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001). Rule 56(c) imposes a burden on the moving party to point to an absence of evidence supporting the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has met this burden, the burden then shifts to the non-moving party. The party opposing summary judgment "may not rest upon the mere allegations or denials of the . . . pleading." Saldana, 260 F.3d at 232. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The opposing party must "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). 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. Unsubstantiated arguments made in briefs are not considered evidence of asserted facts. Versarge v. Township of Clinton, 984 F.2d 1359, 1370 (3d Cir. 1993). Summary judgment must be entered in favor of the moving party "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." Matsushita, 475 U.S. at 5887 (citations omitted).
Federal Rule of Civil Procedure 12(b)(6) allows a defendant, in response to a complaint, to file a motion to dismiss a complaint for "failure to state a claim upon which relief can be granted . . . ." A motion to dismiss should not be granted if "under any reasonable reading of the pleadings, the plaintiff [ ] may be entitled to relief. . . ." Langford v. City of Atlantic City, 235 F.3d 845, 847 (3d Cir. 2000). In making that decision, we must accept as true all well-pleaded allegations in the complaint, Maio v. Aetna, Inc., 221 F.3d 472, 481-82 (3d Cir. 2000), and construe any reasonable inferences to be drawn from them in the plaintiff's favor. See United States v. Occidental Chemical Corp., 200 F.3d 143, 147 (3d Cir. 1999).
A. Boyd's FTCA Claims Against the ...