Opinion
Civil Action 4:22-CV-487
03-22-2024
RUBEN CONJI HOLTON, Plaintiff v. UNITED STATES OF AMERICA, et al., Defendants
RAMBO, D.J.
REPORT AND RECOMMENDATION
WILLIAM I. ARBUCKLE U.S. MAGISTRATE JUDGE.
I. INTRODUCTION
Ruben Conji Holton (“Plaintiff”) is a federal inmate who alleges he was provided negligent care while confined in Federal Prison Camp Schuylkill (“FPC Schuylkill”). He initiated this pro se action under the Federal Tort Claims Act (“FTCA”) against the United States of America, as well as four Bureau of Prisons employees, seeking damages.
Currently before the Court is the United States' Motion to Dismiss Plaintiff's complaint. It is recommended that the United States' Motion (Doc. 17) be GRANTED in part and DENIED in part. Plaintiff cannot maintain an FTCA claim against the four individual Defendants. Some of the torts alleged in Plaintiff's complaint were not administratively exhausted or adequately pleaded. Only Plaintiff's negligence and medical malpractice claims against the United States should be permitted to proceed.
II. BACKGROUND AND PROCEDURAL HISTORY
We will begin our analysis with a review of the relevant background and procedural history. Although this report addresses only one lawsuit, the arguments require the Court to consider facts relevant to the administrative exhaustion of two SF-95 forms, and facts relevant to three separate lawsuits Plaintiff initiated.
A. Plaintiff's SF-95 Forms
Plaintiff filed two SF-95 Forms. He filed the first form on March 15, 2021, and the second form on August 16, 2021.
In the March 2021 SF-95 form, Plaintiff alleges that he contracted COVID-19 on March 2, 2021. He asserted claims directly related to the Bureau of Prison's (“BOP's”) response to COVID-19. Specifically, Plaintiff alleged:
Beginning on or about 3-18-2018, and continuing thereafter, I was confined at the FPC Schuylkill to serve a Federal sentence. Prior to March 2, 2021, I did not have the Coronavirus, nor did I ever test positive for the disease. Pursuant to 18 U.S.C. 4042, FPC Schuylkill owed me a duty of care, as a federal prisoner in it's [sic] custody to, among other things, “Provide suitable quarters and provide for the safekeeping, care and subsistence of all persons charged with or convicted of offenses against the United States.” BOP COVID-19 Action Plan required that staff at all BOP Facilities, including FPC Schuylkill, enforce and strictly follow the CDC guidelines to prevent the spread of the deadly Coronavirus. FPC Schuylkill and it's [sic] employees breached it's [sic] duty of care by, among other things, failing to provide suitable quarters and provide for the safekeeping, care of me. Including failing to enforce and strictly follow the CDC guidelines” [sic] and as a proximate result, of it's [sic] breach of duty of care. On March 2, 2021, I contracted and tested positive for the
Corona-virus, sustained loss of taste, smell and other personal injuries and damages.
Report and Recommendation, Holton v. United States, 4:22-CV-0070-MEM-WIA (M.D. Pa. Aug. 31, 2023), ECF No. 33 p. 3.
Plaintiff listed the date and time of the incident as March 2, 2021, at 10:00 a.m. The Northeast Regional Office denied this claim on September 24, 2021, and advised Plaintiff that if he disagreed with the outcome, he could initiate a federal lawsuit within six months of that date (by March 24, 2022).
On August 16, 2021, Plaintiff filed a second SF-95. He alleged that, “[b]eginning on or about 3-18-2018 and continuing thereafter, I was confined at the FPC Schuylkill to serve a federal sentence. Prior to 9-14-20, I did not have a permanent limp, Vitamin D deficiency, prostate disorder, right chest pain, dizziness, and giddiness, nor anxiety disorder with significant sleep disturbance.” (Doc. 1-8, p. 1). He attached the following full-page description of the incident to his form:
Pursuant to 18 U.S.C. 4042 F.P.C. Schuylkill owed me a duty of care as a Federal prisoner in its custody to, among other things: Health Services, including MEDICAL SICK CALL and support services. To complain of pain, have your pain ASSESSED by MEDICAL STAFF, and have pain treating accordingly. Mary Spiese was negligent in her health care duties, when she denied Holton Sick-Call/Medical Services on 9-10-20, 9-14-20, 11-19-20, 2-22-21, 6-24-21, 7-14-21, 716-21, and 8-16-21, this violates Basic Human Rights, and the right of BOP Professional Conduct with regards to Patient Care N.P. Mary Spiese Arbitrary and Capricious actions warrant an S.I.S. investigation by knowingly violating Program Statement 3420, 5 C.F.R. 3501.1210 24 Sec. 74 and Patient Care 6031.04.
