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Alsop v. Federal Bureau of Prisons

United States District Court, M.D. Pennsylvania

November 14, 2019

CHRISTOPHER ALSOP, Plaintiff,
v.
FEDERAL BUREAU OF PRISONS, et al., Defendants.

          MARIANI, J.

          MEMORANDUM

          JOSEPH F. SAPORITO, JR. UNITED STATES MAGISTRATE JUDGE.

         This is 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.

         I. Background

         In his 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.

         This 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.

         On 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.[1] (Doc. 141.) The matter is now ripe for decision.

         II. Discussion

         The 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.

         Pennsylvania 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, [2] 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. Ct. 2004).

         Under 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).

         Under 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).[3] 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).

         In the 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).

         In this 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 ...


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