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Accolla v. United States

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


July 8, 2009

RAYMOND W. ACCOLLA, PLAINTIFF
v.
UNITED STATES, ET AL., DEFENDANTS

The opinion of the court was delivered by: Magistrate Judge Blewitt

Judge Jones

REPORT AND RECOMMENDATION

I. Background

On May 6, 2008, Plaintiff Raymond W. Accolla, formerly an inmate at the Federal Correctional Institution at Schuylkill, Minersville, Pennsylvania ("FCI-Schuylkill"),*fn1 filed, pro se, this Bivens*fn2 civil rights action pursuant to 28 U.S.C. § 1331. (Doc. 1, p. 1). Plaintiff also jointly filed with his civil rights action a tort claim against the United States pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2671-2680. (Id.). Plaintiff filed two in forma pauperis Motions. (Docs. 3 and 6). Plaintiff also filed a Memorandum of Law in support of this Complaint on May 6, 2008. (Doc. 2).

On June 5, 2008, the undersigned screened Plaintiff's Complaint pursuant to the Prison Litigation Reform Act ("PLRA"), and issued a Report and Recommendation ("R&R") wherein it was recommended that all of the Defendants, with the exception of Dr. Hendershot and P.A. Hubble, be dismissed with respect to Plaintiff's Eighth Amendment claims for denial of proper medical care. It was also recommended that Plaintiff's Eighth Amendment claims against Defendants Dr. Hendershot and P.A. Hubble be allowed to proceed. In addition, it was recommended that Plaintiff's tort claim under the FTCA be allowed to proceed against Defendant United States only with respect to his negligent medical care claims which arose at FCI-Schuylkill. (Doc. 10).

On December 12, 2008, the District Court adopted our R&R. (Doc. 18). Plaintiff was allowed to proceed with respect to his stated Bivens claims against Dr. Hendershot and P.A. Hubble and, with respect to his FTCA claim against the United States which arose during his incarceration at FCI-Schuylkill.

On December 8, 2008, Plaintiff filed a Motion for Default Judgment, pursuant to Fed. R. Civ. P. 55, as against the three remaining Defendants, Dr. Hendershot, P.A. Hubble, and the United States. Plaintiff attached a support Memorandum to his Motion. (Doc. 17). On December 17, 2008, the undersigned issued an R&R which recommended that Plaintiff's Motion for Default Judgment be denied as premature (Doc. 20) and the R&R was adopted by the District Court on April 28, 2009. (Doc. 51).

While the December 17, 2008 R&R was pending, Defendants Hendershot, Hubble and United States Government filed a Motion to Dismiss or, in the alternative, Motion for Summary Judgment*fn3 on March 16, 2009, with a Brief in Support and a Statement of Material Facts ("SMF"). (Docs. 26, 30, and 31). The Plaintiff filed an Opposition Brief on March 30, 2009. (Doc. 37). Defendants then filed a Reply Brief on April 10, 2009. (Doc. 41). On April 23, 2009, without leave of court, Plaintiff filed a second Opposition Brief and a Response. (Docs. 46-47).

Ripe for disposition today are Defendants' March 16, 2009 Motion (Doc. 26) and April 27, 2009 Motion for Protective Order. (Doc. 48). In their Motion for Protective Order, Defendants seek the Court to stay discovery in this case until the Court decides their dispositive motion. Also pending are Plaintiff's Motion for Final Decision on Exhaustion (Doc. 35), Motion to Compel Subpoena (Doc. 32), filed on March 23, 2009 , as well as his Motion to Compel Discovery (Doc. 43) and Motion to Subpoena Deponents (Doc. 44) filed on April 17, 2009.

We will discuss the dispositive motion first, and then address the other pending motions.

II. Allegations of Complaint

As stated, in relevant part, in our June 5, 2008 Report and Recommendation:

While an inmate in Westchester County Jail in 2004, Plaintiff [Accolla] claims he slipped and fell in the shower, causing a bruise to his shoulder, near the spine. (Doc. 1, p. 4). According to the Plaintiff, this bruise would begin to itch and become inflamed. (Id.). After a few days, Plaintiff alleges that his requests for treatment were all denied, and his wound became worse. (Id.). He claims that puss began to ooze and a burning pain started along with fever and nausea. (Id.). Finally, Plaintiff states, he received treatment after claiming to feel dizzy spells. (Id.). In the infirmary, Plaintiff states he was examined and was found to have a fever in the range of 105-107 degrees. (Doc. 1, p. 5). This allegedly prompted the Doctor on duty to notify Westchester Medical Center, who in turned prompted blood work analysis to be conducted on the Plaintiff. (Id.).