Health and Patient Care is a serious professional conduct of the B.O.P. One who is Callous and disregard to core principles of the B.O.P. warrant an Thorughly Impartial Investigation of my rights Being violated by Nurse Practitioner Mary Spiese. Ms. Spiese on 9-10-20 and 9-14-20, denied R. Holton Sick-Call, when complaining of Breathing Problems causing him to suffer. On 11-16-20 and 11-19-20 she refused to examine R. Holton's Knee and Back Pain, causing the Knee injury to heal improperly, resulting in his permanent limp.
Furthermore, on 11-23-20, N.P. Spiese walked by R. Holton after seeing him wincing and groaning in pain on the floor outside the Admin. Office, where 2 fellow prisoners, Corey Golson and William Cosme had to wheel him down to H.S.U., where his treatment was further delayed. This condition became worse and Mr. Holton was rushed to Lehigh Valley E.D. on 11-29-20. Mr. Holton now has constant chest pain, as well as several sleepless nights each week. On 2-22-21, M. Spiese denied Holton medical services, when he was complaining of COVID-19 symptoms, whereas he tested positive on 3-2-21.
Today 8-16-21 N.P. Mary Spiese denied R. Holton Sick-Call/Medical Services again, where he suffers from Chest Pain, Difficulty Breathing, Lower Back Pain, and a lot of blood coming out with his poop and on tissue. FPC Schuylkill and its employee N.P. Mary Spiese breached its duty of care by, among other things, Failing to provide adequate medical care for me. Whereas I sustained the aforementioned personal injuries and damages.(Doc. 1-8, p. 2) (errors in original). Although this second SF-95 form also contains a passing reference to COVID-19, it deals primarily with Plaintiff's other ailments, and the denial of adequate care for those impairments.
On September 21, 2021, the BOP's Northeast Regional Office sent Plaintiff a letter advising him that his claim was received on August 24, 2021, and was assigned the following number: TRT-NER-2021-07486. (Doc. 1-8, p. 4). The letter also explained that “[u]nder the provisions of the applicable federal statutes, [the BOP had] six months from the date of receipt to review, consider, and adjudicate [Plaintiff's] claim.” Id. (emphasis in original).
On March 3, 2022, Plaintiff sent a letter inquiring about the status of the second SF-95 because he received no response. (Doc. 1-8, p. 5). In that letter, Plaintiff wrote that in his SF-95 he:
was complaining to N.P. Spiese since September of 2020 of various symptoms Ear, nasal issue, chest pain, breathing problems, stomach cramps, headaches, blurred vision, urinating on self 9-17-2020. In pain behind left eye, constipation, body aches, rapid heart beat, blood in stool, pelvic pain, tired a lot, bladder issues, etc. These symptoms continued through September of 2021, without being seen by a Doctor or outside provider, which made my condition worse. She even gave me an incident report on 9-29-21 for Malingering and Feigning illness day before she was released from F.C.I. Schuylkill, For medical misconduct.
She stated in box 11, that in her “opinion”, I don't have a legitimate illness, or I'm “Exaggerating.” She even spoke to my supervisor on 929-21 he confirmed he sent me to medical due to medical issues. Had M. Spiese not been retaliating against me denying me medical service due to my lodging grievances against her, I could've been being treated for my current health issues and some may have been prevented, rather me suffering for over a year now due to M. Spiese negligence, indifference, and retaliation. A Cat Scan performed on 28-22 revealed “Mild linear Atelectasis” and “Minimal bibasilar Atelectasis” (Partial collapse of the lungs); “Small bilateral, pleural effusions” (fluid in lungs); “Calcific Atherosclerosis” (Coronary artery disease/hardening of the arteries); “Mild Cardiomegaly” (Enlarged Heart), “Moderate stool in Colon” (Constipation), “Small Fat-containing umbilical hernia” Etc.
Also an ultrasound of Scrotum, performed on 2-10-2022 revealed “Right Inguinal hernia described previously”
. . . “Moderately small atrophic right testicle”; “Bilateral testicular microlithiasis”; etc. These health conditions are causing me breathing, sleeping, urinary, bowel problems, mental anguish and more. Now I have to go to an “Urologist” to see how to treat my Testicular issue and see if I have testicular cancer or not. So this is a short update on my circumstances, since my initial filing this claim in August of 2022.(Doc. 1-8, pp. 5-6) (emphasis in original) (errors in original).
