Opinion
CIVIL 3:20-CV-291
08-03-2021
WILLIAM WHITE, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
Brann, Judge
REPORT AND RECOMMENDATION
Martin C. Carlson, United States Magistrate Judge
I. Introduction
Some six years ago, for 9 to 12 days in February and March of 2015, William White, a federal prisoner, experienced a commonplace occurrence for federal inmates who are transferred between prisons: he was housed at the United States Penitentiary, Canaan, en route to confinement at the United States Penitentiary, Marion. When White arrived at USP Canaan, he received a medical examination and treatment, which disclosed no outstanding issues. Likewise, when White arrived at USP Marion, a physical examination revealed that White had no outstanding medical complaints.
Notwithstanding the completely pedestrian nature of this transfer, White has brought claims against the United States under the Federal Tort Claims Act (FTCA), alleging that during his less than two week stay at USP Canaan, he suffered from both negligent and intentional infliction of emotional distress. These tort claims are now the subject of cross motions for summary judgment filed by the United States and White. (Docs. 135, 162). These motions are now ripe for resolution. For the reasons set forth below, given the exacting standards of proof required for these torts under Pennsylvania law, which controls here, it is recommended that the defendant’s motion for summary judgment be granted (Doc. 135), and White’s motion for summary judgment (Doc. 162), be denied.
II. Statement of Facts and of the Case
This statement of facts is derived from the parties’ submissions, to the extent that those submissions draw support from the evidentiary record. (Docs. 152, 160, 163-65). We note that much of the information provided by White relates to concerns and grievances which he has relating to confinement at other institutions at different times, matters which are not germane to the issues before this court.
William White is a federal inmate who, by his own admission, has an extensive criminal record and is a prodigious prison litigator. (Doc. 1). Indeed, the instant lawsuit, is, in fact, only a small part of what was at one time a far more sweeping and grandiose piece of litigation-a counselled FTCA case initially filed by White in the United States District Court for the Southern District of Illinois more than four years ago in June of 2017, which purported to bring 54 tort claims arising out of more than 45 prison transfers experienced by White over an eight year period. (Doc. 49). Because this initial lawsuit improperly attempted to aggregate disparate acts by diverse actors, which took place at different times and places, these claims have been severed by the various courts that have considered them, and the only claims before us are narrowly defined claims relating to White’s confinement at USP Canaan in February and March of 2015. On this score, White alleges in a fairly cursory fashion that his brief detention at this facility in a “lockdown” status contributed to mental and emotional distress he experienced as a result of the restricted environmental stimuli conditions at the prison, and constituted both the negligent and the intentional infliction of emotional distress. (Doc. 49, Counts, 41 and 42).
With respect to White’s brief confinement at USP Canaan in February and March of 2015, the undisputed evidence reveals that on February 20, 2015, upon his arrival at USP Canaan, White was evaluated at intake screening by a staff Emergency Medical Technician. At that time White denied any physical or mental health ailments and none were identified by medical personnel. During this clinical encounter, White’s aspirin medication was reconciled, his eyeglasses were authorized for retention, and he was educated how to obtain medical, dental, and mental health care during his abbreviated stay as a holdover.
In accordance with Bureau of Prisons’ policies, hold over inmates who are in transit to another facility like White are provided, to the extent possible, with the same general privileges as inmates in a general population unit, including out of cell time in the unit; the opportunity to exercise five hours per week outside of their quarters; personal hygiene items; the opportunity to shower and shave; nutritionally adequate meals, appropriate bedding, and clothing; and are provided a reasonable amount of personal property and commissary access.. Health Services staff at USP Canaan also made daily rounds in the hold-over housing unit to provide any necessary medical care. In addition, emergency medical and mental health care was available 24 hours per day, 7 days per week at the prison. For his part, with respect to his brief incarceration at USP Canaan, White simply complains that the hold-over housing at USP Canaan was poorly heated and cold; that his meals consisted of sandwich snack packs; and that he did not actually meet with psychology staff at Canaan while he was briefly held there. On March 3, 2015, White left USP Canaan. White arrived at USP Marion on April 30, 2015. At that time during his intake medical screening, White did not report experiencing any distress or injury, did not otherwise complain of any issue associated with his stay as a holdover inmate and no physical or mental impairments resulting from his confinement at USP Canaan were identified.
