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Yaromich v. United States

United States District Court, M.D. Pennsylvania

October 21, 2014

ALEXANDER YAROMICH, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

MEMORANDUM

A. RICHARD CAPUTO, District Judge.

Presently before the Court is Magistrate Judge Martin C. Carlson's Report and Recommendation ("R & R") (Doc. 33) to Defendant's Motion to Dismiss, also construed as a Motion for Summary Judgment (Doc. 23), as well as Defendant's Objections to the R & R (Doc. 34), Plaintiff's Objections to the R & R (Doc. 40), Defendant's Brief in Opposition to Plaintiff's Objection (Doc. 42), and Plaintiff's Response to Defendant's Brief in Opposition to Plaintiff's Objection (Doc. 45). I address Plaintiff's Motion for the Appointment of Counsel (Doc. 40) in a separate memorandum and order.

Because Magistrate Judge Carlson is correct that a plenary hearing is needed in order to resolve factual disputes prior to a determination of whether I have subject matter jurisdiction in this case, the R & R will be adopted and the defendant's Motion will be denied without prejudice.

I. Background

A. Factual Background

The underlying facts are set forth in detail in Magistrate Judge Carlson's R & R (Doc. 33). Plaintiff Alexander Yaromich ("Yaromich") is in federal prison, representing himself pro se. Yaromich was formerly housed at the United States Penitentiary-Canaan. He is suing the United States, alleging that in June of 2011 the prison served inmates fajitas with chicken tainted with salmonella bacteria. (Doc. 1, Compl. ) Consequently, he contracted food poisoning, and for a number of weeks suffered excruciating pain and symptoms such as headaches, diarrhea, abdominal pains, nausea, chills, vomiting, inability to eat and profuse sweating. ( Id. ) He also asserts that prison officials failed to adequately address the situation and provide medical attention once it became apparent that much of the prison population had fallen ill after eating spoiled chicken. ( Id. ) Alleging negligence on the part of the prison in the preparation and service of this food, the plaintiff has brought this action seeking damages from the United States, pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. ยง 2675, et seq.

At present, there is a factual dispute regarding whether, and to what extent, Plaintiff attempted to exhaust administrative remedies. This dispute is presented on a factual record, in which Plaintiff attests that he submitted two administrative tort claims to the Bureau of Prisons ("BOP") through staff between February 2012 and June 2013, but the BOP Northeast Regional legal office attests that it has no record of receiving that claim.

B. Procedural History

On December 9, 2013, Defendant filed a Motion to Dismiss (Doc. 23) alleging a lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), which the Court also construed as a Motion for Summary Judgment. Fed.R.Civ.P. 12(b)(1). The Motion alleged that Plaintiff failed to exhaust his administrative remedies within the agency he seeks to sue (in this instance, the BOP) before filing this lawsuit, a prerequisite to seeking relief in court under the FTCA. In support of this Motion, Defendant presented a factual narrative, and submitted an affidavit from a BOP Legal Office Paralegal, who attests that Yaromich never filed an administrative tort claim of the type prescribed by the FTCA, a Standard Form 95 (SF 95) or its equivalent. (Doc. 24-1.)

Yaromich responded with detailed factual submissions, affidavits, and copies of two SF 95s, dated in February 2012 and June 2013, which he attests he submitted in a timely manner to the BOP (Doc. 30). Defendant filed a Brief in Response (Doc. 31).

In his R & R (Doc. 33), Magistrate Judge Carlson concluded that there existed incomplete factual information to determine whether the plaintiff exhausted his administrative remedies-a prerequisite to filing this action. He determined that on the present, incomplete factual record, the court could not determine whether the plaintiff exhausted his administrative remedies, nor could the court assess the credibility of the plaintiff's claims. Thus, he recommended the Motion "be denied with respect to this exhaustion claim, and the issue of exhaustion of administrative remedies be deferred for further consideration on a complete factual record." (Doc. 33, 3.) He recommend this be done via further filings or a plenary hearing. Id.

On June 4, 2014, Defendant filed objections to Magistrate Judge Carlson's R & R (Doc. 34), along with a Brief in Support (Doc. 35). On June 5, Yaromich filed a Motion for Extension of Time to object to the Magistrate Judge's R & R (Doc. 36), which I granted on June 6 ( Order, Doc. 38). On June 24, Yaromich filed his objections to the R & R and a Brief in Support (Doc. 40). He also filed a Motion requesting that a public defender be appointed to represent him (Doc. 41).

On July 8, Defendant filed a Brief in Opposition to Plaintiff's Objection to the R & R (Doc. 42). Plaintiff then requested an extension of time (Doc. 43), which I granted (Doc. 44). On August 4, Plaintiff filed a Response to Defendant's Brief in Opposition to Plaintiff's Objection to the R & R (Doc. ...


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