The opinion of the court was delivered by: Judge Conner
Arnold Lorenzo Paige ("Paige"), a federal inmate formerly incarcerated at the United States Penitentiary at Allenwood ("USP-Allenwood"), filed a complaint on May 19, 2008, setting forth Bivens*fn1 and Federal Tort Claim Act ("FTCA"), 28 U.S.C. § 1346, claims. (Doc. 1). Named as defendants are J. Holtzapple and the United States. (Id.) Paige contends that Holtzapple was deliberately indifferent to his serious medical needs in violation of the eighth amendment. (Doc. 1, at 4, ¶ 16.) He also alleges that Holtzapple breached her duty of care by failing to perform an examination, diagnose him, and provide him with medicine for his condition. (Id. at 17-20.) Presently before the court is defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) and for summary judgment pursuant to Federal Rule of Civil Procedure 56. (Doc. 15.) For the reasons set forth below, the motion to dismiss will be denied as moot in part, and denied in part. The motion for summary judgment will be granted in part and denied in part.
Also before the court is Paige's motion (Doc. 29) for leave to file a certificate of merit. The motion will be granted to the extent that Paige will be afforded the opportunity to file a valid certificate.
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of complaints that fail to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the court must "accept as true all [factual] allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff." Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). Although the court is generally limited in its review to the facts contained in the complaint, it "may also consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n. 2 (3d Cir. 1994); see also In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).
Federal notice and pleading rules require the complaint to provide "the defendant notice of what the... claim is and the grounds upon which it rests." Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The plaintiff must present facts that, if true, demonstrate a plausible right to relief. See FED. R. CIV. P. 8(a) (stating that the complaint should include "a short and plain statement of the claim showing that the pleader is entitled to relief"); Ashcroft v. Iqbal, ---U.S. ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (explaining that Rule 8 requires more than "an unadorned, the-defendant unlawfully-harmed-me accusation"); Twombly, 550 U.S. at 555 (requiring plaintiffs to allege facts sufficient to "raise a right to relief above the speculative level"). Thus, courts should not dismiss a complaint for failure to state a claim if it contains "enough factual matter (taken as true) to suggest the required element. This does not impose a probability requirement at the pleading stage, but instead simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element." Phillips, 515 F.3d at 234 (quoting Twombly, 550 U.S. at 556). Under this liberal pleading standard, courts should generally grant plaintiffs leave to amend their claims before dismissing a complaint that is merely deficient. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000).
Defendants seek to dismiss the FTCA claim against defendant Holtzapple on the basis that the only proper party defendant in any FTCA claim is the United States, and not the individually named employees of the BOP. See 28 U.S.C. § 2679(b) and (d)(1). Plaintiff recognizes this limitation and clarifies that he is only seeking relief against Holtzapple under Bivens, not the FTCA. (Doc. 27, at 10.) The motion is therefore rendered moot.
Dismissal of the FTCA claim is sought to the extent that Paige is seeking any sum in excess of the $100,000.00 amount he requested in the administrative tort claim. (Doc. 18, at 15.) Prior to filing an FTCA action against the United States, a plaintiff must first have presented the claim to the appropriate federal agency and the claim must have been denied. See 28 U.S.C. § 2675. Except for limited circumstances, an FTCA claim in federal court is limited to recovery of the sum certain amount requested in the underlying administrative claim. See McMichael v. United States, 856 F.2d 1026, 1035 (8th Cir. 1988). Specifically, 28 U.S.C § 2675(b) provides that an "[a]ction under this section shall not be instituted for any sum in excess of the amount of the claim presented to the federal agency, except where the increased amount is based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency, or upon allegation and proof of intervening facts, relating to the amount of the claim."
Paige is seeking the sum certain of $100,000.00 on the FTCA claim. (Doc. 29, at 11.) Any other relief requested is associated with the Bivens claim. (Id.) Therefore, this portion of the motion is also moot.
Defendants seek to dismiss the FTCA claim on the basis that Paige failed to file a Certificate of Merit ("COM") as required by Pennsylvania Rule of Civil Procedure 1042.3. Under Pennsylvania law, a party filing an "action based upon an allegation that a licensed professional deviated from an acceptable standard," PA R. CIV. P. 1042.3(a), must file a COM signed by the party or the party's attorney that attests to the fact that:
(1) an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable ...