United States District Court, W.D. Pennsylvania
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
SUSAN PARADISE BAXTER, Magistrate Judge.
It is respectfully recommended that the partial motion to dismiss filed by Defendants Hassan and Corizon Health [ECF No. 33] be denied.
By separate Order filed this date, the previously-filed motions to dismiss in response to the Original Complaint [see ECF No. 17; ECF No. 20] will be dismissed as moot in light of the filing of the Amended Complaint.
A. Relevant Procedural History
Plaintiff, acting pro se, filed this civil rights action on June 2, 2014. Plaintiff alleged that during his incarceration at SCI Albion, he received substandard medical treatment for an emergent and sudden eye injury. Plaintiff's initial claims were based upon deliberate indifference under the Eighth Amendment, as well as negligence under state law. Plaintiff obtained counsel who entered an appearance on his behalf on October 27, 2014, and who filed an Amended Complaint on November 13, 2014. See ECF No. 30. The Amended Complaint names only Corizon Health and Dr. Hassan as Defendants and contains two claims: Count I - deliberate indifference against Dr. Hassan, and Count II - professional negligence against Dr. Hassan and Corizon Health.
Defendants have filed a partial motion to dismiss arguing that the state law claims, as well as Defendant Corizon, should be dismissed from this action. ECF No. 33. In their motion to dismiss, Defendants seek:
1) dismissal of Plaintiff's professional negligence claim for failure to file a certificate of merit;
2) dismissal of Plaintiff's professional negligence claim due to insufficient specificity;
3) dismissal of Plaintiff's deliberate indifference claim insofar as it makes allegations that Plaintiff was denied care on the basis of cost; and
4) dismissal of Plaintiff's deliberate indifference claim as to Defendant Corizon.
ECF No. 34. Plaintiff has filed an opposition brief. ECF No. 37. A reply brief, as well as a surreply brief, have also been filed. ECF No. 38; ECF No. 39.
B. Defendants' Motion to Dismiss based on Federal Rule 41(b)
Defendants move for dismissal of the professional negligence claim (at Count II) under Federal Rule of Civil Procedure 41(b) based upon Plaintiff's failure to comply with Pennsylvania Rule of Civil Procedure 1042.3(a). While Rule 1042 is a matter of state substantive law that must be applied by federal courts, the procedural aspects of the state rule need not be applied. See Erie R. Co. v. Tompkins, 304 U.S. 64, 79 (1938).
1) Standard of Review
Pursuant to Rule 41 of the Federal Rules of Civil Procedure, "a defendant may move for dismissal of an action or of any claim against the defendant" in instances where "the plaintiff [has failed] to prosecute or to comply with these rules or any order of court." Fed.R.Civ.P. 41(b). The authority to dismiss under Rule 41(b) is based on the inherent power of the court to manage its "own affairs so as to achieve the orderly and expeditious disposition of cases." Link v. Wabash Railroad Co., 370 U.S. 626, 630-631 (1962). Dismissal of an action is a matter entrusted to the sound discretion of the trial court. Curtis Bedwell & Sons, Inc. v. Fidelity Ins. Co., 843 F.2d 683, 691 (3d Cir. 1988).
2) Pennsylvania Rule of Civil Procedure 1042
Pennsylvania law requires that a Certificate of Merit accompany a claim for professional liability brought against certain designated licensed professionals. Pa. R. Civ. P. 1042.3. The Certificate of Merit must contain a written statement from "an appropriate licensed professional" declaring whether the professional liability claim is brought directly (the defendant's conduct fell below the standard of care, bringing about the harm), indirectly (the conduct of persons under the direction of the defendant fell below the standard of care, bringing about the harm), or that no expert testimony will be necessary to prosecute the claim against that defendant. Id.
Under Rule 1042.3(a), a plaintiff is required to file the Certificate of Merit within sixty days of the filing of claim where it is alleged that "a licensed professional deviated from the acceptable professional standard." Schmigel v. Uchal, 2014 WL 3397669, at *2-3 (W.D. Pa. Jul. 11, 2014). This requirement is considered "substantive law... and must be applied as such by federal courts." Liggon-Redding v. Estate of Sugarman, 659 F.3d 258, 260 (3d Cir. 2011). See also Chamberlain v. Giampapa, 210 F.3d 154, 158-61 (3d Cir. 2000) (concluding that New Jersey "affidavit of merit" was a matter of substantive state law that must be applied by federal courts sitting in diversity actions).
Here, Plaintiff filed the Original Complaint pro se on June 2, 2014. The Original Complaint was not accompanied by a Certificate of Merit, nor was one filed within sixty days. Counsel entered their appearance on behalf of Plaintiff on October 27, 2014, and filed an Amended Complaint shortly thereafter, on November 13, 2014. Five days later, Defendants filed a partial motion to dismiss and, ...