On March 11, 2022, the BOP's Northeast Regional Office sent a letter to Plaintiff explaining that it reviewed the allegations in his August 16, 2021 SF 95 and that:
An investigation, including a review of your medical records, reflects there is not sufficient evidence to substantiate the allegations of this claim. Your medical records reflect you received appropriate medical assessments and treatment for your medical conditions, including evaluations for body weight, knee pain, back pain, chest pain, and COVID-19 related complaints. There is also no evidence you experienced a compensable loss as the result of negligence on the part of any Bureau of Prisons employee. Accordingly, your claim is denied.(Doc. 1-8, p. 7). This letter advised Plaintiff that if he disagreed, he could initiate a lawsuit within six months of the date of the decision (before September 12, 2022).
B. Lawsuits Plaintiff Filed in This Court
1. Holton v. Finley, 4:21-CV-00737-MEM-WIA
On April 22, 2021, Plaintiff initiated a civil action alleging both FTCA claims and Bivens claims against six federal employees (Scott Finley, Ryan Miller, Bret Brosious, Ellen Liebson-Mace, Richard Raup, and Mary Spiese) for events that occurred at FPC Schuylkill. The United States was not named as a Defendant. Plaintiff's FTCA claims were dismissed due to lack of subject matter jurisdiction because his claims were not properly exhausted until five months after Plaintiff initiated his lawsuit.
The undersigned recently recommended that Defendants' motion to dismiss Plaintiff's Bivens claims in Holton v. Finley, 4:21-CV-737 be granted.
2. Holton v. United States, 4:22-CV-00070-MEM-WIA
On January 13, 2022, Plaintiff lodged a complaint asserting FTCA claims against the United States of America and three BOP employees (Bret Brosious, Ellen Liebson-Mace, and Mary Spiese). The claims in this lawsuit are premised on Plaintiff's March 2021 (First) SF-95 form.
3. Holton v. United States, 4:22-CV-00487-WIA (this action)
Plaintiff alleges that, between September 10, 2020, and September 30, 2021, the BOP's staff was negligent in providing Plaintiff with medical treatment for various ailments, including stomach aches, breathing issues, chest pain, knee pain, back pain, left eye pain, COVID-19, bloody stool, body aches, dizziness, and blurred vision. Plaintiff later learned that he had inguinal and umbilical hernias, and that his liver enzymes were elevated. He alleges that when he experienced symptoms he attempted to seek care. His assigned primary care provider, nurse Mary Spiese, kept denying his requests to be seen, based on her opinion that Plaintiff's complaints were “vague,” “exaggerated,” and were calculated to avoid work. It appears that, on one occasion, Plaintiff was lying on the floor of the administrative building writhing in pain. Although Mary Spiese walked by, she did not stop to provide treatment because she believed Plaintiff was feigning his illness. Ultimately, two inmates “rolled” Plaintiff to health services and Plaintiff was transferred to a hospital. At the hospital, diagnostic tests showed pleural effusion (too much fluid between the layers of his pleura around his lungs) and left arterial enlargement.
In February 2021, Plaintiff wrote to Bret Brosious requesting a new primary care provider. Plaintiff alleges that Bret Brosious did nothing. Plaintiff lists the following medical studies and alleges that he is not receiving care for the issues they revealed:
10-6-21 Ultrasound discovered “Moderate Right Inguinal Hernia”;
10-7-21 x-ray revealed “Moderate Fecal Burden In The Colon”;
2-8-22 Cat scan revealed “Mild linear at [At]electasis” versus “Parenchymal Scarring” in the left lower lobe of Lung; “Small Bilateral Pleural Effusions”; “Minimal Bibasilar Atelectasis”; Small Calcified Granuloma”; “Mild Calcific Atherosclerosis”; “Small Fat-Containing Umbilical Hernia”; “Mild Cardio-megaly.”
2-10-21 Ultrasound of Scrotum Revealed “Moderately Small Atrophic Right Testicle”; “Bilateral Testicular Microlithiasis” etc.(Doc. 1-2, p. 2).
On March 31, 2022, Plaintiff lodged a complaint alleging claims under the Federal Tort Claims Act against the United States of America and four BOP employees. The claims in this lawsuit are based on Plaintiff's August 2021 (Second) SF-95 form. Plaintiff's complaint is written on a pre-printed form. He checked a box indicating that he is bringing a negligence action under the Federal Tort Claims Act. In the section of his complaint titled “legal claims” Plaintiff wrote:
Although counsel for the United States of America has entered an appearance, the individual Defendants remain unrepresented.