It is against this factual backdrop that we consider the parties’ cross motions for summary judgment on these negligent and intentional infliction of emotional distress claims. For the following reasons, given the exacting standards prescribed by Pennsylvania law for these torts claims, it is recommended that that the defendant’s motion for summary judgment be granted (Doc. 135), and White’s motion for summary judgment (Doc. 162), be denied. Finally, it is recommended that White’s motion to further delay the merits resolution of this case (Doc. 173), also be denied.
III. Discussion
A. Cross-Motions for Summary Judgment – Standard of Review
The parties have filed cross motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, which provides that the court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Through summary adjudication, a court is empowered to dispose of those claims that do not present a “genuine dispute as to any material fact,” Fed. R. Civ. P. 56(a), and for which a trial would be “an empty and unnecessary formality.” Univac Dental Co. v. Dentsply Int’l, Inc., No. 07-0493, 2010 U.S. Dist. LEXIS 31615, at *4 (M.D. Pa. Mar. 31, 2010). The substantive law identifies which facts are material, and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine only if there is a sufficient evidentiary basis that would allow a reasonable fact finder to return a verdict for the non-moving party. Id., at 248-49.
The moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). Once the moving party has shown that there is an absence of evidence to support the non-moving party’s claims, “the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument.” Berckeley Inv. Group. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006), accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the non-moving party “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden at trial,” summary judgment is appropriate. Celotex, 477 U.S. at 322. Summary judgment is also appropriate if the non-moving party provides merely colorable, conclusory, or speculative evidence. Anderson, 477 U.S. at 249. There must be more than a scintilla of evidence supporting the non-moving party and more than some metaphysical doubt as to the material facts. Id., at 252; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In making this determination, the Court must “consider all evidence in the light most favorable to the party opposing the motion.” A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007).
Moreover, a party who seeks to resist a summary judgment motion by citing to disputed material issues of fact must show by competent evidence that such factual disputes exist. Further, “only evidence which is admissible at trial may be considered in ruling on a motion for summary judgment.” Countryside Oil Co., Inc. v. Travelers Ins. Co., 928 F.Supp. 474, 482 (D.N.J. 1995). Similarly, it is well-settled that: “[o]ne cannot create an issue of fact merely by . . . denying averments . . . without producing any supporting evidence of the denials.” Thimons v. PNC Bank, NA, 254 F. App’x 896, 899 (3d Cir. 2007) (citation omitted). Thus, “[w]hen a motion for summary judgment is made and supported . . ., an adverse party may not rest upon mere allegations or denial.” Fireman’s Ins. Co. of Newark New Jersey v. DuFresne, 676 F.2d 965, 968 (3d Cir. 1982); see Sunshine Books, Ltd. v. Temple University, 697 F.2d 90, 96 (3d Cir. 1982). “[A] mere denial is insufficient to raise a disputed issue of fact, and an unsubstantiated doubt as to the veracity of the opposing affidavit is also not sufficient.” Lockhart v. Hoenstine, 411 F.2d 455, 458 (3d Cir. 1969). Furthermore, “a party resisting a [Rule 56] motion cannot expect to rely merely upon bare assertions, conclusory allegations or suspicions.” Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985) (citing Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981)).
