United States District Court, M.D. Pennsylvania
F. SAPORITO, JR. UNITED STATES MAGISTRATE JUDGE.
a prisoner civil rights action. The plaintiff, Christopher
Alsop, is a federal inmate incarcerated at FCI Cumberland,
located in Allegheny County, Maryland. At the time of filing,
however, he was incarcerated at FCI Allenwood Low, located in
Union County, Pennsylvania.
fifth amended complaint, the plaintiff has primarily asserted
the violation of his First and Eighth Amendment rights
pursuant to Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971). Most of his
claims are based on alleged deliberate indifference by the
defendants to his serious medical needs. In addition to these
constitutional tort claims against the individual defendants,
Alsop has asserted claims against the Federal Bureau of
Prisons under Section 504 of the Rehabilitation Act, 29
U.S.C. § 794, and against the United States itself under
the Federal Tort Claims Act ("FTCA"), 28 U.S.C.
§ 2671 et seq. For relief, he seeks injunctive
relief and an award of compensatory and punitive damages.
motion concerns the plaintiffs FTCA claims only. In this
claim, the plaintiff alleges that various of the individual
defendants were negligent in treating-or denying or delaying
treatment of-his varicose veins. Some of these defendants
were medical professionals, others were not. Under the
applicable substantive state law, a plaintiff is generally
required to file a certificate of merit in support of a
complaint asserting professional negligence claims. Here,
Alsop has filed no such certificate.
September 16, 2019, Alsop filed a pro se motion for
a determination by the Court that a certificate of merit is
not necessary in this action, together with a brief in
support of his motion. (Doc. 123; Doc. 124.) The defendants
have filed a brief in response to the plaintiffs motion.
(Doc. 134.) Alsop has filed a reply brief. (Doc. 141.) The
matter is now ripe for decision.
FTCA requires a court to apply the substantive tort laws of
the state in which the alleged tort arose. Gould Elec.
Inc. v. United States, 220 F.3d 169, 179 (3d Cir. 2000).
Here, the alleged tort of negligence- whether characterized
as professional negligence or ordinary negligence-occurred in
Pennsylvania, and therefore Pennsylvania state law applies.
law requires a plaintiff alleging medical malpractice, or any
other form of professional negligence, to file a certificate
of merit, which must attest either that an appropriate
licensed professional supplied a written statement that there
exists a reasonable probability that the care provided fell
outside acceptable professional standards,  or that expert
testimony of an appropriate licensed professional is
unnecessary. Pa. R. Civ. P. 1042.3(a)(1) & (3). This
requirement is a substantive rule and applies even where, as
here, the claim is brought in federal court. See
Liggon-Redding v. Estate of Sugar man, 659 F.3d 258,
264-65 (3d Cir. 2011). Ignorance of the rule does not excuse
failure to comply, even for a pro se plaintiff.
See Hoover v. Davila, 862 A.2d 591, 594 (Pa. Super.
Rule 1042.3, a plaintiff asserting a professional negligence
claim must file a certificate of merit within sixty days
after the filing of a complaint. Pa. R. Civ. P. 1042.3(a).
This sixty-day time period may be extended by the court for
successive periods of up to sixty days each, with no limit on
the number of sixty-day extensions that the court might
grant. Pa. R. Civ. P. 1042.3(d) & note. Such a motion to
extend is timely if it is filed within thirty days after the
defendant files a notice of intention to enter judgment non
pros or before the expiration of any extension of time
previously granted by the court, whichever is later. Pa. R.
Civ. P. 1042.3(d).
Rules 1042.6 and 1042.7, a defendant to a professional
negligence claim may seek to have the complaint dismissed if
the plaintiff has failed to file the requisite certificate of
merit. In Pennsylvania state court, this is a two-step
procedure. First, the defendant may file a written notice of
intention to enter judgment non pros, but no sooner than the
thirty-first day after the filing of the complaint. Pa. R.
Civ. P. 1042.6(a). Then, no less than thirty days after
filing the notice of intention, the defendant may file a
praecipe for entry of judgment non pros. Pa. R. Civ. P.
1042.7(a). In the interim, the plaintiff may file a motion to
extend the time to file a certificate of merit or a motion
for a determination that a certificate of merit is not
necessary. Pa. R. Civ. P. 1042.3(d); Pa. R. Civ. P.
1042.6(c). If no certificate of merit has been filed
at the time of the defendant's praecipe, and there is no
pending timely motion to extend or a motion for a
determination that a certificate of merit is unnecessary, the
prothonotary must enter judgment non pros against the
plaintiff. Pa. R. Civ. P. 1042.7(a).
federal system, applying Pennsylvania law, the procedure is
necessarily different as "there is no procedural
mechanism for a defendant to ask the clerk to dismiss a
claim. Rather, 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."
Bresnahan v. Schenker, 498 F.Supp.2d 758, 762 (E.D.
Pa. 2007); see also Keel-Johnson v. Amsbaugh, No.
1:07-CV-200, 2009 WL 648970, at *3 & n.2 (M.D. Pa. Mar.
10, 2009). Ordinarily, dismissal for failure to file a
certificate of merit is without prejudice. See Donelly v.
O'Malley & Langan, PC, 370 Fed.Appx. 347, 350
(3d Cir. 2010) (per curiam); Booker v. United
States, 366 Fed.Appx. 425, 427 (3d Cir. 2010). But
see Slewion v. Weinstein, No. 12-3266, 2013 WL 979432,
at *1 (3d Cir. Mar. 14, 2013) (per curiam) (dismissal with
prejudice appropriate where statute of limitations has run
and amendment would be futile).
case, the defendants have not yet moved to dismiss the
complaint, nor have they filed a notice of intent to seek
judgment non pros. In anticipation of such a motion, however,
the plaintiff has moved pursuant to Rule 1042.6(c) for a
determination by the Court whether a certificate of merit is
necessary. Alsop contends that his FTCA claim sounds in
ordinary negligence, rather than professional negligence, and
thus a certificate of merit should not be necessary. The
defendants, for their part, argue that the plaintiffs FTCA
claim turns on "questions involving medical
judgment," and therefore it is a professional ...