Once the blood work analysis was completed, Plaintiff claims that the staff at the Westchester Medical Center informed him he had a "Fungal Bacterial Infection" and also tested positive for diabetes. (Id.). Plaintiff claims the diabetes was found to have been triggered from pancreatic shock caused by the bacterial infection. (Id.). Plaintiff blames the lack of timely treatment as the cause for this shock. (Id.). It was at this time that the Plaintiff claims he grew worried that he may have contracted Methicillin-Resistant Staphylococcus Aureus ("MRSA"). (Doc. 1, pp. 5-6).

Sometime later, Plaintiff was transferred to FCI-Schuylkill. (Doc. 1, p. 6). He claims he was not cured of MRSA at this time, nor was he treated for it, however there is also nothing in the Complaint to indicate the Plaintiff had contracted MRSA at this time. (Id.).

In September of 2005, while an inmate at FCI-Schuylkill, Plaintiff again claims he developed a "Fungal Bacterial Infection," this time effecting his right foot and leg. (Id.). The symptoms he alleges were the same as above for the infection to his shoulder, except this time he also claims to have had trouble walking since the trauma was to his foot and leg. (Id.). Once again, Plaintiff claims he attempted to receive treatment from Dr. Hendershot and P.A. Hubble at the prison, but was denied proper treatment since both medical staff members said the infection was not "all that bad!" (Doc. 1, pp. 6-7). Plaintiff does state he was treated with antibiotics at the time, yet he claims his health got progressively worse. (Id.). He also states he does not know why either Dr. Hendershot or P.A. Hubble failed to recognize his MRSA infection. (Id.). After his temperature allegedly shot to 105 degrees, Plaintiff avers he was transferred to Good Samaritan Hospital in Pottsville, Pennsylvania, for treatment, at which point he claims his infection improved. (Id.).

A few months later, Plaintiff claims he again was inflicted with the same symptoms, this time in his left foot. (Id.). Plaintiff avers that after several weeks of hassling the medical staff, he was transferred out for medical treatment again, at which point Plaintiff alleges he was told by Dr. Hendershot and P.A. Hubble "that all this medical treatment and trips to the hospital is getting out of hand!" (Doc. 1, p. 8). Plaintiff again states that after all this time, noone recognized that Plaintiff had MRSA. (Id.).

In 2006, Plaintiff claims the infection grew so intense that veins in his eyes began to rupture, causing severe bleeding from the eye socket. (Doc. 1, p. 9). This injury, it is claimed, caused Plaintiff to seek laser eye surgery to repair his vision. (Doc. 1, p. 10). He claims this eye trouble to be "a direct result from a misdiagnosis and delay from the very beginning." (Doc. 1, p. 9).

Finally, Plaintiff states that in February 2008, he received antibiotics for his infection. However these antibiotics are claimed to have made him ill. (Doc. 1, p. 11). Despite his complaints, Plaintiff alleges that he was threatened with having a disciplinary report written up for a refusal of medical services if he did not take his prescribed medicine. (Id.). This was after Plaintiff claims his legs, upper chest, arms, sides and rib cage all became covered in "blood spots," along with high fever and chills. (Doc. 1, p. 12). Plaintiff avers that at some point around this time, a paramedic gave him "two tylenols" and an antibiotic for his fever. (Id.). On January 2, 2008, Plaintiff alleges that he sought medical treatment, but no one was on call to examine him or give him the proper treatment. (Id.).

Plaintiff states claims of "deliberate indifference to serious medical needs" in violation of his Eighth Amendment rights against all named parties. (Doc. 2, p. 4-7). He also states a tort claim (negligence, malpractice) against the United States under the Federal Torts Claim Act ("FTCA") in response to his alleged mistreatment while incarcerated in Westchester County Jail and, later, FCI-Schuylkill. (Doc. 1, p. 14). Plaintiff requests injunctive relief as well as $50 million in punitive damages and $25,000 in compensatory damages for each month he was sick. (Doc. 13, pp. 5-6). (Doc. 10, pp. 2-5).