Finally, it is emphatically not the province of the court to weigh evidence or assess credibility when passing upon a motion for summary judgment. Rather, in adjudicating the motion, the court must view the evidence presented in the light most favorable to the opposing party, Anderson, 477 U.S. at 255, and draw all reasonable inferences in the light most favorable to the non-moving party. Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Where the non-moving party’s evidence contradicts the movant’s, then the non-movant’s must be taken as true. Id. Additionally, the court is not to decide whether the evidence unquestionably favors one side or the other, or to make credibility determinations, but instead must decide whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. Anderson, 477 U.S. at 252; see also Big Apple BMW, 974 F.2d at 1363. In reaching this determination, the Third Circuit has instructed that:
To raise a genuine issue of material fact . . . the opponent need not match, item for item, each piece of evidence proffered by the movant. In practical terms, if the opponent has exceeded the “mere scintilla” threshold and has offered a genuine issue of material fact, then the court cannot credit the movant’s version of events against the opponent, even if the quantity of the movant’s evidence far outweighs that of its opponent. It thus remains the province of the fact finder to ascertain the believability and weight of the evidence.Id. In contrast, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
In this case, we are presented with cross motions for summary judgment. In this setting:
“When confronted with cross-motions for summary judgment ... ‘the court must rule on each party's motion on an individual and separate basis, determining, for each side, whether a judgment may be entered in accordance with the summary judgment standard.’ ” Transguard Ins. Co. of Am., Inc. v. Hinchey, 464 F.Supp.2d 425, 430 (M.D. Pa. 2006) (quoting Marciniak v. Prudential Fin. Ins. Co. of Am., 184 Fed.Appx. 266, 270 (3d Cir. 2006)). “If review of [the] cross-motions reveals no genuine issue of material fact, then judgment may be entered in favor of the party deserving of judgment in light of the law and undisputed facts.” Id. (citing Iberia Foods Corp. v. Romeo, 150 F.3d 298, 302 (3d Cir. 1998)).Pellicano v. Office of Pers. Mgmt., Ins. Operations, 8 F.Supp. 3d 618, 625–26 (M.D. Pa. 2014), aff’d sub nom. Pellicano v. Office of Pers. Mgmt., 714 F. App'x 162 (3d Cir. 2017).
B. White’s Intentional Infliction of Emotional Distress Claim Fails.
In this case William White, a federal prisoner brings claims of intentional and negligent infliction of emotional distress under the FTCA. With respect to inmate claims made under the FTCA, as a threshold matter, “[t]he FTCA allows federal inmates to sue the United States for injuries sustained while incarcerated. 28 U.S.C. § 2674.” Moshier v. United States, No. 05-180, 2007 WL 1703536, at *9 (W.D. Pa. June 11, 2007); Baker v. United States, No. 05-146, 2006 WL 1946877, at *4 (W.D. Pa. July 11, 2006). In this regard, “[t]he FTCA ‘was designed primarily to remove the sovereign immunity of the United States from suits in tort, with certain specific exceptions, to render the Government liable in tort as a private individual would be under like circumstances.’ ” Sosa v. Alvarez-Machain, 542 U.S. 692, 700 (2004) (quoting Richards v. United States, 369 U.S. 1, 6 (1962)); CNA v. United States, 535 F.3d 132, 138 (3d Cir. 2008).
Federal district courts have jurisdiction over civil actions against the United States for damages, or
[I]njury 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, under the circumstance where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.28 U.S.C. § 1346(b)(1). Therefore, Pennsylvania tort law governs this case.
Turning first to White’s claim of intentional infliction of emotional distress, this particular tort is judged against familiar, but very exacting, legal standards. 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.” Hoy v. Angelone, 691 A.2d 476, 482 (Pa. Super. Ct. 1997). This claim also often requires an allegation of some type of physical injury, harm, or illness related to the distress. Robinson v. Family Dollar, Inc., No. 14-3189, 2015 WL 3400836 (E.D. Pa. May 27, 2015) (citing Corbett v. Morgenstern, 934 F.Supp. 680, 684 (E.D. Pa. 1994)). It is difficult to make out a cognizable claim for intentional infliction of emotional distress, in no small part because “the conduct must be ‘so extreme in nature as to go beyond all possible bounds of decency such that it would be regarded as utterly intolerable to civilized society.’ ” Regan v. Twp. of Lower Merion, 36 F.Supp.2d 245, 251 (E.D. Pa. 1999) (internal citations omitted).
Thus, with respect to claims for intentional infliction of emotional distress, “courts have been chary to allow recovery for a claim of intentional infliction of emotional distress. Only if conduct which is extreme or clearly outrageous is established will a claim be proven.” Hoy v. Angelone, 720 A.2d 745, 753-54 (Pa. 1998). Indeed, the Restatement (Second) of Torts instructs that “[i]t has not been enough that the defendant has acted with intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that this conduct has been characterized by ‘malice,’ or a degree of aggravation that would entitle the plaintiff to punitive damages for another tort.” Restatement (Second) of Torts § 46, comment d; Hoy, 720 A.2d at 754. In keeping with these restrictive standards, the Pennsylvania Supreme Court has provided examples of conduct found to state a claim for intentional infliction of emotional distress, and such examples demonstrate the extraordinary nature of the theory:
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 plaintiff's 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.