(1) § 4042 duties of Bureau of Prisons was violated/Breached, (2) Negligence, (3) negligent hiring, (4) supervision and IIED, (5) Medical Malpractice, (6) tortious conduct, (6) emotional harm. The defendants owed me a duty of care and breached this duty. This breach caused harm and I'm suffering and has suffered damage/injury as a result. The Defendants also failed to follow generally accepted medical standards.(Doc. 1, pp. 4-5) (errors in original).
Under the injury section of his complaint, Plaintiff wrote:
Moderate right inguinal hernia, small Fat-containing umbilical hernia, Emotional distress, anxiety, Mild linear/bibasilar atelectasis, parenchymal scarring, bilateral pleural effusions, Mild Cardiomegaly, calcified granuloma, Mild calcific atherosclerosis, bilateral testicular microlithiasis, elevated liver Enzyme, atrophic R testicle, etc.(Doc. 1, p. 5).
After being served with Plaintiff's complaint, the United States of America filed a motion to dismiss. (Doc. 17). Along with its motion, the United States of America filed a brief in support. (Doc. 18). Plaintiff filed a brief in opposition. (Doc. 20). The United States of America filed a reply. (Doc. 21). On September 19, 2023, the United States of America filed a notice of supplemental authority, in which it withdrew its argument requesting dismissal of Plaintiff's FTCA claims for the failure to file a certificate of merit based on a recent Third Circuit opinion. (Doc. 23) (citing Wilson v. United States of America, 79 F.4th 312 (3d Cir. 2023)). It maintains, however, that all of Plaintiff's FTCA claims should still be dismissed as malicious because this action is duplicative of two other cases pending in the Middle District of Pennsylvania.
III. LEGAL STANDARDS
Before turning to the merits of the United States' arguments, we will review the familiar legal standard for adjudicating motions to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. We will also discuss the standard for claims arising under the FTCA.
In its motion, the United States requests dismissal under “Fed. R. Civ. P. 12(b).” (Doc. 17, p. 1). We construe this motion as a request for dismissal under Rule 12(b)(6) for failure to state a claim.
A. Fed. R. Civ. P. 12(b)(6): Motions to Dismiss For Failure to State A Claim
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to seek dismissal for failure to state a claim upon which relief can be granted. To assess the sufficiency of a complaint when dismissal is sought under Rule 12(b)(6), a court should: (1) take note of the elements a plaintiff must plead to state a claim; (2) identify mere conclusions which are not entitled to the assumption of truth; and (3) determine whether the complaint's factual allegations, taken as true, could plausibly satisfy the elements of a legal claim.
Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011).
In order for his or her allegations to be taken as true, a plaintiff must provide some factual ground for relief, which “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Thus, courts “need not credit a claimant's ‘bald assertions' or ‘legal conclusions' when deciding a motion to dismiss.” The court also need not assume that a plaintiff can prove facts that he or she has not alleged.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)).
Associated Gen. Contractors of Cal. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” The court must accept as true all allegations in the complaint, and any reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. This “presumption of truth attaches only to those allegations for which there is sufficient ‘factual matter' to render them ‘plausible on [their] face.'” The plausibility determination is contextspecific and does not impose a heightened pleading requirement.
Palakovic v. Wetzel, 854 F.3d 209, 219-20 (3d Cir. 2017) (quoting Iqbal, 556 U.S. at 678) (internal quotation marks omitted); see also Sheridan v. NGK Metals Corp., 609 F.3d 239, 262 n.27 (3d Cir. 2010).
Jordan v. Fox Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
Schuchardt v. President of the United States, 839 F.3d 336, 347 (3d Cir. 2016) (internal quotation and citation omitted) (alternations in original).
Id. at 347.
B. Federal Tort Claims Act
In general, the United States enjoys sovereign immunity from suit unless it otherwise consents to be sued. The United States' “consent to be sued must be ‘unequivocally expressed,' and the terms of such consent define the court's subject matter jurisdiction.” The FTCA constitutes “a limited waiver of the United States' sovereign immunity.” The FTCA provides that the United States shall be liable, to the same extent as a private individual, “for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment[.]”
White-Squire v. U.S. Postal Serv., 592 F.3d 453, 456 (3d Cir. 2010).
Id.
Id.
