IN THE UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

ADMASSU REGASSA, :

:

Plaintiff :

:

v. : CIVIL NO. 4:CV-14-1122

:

C. BRININGER, ET AL., : (Judge Brann)

:

Defendants :

MEMORANDUM

August 26, 2016

Background

 Admassu Regassa , an inmate presently confined at the United States

Penitentiary, Marion, Illinois filed his pro se combined Bivens1

/Federal Tort

Claims Act (FTCA) action regrading his prior confinement at the United States

Penitentiary, Lewisburg, Pennsylvania (USP-Lewisburg).2

By Memorandum and Order dated September 4, 2015, Defendants’ motion

1 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.

388 (1971).

2 The FTCA provides a remedy in damages for the simple negligence of

employees of the United States See United States v. Muniz, 374 U.S. 150, 152

(1963). 

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for summary judgment was partially granted. See Doc. 44. Summary judgment

was granted in favor of the Defendants with respect to: (1) the Bivens claims

against them in their official capacities; (2) all Bivens claims asserted against

Warden Thomas, Associate Warden Wilson, and Captain Entzel on the basis of

lack of personal involvement; and (3) the unsupported claims of conspiracy. In

addition, Regassa was directed to file and serve an amended complaint which

complied with Federal Rules of Civil Procedure 8 and 20, clearly identified his

surviving FTCA and Bivens claims, and addressed the concerns set forth in the

Court’s Memorandum. Plaintiff thereafter filed an amended complaint. See Doc.

45.

Named as Defendants in the amended complaint are the United States of

America and the following twenty-three (23) USP Lewisburg officials: 

Correctional Officers C. Brininger, S. Argueta, A. Kranzel, J. Oldt, M. Erb, E.

Kulp; N. Beaver, C. Wise, S. Buebendorf, J. Eck, and D. Johnson; Nurse Gregory

George; Lieutenants Sherman, Saylor, A. Miller, Seeba, Carrasquilo, and Dowkus;

Physician’s Assistant (PA) Francis Fasciana; Doctor Kevin Pigos; Counselor M.

Edinger; Disciplinary Hearing Officers (DHO) A. Jordan and B. Chambers.

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The FTCA portion of the amended complaint asserts that prior to a July 8,

2013 disciplinary hearing, Plaintiff was threatened with physical harm by

Counselor Edinger, Brininger, Kranzel, and Kulp. See Doc. 45, ¶ 63. Following

conclusion of the hearing, Regassa claims that he was physically assaulted by

Correctional Officers Brininger, Kranzel and Kulp and other unidentified officers

in a second floor hallway near the shower area. Brininger allegedly threw Regassa

to the floor and along with other officers repeatedly kicked and stomped the inmate

for approximately three minutes. Plaintiff asserts that he suffered multiple injuries. 

The amended complaint concludes that this use of force constituted assault and

battery. 3

Regassa also contends that following the incident he remained in ambulatory

restraints for approximately three (3) days and was issued a falsified misconduct

charge for assaulting Brininger. The Amended Complaint asserts that the use of

ambulatory restraints was negligence and also constituted an assault. In addition,

Regassa claims that he was provided with negligent medical care for his injuries

resulting from the July 8, 2013 incident. Regassa elaborates that the prison’s

medical staff should have loosened his restraints, failed to treat his wounds, and

3 Plaintiff also asserts that the officers involved in the assault attempted to

cover up their actions by filing a false report.

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denied his requests for x-rays therapy, pain medication and a complete evaluation.

Presently pending is Defendant United States of America’s motion to

dismiss and or in the alternative for summary judgment with respect to the FTCA

portion of the amended complaint. See Doc. 47. The opposed motion is ripe for

consideration.

Discussion

The Moving Defendant asserts that Plaintiff’s medical negligence FTCA

claim should be dismissed because of his failure to file a proper certificate of merit

as required by Pennsylvania Rule of Civil Procedure 1042.3 . Since the motion

fails to address Plaintiff’s other FTCA claims (i.e. assault and battery) it will be

construed as only seeking partial relief.

Motion to Dismiss

The Moving Defendant’s pending dispositive motion is supported by

evidentiary materials outside the pleadings. Federal Rule of Civil Procedure 12(d)

provides in part as follows:

If, on a motion under Rule 12(b)(6) or 12(c), matters

outside the pleading are presented to and not excluded by

the court, the motion must be treated as one for summary

judgment under Rule 56. All parties must be given

reasonable opportunity to present all the material that is

pertinent to the motion.

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Fed. R. Civ. P. 12(b)(d).

This Court will not exclude the evidentiary materials accompanying the

Moving Defendant's motion. Thus, the motion will be treated as solely seeking

partial summary judgment. See Latham v. United States, 306 Fed. Appx. 716, 718

(3d Cir. 2009)(when a motion to dismiss has been framed alternatively as a motion

for summary judgment such as in the present case, the alternative filing “is

sufficient to place the parties on notice that summary judgment might be entered.”) 

Summary Judgment

Summary judgment is proper if “the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to a judgment as a matter of law.” Fed.

