MARIANNE B. BOWLER, Magistrate Judge.
Pending before this court is a motion to dismiss for failure to state a claim (Docket Entry # 14) filed by defendants United States Department of Justice and the Federal Bureau of Prisons ("defendants") under Rule 12(b)(6), Fed. R. Civ. P. ("Rule 12(b)(6)"). Also pending before this court are a motion for leave to amend the complaint (Docket Entry # 19) and a motion for leave to file a certificate of merit (Docket Entry # 25) filed by plaintiff T. Ronald Theodore ("plaintiff") under Rule 15(a)(2), Fed. R. Civ. P. ("Rule 15(a)(2)").
Prior to filing the pending motion to amend (Docket Entry # 19), plaintiff, who is proceeding pro se, filed a document captioned "first amendment to complaint" (Docket Entry # 11). Plaintiff filed the original complaint (Docket Entry # 1) and a supplement to the complaint (Docket Entry # 3) prior to service of the complaint on defendants.
Although ordinarily an amended complaint supersedes an original complaint,
When considering a motion to dismiss pursuant to Rule 12(b)(6), a court "accept[s] as true all well pleaded facts in the complaint and draw[s] all reasonable inferences in favor of the plaintiffs."
"To survive a motion to dismiss, the complaint must allege `a plausible entitlement to relief.'"
As to a motion to amend, it is well settled that futility constitutes an adequate basis to deny amendment.
Throughout the relevant time period, plaintiff was an inmate in the Federal Bureau of Prisons. The Federal Prison Camp-Canaan ("Canaan"), where plaintiff served his sentence, is located in Waymart, Pennsylvania. (Docket Entry # 3).
On June 26, 2010, plaintiff "suffered acute pulmonary edema and congestive heart failure." (Docket Entry # 1). Plaintiff, "a former doctor, knew he needed oxygen and pleaded for it." (Docket Entry # 1). Plaintiff's "condition was known, and the oxygen was available," but "the staff [at Canaan] refused to administer the oxygen to him." (Docket Entry # 1).
After filing the original complaint (Docket Entry # 1) on May 4, 2012, plaintiff filed the supplement (Docket Entry # 3) on May 30, 2012. The supplement includes an administrative claim dated April 21, 2011, that plaintiff submitted to the Northeast Region of the Federal Bureau of Prisons which, in light of plaintiff's pro se status, this court construes as elucidating the facts at the case in bar.
The incident occurred at 3:00 a.m., "6 weeks post massive anterior wall myocardial infarction with cardiogenic shock and an emergency coronary artery bypass graft." (Docket Entry # 3). Canaan "does not have any medical staff on site from 11:00 p.m. to 6:00 a.m. everyday." (Docket Entry # 3). While plaintiff awaited the arrival of an ambulance, correctional officers "stood there smiling and saying `we are not allowed to give you oxygen.'" (Docket Entry # 3). The correctional officers "had cell phones and were in communication with central command" at the time plaintiff requested oxygen. (Docket Entry # 3). Plaintiff was "unable to breath and lost consciousness" due to "[t]he failure to provide oxygen." (Docket Entry # 3). "When the ambulance arrived, it was reported that the officers appeared to intentionally take a lot of time in placing [plaintiff] in the ambulance." (Docket Entry # 3).
When plaintiff arrived at Wayne Memorial Hospital, "[t]here was great concern by the physicians that the prolonged period of hypoxemia may have precipated [sic] another heart attack and/or extended the damage from the heart attack a few weeks prior." (Docket Entry # 3). "[A]n 80%-90% blockage in the right carotid artery" and "the diminished oxygen level" also created "concern" that "a possible stroke could have occurred." (Docket Entry # 3). While being treated, plaintiff "made known" to the "medical staff at Wayne Memorial Hospital" that he was "concern[ed] that there was no oxygen available [at Canaan]" and that "[i]t would be dangerous and unreasonable to send a heart patient in [plaintiff's] condition back to [Canaan]." (Docket Entry # 3). Plaintiff "was told oxygen would be available." (Docket Entry # 3). Specifically, plaintiff "was told by the [Physician's Assistant at Wayne Memorial Hospital] that she and the attending physician had received assurances [from the staff at Canaan] that oxygen would be always available." (Docket Entry # 3).