28 U.S.C. § 1346(b)(1); see also 28 U.S.C. § 2674.
Before beginning an FTCA action in federal court, a plaintiff is required to present his or her claim “to the appropriate Federal agency” and be denied or “deemed” denied. Section 2675(a) of Title 28 of the United States Code provides in relevant part:
An action shall not be instituted against the United States for money damages for injury or loss of property or personal injury . . . unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of the agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for the purposes of this section ....
As this Court has explained:
The Third Circuit has instructed us that “[i]n light of the clear, mandatory language of the statute, and [the] strict construction of the limited waiver of sovereign immunity by the United States, . . . the requirement that the appropriate federal agency act on a claim before suit can be brought is jurisdictional and cannot be waived.” Roma v. United States,
344 F.3d 352, 362 (3d Cir. 2003) (citing Livera v. First Nat'1 Bank of New Jersey, 879 F.2d 1186, 1194 (3d Cir. 1989)). The Supreme Court has likewise succinctly explained that “[t]he FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies.” McNeil v. United States, 508 U.S. 106, 113 (1993). As a result, a district court may dismiss a claim brought under the FTCA for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) where the plaintiff has not exhausted his administrative remedies prior to filing suit. See, e.g., Abulkhair v. Bush, 413 Fed.Appx. 502, 506 (3d Cir. 2011); Accolla v. United States Gov't, 369 Fed.Appx. 408, 409-10 (3d Cir. 2010) (finding the district court properly dismissed FTCA claim where the plaintiff filed federal suit prior to exhausting administrative remedies).
In this regard, it must be emphasized that full administrative exhaustion is a jurisdictional prerequisite to filing a lawsuit. Therefore, where an FTCA lawsuit is filed before the exhaustion process is completed, we are compelled to dismiss that action. Miller v. United States, 517 Fed.Appx. 62, 63 (3d Cir. 2013); Roma v. United States, 344 F.3d 352, 362 (3d Cir. 2003). In short, given the jurisdictional nature of this exhaustion requirement, when an inmate files an FTCA lawsuit before he receives a final denial of his administrative tort claim, “the District Court [i]s without jurisdiction to rule on the FTCA claim[,] See McNeil, 508 U.S. at 111-12, (holding that a court is without jurisdiction to rule on a prematurely filed action even if an agency denies the related administrative claim soon after the federal lawsuit is filed),” Accolla v. U.S. Gov't, 369 Fed.Appx. 408, 410 (3d Cir. 2010), and the claim must be dismissed.
Robinson v. United States, No. 3:13-CV-1106, 2014 WL 2940454, at *5-6 (M.D. Pa. June 30, 2014).
IV. DISCUSSION
The United States argues that all of Plaintiff's claims in this action should be dismissed. In support of its position, the United States asserts:
(1) Defendants Bret Brosious, Ellen Mace-Liebson, Mary Spiese, and the Director of the Federal Bureau of Prisons are not proper parties in an FTCA action; and
(2) Plaintiff's negligence claim against the United States should be dismissed because it is frivolous or malicious.
The United States also argued that Plaintiff's case should be dismissed because he did not file a certificate of merit, and because the certificate of merit that was filed under Pa. R. Civ. P. 1042.3(a)(3) (containing Plaintiff's statement that an expert would not be necessary) was inadequate. On September 19, 2023, the United States filed a notice of supplemental authority acknowledging that the Third Circuit's recent holding in Wilson v. United States and withdrawing their certificate of merit arguments in Sections VI(A)(2) and VI(B) of its brief. (Doc. 23) (citing Wilson v. United States, 79 F.4th 312 (3d Cir. 2023). Because these arguments were withdrawn, we need not address them in this report.
In its reply, the United States also argues that Plaintiff's complaint should be construed as asserting a medical malpractice claim only. (Doc. 21).
A. Plaintiff's IIED, Negligent Hiring, and Negligent Supervision Claims Should Be Dismissed
As noted in the background and procedural history section of this Report, Plaintiff listed multiple torts in the legal claims section of his complaint, including: breach of duties under 18 U.S.C. § 4042 (requiring that the Bureau of Prisons provide for the safekeeping and subsistence of its prisoners); negligence; negligent hiring; negligent supervision; intentional infliction of emotional distress (“IIED”); and medical malpractice. (Doc. 1, p. 5). Plaintiff also generally alleges “tortious conduct” and “emotional harm.” Id.
