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Burnside v. United States

United States District Court, W.D. Pennsylvania

August 9, 2019

JOHN OTIS BURNSIDE, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM OPINION RE: MOTION TO DISMISS OR FOR SUMMARY JUDGMENT [ECF NO. 7]

          SUSAN PARADISE BAXTER, UNITED STATES DISTRICT JUDGE

         United States District Judge Susan Paradise Baxter[1]

         Relevant Procedural History

         This 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.

         In his complaint, Plaintiff, acting pro se[2], 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 Battery.”

         The 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.[3]

         Plaintiff has filed a brief in opposition. ECF No. 14. These motions are fully briefed and are ripe for disposition by this Court.

         Standard of Review

         A 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 Act).[4]

         The 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).

         In such 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.

         Federal 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.

         The 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.

         The Exhaustion Requirement of the Federal ...


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