Assessed against these precise and demanding legal benchmarks, White’s claim of intentional infliction of emotional distress fails as a matter of law. While confinement in a poorly heated cell for 9 to 12 days with limited meal choices and activities would certainly be uncomfortable, it simply cannot be said that this brief hold-over custody status was “ ‘so extreme in nature as to go beyond all possible bounds of decency such that it would be regarded as utterly intolerable to civilized society.’ ” Regan, 36 F.Supp.2d at 251. Therefore, this claim fails as a matter of law and should be dismissed.
C. White’s Negligent Infliction of Emotional Distress Claim Also Fails.
White’s negligent infliction of emotional distress claim is also unavailing. Pennsylvania law recognizes the tort of negligent infliction of emotional distress, albeit in a very narrow and specific range of cases. Thus, not all forms of negligently caused emotional distress are cognizable under Pennsylvania tort law. Instead:
To establish a claim of negligent infliction of emotional distress under Pennsylvania law, a plaintiff must prove that: (1) he or she was near the scene of an accident or negligent act; (2) shock or distress resulted from a direct emotional impact caused by the sensory or contemporaneous observance of the accident, as opposed to learning of the accident from
others after its occurrence; and (3) he or she is closely related to the injured victim. Smith v. School Dist. of Philadelphia, 112 F.Supp.2d 417, 428 (E.D.Pa.2000) (citing Sinn v. Burd, 486 Pa. 146, 170–71, 404 A.2d 672, 685 (1979); Frempong–Atuahene v. Redevelopment Auth. of Phila., 1999 WL 167726, *7 (E.D.Pa.1999)). Manifestation of physical injury is necessary to sustain a claim for negligent infliction of emotional distress. See Redland Soccer Club, Inc. v. Department of the Army of the United States, 55 F.3d 827, 848 (3d Cir.1995); Smith 112 F.Supp.2d at 428-29; Sonlin v. Abington Memorial Hospital, 2000 Pa.Super. 44, 748 A.2d 213, 217 (Pa.Super.2000); Armstrong v. Paoli Memorial Hospital, 430 Pa.Super. 36, 44–45, 633 A.2d 605, 609 (Pa.Super.1993) (stating that “[t]emporary fright, nervous shock, nausea, grief, rage, and humiliation if transitory are not compensable injuries; but, long continued nausea or headaches, repeated hysterical attacks or mental aberration are compensable injuries”).
Robinson v. May Dep't Stores Co., 246 F.Supp.2d 440, 444–45 (E.D.Pa.2003).Angino v. Wells Fargo Bank, N.A., No. 1:15-CV-418, 2016 WL 787652, at *14 (M.D. Pa. Feb. 19, 2016), report and recommendation adopted, No. 1:15-CV-418, 2016 WL 759161 (M.D. Pa. Feb. 26, 2016), aff'd, 666 F. App'x 204 (3d Cir. 2016). Given these prerequisites set by state law for a claim of negligent infliction of emotional distress:
In Pennsylvania, the cause of action for negligent infliction of emotional distress has been limited by court decisions. In order to recover, the Plaintiff must prove one of four elements: (1) that the Defendant had a contractual or fiduciary duty toward him; (2) that Plaintiff suffered a physical impact; (3) that Plaintiff was in a “zone of danger” and at risk of an immediate physical injury; or (4) that Plaintiff had a contemporaneous perception of tortious injury to a close relative. See Brown v. Philadelphia College of Osteopathic Medicine, [449 Pa.Super. 667,] 674 A.2d 1130 (Pa.Super.1996); Fewell v. Besner, [444 Pa.Super. 559,] 664 A.2d 577, 581 (Pa.Super.1995); Armstrong v.
Paoli Memorial Hospital, [430 Pa.Super. 36,] 633 A.2d 605 (Pa.Super.1993), appeal denied, [538 Pa. 663,] 649 A.2d 666 (Pa.1994); Nagy v. Bell Telephone Co., [292 Pa.Super. 24,] 436 A.2d 701 (Pa.Super.1981). In all cases, a Plaintiff who alleges negligent infliction of emotional distress must suffer immediate and substantial physical harm.Doe v. Philadelphia Cmty. Health Alternatives AIDS Task Force, 745 A.2d 25, 27–28 (Pa. Super. 2000), aff'd, 564 Pa. 264, 767 A.2d 548 (2001) (emphasis in original).