In its reply, the United States argues that Plaintiff's complaint should be construed as alleging medical malpractice claims only. Its entire argument is reproduced below:
Under Paragraph 3 of his Opposition, Holton purports to bring several torts in addition to the medical malpractice claim. Holton's Opposition, however, revealingly frames the issue before the court as whether “prison staff was negligent in providing him treatment?” Doc. 20 at 1. A cursory inspection of his Complaint similarly makes plain that this case is one stemming solely from alleged professional negligence. Nor does that Complaint contain the necessary allegations to plead prima facie torts for, among others, Intentional Infliction of Emotional Distress. This action is one of medical negligence. That being the case, the Court should dismiss this matter for the reasons stated in the United States' opening brief.(Doc. 21, pp. 1-2).
In paragraph three of his response, Plaintiff wrote:
(3) Plaintiff Holton checked the Negligence Action under (F.T.C.A.) 28 U.S.C. § 1346 because 42 U.S.C. § 1983 doesn't apply, also he already has an “Biven Action” pending. Also, Plaintiff Holton did allege constitutional violations, to the best of his knowledge and Understanding of law, in his complaint form (see IV “Legal Claims”; (1) Breach of Duty, (2) Negligence, (3) Negligent Hiring, (4) Supervision and IIED, (5) Medical Malpractice, (6) Tortious Conduct, (7) Emotional Harm.).(Doc. 20, p. 1) (emphasis in original).
The list of claims in Plaintiff's brief, however, appears to be a reproduction of the causes of action identified in Plaintiff's complaint. Therefore, we disagree with the United States' characterization that Plaintiff purports to bring several additional torts in his brief in opposition. Each tort listed was asserted in the complaint itself. Nonetheless, we are persuaded that Plaintiff's complaint does not allege enough facts to make out plausible claims of intentional infliction of emotional distress, negligent hiring, or negligent supervision.
Presenting new arguments in a reply brief is a disfavored practice. The parties are encouraged to limit reply briefs to “matters argued in a brief in opposition.” L.R. 7.7. The “torts” alleged “in addition to the medical malpractice claim” were raised in Plaintiff's complaint, which Plaintiff merely references in the third paragraph of his brief in opposition.
To the extent Plaintiff makes general allegations of “tortious conduct,” “emotional harm” and “breach of duty,” these allegations are not standalone claims, but rather are aspects of the negligence claims Plaintiff appears to assert.
Under Pennsylvania law, the elements of a claim for intentional infliction of emotional distress are as follows: “(1) the conduct [of the defendant] must be extreme and outrageous; (2) it must be intentional or reckless; (3) it must cause emotional distress; [and] (4) that distress must be severe.” Regarding the first element of this type of claim, Pennsylvania courts have defined “extreme and outrageous” conduct as being “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.” Regarding the third and fourth element of this claim, Plaintiff must allege facts showing that the distress inflicted “caused some sort of physical injury, harm or illness.” Plaintiff alleges that he requested to be seen at sick-call and was ignored due to Mary Speise's opinion that Plaintiff was feigning illness. We are not persuaded that these allegations reach the level of outrageousness required to sustain an IIED claim.Although Plaintiff alleges that his conditions got worse due to delayed care and writes that he suffered generalized “emotional harm,” he does not allege any facts related to emotional or physical harm he suffered because of emotional distress. Accordingly, Plaintiff's IIED claim should be dismissed.
Hoy v. Angelone, 691 A.2d 476, 482 (Pa. Super. Ct. 1997), aff'd, 720 A.2d 745 (1998).
Hoy v. Agenlone, 720 A.2d 745, 754 (Pa. 1998) (quoting Buczek v. First Nat'l. Bank of Mifflintown, 531 A.2d 1122, 1125 (1987)).
Robinson v. Family Dollar, Inc., No. 14-03189, 2015 WL 3400836, at *5 (E.D. Pa. May 27, 2015) (citing Corbett v. Morgenstern, 934 F.Supp. 680, 684 (E.D. Pa. 1996)).
A cause of action for IIED is reserved for only the most egregious conduct.
Cases which have found a sufficient basis for a cause of action of intentional infliction of emotional distress have had presented only the most egregious conduct. See e.g., Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118 (1970) (defendant, after striking and killing plaintiffs son with automobile, and after failing to notify authorities or seek medical assistance, buried body in a field where discovered two months later and returned to parents (recognizing but not adopting section 46)); Banyas v. Lower Bucks Hospital, 293 Pa.Super. 122, 437 A.2d 1236 (1981) (defendants intentionally fabricated records to suggest that plaintiff had killed a third party which led to plaintiff being indicted for homicide); Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265 (3d. Cir. 1979)(defendant's team physician released to press information that plaintiff was suffering from fatal disease, when physician knew such information was false).Hoy, 720 A.2d at 754. We are not persuaded that Plaintiff's allegation that he was turned away from sick call despite his sincere reports of symptoms rises to the level of egregiousness required.
