United States District Court, W.D. Pennsylvania
MEMORANDUM OPINION RE: MOTION TO DISMISS OR FOR
SUMMARY JUDGMENT [ECF NO. 7]
PARADISE BAXTER, UNITED STATES DISTRICT JUDGE
States District Judge Susan Paradise Baxter
civil action was filed in this Court on August 28, 2018.
Plaintiff, an inmate incarcerated at the Federal Correctional
Institution at Loretto, brings this action against the United
States of America pursuant to the Federal Tort Claims Act, 28
U.S.C. § 2671.
complaint, Plaintiff, acting pro se, claims that a
punch biopsy procedure was done by an unknown “white
male student” without Plaintiff's consent and while
Plaintiff was legally intoxicated. This incident occurred
while Plaintiff was incarcerated at the FCI-McKean. Plaintiff
refers to his claim as one of “Technical Assault and
United States, in response to the complaint, filed a motion
to dismiss or in the alternative for summary judgment. ECF
No. 7. As grounds for its motion, the United States posits
three arguments: 1) the claim should be dismissed due to
Plaintiff's failure to exhaust his administrative
remedies prior to filing suit; 2) the claim should be
dismissed because Plaintiff failed to file Certificates of
Merit in support of his negligence claim; and 3) claim should
be dismissed because there is no evidence that any employee
of the United States was negligent in regard to
Plaintiff's medical care.
has filed a brief in opposition. ECF No. 14. These motions
are fully briefed and are ripe for disposition by this Court.
motion to dismiss filed pursuant to Rule 12(b)(6) must be
viewed in the light most favorable to the plaintiff and the
complaint's well-pleaded allegations must be accepted as
true. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007).
A complaint must be dismissed pursuant to Rule 12(b)(6) if it
does not allege “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007) (rejecting
the traditional 12(b)(6) standard set forth in Conley v.
Gibson, 355 U.S. 41 (1957)); see also Ashcroft v.
Iqbal, 556 U.S. 662 (2009) (specifically applying
Twombly analysis beyond the context of the Sherman
United States requests that this Court consider evidence
outside of the pleadings in support of its motion to dismiss.
Where a court receives and considers matters outside the
pleadings in support of a motion to dismiss, the motion to
dismiss should be converted into a motion for summary
judgment. Fed.R.Civ.P. 12(d) (“If, on a motion under
Rule 12(b)(6) . . . matters outside the pleadings are
presented to and not excluded by the court, the motion must
be treated as one for summary judgment under Rule
56.”). See Dorsey v. Pennsylvania Department of
Corrections, 2016 WL 6124420, at *3 (M.D. Pa. 2016).
a situation, a district court must provide sufficient notice
of the conversion to the non-moving party and allow that
non-moving party, especially a pro se prisoner
plaintiff, to submit materials to oppose summary judgment.
Renchenski v. Williams, 622 F.3d 315, 340-341 (3d
Cir. 2010). Here, this Court provided such a notice to
Plaintiff. ECF No. 10. Accordingly, the motion to dismiss
shall be treated as a motion for summary judgment.
Rule of Civil Procedure 56(a) provides that summary judgment
shall be granted if the “movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Under Rule
56, the district court must enter summary judgment against a
party “who fails to make a showing sufficient to
establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). “[A] party
seeking summary judgment always bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions of ‘the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if
any,' which it believes demonstrate the absence of a
genuine issue of material fact.” Id. at 323,
quoting Fed.R.Civ.P. 56.
moving party has the initial burden of proving to the
district court the absence of evidence supporting the
non-moving party's claims. Id. at 330; see
also Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir.
2007); UPMC Health System v. Metro. Life Ins. Co.,
391 F.3d 497, 502 (3d Cir. 2004). After the moving party has
satisfied this low burden, the nonmoving party must provide
facts showing that there is a genuine issue for trial to
avoid summary judgment. Id. at 324.
Exhaustion Requirement of the Federal ...