This case does not involve the specific scenarios in which Pennsylvania courts have approved a cause of action for negligent infliction of emotional distress. While he was briefly housed at USP Canaan, White did not perceive a tortious injury to a close relative. He was not in some “zone of danger” and at risk of an immediate physical injury. Nor did he suffer from a physical impact. Furthermore, although the United States arguably owed some duty of care to White, the plaintiff has not pleaded or proven that he suffered an immediate and substantial physical harm as a result of the breach of any fiduciary duty. Quite the contrary, when he arrived at USP Marion following his 9-to-12 day hold-over at USP Canaan, White did not report experiencing any distress or injury, did not otherwise complain of any issue associated with his stay as a holdover inmate, and no physical or mental impairments resulting from his confinement at USP Canaan were identified.
On these facts, White simply has not sustained a claim of negligent infliction of emotional distress under Pennsylvania law arising from his short confinement at U.S.P. Canaan. Therefore, this claim also fails as a matter of law and the defendant is entitled to summary judgment in this case.
D. White’s Cross Motion for Summary Judgment and Motion to Delay the Resolution of this Case Should Both Be Denied.
Our recommendations with respect to the United States’ motion for summary judgment, in turn, suggest that the court should deny White’s cross motion for summary judgment. Indeed, even if the district court did not grant summary judgment in favor of the defendant, it would still be evident that White has not proven as a matter of law the type of extraordinary, extreme or outrageous behavior which would justify entry of summary judgment as a matter of law on behalf of the plaintiff. Therefore, the plaintiff’s motion for summary judgment should be denied.
Finally, we note that White has filed a motion which seeks to further delay the merits resolution of this longstanding case. Specifically, on August 2, 2021, White filed a second motion for extension of time in which to supplement an expert report previously submitted by Dr. Richard Samuels. (Doc. 173). In this motion, White seeks another 90-day delay in this litigation while he engages in a speculative request to obtain evidence in support of his claims, a request that he justifies based upon alleged “counter-terrorism unit” surveillance and interception of his prison communications. (Id.)
We should decline this invitation to further delay this long-delayed litigation. On this score:
It is well-settled that rulings on requests for extension of time or stays rest in the sound discretion of the court. Miller v. Ashcroft, 76 Fed.Appx. 457, 461 (3d Cir. 2003). That discretion is guided, however, by certain basic principles. Thus, under this abuse of discretion standard, a trial court's control of its docket will not be disturbed “ ‘except upon the clearest showing that the procedures have resulted in actual and substantial prejudice to the complaining litigant’ ” Id., (citations omitted). Moreover, any party challenging a ruling denying a continuance or stay request, “ha[s] a heavy burden to bear, ..., as matters of docket control and conduct of [litigation] are committed to the sound discretion of the district court.” In re Fine Paper Antitrust Litigation, 685 F.2d 810, 817 (3d Cir. 1982) (citations omitted). Furthermore, when exercising this discretion, we acknowledge a basic truth: we must remain mindful of the fact that “the Federal Rules are meant to be applied in such a way as to promote justice. See Fed. R. Civ. P. 1. Often that will mean that courts should strive to resolve cases on their merits whenever possible. However, justice also requires that the merits of a particular dispute be placed before the court in a timely fashion....” McCurdy v. American Bd. of Plastic Surgery, 157 F.3d 191, 197 (3d. Cir. 1998) (affirming denial of request for extension of time).Ball v. SCI Muncy, No. 108CV700MDPA, 2012 WL 12978469, at *3 (M.D. Pa. May 15, 2012). In this case, a dispassionate consideration of the factors that guide our discretion calls for the denial of this latest requested extension of time. Indeed, this request fails for several reasons.
