The opinion of the court was delivered by: Judge McClure
On January 22, 2007, plaintiff Claire L. Getgen, Jr., proceeding pro se, filed the instant civil action pursuant to the Federal Tort Claims Act against defendant, the United States of America. Plaintiff alleges that he received negligent medical treatment at the Veterans Administration Medical Center in Wilkes-Barre, Pennsylvania.
The discovery deadline in this case was November 1, 2007. On November 15, 2007, defendant filed a "Motion to Dismiss Plaintiff's Complaint or in the Alternative for Summary Judgment." (Rec. Doc. No. 15.) On November 30, 2007, defendant filed a statement of material facts (Rec. Doc. No. 16) and a brief in support of its motion for summary judgment (Rec. Doc. No. 17).
On January 7, 2008, after plaintiff failed to respond to defendant's motion within the appropriate time period, we ordered plaintiff to file an opposition brief as well as an answer to defendant's statement of material facts and warned plaintiff that a failure to do so might result in a dismissal of the case for failure to prosecute. (Rec. Doc. No. 18.)
On January 28, 2008, plaintiff filed "Plaintiffs [sic] Answer to Defendants [sic] Brief in Support of Summary Judgment." (Rec. Doc. No. 19.) Also on January 28, 2008, plaintiff filed "Plaintiff's Answer to Defendant's Statement of Material Facts." (Rec. Doc. No. 20.) Now, for the following reasons, the court will grant defendant's motion and enter final judgment in favor of defendant.
Because it appears that defendant's motion is primarily a motion for summary judgment as opposed to a motion to dismiss, we will only review the applicable standard for summary judgment. A district court may properly grant a motion for summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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). An issue is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "Material facts" are those which might affect the outcome of the suit. Id.; Justofin v. Metropolitan Life Ins. Co., 372 F.3d 517, 521 (3d Cir. 2004).
Regardless of who bears the burden of persuasion at trial, the party moving for summary judgment has the burden to show an absence of genuine issues of material fact. Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080 (3d Cir. 1996) (citations omitted). To meet this burden when the moving party does not bear the burden of persuasion at trial, the moving party must show that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial.'" Jalil v. Avdel Corp., 873 F.2d 701, 706 (3d Cir. 1989) (quoting Chippolini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d. Cir. 1987)); see Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). More simply put, a party moving for summary judgment who does not bear the burden of persuasion at trial is not required to negate the non-movant's claim, but only point out a lack of evidence sufficient to support the non-movant's claim. Country Floors, Inc. v. Partnership Composed of Gepner and Ford, 930 F.2d 1056, 1061 (3d Cir. 1991).
To the contrary, when the moving party bears the burden of persuasion at trial, it must point to evidence in the record that supports its version of all material facts and demonstrate an absence of material facts. National State Bank v. Federal Reserve Bank, 979 F.2d 1579, 1582 (3d Cir. 1992). If the moving party does not meet this burden, the court must deny summary judgment even if the nonmoving party does not produce any opposing evidence. Id.
Once the moving party meets its burden of showing an absence of genuine issues of material fact, the nonmoving party must provide some evidence that a issue of material fact remains. Matushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The nonmoving party, however, cannot do so by merely offering general denials, vague allegations, or conclusory statements; rather the party must point to specific evidence in the record that creates a genuine issue as to a material fact. Celotex, 477 U.S. at 32; Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 252 (3d Cir. 1999).
In his complaint, plaintiff alleges a cause of action under the Federal Tort Claims Act based on back surgery he received on November 18, 1997 at the Veterans Administration Hospital in Wilkes-Barre, Pennsylvania. (Rec. Doc. No. 1, at 2.) On November 24, 1997, plaintiff alleges that he developed an infection as a result of the surgery and was taken to the emergency room. (Id.) On December 2, 1997, in order to treat the infection, a debridement (removal of foreign material or dead tissue) was performed by a plastic surgeon at the VA Hospital. (Id. at 5.) On December 8, ...