United States District Court, M.D. Pennsylvania
JOHN E. JONES, III, District Judge.
THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:
On July 9, 2013, Plaintiff, Roberto Thompson, an inmate currently confined at the United States Penitentiary in Lewisburg, Pennsylvania ("USP-Lewisburg"), initiated this pro se action by filing a complaint under the provisions of the Federal Tort Claims Act, 28 U.S.C. § 1346(b) ("FTCA"). (Doc. 1). On July 19, 2013, Plaintiff filed an amended complaint, which was dismissed by this Court on March 5, 2014 for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (Docs. 11, 22). On March 11, 2014, at the Court's direction, Plaintiff filed a second amended complaint. (Doc. 23). The United States of America is the sole Defendant. ( Id. ).
Presently pending before the Court is Defendant's motion to dismiss Plaintiff's second amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 24). For the reasons set forth below, the motion will be granted.
I. BACKGROUND AND PROCEDURAL HISTORY
Plaintiff initiated this action by filing a complaint on July 9, 2013. (Doc. 1). On July 17, 2013, Magistrate Judge Martin C. Carlson issued an order granting Plaintiff's motion for leave to proceed in forma pauperis and directing service of the complaint on the Defendant. (Doc. 9). On July 19, 2013, Plaintiff filed an amended complaint alleging that he did not receive mental health evaluations from the psychology department at USP-Lewisburg. (Doc. 11). On September 30, 2013, Defendant filed a motion to dismiss the amended complaint. (Doc. 14).
By Memorandum and Order dated March 5, 2014, this Court granted Defendant's motion to dismiss but afforded Plaintiff the opportunity to properly reassert his claims in a second amended complaint. (Doc. 22). Regarding Plaintiff's alleged injury, the Memorandum determined that Plaintiff's allegations "constitute[d] nothing more than a legal conclusion' and naked assertion'" and Plaintiff failed to specify "what hardships' he was required to endure or how he was personally injured." ( Id. at p. 8). The Court further noted that, although Plaintiff conceded that he did not file a certificate or merit, it was unclear whether the claim sounded in medical malpractice, requiring a certificate of merit, or mere negligence, obviating the need for a certificate of merit. ( Id. at p. 12). Plaintiff was directed to clearly state in his second amended complaint "whether he seeks to allege a medical malpractice claim based on Defendant's failure to provide him with medically necessary mental health evaluations or a negligence claim based on Defendant's failure to provide him with a mental health evaluation in strict violation of Lewisburg's alleged policy." ( Id. at pp. 13-14).
On March 11, 2014, Plaintiff filed a second amended complaint. (Doc. 23). Plaintiff clarifies that he is not asserting a medical malpractice claim that would require a certificate of merit, rather he is strictly asserting a negligence claim. ( Id. at p. 4). Plaintiff alleges that "Defendant was negligent for not providing me with 30 day mental health evaluations in accordance with Lewisburg's SMU ["Special Management Unit"] program statement P5217.01." ( Id. at p. 3). Plaintiff alleges that he was not treated by psychology staff from January 4, 2012 to November 2012 and was therefore unable to timely complete the SMU program which resulted in prolonged placement in the program. ( Id. at pp. 2-3).
Plaintiff alleges that on or about January 4, 2012, he requested his thirty (30) day mental health evaluation pursuant to SMU program statement P5217.01, but psychology staff at USP-Lewisburg informed Plaintiff that he could not receive the evaluation "because there was no current available staff member for the psychology department to which was and or should have been working the D-Block (SMU) housing unit that [Plaintiff] was assigned to, during this period, for which the incident on the above date, was on-going for about another ten (10) months." (sic) ( Id. at p. 4).
Plaintiff further alleges that in February of 2012, Dr. Mink, a psychology staff member, was assigned to Plaintiff's housing unit. ( Id. ). Plaintiff again requested a mental health evaluation. On this occasion, Plaintiff alleges that Dr. Mink told him that he "could not have a mental health evaluation per every 30 days because the Lewisburg (SMU) program does not allow the psychology staff to provide inmates with the confidentiality required." ( Id. ). Plaintiff alleges that he did not receive another mental health evaluation until November of 2012 and thus incurred an injury to his person. ( Id. ).
Plaintiff alleges that "[t]he invasion of [his] personal right to 30 day mental health evaluations is the personal injury that [he] sustained due to the fact that said evaluations [are] an essential part of the SMU to ensure that [he] complete[s] the program" in a timely fashion. ( Id. at pp. 4-5). Plaintiff further alleges that Dr. Mink and the psychology department at USP-Lewisburg breached their duty of care to provide him with evaluations. ( Id. at p. 5).
For relief, Plaintiff seeks compensatory damages and injunctive relief. ( Id. at p. 3).
On March 25, 2014, Defendant filed the instant motion to dismiss the second amended complaint. (Doc. 24). After being granted an extension of time, Defendant filed a brief in support of the motion to dismiss on April 21, 2014. (Doc. 27). Defendant moves to dismiss Plaintiff's second amended complaint based on his failure to allege a physical injury warranting compensatory damages, and failure to state a claim under the ...