United States District Court, E.D. Pennsylvania
Charles Talbert sues prison medical professionals Dr. Taylor,
Dr. Reynolds, and Dr. Fowler for "deliberate
indifference to a serious medical need that caused [him] an
actual injury." Dr. Taylor, Dr. Reynolds, and Dr. Fowler
now filed notices of an intent to enter judgment of non
pros against Mr. Talbert for failing to provide a
certificate of merit under Pennsylvania Rule of Civil
Pennsylvania practice, a judgment of nonpros is
effectively the same as dismissal without
prejudice. Rule 1042.3, a Pennsylvania procedural
rule used in medical malpractice and professional negligence
"(a) In any action based upon an allegation that a
licensed professional deviated from an acceptable
professional standard, the attorney for the plaintiff, or the
plaintiff if not represented, shall file with the complaint
or within sixty days after the filing of the complaint, a
certificate of merit signed by the attorney or party . ..
(b)(1) A separate certificate of merit shall be filed as to
each licensed professional against whom a claim is
(d) The court, upon good cause shown, shall extend the time
for filing a certificate of merit for a period not to exceed
sixty days. A motion to extend the time for filing a
certificate of merit must be filed by the thirtieth day after
the filing of a notice of intention to enter judgment of
non pros on a professional liability claim under
Rule 1042.6(a) or on or before the expiration of the extended
time where a court has granted a motion to extend the time to
file a certificate of merit, whichever is greater. The filing
of a motion to extend tolls the time period within which a
certificate of merit must be filed until the court rules upon
Pennsylvania Rule applies if Mr. Talbert pleads medical
malpractice and professional negligence claims by
professionals. Failure to adduce a certificate of merit may
allow a Pennsylvania Prothonotary to enter judgment of
non pros on the claim a professional deviated from
the standard of care.
Talbert admittedly has not adduced a certificate of merit.
But he claims he does not need to. On November 5, 2019, Mr.
Talbert judicially admitted he does not plead medical
malpractice or professional negligence and limits his case to
his Eighth Amendment claim. We accept Mr. Talbert's
judicial admission he is not claiming medical malpractice or
professional negligence. Mr. Talbert may not argue a medical
malpractice or professional negligence claim.
question then is whether Mr. Talbert may proceed on a
deliberate indifference claim against prison doctors without
a certificate of merit. In Boring v. Sanders, Judge
Jones adopted Judge Carlson's Report and Recommendation
holding the prisoner's negligence claims against prison
medical officials must be dismissed for failure to adduce a
certificate of merit. He then held the failure to adduce a
certificate of merit did not require we dismiss the
deliberate indifference constitutional claim.
agree with Judges Jones and Carlson. The certificate of merit
addresses deviations from the professional's standard of
care under Pennsylvania negligence law. This standard is not
the constitutional standard of deliberate indifference. We
cannot find a certificate of merit would affect the proof of
the constitutional claim. It is no more a factor in defining
the merits than in another type of tort case against a
professional such as the fraud claims addressed by Judge
Robreno in McElwee Group, LLC v. Municipal Authority of
the Borough of Elverson.Mr. Talbert judicially admits he
seeks damages on a constitutional claim. Like Judges Jones
and Carlson in Boring, we decline to dismiss at this
preliminary stage because Mr. Talbert does not have or need a
certificate of merit. Nothing in today's decision affects
our analysis of whether Mr. Talbert otherwise states a claim.
limits his claim to a claim for deliberate indifference, Mr.
Talbert is not required to adduce a certificate of merit
under Rule 1042.3. He needs to prove different elements than
professional negligence. We deny Dr. Taylor's, Dr.
Reynolds', and Dr. Fowler's requests for judgment
of non pros.
 ECF Doc. No. 2 at 4, 6, 8. In his
original Complaint, Mr. Talbert sued several defendants,
including: Correctional Dental Associates, Dr. Schneider, Dr.
Young, Dr. Patel, Corizon Health, Inc., Edward Bowman, Paden
Hinds, Siddharth Sagreiya, Sigy George, Mental Health
Management, Dr. Taylor, Dr. Reynolds, and Dr. Fowler.
See ECF Doc. 2 at 1. Mr. Talbert is now prosecuting
his "final ...