United States District Court, M.D. Pennsylvania
TERRY L. SPIRK Plaintiff
UNITED STATES OF AMERICA, Defendant.
RICHARD P. CONABOY, District Judge.
Terry L. Spirk filed this pro se combined Bivens-type civil rights and Federal Tort Claims Act (FTCA) action while confined at the Schuylkill Federal Prison Camp, Minersville, Pennsylvania (FPC-Schuylkill). Named as sole Defendant is the United States of America.
By Memorandum and Order dated December 11, 2013, Defendant's motion for summary judgment was partially granted. See Docs. 42 & 43. Specifically, Plaintiff's Bivens claims of deliberate indifference between October, 2006 to October 24, 2010 were determined to be time barred and his post-October 25, 2010 Bivens claims of deliberate indifference were not allowed to proceed because the United States was not a properly named Defendant.
In addition, Spirk's FTCA claims originating prior to October 31, 2009 were also dismissed as being time barred. However, Plaintiff's FTCA claims relating to actions taken on or after October 31, 2009 were found to be timely filed and were allowed to proceed.
By way of background, Plaintiff states that he was diagnosed as having osteomyelitis in 1964 at the age of fifteen. Approximately ten years later, he was diagnosed as having chronic osteomyelitis. During 2005, Spirk had his left leg amputated below the knee after a diagnosis of malignant osteomyelitis.
Upon entering FPC-Schuylkill in 2006, Plaintiff allegedly informed prison medical personnel of his condition and that he experiencing a tooth ache in his lower left jaw. See Doc. 1, ¶ 2. Between October 23, 2006 and October 27, 2009, Plaintiff allegedly made numerous requests to medical and non-medical staff regarding his tooth ache which were ignored. However, his tooth was eventually extracted on October 28, 2009. Following the extraction, Plaintiff experienced complications which resulted in an October 31, 2009 visit to the emergency room of an outside hospital and subsequent emergency surgery on November 1, 2009.
During this surgical procedure, another tooth and bone fragment were removed. In addition, treatment of the Plaintiff's infection was undertaken which included draining of the infection and the placement of an intravenous pic line. Plaintiff was diagnosed as having chronic osteomyelitis of the jaw. Following a sixteen (16) day hospital stay, Spirk was transferred to the Federal Medical Center, Fort Devins, (FMC-Devins) Massachusetts. He remained at FMC-Devins until October, 2010 where the continuing treatment of his condition included long term antibiotics administered via the aforementioned pic line. During this period, Plaintiff again required a hospitalization when his infection recurred.
Upon becoming infection free he was transferred back to FPC-Schuylkill. Following his return, Plaintiff claims that he again experienced dental problems and was allegedly denied either examination or treatment. The Complaint asserts that due to the deliberate indifference and/or negligence of the FPC-Schuylkill dental staff Spirk has suffered permanent injuries and may eventually require jaw replacement.
Presently pending is the Defendant's motion seeking entry of summary judgment. See Doc. 53. The unopposed motion is ripe for consideration.
Defendant's summary judgment motion solely argues that Plaintiff's surviving FTCA claims cannot proceed because "Spirk's certificate of merit fails to meet the requirements of Pa. R. Civ. P. 1042.3(a)91)." Doc. 54, p. 1. As previously noted, Plaintiff has not filed a response. Accordingly the motion will be deemed unopposed.
Standard of Review
Summary judgment is proper if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); See also Saldana v. Kmart Corp. , 260 F.3d 228, 231-32 (3d Cir. 2001). A factual dispute is "material" if it might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). A factual dispute is "genuine" only if there is a sufficient evidentiary basis that would allow a reasonable fact-finder to return a verdict for the non-moving party. Id. at 248. The court must resolve all doubts as to the existence of a genuine issue of material fact in favor of the non-moving party. Saldana , 260 F.3d at 232; see also Reeder v. ...