III. Motion for Summary Judgment Standard

A motion for summary judgment may not be granted unless the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. The court may grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to any material fact. Fed.R.Civ.P. 56. An issue of fact is "`genuine' only if a reasonable jury, considering the evidence presented, could find for the nonmoving party." Childers v. Joseph, 842 F.2d 689, 693-694 (3d Cir. 1988) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).

The burden of proving that there is no genuine issue of material fact is initially upon the movant. Forms, Inc. v. American Standard, Inc., 546 F. Supp. 314, 320 (E.D. Pa. 1982), aff'd mem. 725 F.2d 667 (3d Cir. 1983). Upon such a showing, the burden shifts to the nonmoving party. Id. The nonmoving party is required to go beyond the pleadings and by affidavits or by "depositions, answers to interrogatories and admissions on file" designate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).

In determining whether an issue of material fact exists, the court must consider the evidence in the light most favorable to the nonmoving party. White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir. 1988). In doing so, the court must accept the non-movant's allegations as true and resolve any conflicts in his favor. Id., quoting Gans v. Mundy, 762 F.2d 338, 340 (3d Cir. 1985), cert. denied, 474 U.S. 1010 (1985); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3dCir. 1976).

Moreover, the Third Circuit has indicated that "although the party opposing summary judgment is entitled to 'the benefit of all factual inferences in the court's consideration of a motion for summary judgment, the nonmoving party must point to some evidence in the record that creates a genuine issue of material fact,' and 'cannot rest solely on assertions made in the pleadings, legal memorandum or oral argument.'" Goode v. Nash, 2007 WL 2068365 (3d Cir. 2007)(Non-Precedential)(citation omitted).

IV. Statement of Material Facts

As stated, Defendants Hendershot, Hubble and the United States properly filed their Rule 56.1 SMF in support of their Summary Judgment Motion (Doc. 31) and, they have properly cited to evidence in the record with respect to each of their statements contained therein. (Id.). We find that this Court should deem the voluminous facts stated in Defendants' SMF (Id., ¶¶ 1.-610.) as admitted. Plaintiff has failed to file his response to Defendants' SMF, and he has been afforded ample opportunity in which to do so.

Since Defendants Hendershot, Hubble and the United States properly filed their SMF in support of their Summary Judgment Motion (Doc. 31), as required by Local Rule 56.1 of M.D. Pa., and their facts are all properly supported by evidence, we shall adopt as our own all of Defendants' facts contained in their SMF. Further, Plaintiff has not responded, paragraph by paragraph, to the facts stated in Defendants' SMF as required. Rather, Plaintiff has simply filed a Response to Defendants' Summary Judgment Motion. (Doc. 37). Plaintiff, however, did not file any response which corresponds to the paragraph-by-paragraph statement of facts contained in Defendants' SMF and, Plaintiff did not cite to any evidence in the record to dispute any of Defendants' SMF.

In the case of Barthalow v. David H. Martin Excavating, Inc., 2007 WL 2207897, * 1, n. 5, (M.D. Pa. 2007), this Court noted:

The Middle District of Pennsylvania's Local Rule of Court 56.1 provides that a summary judgment motion must include a separate concise statement of material facts. M.D. Pa. Local R. 56.1. The rule also requires that an opposition to a summary judgment motion must similarly include a statement that "responds to the numbered paragraphs set forth in [the moving party's concise statement of material facts], as to which it is contended that there exists a genuine issue to be tried."

Id. Moreover, "[a]ll material facts set forth in [the moving party's statement] will be deemed to be admitted unless controverted by the [opposing party's statement]. " Id. Only the first fourteen paragraphs set forth in Barthalow's opposing statement of facts (Doc. 27) correspond to those in DHM's (Doc. 22). Barthalow's paragraphs fifteen through twenty appear to set forth separate statements of fact and the Rule 56.1 statement as a whole does not provide clear responses to paragraphs fifteen through forty of DHM's statement. Accordingly, the court will deem the facts in paragraphs fifteen through forty of DHM's statement to be admitted.

See also Dusenbery v. U.S., 2006 WL 218220, * 1 (M.D.Pa. 2006) ("it appearing that defendants' statement of material facts was properly deemed admitted by plaintiff see L.R. 56.1 providing that the moving party's statement of material facts will be deemed admitted unless the non-moving party specifically contradicts the statement"); Griffin v. Lackawanna County Prison Bd., 2008 WL 4533685 (M.D.Pa.).

