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Hodge v. United States

August 26, 2009


The opinion of the court was delivered by: Judge James M. Munley United States District Court

(Judge Munley)


Before the court are plaintiff's objections (Docs. 166, 169) to Magistrate Judge Thomas M. Blewitt's Reports and Recommendations (Docs. 165, 167). Having been fully briefed, the matter is ripe for disposition.


Plaintiff Michael Hodge is presently incarcerated at the Low Security Correctional Institute at Butler, North Carolina (hereinafter "LSCI-Butler")and was previously confined at the Federal Correctional Institution at Allenwood, Pennsylvania (hereinafter "FCI-Allenwood"). Plaintiff filed, pro se, this joint Bivens*fn1 and Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346 and 2680 action, on August 18, 2006 and is proceeding in forma pauperis.*fn2

Plaintiff filed his Second Amended Complaint (Doc. 51) on February 20, 2007 in an effort to comply with Magistrate Judge Blewitt's earlier reports and recommendations and orders and the orders of this court regarding his original and first amended complaints. (See Docs. 18, 29, 40 and 25).

On August 31, 2007, this court issued a Memorandum and Order (Doc. 62) adopting the report and recommendations (Doc. 54) of Magistrate Judge Blewitt and dismissing Defendants Ashcroft, , Gonzalez, McDonough, Lappin, Jesus, Conrad, Webster, Wilson, Inch, Hogsten, Dondrill, and Watts from the action.

The remaining claims alleged in the Second Amended Complaint included (1) the negligence action against Defendant United States under the FTCA and (2) the Bivens action against Defendants Brady, Laino, Okundaye, Pigos, and Vermeire under 28 U.S.C. § 1331. Magistrate Judge Blewitt's reports and recommendations (Docs. 165, 167) also address Plaintiffs "Motion for the Court to Release and or Compensate, Plaintiff's Medical Expert and or in the Alternative to Recopense [sic] any and all Fees from Anticipated Recovery" (Doc. 160) (hereinafter "Motion for the Court to Compensate Plaintiff's Medical Expert") and Plaintiff's Motion to Compel Information Related to Defendants (Doc. 154).

Plaintiff's second amended complaint asserts that defendants failed to provide him with proper medical care for his stated serious medical conditions. Plaintiff claims that defendants violated his constitutional rights by failing to provide him with proper medical care for his serious medical conditions, Hepatitis-C and stage IV cirrhosis. Plaintiff contended that Defendants conduct constituted a violation of his Eighth Amendment right to be free from cruel and unusual punishment. (See Doc. 51).

Plaintiff summarizes his claim in his second amended complaint as follows: The continued acts have denied/dalayed [sic] the Plaintiff (plf) comprehensive medical care for screening of infections desiese [sic] diagnosis of Hepititis [sic] -C- (hep-c), stage IV liver cirrhosis and the continued treatment of cirrhosis that included participation in medicinal clinical trials, participation in organ transplantation programs, a medical nutritional diet and classification to a prison that is closer to the plf's home to support better family ties for psycological [sic] well being. (Id. at 1).

Plaintiff asserts a claim against Defendant United States under the FTCA for the alleged negligence of Federal Bureau of Prisons staff in Plaintiff's medical treatment. (Report and Recommendation(hereinafter "R&R")(Doc. 165) at 3). Plaintiff also asserts Bivens civil rights claims against Defendants Brady, Laino, Okundaye, Pigos, and Vermeire alleging that the failure of each to provide Plaintiff with "proper medical care for his stated serious liver conditions" constituted violations of his Eighth Amendment rights. (R&R (Doc. 167) at 2). Plaintiff seeks compensatory and punitive damages as well as injunctive relief. (Doc. 51 at 14).

Following discovery, Defendants filed a Motion to Dismiss, or in the Alternative, for Summary Judgment on Plaintiff's remaining claims. (Doc. 111). Plaintiff filed a motion to compensate his medical expert, (Doc. 150), and a Motion to Compel Information Related to Defendants (Doc. 154). Magistrate Judge Blewitt issued two reports and recommendations regarding said motions, the first on January 30, 2009 (Doc. 165) and the second on March 6, 2009 (Doc. 167). Plaintiff filed objections (Docs. 166, 169), to both reports and recommendations. The parties briefed the issues, bringing the case to its present posture.


This Court has jurisdiction pursuant to 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.") and 28 U.S.C. § 1346(b)(1) ("The district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or 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.").

The plaintiff is currently incarcerated at LSCI-Butler, North Carolina. Plaintiff was formerly confined at FCI-Allenwood, Pennsylvania, which is located in the Middle District of Pennsylvania. Plaintiff's remaining claims arose from conduct that occurred during his confinement at FCI-Allenwood. The United States is a party to this action, and the action concerns the Eighth Amendment of the United States Constitution.


A. Report and Recommendation Standard

In disposing of objections to a magistrate judge's report and recommendation, the district court must make a de novo determination of those portions of the report to which objections are made. 28 U.S.C. § 636 (b)(1)(C); see also Henderson v. Carlson, 812 F.2d 874, 877 (3d Cir. 1987). This court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The district court judge may also receive further evidence or recommit the matter to the magistrate judge with instructions. Id.When no objections to a portion of the report and recommendation have been filed, we must determine whether a review of the record evidences plain error or manifest injustice to decide whether to adopt the report. See, e.g., Sullivan v. Cuyler, 723 F.2d 1077, 1085 (3d Cir. 1983); FED. R. CIV. P. 72(b) 1983 Advisory Committee Notes ("When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record to accept the recommendation"); 28 U.S.C. § 636(b)(1).