Similarly, to the extent Plaintiff asserts claims of negligent hiring and negligent supervision, those claims should also be dismissed. Plaintiff does not adequately plead claims of negligent hiring or supervision in his complaint. He also does not mention negligent hiring or supervision in his SF 95, and the allegations it contains do not place Defendants on notice of this claim.Accordingly, Plaintiff's negligent hiring and supervision claims should be dismissed.
As noted by another Court,
“[T]he Third Circuit has held that an administrative tort claim alleging negligence and an administrative tort claim alleging negligent training or supervision are distinct and must be alleged separately for the District Court to have jurisdiction under the FTCA.” Coleman v. United States, 2016 WL 1241800, at *4 (D.N.J. Mar. 30, 2016) (citing Davila-Bajana v. Sherman, 278 Fed.Appx. 91, 94 (3d Cir. 2008)). The court in Coleman dismissed an FTCA claim for negligent hiring, training, and supervision even though the administrative claim properly alleged negligent medical care. Coleman, 2016 WL 1241800, at *4. Another district court dismissed an FTCA claim for negligent hiring, training, or supervision when two administrative claims made no mention of these claims “and did not identify any supervisors.” Baldwin v. Brown, 2021 WL 1138148, at *6-7 (D.N.J. Mar. 25, 2021) (slip copy).Bohnenkamp v. Whisterbarth, No. 1:19-CV-00115-RAL, 2021 WL 1600477, at *11 (W.D. Pa. Apr. 23, 2021).
With the dismissal of the IIED, negligent hiring, and negligent supervision claims, the only remaining causes of action listed in Plaintiff's complaint are ordinary “negligence” and “medical malpractice.” The United States argues that only the professional negligence claims should proceed but does not discuss the difference between Plaintiff's claims of ordinary negligence and medical malpractice. Because the issue was raised in a reply brief, Plaintiff did not have a meaningful opportunity to respond. In the absence of adequate briefing on the subject, Plaintiff's ordinary negligence and medical malpractice claims should both be permitted to proceed.
B. Plaintiff's Claims Against Defendants Brosious, Mace-Liebson, Spiese, and the Director of the Federal Bureau of Prisons Should be Dismissed
Plaintiff asserts only an FTCA claim in his Complaint. It is well-settled that the United States “is the only proper defendant in a case brought under the FTCA.” Plaintiff thus cannot bring an FTCA claim against these individual Defendants. It is recommended that all claims against Defendants Brosious, Liebson-Mace, Spiese, and the Director of the Federal Bureau of Prisons be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), and that these parties be terminated from this case.
CNA v. United States, 535 F.3d 132, 138 n.2 (3d Cir. 2008) (“The Government is the only proper defendant in a case brought under the FTCA.”); Feaster v. Federal Bureau of Prisons, 366 Fed.Appx. 322, 323 (3d Cir. 2010) (“The only proper defendant in an FTCA suit is the United States itself.”); Dambach v. United States, 211 Fed.Appx. 105, 108 (3d Cir. 2006) (noting that “the only party potentially answerable for any injury [under the FTCA] is the United States.”).
Although Defendants Brosius, Mace-Liebson, Spiese, and the Director of the Federal Bureau of Prisons have not responded to Plaintiff's Complaint, the United States argues that the claims against them should be dismissed. Plaintiff has been granted leave to proceed in forma pauperis. Therefore, we recommend that the Court dismiss the FTCA claims against the individual defendants sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B)(2). See Jacobs v. Lisiak, No. 1:15-CV-00686, 2016 WL 344431, at *2 (M.D. Pa. Jan. 28, 2016) (Kane, J.) (“The Court's obligation to dismiss a complaint under the PLRA screening provisions for complaints that fail to state a claim is not excused even after defendants have filed a motion to dismiss.”) (citing Lopez v. Smith, 203 F.3d 1122, 1126 n.6 (9th Cir. 2000)).
C. We Decline to Recommend Dismissal of Plaintiff's Remaining Claims As Malicious
The United States argues that this lawsuit should be dismissed because it is part of a longstanding pattern of abusive and repetitive lawsuits. (Doc. 18, p. 13) (citing Donahue v. Dauphin Cnty., No. 1:19-CV-00890, 2020 WL 5200391 (M.D. Pa. May 14, 2020) report and recommendation adopted, 2020 WL 5110628 (M.D. Pa. Aug. 31, 2020)). In support of its position, the United States asserts:
Holton now has three lawsuits pending in this District, all of which implicate (in one form or another) the same actors of the BOP and the same allegedly negligent or constitutionally infirm medical care. While Holton pleads only an FTCA claim against the United States in this case, he improperly names as additional defendants in the caption Bret Brosious, Ellen Liebson-Mace and Mary M. Spiese. In his prior cases, Holton brought FTCA and/or Bivens claims arising out of the same nucleus of facts against the United States and these same (and other) individuals.(Doc. 18, p. 14).