We find that Plaintiff Accolla, by failing to file a response to Defendants' SMF, and by failing to properly respond, paragraph by paragraph, to any of Defendants' SMF (Doc. 31) as required by Local Rule 56.1 M.D. Pa., should be deemed as admitting all the statements comprising Defendants' SMF.*fn4 Thus, Plaintiff has failed to properly respond to any of the Defendants' SMF (Doc. 31, ¶¶ 1.-610.) as he was required to do by Rule 56.1.

V. Discussion

1. Eighth Amendment Deliberate Indifference Claim Against Medical

Defendants Hendershot and Hubble It is well-settled that the Plaintiff must exhaust his administrative remedies prior to filing a civil rights suit. In Porter v. Nussle, 534 U.S. 516, 532 (2002), the Supreme Court reiterated that the exhaustion requirement under § 1997e(a) applies to all actions regarding prisons conditions, including Bivens actions or actions brought pursuant to any other federal law. The Porter Court held that "the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Id.; Woodford v. Ngo, 126 S Ct. 2378 (2006); Fortune v. Bitner, 2006 WL 2769158, *7 (M.D. Pa.)("The PLRA mandates that inmates 'properly' exhaust administrative remedies before filing suit in federal court.")(citation omitted). Further, the Defendant has the burden to plead exhaustion as an affirmative defense. See Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002); Fortune v. Bitner, 2006 WL 2769158, *7. Defendants Hubble and Hendershot ("Medical Defendants") contend that they are entitled to summary judgment against the Plaintiff because the Plaintiff has failed to exhaust his administrative remedies. (Doc. 30, p. 13). We find that medical Defendants have met their burden and have shown that Plaintiff's Eighth Amendment claims against them was not properly exhausted. According to the Medical Defendants, the Plaintiff filed four administrative remedies, and none of these were sent to the correct agency. (Doc. 30, p. 15). The evidence of medical Defendants substantiates their contention. (Doc. 31, ¶¶ 570.-610.).

According to BOP policy, an inmate must first attempt an informal resolution with prison staff. (Doc. 31, p. 74, ¶ 571). If this informal attempt fails, the inmate mast file the appropriate form, within twenty (20) days of the injury, to the warden, who then has twenty (20) more days to respond. (Doc. 31, p. 74, ¶ 572-73). In response to an adverse decision by the warden, an inmate may appeal to the BOP Regional Director within twenty days of the warden's decision. (Doc. 31, p. 74, ¶ 574). Finally, the inmate may appeal an adverse decision by the BOP Regional Director within thirty (30) calender days to the Central Office of the BOP. (Doc. 31, p. 74-75, ¶ 575). An exception is allowed to appeal a discipline hearing officer's decision, in which case an inmate may go directly to the Regional office. (Doc. 31, p. 75, ¶ 576). In this instance, there was no discipline hearing officer decision and therefore the exception is not applicable.

As stated above, Medical Defendants contend that Plaintiff had filed four administrative remedies, each with the wrong agency. (Doc. 30, p. 15). Plaintiff's first administrative remedy, 487092-R1, was filed on March 21, 2008, with the BOP Northeast Regional Office, and stated that Plaintiff believed he was being denied medical care and administrative remedy forms. (Doc. 31, pp. 75-76, ¶¶ 581-82). This administrative remedy was rejected, as Plaintiff had skipped the initial step of the process, i.e. filing his complaint at the institutional level. (Doc. 31, p. 76, ¶ 583). On April 3, 2008, Plaintiff filed his second administrative remedy, 487092-R2, again with the BOP Northeast Regional Office, and raised the same claims as his first administrative remedy. This administrative remedy was also rejected for failure of Plaintiff to file it initially at the institutional level. Plaintiff's third administrative remedy, 515112-R1, was filed with the BOP Northeast Regional Office alleging inadequate medical care, on October 2, 2008, and his fourth administrative remedy, 515112-A1 was filed with the BOP Central Office on November 5, 2008. Both of these administrative remedies were rejected because Plaintiff again failed to first file them at the institutional level. According to the Medical Defendants' unrefuted evidence, the Plaintiff was told after each rejected administrative remedy that the issues were not sensitive, i.e. inadequate medical care, and that he should first address them at the institutional level.