Here, the court ruled on several motions by the parties -- (1) Defendants' Motion to Dismiss or for Summary Judgment, (2) Plaintiff's Motion for the Court to Compensate Plaintiff's Medical Expert, and (3) Plaintiff's Motion to Compel Information Related to Defendants.

B. Motion to Dismiss Standard

When a defendant files a motion to dismiss pursuant to FED. R. CIV. P. 12(b)(6), this court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." McTernan v. City of York, 564 F.3d 636, 646 (3d Cir. 2009) (citing Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n. 7 (3d Cir. 2002)).

A plaintiff's complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). The Supreme Court has confirmed that although FED. R. CIV. P. 8(a)(2) does not require " 'detailed factual allegations'," it does require plaintiff to plead sufficient facts to " 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests[.]' " Id. (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Neither mere "labels and conclusions" nor "a formulaic recitation of the elements of a cause of action" are sufficient to withstand a motion under FED. R. CIV. P. 12(b)(6). A valid pleading under "[Rule 8] requires a 'showing,' rather than a blanket assertion, of entitlement to relief." Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (citing Twombly, 550 U.S. at 556 n.3). As a threshold matter, the plain statement of the facts forming the grounds of the plaintiff's complaint must "possess enough heft to 'sho[w] that the pleader is entitled to relief.' " Id. (citing Twombly, 550 U.S. at 557) (alteration in original). In order to state a valid claim and survive a motion to dismiss, the "complaint's 'factual allegations must be enough to raise a right to relief above the speculative level.' " Phillips, 515 F.3d at 232 (quoting Twombly, 550 U.S. at 556 n.3).

In addition to the facts pled in the complaint, the court 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) (citations omitted). The court does not have to accept legal conclusions or unwarranted factual inferences. See Curay-Cramer v. Ursuline Acad. of Wilmington, Del., Inc., 450 F.3d 130, 133 (3d Cir. 2006) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)).

C. Summary Judgment Standard

Granting summary judgment is proper 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 judgment as a matter of law. See Knabe v. Boury, 114 F.3d 407, 410 n.4 (3d Cir. 1997) (citing FED. R. CIV. P. 56(c)). "[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).

In considering a motion for summary judgment, the court must examine the facts in the light most favorable to the party opposing the motion. Int'l Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990). The burden is on the moving party to demonstrate that the evidence is such that a reasonable jury could not return a verdict for the non-moving party. Anderson, 477 U.S. at 248 (1986). A fact is material when it might affect the outcome of the suit under the governing law. Id. Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing 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. Celotex v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party satisfies its burden, the burden shifts to the nonmoving party, who must go beyond its pleadings, and designate specific facts by the use of affidavits, depositions, admissions, or answers to interrogatories showing that there is a genuine issue for trial. Id. at 324.


A. Report and Recommendation of January 30, 2009 (Doc. 165)

i. Motion for the Court to Compensate Plaintiff's Medical Expert

Subsequent to Magistrate Judge Blewitt's prior order (Doc. 139) requiring plaintiff to file a certificate of merit ("COM") pursuant to PA. R. CIV. P.1042.3,*fn3 Plaintiff filed the present motion requesting that the court provide funds to cover the cost of a medical expert. (Doc. 160). Plaintiff's motion, in its entirety, reads:

NOW COMES, the Plaintiff to make move for this Honorable Court to release sufficient funds nessary (sic) for the imprisoned indegent (sic) Plaintiff to obtain a Medical Expert/Specialist and to cover related costs, secondary investigations, determinations of material facts and the presentation of those material facts to this Honorable Court for its adjudication of this cause. (Doc. 160 at 1).

Magistrate Judge Blewitt found that the "Court has no authority to appoint a medical expert for Hodge at this juncture of the case to assist plaintiff in proving, for purposes of Defendants' dispositive Motion, his claim of professional medical malpractice" on the part of the BOP medical staff. (R&R (Doc. 165) at 8). The magistrate judge therefore found that plaintiff's should motion be denied. (Id.). The substance of plaintiff's objections to this recommendation is that plaintiff is indigent and proceeding in forma pauperis, that a medical expert is necessary to proceed with his action -- and to file the required COM -- and therefore, the court should appoint a medical expert. (See Doc. 166).

Magistrate Judge Blewitt agreed with defendants that "pro se inmates proceeding in forma pauperis must pay for the expenses involved in their civil actions." (R&R (Doc. 165) at 6). It is well established that plaintiffs proceeding in forma pauperis -- including pro se inmates such as Plaintiff Hodge -- are responsible for their expert witness fees in civil actions. Boring v. Kozakiewicz, 833 F.2d 468, 474 (3d Cir. 1987) cert. denied, 485 U.S. 991 (1988) (finding no authority for court to pay for expert witnesses of pro se plaintiff proceeding in forma pauperis); see also, e.g., Williams v. Kort, No. Civ. A. 02-2320, 2004 U.S. Dist. LEXIS 52314, at *4 (M.D. Pa. July 19, 2007) (citing Boring and Tabron, infra,holding pro se plaintiff "bears sole responsibility for his failure to comply with the court's order to submit an expert report when he lacks the financial resources to pay an expert . . . Neither the court nor defendants are required to pay for a plaintiff's expert witness."); see Tabron v. Grace, 6 F.3d 147, 159 (3d Cir. 1993) (citing Boring, finding no authority for court to pay for ...

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