Upon returning to Canaan, plaintiff was told by "the Camp Administrator" that "only medical [staff] could give oxygen." (Docket Entry # 3). During the period that no medical staff was on site, "[a]n ambulance could be called" if oxygen was needed. (Docket Entry # 3).
Plaintiff "filed a grievance with the Warden" alleging that "[t]he staff at Canaan had lied to [him] and the physicians and staff at [Wayne Memorial] hospital." (Docket Entry # 3). In reply to the grievance, the Warden stated, "In regard to your questions as to why the Correctional Officers did not give you oxygen when you were lying on the sidewalk, Correctional Officers are trained as First Responders. As a First Responder, they are not trained in the administration of oxygen. Oxygen can only be administered by properly trained Medical staff in an emergency situation or as prescribed by a Doctor." (Docket Entry # 3). Plaintiff maintains that he "sustained severe physical harm and was placed in severe jeopardy for his life and [sustained] severe emotional distress as a result of correctional officers failure to provide basic emergency care." (Docket Entry # 3).
"[F]ollowing [plaintiff's] heart attack and bypass surgery, [plaintiff] had many complications" while recovering at Canaan. (Docket Entry # 3). "Dr. [Daniel] Holloway [a doctor at Canaan] had requested [plaintiff] be transferred to a federal medical center. The request was denied by Central." (Docket Entry # 3).
Plaintiff was "repeatedly denied proper cardiac diet" by correctional officers at Canaan and "staff practically assaulted [plaintiff's] family member."
Defendants move to dismiss all four claims presented in the operative complaint (Docket Entry ## 1, 3 & 11). Defendants argue that: (1) the two claims brought under
Plaintiff alleges two claims under
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The original complaint names the United States Department of Justice and the Federal Bureau of Prisons. The supplement and the motion to amend retain the same caption as the original complaint, all of which name the Department of Justice and the Federal Bureau of Prisons. The operative complaint (Docket Entry ## 1, 3 & 11) therefore does not name or identify any other federal official as a defendant. Aside from the two parties named as defendants, plaintiff mentions seven individuals by name and 19 by occupation or title in documents submitted as part of the administrative proceedings. (Docket Entry # 3). Plaintiff does not identify these individuals as a "defendant." He also fails to allege that any of the individuals mentioned (Docket Entry # 3) were deliberately indifferent to the medical care he received or that any of the individuals retaliated against him. Plaintiff therefore fails to state a claim against a federal official in his or her individual capacity.
The pending motion to amend (Docket Entry # 19) seeks to cure this deficiency by adding as defendants: (1) Attorney General Eric Holder; (2) Director of Federal Prisons Charles E. Samuelson; and (3) Warden Ronnie R. Holt. During oral argument, defendant opposed the motion to amend based on futility. The original complaint (Docket Entry # 1), the supplement (Docket Entry # 3) and the amended complaint (Docket Entry # 11) do not tie these individuals to the facts alleged. Plaintiff's failure to state a claim against a federal official in his or her individual capacity renders the motion to amend the complaint (Docket Entry # 19) futile.
The FTCA gives federal district courts exclusive jurisdiction over claims against the United States for "injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of federal employees acting within the scope of their employment." 28 U.S.C. § 1346(b)(1). The FTCA "was designed primarily to remove the sovereign immunity of the United States from suits in tort."
Here, plaintiff brings two claims under the FTCA: (1) negligence; and (2) medical malpractice. Both claims are based on acts or omissions that occurred in Pennsylvania. Pennsylvania law therefore governs both claims.
Plaintiff alleges that medical staff at Canaan prescribed medication that was contraindicated in the setting of coronary artery bypass which can precipitate acute pulmonary edema and congestive heart failure. The allegation presents a medical malpractice claim.