In response, Plaintiff argues:
Plaintiff Holton's complaint is neither frivolous or malicious as the government states. The Court shouldn't dismiss Holton's complaint because of the governments statements in, “Questions or Arguments” of their “Brief in Support of Motion to Dismiss.” Mr. Holton's intention in his complaint is not to vex, injure, or harass defendant's. His complaint is also not part of abusive and repetitive lawsuits. His
first Motion was a “Bivens FTCA” combined, however, the TORT was separated from Case No. 4:21-cv-0737, due to his not exhausting his TORT, so he had to re-file it as a separate Motion.(Doc. 20, p. 2) (errors in original).
“A court considering whether an action is malicious must determine whether the action is an attempt to vex, injure, or harass the defendant.” This requires a subjective inquiry into the litigant's motivations at the time the lawsuit was filed. The United States is correct that “[Repetitive litigation is some evidence of a litigant's motivation to vex or harass a defendant where it serves no legitimate purpose .” We are not persuaded that Plaintiff's lawsuit is malicious.
Donahue, 2020 WL 5200391, at *3 (quoting Deutsch v. United States, 67 F.3d 1080 (3d Cir. 1995).
Id. at *3 (emphasis added) (citing Kennedy v. Getz, 757 Fed.Appx. 205, 207 (3d Cir. 2018)).
First, the United States notes that Plaintiff has three lawsuits pending that implicate some of the same individual actors. This is accurate. Each of the three lawsuits have three individual BOP actors in common: Bret Brosious, Ellen Liebson-Mace, and Mary Spiese. The allegation of maliciousness, however, comes from the United States only, not the three individual Defendants themselves. Further, it is likely that when Plaintiff initiated this action, he was not aware that the United States is the only proper Defendant for claims under the FTCA. Notably, Plaintiff's brief in opposition does not include any argument opposing the dismissal of the individual Defendants. His decision to name these individual Defendants appears to be a function of his lack of knowledge, rather than any intent to harass the individual Defendants.
Second, Defendant argues that the claims asserted in Plaintiff's three lawsuits implicate the same negligent or constitutionally deficient medical care. This argument is, in our view, only partially accurate. Defendant is correct that the medical care related claims in the first two lawsuits concern the same negligent or constitutionally deficient care. However, Plaintiff initially attempted to bring those claims together in a single lawsuit alleging Bivens and FTCA claims. Plaintiff's FTCA claims were dismissed because they were not exhausted before he filed his federal lawsuit. Plaintiff filed the second lawsuit only to bring those now-exhausted FTCA claims. Unlike his first and second lawsuits, in which Plaintiff asserts medical care claims limited to treatment he received for COVID-19, Plaintiff's third lawsuit concerns care he received for non-COVID-19 related issues. He exhausted this claim separately in a different SF 95 and when that claim was denied, he received a letter from the BOP directing him to “bring an action against the United States in an appropriate United States District Court” if he was “dissatisfied with this decision.” (Doc. 1-8, p. 7). Plaintiff did as the BOP's letter instructed. Therefore, we find that Plaintiff did not initiate this third lawsuit with any intent to harass any Defendant.
Although we find no maliciousness in Plaintiff's actions, we are left with two pending, and potentially related, FTCA lawsuits. The issue of consolidation may be discussed after the resolution of this pending motion to dismiss.
V. RECOMMENDATION
Accordingly, it is RECOMMENDED that the United States' Motion to Dismiss (Doc. 17) be GRANTED in part and DENIED in part as follows:
(1) All claims against Defendants Brosious, Mace-Liebson, Spiese, and the Director of the Federal Bureau of Prisons should be DISMISSED, and Defendants Brosious, Mace-Liebson, Spiese, and the Director of the Federal Bureau of Prisons should be TERMINATED as parties to this action;
(2) Plaintiff's IIED, negligent supervision, and negligent hiring claims should be DISMISSED; and
(3) Plaintiff's negligence and medical malpractice claims against the United States should be permitted to proceed.
NOTICE OF RIGHT TO OBJECT
NOTICE IS HEREBY GIVEN that any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.