United States District Court, M.D. Pennsylvania
H. RAMBO, UNITED STATES DISTRICT JUDGE
December 5, 2014, Alphonso Thomas, an inmate formerly
confined at the Federal Correctional Institution at
Schuylkill, Minersville, Pennsylvania
(“FCI-Schuylkill”) filed a Bivens-styled
action pursuant to 28 U.S.C. § 1331. The named
defendants were several individuals presently or formerly
employed at the FCI-Schuylkill. In the complaint Thomas
alleged that he received inadequate medical and dental care
in violation of his rights under the Eighth Amendment to the
United States Constitution. He contended that the defendants
were deliberately indifferent to his serious medical and
dental needs. The named Defendants were served with the
complaint and on June 22, 2015, filed a motion to dismiss
and/or for summary judgment. (Doc. 22.) By memorandum and
order of December 1, 2015, the court granted Defendants
motion to dismiss and/or for summary judgment. (Doc. 37, 38.)
Specifically, Thomas's complaint was dismissed with leave
to file an amended complaint raising a claim of medical and
dental malpractice solely against the United States under the
Federal Tort Claims Act (“FTCA”). On January 12,
2016, Thomas filed an amended complaint against the United
States in which he claims that staff at FCI-Schuylkill
provided him with negligent medical and dental care. On April
29, 2016, the United States filed a motion to dismiss the
amended complaint based on Thomas' failure to file an
appropriate Certificate of Merit (“COM”) pursuant
to Pennsylvania Rule of Civil Procedure 1042.3. The motion is
fully briefed and for the reasons set forth below will be
12(b)(6) authorizes dismissal of a complaint for
“failure to state a claim upon which relief can be
granted.” Under Rule 12(b)(6), we must “accept
all factual allegations as true, construe the complaint in
the light most favorable to the plaintiff, and determine
whether, under any reasonable reading of the complaint, the
plaintiff may be entitled to relief.” Fowler v.
UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.2009) (quoting
Phillips v. County of Allegheny, 515 F.3d 224, 231
(3d Cir.2008)). While a complaint need only contain “a
short and plain statement of the claim, ” Fed.R.Civ.P.
8(a)(2), and detailed factual allegations are not required,
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555,
127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007), a complaint
must plead “enough facts to state a claim to relief
that is plausible on its face.” Id. at 570,
550 U.S. 544, 127 S.Ct. 1955 at 1974, 167 L.Ed.2d 929.
“The plausibility standard is not akin to a
‘probability requirement, ' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662,
129 S.Ct. 1937, 1949, 173 L.Ed.2d 868, ___ (2009) (quoting
Twombly, 550 U.S. at 556, 127 S.Ct. at 1965.)
“[L]abels and conclusions” are not enough,
Twombly, 550 U.S. at 555, 127 S.Ct. at 1964-65, and
a court “‘is not bound to accept as true a legal
conclusion couched as a factual allegation.'”
Id., 127 S.Ct. at 1965 (quoted case omitted).
resolving the motion to dismiss, we thus “conduct a
two-part analysis.” Fowler, supra,
578 F.3d at 210. First, we separate the factual elements from
the legal elements and disregard the legal conclusions.
Id. at 210-11. Second, we “determine whether
the facts alleged in the complaint are sufficient to show
that the plaintiff has a “‘plausible claim for
relief.'” Id. at 211 (quoted case
the court is generally limited in its review to the facts
contained in the complaint, it may also consider matters of
public record, orders, exhibits attached to the complaint and
items appearing in the record of the case. Oshiver v.
Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384
n. 2 (3d Cir.1994); see also In re Burlington Coat
Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir.1997).
may dismiss a case when a plaintiff fails to file the
required COM. See, e.g., Stroud v. Abington Mem.
Hosp., 546 F.Supp.2d 238, (E.D.Pa.2008); Bresnahan
v. Schenker, 498 F.Supp.2d 758, 762 (E.D.Pa.2007);
McElwee Group, LLC v. Mun. Auth. of Elverson, 476
F.Supp.2d 472, 475 (E.D.Pa.2007) (holding that “failure
to submit the certificate is a possible ground for dismissal
by the district court, when properly presented to the court
in a motion to dismiss).
well-settled that a federal district court in considering a
FTCA action must apply the law of the state, in this case
Pennsylvania, in which the alleged tortious conduct occurred.
28 U.S.C. § 1346(b) (1996); Toole v. United
States, 588 F.2d 403, 406 (3d Cir. 1978); O'Neal
v. Department of Army, 852 F.Supp. 327, 334-35 (M.D. Pa.
1994); Turner v. Miller, 679 F.Supp. 441, 443 (M.D.
Pa. 1987). In cases involving federal prisoners, this court
has recognized that the government's duty of care is one
of ordinary diligence. See 18 U.S.C. § 4042;
Turner, 679 F.Supp. at 443. The applicable law with
respect to the burden and quantum of proof under the FTCA
remains that of the state in which the alleged tortious
conduct occurred. Hosic v. United States, 682
F.Supp. 23, 25 (M.D. Pa. 1987). In order to present a prima
facie case of medical malpractice under Pennsylvania law,
“as a general rule, a plaintiff has the burden of
presenting expert opinions that the alleged act or omission
of the defendant physician or hospital personnel fell below
the appropriate standard of care in the community, and that
the negligent conduct caused the injuries for which recovery
is sought.” Simpson v. Bureau of Prisons, No.
02-2213, 2005 WL 2387631, at *5 (M.D.Pa. Sept.28, 2005) This
requirement is imposed upon malpractice plaintiffs like
Thomas by Pennsylvania Rule of Civil Procedure 1042.3, which
requires the filing a valid certificate of merit along with
the professional negligence claim. Furthermore, the
requirement of filing the certificate is clearly applicable
to not only diversity cases under 28 U.S.C. § 1332 but
cases brought pursuant to 28 U.S.C. § 1331 and the FTCA.
See Smith v. United States, 498 F.App'x 120, 121
(3d Cir. 2012).
present action as stated above was filed on December 5, 2014,
and the amended complaint was filed on January 12, 2016. The
record reveals and Defendants admit that Thomas exhausted his
FTCA administrative remedies on July 20, 2015, when the
Northeast Regional Office of the Federal Bureau of Prison
denied his administrative appeal. In the administrative tort
claim Thomas alleged that staff at FCI-Schuylkill failed to
provided him with adequate medical and dental care for
trigeminal neuralgia and dental caries resulting in continuous
pain and unnecessary teeth extractions.
United States argue that Thomas' FTCA claim against it
should be dismissed for failure to file an appropriate COM.
Under Rule 1042.3(a) a party filing an action based upon an
allegation of professional negligence is required to file a
COM stating that
(1) an appropriate licensed professional has has supplied a
written statement that there exists a reasonable probability
that the care, skill or knowledge exercised or exhibited in
the treatment, practice or work that is the subject of the
complaint, fell outside acceptable professional ...