When filing a complaint for medical malpractice, Pennsylvania law requires "the attorney for the plaintiff, or the plaintiff if not represented, [to] file with the complaint or within sixty days after the filing of the complaint, a certificate of merit." Pa. R. Civ. P. 1042.3(a). Defendants move to dismiss the medical malpractice claim for failure to comply with Rule 1042.3.
Rule 1042.3 constitutes "substantive state law that must be applied by the federal district courts. Under Pennsylvania law, plaintiff's failure to comply with the [certificate of merit] requirement entitles the defendant to direct the prothonotary to enter a judgment of non pros against the plaintiff.
In order to survive the motion to dismiss, plaintiff belatedly filed the motion for leave to file the certificate of merit. (Docket Entry # 25). Plaintiff, however, did not file the certificate of merit in the time allowed by statute. "In any action based upon an allegation that a licensed professional deviated from an acceptable professional standard . . . the plaintiff . . . shall file with the complaint or within sixty days after the filing of the complaint, a certificate of merit." Pa. R. Civ. P. 1042.3(a). Plaintiff filed the motion to amend four months after the the time allowed by statute. The motion is futile because the certificate of merit submitted does not "substantially compl[y]" with Pennsylvania law which would be a ground for dismissal.
Here, plaintiff simply missed the statutory deadline. Thus, assuming equitable considerations apply, plaintiff fails to provide a legitimate or reasonable excuse for noncompliance. Rule 1042.3 also includes a provision that allows a court to grant an extension of the time period "upon good cause shown." It reads that, "The court, upon good cause shown, shall extend the time for filing a certificate of merit for a period not to exceed sixty days. The motion to extend the time for filing a certificate of merit must be filed on or before the filing date that plaintiff seeks to extend." Pa. R. Civ. P. 1042.3(d).
In the case at bar, plaintiff filed the original complaint on May 4, 2012. Defendants filed the motion to dismiss on November 23, 2012. Plaintiff filed the motion for leave to file the certificate on February 14, 2013, nine months after plaintiff filed the original complaint and three months after defendant filed the motion to dismiss. (Docket Entry ## 14 & 25). Plaintiff therefore did not file a motion to extend the 60 day time period "on or before the filing date that the plaintiff seeks to extend."
Assuming the alternative that federal procedural law governs the time period to seek an extension, plaintiff fails to show "excusable neglect" within the meaning of Rule 6(b), Fed. R. Civ. P. Indeed, plaintiff never requested an extension to file the certificate. Even construing the motion to amend as a request for an extension of time, it is too late. Plaintiff did not file the motion to amend within 60 days of filing the complaint (July 3, 2012). Failure to file a certificate of merit is "no procedural misstep . . . it [is] instead, a wholesale failure to take any of the actions that one of our rules require."
The FTCA negligence claim is based on correctional officers' refusal to administer oxygen to plaintiff on June 26, 2010. Plaintiff was told by correctional officers on the morning of the incident that they were not authorized to administer oxygen to him. Upon returning to Canaan, the Camp Administrator again told plaintiff that oxygen would not be available on site from 11:00 p.m. until 6 a.m. every day.
"[A] person can sue under the [FTCA] to recover damages from the United States Government for personal injuries sustained during confinement in a federal prison, by reason of the negligence of a government employee."
The analysis of whether the discretionary function exception applies:
Here, the room for choice exists in light of the broad terms that define the Bureau of Prisons duty to prisoners in its custody. "The Bureau of Prisons . . . shall . . . provide for the safekeeping, care, and subsistence of all persons charged with or convicted of offenses against the United States . . . ." 18 U.S.C. § 4042(a)(2) ("Section 4042");
In determining how to best care for prisoners, prison officials at Canaan chose to staff medical personnel on site from 6 a.m. until 11:00 p.m. every day. When members of the medical staff were not on site, prison officials chose a course of action that requires an ambulance to be summoned in the event of a medical emergency.
Turning to whether the choices made by prison officials were susceptible to policy analysis, when "choices are informed by a need to balance concerns about a myriad of factors such as efficiency, safety, aesthetics, and cost . . . those choices are readily susceptible to policy analysis."
In accordance with the foregoing discussion, this court
