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Njos v. Kane

United States District Court, M.D. Pennsylvania

March 5, 2015

SCOTT NJOS, Plaintiff,
v.
THOMAS R. KANE, et al., Defendants

MEMORANDUM

EDWIN M. KOSIK, District Judge.

Plaintiff, Scott Njos, an inmate confined at the United States Penitentiary at Lewisburg ("USP-Lewisburg"), Pennsylvania, filed this as a Bivens action on June 27, 2012.[1] The only remaining claims are a negligence claim for failure to fix structural defects at the prison, and an ordinary negligence claim for a delay in medical care against the United States of America pursuant to the Federal Tort Claims Act ("FTCA"). Pending on the docket are several motions filed by Plaintiff that will be addressed herein.

I. Background and Procedural History

Plaintiff was confined at USP-Lewisburg at the time of the alleged incidents. On August 23, 2011, an earthquake occurred. Its epicenter was centered on the middle of the Eastern seaboard, in Louisa County, Virginia. Plaintiff alleges that on the day of the earthquake, his cell at USP-Lewisburg began to shake violently. (Doc. 1, p. 2.) After a few seconds, cracks began to develop in the cell's ceiling, which subsequently widened. (Doc. 18, ¶ 6.) Plaintiff claims that he advised the range officers on duty that his cell walls and ceiling had cracked during the quake. The officers were indifferent to Plaintiff's concerns. Plaintiff continued to contact guards to advise of the alleged cracks, but no maintenance was performed on his cell walls to repair the cracks. (Doc. 18, ¶ 9.) It is disputed as to whether Plaintiff reported the structural defects to the guards before August 28, 2011. Defendant avers that Plaintiff never made these assertions to staff and that the cracks were discovered on a routine check on August 28, 2011. (Doc. 29, ¶ 2; Doc. 41, p. 3).

On August 28, 2011, Plaintiff states that he was standing on the toilet in his cell and cleaning the upper walls of the cell, all while resting his hand on the cell grate for support. He then maintains that the "cell wall caved in were (sic) the earthquake had left cracks in the wall." (Doc. 1, p. 2). Plaintiff states that the bricks surrounding the grate then suddenly caved in, causing him to fall off of the toilet and injure his knee. (Doc. 18, ¶ 11.) On October 21, 2011, Plaintiff was examined by Physician Assistant Kenneth Zook. Plaintiff informed Zook that he had a fall in his cell on August 28, 2011, while holding on to the ventilation grate in the wall. (Doc. 1, Ex. C., p. 1). During that medical examination, Plaintiff stated that the injuries to his back sustained during the fall were no longer painful, though Plaintiff noted that his knee had not yet healed. It is disputed as to when Plaintiff first reported the pain in his knee. Plaintiff states that as early as August 30, 2011, he informed Zook about the pain in his knee, but that this went undocumented. Defendant asserts that Plaintiff never mentioned that his knee was injured until September 30, 2011. (Doc. 29, ¶¶ 3-4.)

Plaintiff filed an amended complaint on April 29, 2013, in which he alleges claims of negligence and failure to use reasonable care. (Doc. 18.) On June 6, 2013, the court dismissed with prejudice all defendants named in this case, and added the United States of America as a defendant. (Doc. 20.) The court directed that Plaintiff be allowed to proceed with respect to his negligence claim and his medical malpractice claim against the United States under the FTCA. (Doc. 20, p. 3.)

Service of the amended complaint was thereafter directed, and Defendant filed a motion to dismiss and for summary judgment. Plaintiff submitted a cross-motion for summary judgment. On May 15, 2014, the court adopted the Report and Recommendation of the Magistrate Judge recommending, in pertinent part, that (1) Defendant's motion to dismiss be denied and that Plaintiff be permitted to proceed on his claims of negligence regarding structural defects and delay in medical treatment, and (2) Defendant's motion for summary judgment and Plaintiff's cross-motion for summary judgment be denied without prejudice to the filing of subsequent motions for summary judgment after the completion of discovery.[2] In so finding, the court agreed with the Magistrate Judge that questions of fact existed as to whether prison employees failed to fix the cracks in the wall following the earthquake, despite knowing of the problem. Additionally, there is a question of fact as to whether there is comparative fault by Plaintiff. Plaintiff repeatedly asserts that he informed the staff of the cracks in the wall, whereas Defendant asserts that the damage to the cell was not discovered until a routine search was conducted by the range officer on August 28, 2011. (Doc. 47 at 12-13.) Viewing the record in the light most favorable to the non-movant, the court found any consideration of summary judgment to be premature in light of the existing issues of material fact warranting discovery.

Pending on the docket are a number of motions filed by Plaintiff in this action. On March 18, 2014, he filed a "Motion for Increased Amount of Damages Pursuant to 28 U.S.C. § 2675(b). (Doc. 40.) Related to this filing are Plaintiff's motion to supplement his brief in support of said motion (Doc. 68), and his motion for the court to rule on his outstanding motion to increase the amount of damages sought (Doc. 76). Also pending are Plaintiff's motion for leave to depose Defendant Zook (Doc. 58), motion to compel the Clerk's Office to issue a subpoena in camera pursuant to Fed.R.Civ.P. 45(a)(3), motion for the court to infer facts pursuant to Fed.R.Evid. 301 (Doc. 67), and motion to compel the Office of Inspector General to produce a document (Doc. 73).

II. Discussion

A. Motion to Increase Damages/Related motions

Title 28 U.S.C. § 2675(b) of the Federal Tort Claims Act provides as follows:

(b) Action 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.

28 U.S.C. § 2675(b).

In his administrative tort claim filed on March 1, 2012, Plaintiff sought damages in the amount of $5, 000.00. (Doc. 68, Attach. A, Form 95 Claim for Damage, Injury, or Death.) He has filed a motion seeking to increase his requested damages to $20, 000.00. In support of his request, Plaintiff claims that when he filed his administrative tort claim, he was newly injured and had not yet discovered by MRI the extent of the damage he sustained to his knee, and did not know he would require surgery. He states that the MRI was conducted in the Summer of 2012, and he was approved for surgery in the Fall of 2012. Surgery was performed March 1, 2013. He claims that he was initially informed by prison medical personnel that his x-rays came up negative for malformations or other injuries, and that he merely had a strain or muscle pull. He was provided Motrin to take for the pain, as ...


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