We find that Defendants Hubble and Hendershot met their burden to prove that the Plaintiff failed to exhaust his administrative remedies pertaining to his Eighth Amendment denial of proper medical care claims against them. Plaintiff never filed his administrative remedies at the institutional level as required, despite several notices from the BOP Northeast Regional Office to do so. (Doc. 31, p/ 77, ¶ 594.). Since failure to exhaust by Plaintiff regarding his Eighth Amendment claims against the medical Defendants is a threshold issue, we do not look to the merits of the Plaintiff's claims against these Defendants. See Banks v. Roberts, 2007 WL 3096585, * 1 (3d Cir. 2007)(Non-Precedential); Lasko v. Hendershot, 2006 WL 2828787 (M.D. Pa.)

Therefore, we will recommend that Defendants Summary Judgment Motion be granted with respect to Plaintiff's Eighth Amendment claims against Defendants Hubble and Hendershot.

2. FTCA Claim against the United States Government

A. Exhaustion

Turning to the Plaintiff's FTCA claim against the United States, Defendants argue that the United States is entitled to summary judgment because the Plaintiff has not fully exhausted his administrative remedies. The FTCA applies to all claims alleging personal injuries caused by negligence of government employees. 28 U.S.C. § 1246(b)(1). FTCA also confers on district courts "exclusive jurisdiction of civil actions on claims against the United States ... caused by the negligent or wrongful act or omission of any employee of the Government while acting with the scope of his office or employment..." Id. Any FTCA action can only be filed after all administrative remedies are exhausted. The exhaustion requirement demands that an FTCA Plaintiff first present her claim in writing to the appropriate federal agency as an administrative tort claim. 28 U.S.C. § 2675(a). Once a "final denial" has been received by the plaintiff, a claim in federal court may be filed. Id.

According to their Brief in Support of their Summary Judgment Motion (Doc. 30), Defendants state that on November 27, 2007, Plaintiff filed an administrative tort claim, in which "he made the same allegations contained in his complaint." (Doc. 30, p. 23). Defendants' undisputed evidence supports their contention. (Doc. 31, ¶ 602.). On February 20, 2008, Plaintiff supplemented his original administrative tort claim. (Id., ¶ 604.). Defendants point out that "[u]pon the timely filing of an amendment to a pending claim, the agency shall have six months in which to make a final disposition of the claim as amended and the claimant's option under 28 U.S.C. § 2675(a) shall not accrue until six months after the filing of an amendment." (Doc. 30, p. 23 and Doc. 31, ¶ 605.). Thus, the BOP had until August 20, 2008 to render a final decision with respect to Plaintiff's supplemented administrative tort claim. However, Plaintiff filed the instant action on May 6, 2008, a full three months prior to the time the BOP had to make its final disposition of Plaintiff's tort claim. In fact, May 6, 2008, is even prior to the expiration of the six month period from the filing of Plaintiff's original administrative tort claim, which would have expired on May 27, 2008. (Doc. 30, p. 24).

Since Plaintiff failed to wait for a final disposition from the BOP prior to filing this FTCA claim in federal court, he did not fully exhaust his administrative tort claim. Thus, we will recommend that Defendants' Summary Judgment Motion be granted with respect to Plaintiff's FTCA claim against the United States.

B. Certificate of Merit

Even if Plaintiff had fully exhausted his tort claim with the BOP, his FTCA action would fail because he did not file a Certificate of Merit ("COM") as required by Pa. R. Civ. P. 1042.3(a). The Third Circuit in Banks stated:

The FTCA waives the sovereign immunity of the United States for torts of federal employees acting within the scope of their employment" under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1).

2007 WL 3096585, * 2 (3d Cir.).

Essentially, a COM must be filed for a Pennsylvania State professional negligence claim or the claim will be dismissed. Velazquez v. UPMC Bedford Memorial Hospital, 328 F. Supp. 2d 549, 558 (W.D. Pa. 2004). The VelazquezCourt stated that:

[T]he Pennsylvania Certificate of Merit Rule, 1042.3, also requires that a plaintiff provide a written statement by "an appropriate licensed professional" that a "reasonable probability" exists that a "licensed professional deviated from an acceptable professional standard." Pa.R.Civ.P. 1042.3. In addition, Pa.R.Civ.P. 1042.3 requires that the certificate of merit be filed within 60 days of the filing of the complaint.

Id. at 556.

