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Culver v. Specter

United States District Court, M.D. Pennsylvania

September 22, 2014

BRETT T. CULVER, Plaintiff,
v.
JAMES SPECTER, et al., Defendants.

MEMORANDUM

YVETTE KANE, District Judge.

This is a civil rights action filed pursuant to 42 U.S.C. ยง 1983 wherein Plaintiff Brett Culver sets forth allegations of failure to protect and inadequate medical care in violation of the Eighth Amendment. He also asserts state medical malpractice claims. Before the Court for consideration are Plaintiff's motions for extension of time within which to file certificates of merit (Doc. Nos. 202, 211), and Defendant Specter's motion to strike Plaintiff's certificate of merit (Doc. No. 247).

I. Relevant Background

The incidents set forth in the complaint arose during Plaintiff's confinement at the State Correctional Institution at Mahanoy (SCI-Mahanoy).[1] He alleges that Officers Muick and Marhelko failed to protect him from an assault by a fellow inmate after Defendants informed the inmate that Plaintiff had made complaints about him. He also sets forth Eighth Amendment inadequate medical care claims with respect to treatment for a fractured jaw he sustained from the assault. Related state law negligence claims are also asserted. Remaining as Defendants are the following SCI-Mahanoy employees: Dr. Robert Moczulski, dentist; Health Care Administrator Cerullo; Drs. Lisiak and Gustitus; Correctional Officers Muick and Machelko; and Mr. Stantis, Food Supervisor. Also remaining in this action is Dr. James Specter, a private practice oral surgeon contracted by the Pennsylvania Department of Corrections to provide services to SCI-Mahanoy.

On August 15, 2012, a motion to dismiss filed by Defendant Specter was granted in part and denied in part. (Doc. No. 81.) The motion was granted only to the extent that any negligence claims raised under the Eighth and Fourteenth Amendments were dismissed. On October 9, 2012, a motion to dismiss filed by the Corrections Defendants was granted only with respect to Plaintiff's challenges to the denial of grievances and appeals therefrom. The motion was denied in all other respects. (Doc. No. 115). Plaintiff was also directed to file certificates of merit ("COM") with respect to his state negligence claims. In addition, a motion to dismiss filed by medical service provider Corizon was granted.

On October 11, 2012, Plaintiff's sixth request for the appointment of counsel was conditionally granted. (Doc. No. 116.) A stay was imposed with respect to all pending motions until it was determined whether counsel could be obtained. Because counsel could not be found, the stay was lifted on March 29, 2013, and Plaintiff advised that he would be proceeding pro se in this matter. (Doc. No. 160.) A motion to dismiss filed by Defendants Lisiak and Gustitus was denied on September 30, 2013.[2] (Doc. No. 196). Defendants have all filed answers to the claims remaining in the complaint, and discovery has been taking place.

II. Discussion

Before the Court for consideration are two motions for extension of time within which to file COMs (Doc. Nos. 202, 211) and Defendant Specter's motion to strike a COM filed by Plaintiff on February 10, 2014, while his motions for extension were still pending before the Court (Doc. No. 238).

In Pennsylvania, a plaintiff pursuing a professional malpractice suit must file a certificate of merit with the complaint, or within sixty days thereafter. Pa. R. Civ. P. 1042.3(a). The certificate must include one of the following: a written attestation by "an appropriate licensed professional" that there is a "reasonable probability that the care, skill or knowledge exercised or exhibited" by the defendant "fell below acceptable professional standards, " and that this was the cause of the plaintiff's injuries; a statement that the claim against the defendant is based only on the professional negligence of those for whom the defendant is responsible; or a statement that expert testimony is unnecessary for the plaintiff's claim to proceed. Pa. R. Civ. P. 1042.3(a)(1)-(3). Failure to file a certificate of merit is fatal to a plaintiff's claim. Pa. R. Civ. P. 1042.7. A defendant seeking to dismiss for want of a certificate must first file written notice of their intent to do so, no sooner than thirty days after the complaint was filed. Pa. R. Civ. P. 1042.6(a).

The purpose of the required certificate of merit is to "assure that malpractice claims for which there is no expert support will be terminated at an early stage in the proceedings." Chamberlain v. Giampapa , 210 F.3d 154, 160 (3d Cir. 2000). Pennsylvania adopted its certificate requirement in order to cull from its dockets malpractice claims of questionable merit, conserving judicial resources and sparing defendants the burden of defending against spurius suits. Womer v. Hilliker , 589 Pa. 256, 908 A.2d 269, 275 (Pa. 2006). By filing a certificate of merit, the plaintiff attests that he has the resources to support his allegations, and that proceeding with litigation will not be a wasteful exercise. Id . Rule 1042.3(a) applies to both pro se and represented plaintiffs and constitutes a rule of substantive state law with which plaintiffs in federal court must comply. See Liggon-Redding v. Estate of Sugarman , 659 F.3d 258, 264-65 (3d Cir. 2011)(holding that the COM requirement is a substantive rule that federal courts must follow); Iwanejko v. Cohen & Grigsby, P.C. , 249 F.Appx. 938, 944 (3d Cir. 2007)(holding that district courts must "appl[y] Rule 1042.3 as substantive state law"); Perez v. Griffin , 304 F.Appx. 72, 74 (3d Cir. 2008)(Rule 1042.3 applies to incarcerated and pro se plaintiffs and constitutes a rule of substantive state law to which plaintiffs in federal court must comply).

Plaintiff filed the complaint in this action on November 29, 2011. Certificates of merit with respect to any medical malpractice claims were required to be filed with the complaint, or within sixty days thereof, or on or about January 30, 2012. No COMs were filed by this date. On March 20, 2012, Plaintiff filed a motion seeking a determination of the necessity to file a certificate of merit. On May 1, 2012, he filed a motion for extension of time to file a certificate of merit. This motion was opposed by Defendant Specter. Plaintiff replied thereto. On August 14, 2012, the Court entered an order requiring Plaintiff to file a COM against Specter within 20 days or his malpractice claims would be dismissed. (Doc. No. 81.) No COM was filed within the prescribed time period. As such, Specter filed a motion for involuntary dismissal of the state malpractice claims.

On September 14, 2012, Plaintiff filed a motion to file nunc pro tunc certificate of merit. In the motion, he argued that he had never received the Court's August 14, 2012 order, and did not become aware of it until September 7, 2012. He requested permission to file an untimely certificate of merit as to Defendant Specter stating that "expert testimony of an appropriate licensed professional is unnecessary for the prosecution of the claims against this defendant."

On September 30, 2013, the Court ordered that its September 15, 2012 order be vacated to the extent the Court construed Plaintiff's indication that he did not need expert testimony as suggesting that he was relieved from the requirement of filing a COM in this action.[3] (Doc. No. 194.)

On the same date, the Court issued the following opinion resolving the issues related to the COM matter and Plaintiff's lack of ...


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