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Njos v. United States

United States District Court, M.D. Pennsylvania

February 1, 2017

SCOTT J. NJOS, Plaintiff,


          Kosik Judge

         Scott Njos, at the time an inmate at the United States Penitentiary (“USP”) at Lewisburg, Pennsylvania, filed this civil rights action wherein he challenges the follow-up care he received after undergoing a urinary procedure. Named as Defendant is the United States of America. According to the complaint, Plaintiff files this matter pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346 and 2671-2680. He also refers to the matter as one of “medical malpractice.” In this Memorandum, the court will address the following motions pending on the docket filed by Plaintiff: a motion to take written depositions (Doc. 33); a motion to compel discovery and enlarge the time for completing discovery (Doc. 42); a motion for clarification (Doc. 47); and a motion for default judgment (Doc. 57).

         I. Background

         Plaintiff contends that in June of 2013 he underwent a medical procedure, specifically a urethral dilation and the insertion of a Foley catheter. He claims that the treating physician ordered that the catheter remain in place for 7 days, but in the course of transporting him from the hospital to his prison cell following the procedure, the catheter became dislodged and/or damaged. Njos details all of the urinary tract difficulties he has experienced. Despite advising medical personnel at the prison of his need for the catheter, he never received a new one and claims that all of his medical complications resulted from the dislodging/damaging of the catheter. Based on the foregoing, he filed this action against the United States.

         In a Report and Recommendation (“R&R”) issued by the Magistrate Judge on August 31, 2015, it was recommended that a motion to dismiss filed by the United States based on Plaintiff's alleged failure to file a Certificate of Merit be granted. (Doc. 22.) It was further recommended that although the motion be granted, Plaintiff be afforded twenty (20) days within which to file an amended complaint correcting the deficiencies in the complaint. (Id. at 16.) Plaintiff filed objections to this Report and Recommendation.

         On March 10, 2016, the court did not adopt the R&R. (Docs. 27, 28.) Rather, the court found that Defendant's motion to dismiss should be denied, and that the matter should be referred back to the Magistrate Judge. In particular, the court found that a misunderstanding occurred with respect to Plaintiff's intent in this matter with respect to the Certificate of Merit. (Doc. 27 at 4.) The court found that Plaintiff clearly designated a “Certificate of Merit” in Section IV of his complaint (Doc. 1 at 9), and on the following page stated that expert testimony was not required in this case because the issues were within the common knowledge of the judge. (Id. at 10.) This is a permissible option in accord with Pennsylvania Rule of Civil Procedure § 1042.3. In particular, Pa. R. Civ. P. § 1042.3(a)(3) allows a plaintiff to state that no expert testimony is required. While this statement of Plaintiff seemed contradictory to the Expert Witness Testimony Declaration Plaintiff submitted with his complaint (Doc. 3), the court found that Plaintiff clearly stated his intentions in his Objections when he asserted that he filed a Certificate of Merit with his Complaint at Doc. 1, Sec. IV, pp. 9-10, stating that expert testimony was not necessary because the issues were within the judge's common knowledge, in accordance with § 1042.3(a)(3). Because we found that Plaintiff clarified his position in his Objections, the court allowed the action to proceed, and declined to adopt the Report and Recommendation of the Magistrate Judge.

         The following day, the Magistrate Judge issued a case management order setting deadlines for matters such as conducting discovery and the filing of dispositive motions. (Doc. 29.) Discovery was scheduled to close, and all dispositive motions and their supporting briefs were due, on or before July 15, 2016. Discovery-related motions were due on or before July 1, 2016.

         On March 17, 2016, the court issued an order granting a motion filed by Defendant seeking clarification of the Memorandum and Order issued by the court on March 10, 2016. (Doc. 32.) Defendant also sought a stay of the March 11, 2016 Case Management Order. While the court did deny the request for a stay, clarification was provided in that the court informed Defendant that it was found that Sec. IV, pgs. 9 and 10 of Plaintiff's Complaint (Doc. 1), entitled Certificate of Merit, in conjunction with Plaintiff's Objections to the R&R of the Magistrate Judge (Doc. 23), clarified Plaintiff's position that he was proceeding under Pa. R. Civ. P. 1042.3(a)(3), that no expert testimony was necessary for the prosecution of his medical malpractice claim. Thus, the court stated that it had found that Plaintiff sufficiently satisfied the requirement of Pa .R. Civ. P. 1042.3, and denied Defendant's motion to dismiss which was based on the failure of Plaintiff to file a Certificate of Merit. The R&R of the Magistrate Judge was not adopted, and the matter was referred back to him for further proceedings in light of the court's order. (Doc. 32.)

         On March 24, 2016, Plaintiff filed a motion seeking leave to take written depositions in this matter. (Doc. 33.) A brief in support of the motion was also filed. (Doc. 34.) On the same date, a copy of additional discovery requests was also filed in this matter by Plaintiff. (Doc. 37.) The discovery requests consisted of Requests for Production pursuant to Fed.R.Civ.P. 34 and Requests for Admissions pursuant to Fed.R.Civ.P. 36. (Doc. 37.) On April 7, 2016, Defendant filed a letter with the court that he sent to Plaintiff advising him that although Defendant was in receipt of his “Discovery Requests” because they were filed of record, the requests had not been served upon Defendant in accordance with the Federal Rules of Civil Procedure and Middle District of Pennsylvania Local Rule 5.4. (Doc. 40.) As such, until the discovery requests were served upon the United States, no responses or objections thereto would be provided to him.

         On April 20, 2016, Defendant filed an answer to Njos' complaint. (Doc. 41.) The Answer responded to each of the allegations and claims for relief in the complaint by either admitting, denying, partially admitting/denying, stating that Defendant lacked sufficient knowledge to respond, or claiming that Plaintiff set forth a legal conclusion. The Answer also raised Affirmative Defenses. On April 29, 2016, Plaintiff filed a motion to compel discovery and restart the discovery deadlines. (Doc. 42.) This motion is fully briefed by the parties. (Docs. 43, 49.)

         On May 5, 2016, Plaintiff sought clarification of the court's March 10, 2016 Memorandum and Order and its March 17, 2016 order. (Doc. 47.) In the March 17, 2016 order, the court provided clarification of the March 10, 2016 Memorandum and Order pursuant to the request filed by Defendant. A brief in support of Plaintiff's request was also filed. (Doc. 48.) Thereafter, Plaintiff moved for summary judgment on May 16, 2016 (Doc. 50) and filed a supporting brief and statement of facts. (Docs. 51, 52.) He thereafter filed a Request for Entry of Default (Doc. 55) with the Clerk of Court. On June 21, 2016, a motion for default judgment and brief in support thereof was filed by Plaintiff. (Docs. 57, 58.) Plaintiff claims that Defendant defaulted on its obligation to answer the complaint on April 20, 2016, and seeks relief in the amount of $12, 075.00 plus interest and costs due to Defendant's alleged failure to defend with respect to his medical malpractice claim. In support thereof, Plaintiff cites Defendant's language in the third affirmative defense raised in the Answer wherein Defendant states that:

3. The Court's Order dated March 10, 2016 which ordered the Plaintiff will be permitted to present his case without filing a certificate of merit appears to preclude any claim of professional malpractice and the responses provided herein are to the remaining claims sounding in simple negligence. (Doc. 28.)

(Doc. 41 at 7.)

         Following an enlargement of time, Defendant responded to Plaintiff's motion for summary judgment (Docs. 62, 63) and also filed a motion to dismiss or, in the alternative, for summary judgment (Docs. ...

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