Further, Pennsylvania COM "requires a written statement of an appropriate licensed professional who will usually be a physician." Id. "If a Plaintiff does not file a certificate of merit pursuant to Pa.R.Civ.P. 1042.3, then Pa.R.Civ.P. 1042.6 provides that an entry of judgment of non pros may be entered against the Plaintiff for failure to file the certification." Id.

Additionally, the VelazquezCourt stated that:

Pa.R.Civ.P. 1042.3(a)(1) dictates that a "written statement [must be filed] that there exists a reasonable probability" that the Defendants' care, skill, or knowledge fell outside acceptable professional standards. "The attorney's signature certifies that an appropriate licensed professional has supplied a written statement that there is a basis to conclude that the care, skill, or knowledge exercised or exhibited by the Defendant in the treatment, practice, or work that is the subject of the complaint fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm." Pa.R.Civ.P. 1042.3(a)(1). Thus, the purpose of Pa.R.Civ.P. 1042.3 is to ensure that professional negligence claims are meritorious, and the certificate of merit requirement prevents needless waste of judicial time and resources which would otherwise be spent on non-meritorious claims.

Id. at 557-558.

According to the VelazquezCourt, Rule 1042.6 requires dismissal for failure to timely file a COM. Id. at 556. The VelazquezCourt then summarized the COM requirement as follows:

Pa.R.Civ.P. 1042.1 et seq. "were designed and adopted to directly confront the crisis surrounding medical malpractice claims in this Commonwealth." Hoover v. Davila, 64 Pa.D. & C4th 449, 455-56 (Pa.Com.Pl. 2003). To further this end, Pa.R.Civ.P. 1042.3 requires a plaintiff to file a certificate of merit verifying that a licensed professional has determined that a reasonable probability exists that a licensed professional did deviate from the requisite standard of care with regard to the plaintiff. However, where a plaintiff fails to file a certificate of merit within the allotted time, a defendant may file a praecipe of non pros which dismisses the plaintiff's claim for failure to file a certificate of merit. Pa.R.Civ.P. 1042.6; Hoover v. Davila, 64 Pa.D & C. 4th 449 (Pa.Com.Pl. 2003) (holding that Pa.R.Civ.P. 1042.6(a) is "clear and concise" in that if the defendant "files a praecipe after the required time and prior to the filing of the certificate of merit, the prothonotary is required to enter the judgment of non pros".)

Id. at 559-560; Santee v. U.S., Civil No. 07-2207, M.D. Pa.; Perez v. Griffin, 2008 WL 2383072 (M.D. Pa.), aff'd. 2008 WL 5351829 (3d Cir. 12-23-08).

Defendants argue that Plaintiff failed to file his required COM. (Doc. 30, p. 24). This Court has repeatedly found that the COM requirement of Rule 1042.3 applies to cases filed in federal court. See Santee v. U.S., supra; Perez v. Griffin, supra. Plaintiff does not state any reason why he failed to timely file his COM or request an extension of time to do so. (Doc. 37, pp. 1-4).

There is no dispute that Plaintiff did not file a COM under Rule 1042.3 at the time he filed this action in this Court or within sixty (60) days after he filed. In Boyd v. U.S., 2006 WL 2828843, * 6 (M.D. Pa.), this Court stated that "[Pa.] Rule 1042.3 is indeed applicable to state law malpractice claims brought in federal court." Rule 1042.3 applies when federal courts are addressing state law professional negligence claims in both diversity and supplemental jurisdiction cases. The Boyd Court also stated:

"Under Pennsylvania law, a party filing a professional liability claim must file a certificate of merit in which a professional licensed in the same field supplies a written statement that a reasonable probability exists that the actions of the defendant fell outside acceptable professional standards and that the actions were the cause of harm suffered by the plaintiff. See Pa. R.C.P. 1042.3(a)(1). If a Plaintiff fails to file the required certificate within sixty (60) days of filing the complaint, Defendants may file a praecipe for entry of a judgment of non pros. See Pa. R.C.P. 1042.6 Id., * 5.