First, the request is completely untimely. White initiated this litigation which made specific allegations of tortious conduct at USP Canaan more than four years ago, in June of 2017. He received Dr. Samuels’ expert report-which contains no reference whatsoever to USP Canaan-in August of 2019, some two years ago. (Doc. 165, at 15-30). Knowing that he was suing for acts at USP Canaan and aware that his expert’s report was completely silent on this score, White had a duty to promptly supplement and update this report in 2019. Despite these facts which called for immediate action on his part, White failed to seek a timely supplement to this expert report and allowed the previously extended deadlines for discovery to lapse completely some six months ago. (Doc. 143). It is well settled that where a party has been dilatory in pursuing discovery, the court can, and in the exercise of its discretion often should, refuse to permit the party who has failed to act in a timely manner the right to indulge in belated discovery. See, e.g., Maslanka v. Johnson & Johnson, 305 F. App'x 848 (3d Cir. 2008) (affirming denial of pro se litigant motion to compel where discovery demands were untimely); Oriakhi v. United States, 165 F. App'x 991 (3d Cir. 2006) (same); Bull v. United States, 143 F.App'x 468 (3d Cir. 2005) (same). So it is here.
But beyond being inexcusably tardy, White’s motion for extension of time fails on a more fundamental ground: he has not shown how the report of Dr. Samuels would defeat the defendant’s summary judgment motion. Nor has he explained why this information was not obtained in a timely manner. This, too, is a critical shortcoming since in order to cite discovery matters as grounds for deferring a summary judgment motion, “a party must identify with specificity (1) what information is sought; (2) how, if discovered, it would preclude summary judgment; and (3) why the information was not previously obtained.” Walter v. Travelers Pers. Ins. Co., No. 4:12-CV-346, 2016 WL 6962620, at *8 (M.D. Pa. Nov. 29, 2016) (citing Shelton v. Bledsoe, 775 F.3d 554, 568 (3d Cir. 2015) (internal citations omitted)). White has not made the showing required by law in this setting to further defer consideration of this summary judgment motion which has been pending for nearly eight months. Nor can he. In this regard, White’s efforts are wholly undermined both by the immutable facts and by Dr. Samuels’ current expert report.
Fairly construed, Dr. Samuels’ current expert report severely undercuts White’s tort claims relating to his brief confinement at USP Canaan. (Doc. 165, at 15-30). Indeed, that report, which was based upon White’s recounting of his prison experiences, contradicts the claims in this lawsuit in at least two significant ways. First, Dr. Samuels’ report makes no mention whatsoever of White’s brief incarceration at USP Canaan in February of 2015. Given that tort liability under Pennsylvania law for negligent or intentional infliction of emotional distress calls for the plaintiff to suffer a profoundly disturbing experience which goes beyond all possible bounds of decency such that it would be regarded as utterly intolerable to civilized society, White’s apparent failure to even mention this short term incarceration to Dr. Samuels is completely inconsistent with the tort claims made in this lawsuit. Instead, Dr. Samuels’ August 2019 report recounts in great detail custodial experiences pre-dating White’s confinement at USP Canaan, citing these pre-existing experiences as the source of White’s emotional distress. (Id.) Thus Dr. Samuels’ report affirmatively indicates that other, prior experiences were the cause of White’s injuries, a fact which further undermines these tort claims.
Finally, nothing in a belated supplemental report from Dr. Samuels’ could change the immutable facts in this case. Those facts reveal that White was reportedly in good health both when he arrived at USP Canaan in February of 2015 and when he reported to USP Marion in April of 2015. The undisputed facts also disclose that White’s complaints regarding his brief confinement at USP Canaan were limited to his concern that the hold-over housing at USP Canaan was poorly heated and cold; that his meals consisted of sandwich snack packs; and that he did not actually meet with psychology staff at Canaan while he was briefly held there. While these conditions may have been unpleasant, they simply are not the type of shocking and abhorrent circumstances that support an infliction of emotional distress claim under Pennsylvania law. Nor has White alleged or shown that he suffered suffer immediate and substantial physical harm as a result of these conditions, yet another prerequisite to these tort claims. Therefore, based upon White’s own statements and other uncontradicted evidence these state tort claims continue to fail as a matter of law and should be dismissed.
IV. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the White’s second motion for extension of time, (Doc. 173), be DENIED. IT IS FURTHER RECOMMENDED that defendant’s motion for summary judgment be GRANTED (Doc. 135), and the plaintiff’s motion for summary judgment, (Doc. 162), be DENIED.
The parties are further placed on notice that pursuant to Local Rule 72.3:
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.