In a similar case brought under New Jersey law and its Affidavit of Merit requirement, the Court in Horne v. U.S., 223 Fed. Appx. 154, 156 (3d Cir. 2007), stated:

Horne's appeal from the entry of summary judgment in favor of the United States also lacks arguable merit. The extent of the United States' liability under the FTCA is generally determined by reference to state law. Molzof v. United States, 502 U.S. 301, 305, 112 S.Ct. 711, 116 L.Ed.2d 731 (1992). We agree with the District Court that the applicable state law in this matter was New Jersey law, which requires submission of an Affidavit of Merit when the underlying factual allegations of the claim require proof of a deviation from the professional standard of care for that specific profession." Couri v. Gardner, 173 N.J. 328, 801 A.2d 1134, 1141 (2002) (discussing N.J. Stat. Ann. 2A:53A-27).

Horne's complaint triggered the requirements of the New Jersey Affidavit of Merit statute because he complained of the medical care he received in the F.C.I. Fairton healthcare facility. Horne failed to provide the requisite Affidavit of Merit and therefore summary judgment was properly entered in favor of the United States. See N.J. Stat. Ann. 2A:53A-29 (failure to provide Affidavit of Merit shall be deemed a failure to state a cause of action).

Horne's pro se status does not excuse his failure to comply with the Affidavit of Merit requirement. See Chamberlain v. Giampapa, 210 F.3d 154, 162 (3d Cir.2000) (affidavit requirement has been excused only under exceptional and compelling circumstances).

The Plaintiff has clearly alleged professional medical negligence in his present FTCA action and he claimed that the prison's medical professionals, including Defendants Hendershot and Hubble, were negligent in failing to diagnose his MRSA. As Defendants correctly state, Plaintiff will need expert testimony to opine that the medical staff at FCI-Schuylkill negligently breached its duty owed to Plaintiff (under 18 U.S. C. § 4042) and that this negligent breach was the proximate cause of Plaintiff's injuries. (Doc. 30, p. ). In the present case, there is no dispute that the Defendants filed their Motion for Summary Judgment with respect to Plaintiff's FTCA claim due to his failure to file a timely COM and that Plaintiff has still failed to file his proper COM. Therefore, Defendants' Motion for Summary Judgment should also be granted with respect to Plaintiff's FTCA claim based on Plaintiff's failure to file his COM. See Santee, supra; Perez, supra.

3. Ancillary Motions

As stated, both parties have filed other motions pertaining to discovery (Docs. 32, 43, 44 and 48) and exhaustion (Doc. 35). Since we have recommended summary judgment be granted in favor of the Defendants with respect to Plaintiff's remaining claims, i.e. Eighth Amendment claims and FTCA claim, we will recommend that these motions should now be deemed moot. Defendants filed a Motion for Protective Order to prevent discovery until their Summary Judgment Motion (Doc. 26) was decided by the Court. (Doc. 48). Plaintiff filed a Motion to Compel a Subpoena on March 23, 2009, in order to retrieve his medical records (Doc. 32), and a Motion to Compel Discovery on April 17, 2009, pertaining to certain interrogatories he submitted to the Defendants (Doc. 43). Plaintiff also filed on April 17, 2009, a Motion to Subpoena Defendants (Doc. 44). Since we will recommend that the Defendants' Summary Judgment Motion be granted, we find that there is no longer a need for discovery. Therefore, we will recommend all of these other pending motions be denied as moot.

Also, Plaintiff filed a Motion for a Final Decision on Exhaustion on March 23, 2009. (Doc. 35). Since the exhaustion issue with respect to Plaintiff's claims is the subject of Defendants' Summary Judgment Motion and this R&R, we will recommend this motion also be denied as moot.

VI. Recommendation

Based on the undisputed evidence submitted by Defendants Hubble, Hendershot and the United States, it is respectfully recommended that Defendants' Motion for Summary Judgment (Doc. 26) be granted since Plaintiff failed to exhaust his administrative remedies with respect to his Eighth Amendment claims against Defendants Hubble and Hendershot, as well as with respect to his FTCA claim against the United States. It is also recommended that Judgment be entered in favor of Defendants and against Plaintiff.

It is further recommended that Plaintiff's Motion to Compel a Subpoena, Motion to Compel Discovery, Motion to Subpoena Deponents and Motion for Final Decision on Exhaustion be denied as moot. (Docs. 32, 43, 44, and 35). Also, it is recommended that Defendants' Motion for Protective Order (Doc. 48) be denied as moot.

NOTICE

NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated July 8, 2009.

Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:

Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within ten (10) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.

THOMAS M. BLEWITT United States Magistrate Judge


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