R. Civ. P. 56(c); See also Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d Cir.

2001). A factual dispute is “material” if it might affect the outcome of the suit

under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). A factual dispute 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. The court must resolve all doubts as to the existence of a

genuine issue of material fact in favor of the non-moving party. Saldana, 260 F.3d

at 232; see also Reeder v. Sybron Transition Corp., 142 F.R.D. 607, 609 (M.D. Pa.

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1992). Unsubstantiated arguments made in briefs are not considered evidence of

asserted facts. Versarge v. Township of Clinton, 984 F.2d 1359, 1370 (3d Cir.

1993).

Once the moving party has shown that there is an absence of evidence to

support the claims of the non-moving party, the non-moving party may not simply

sit back and rest on the allegations in its complaint. See Celotex Corp. v. Catrett,

477 U.S. 317, 324 (1986). Instead, it must “go beyond the pleadings and by [its]

own affidavits, or by the depositions, answers to interrogatories, and admissions on

file, designate specific facts showing that there is a genuine issue for trial.” Id.

(internal quotations omitted); see also Saldana, 260 F.3d at 232 (citations omitted). 

Summary judgment should be granted where a 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.” Celotex, 477 U.S. at 322-23. 

“‘Such affirmative evidence – regardless of whether it is direct or circumstantial –

must amount to more than a scintilla, but may amount to less (in the evaluation of

the court) than a preponderance.’” Saldana, 260 F.3d at 232 (quoting Williams v.

Borough of West Chester, 891 F.2d 458, 460-61 (3d Cir. 1989)).

Certificate of Merit

Under the FTCA, sovereign immunity is waived against persons suing the

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federal government for the commission of various torts. See Simon v. United

States, 341 F. 3d 193, 200 (3d Cir. 2003). An action filed pursuant to the FTCA

must first be submitted in writing to the appropriate federal agency as an

administrative tort claim. See 28 U.S.C. § 2675. 

A plaintiff pursuing an FTCA claim must show: (1) that a duty was owed to

him by a defendant; (2) a negligent breach of said duty; and (3) that the negligent

breach was the proximate cause of the plaintiff's injury/loss. Mahler v. United

States, 196 F. Supp. 362, 364 (W.D. Pa. 1961). The only proper Defendant for

purposes of an FTCA claim is the United States of America. See 28 U.S.C. §

2679(d). Except in limited circumstances, an FTCA claim in federal court is

limited to recovery of the sum certain amount requested in the underlying

administrative claim. See McMichael v. United States, 856 F.2d 1026, 1035 (8th

Cir. 1988). 

It is well-settled that a federal district court addressing an FTCA action must

apply the law of the state in which the alleged tortious conduct occurred. 28

U.S.C. § 1346(b) (1996); Toole v. United States, 588 F.2d 403, 406 (3d Cir. 1978);

O'Neal v. Department of Army, 852 F. Supp. 327, 334-35 (M.D. Pa. 1994); Turner

v. Miller, 679 F. Supp. 441, 443 (M.D. Pa. 1987). However, in cases such as this

which involve federal prisoners, it has been recognized that the government's duty

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of care is one of ordinary diligence. See 18 U.S.C. § 4042; Turner, 679 F. Supp. at

443. The applicable law with respect to the burden and quantum of proof under the

FTCA remains that of the state in which the alleged tortious conduct occurred. 

Hossic v. United States, 682 F. Supp. 23, 25 (M.D. Pa. 1987). 

In order to present a prima facie case of medical malpractice/negligence

under Pennsylvania state law, a plaintiff has the burden of presenting expert

testimony by an appropriate licensed professional who can testify to a reasonable

degree of medical certainty that the actions or omissions of the defendant deviated

from acceptable medical standards, and that said deviation constituted a substantial

factor in causing the Plaintiff’s injury. See Simpson v. Bureau of Prisons, 2005

WL 2387631 *5 (M.D. Pa. Sept. 28, 2005)(Vanaskie, C.J.).4

Rule 1042.3 requires a person who brings a claim of medical

malpractice/negligence to file an appropriate certificate of merit. The Rule 1042.3

certificate must certify that either: (1) an appropriate licensed professional has

4

 The only exception to this rule is where the matter “is so simple and the lack

of skill or want of care is so obvious as to be within the range of ordinary experience

and comprehension of even nonprofessional persons.” Berman v. United States, 205

F. Supp.2d 362, 264 (M.D. Pa. 2002) (citing Brannan v. Lankenau Hospital, 490 Pa.

588 (1980). However, the instances when expert opinions may be unnecessary are

rare. See Simpson, 2005 WL *6; Arrington v. Inch, 2006 WL 860961 *7 (M.D. Pa.

March 30, 2006) (Conner, J.).

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supplied a written statement that there exists a reasonable probability that the

conduct which is the subject of the complaint fell outside acceptable professional

standards and was a cause in bringing about the harm; (2) the claim of deviation by

defendant from an acceptable professional standard is based solely upon

allegations that other licensed professionals for whom defendant is responsible

deviated from an acceptable professional standard; (3) expert testimony of an

appropriate licensed professional is unnecessary. A party seeking dismissal under

Rule 1042.7 must serve the opposing party with a notice of its intention to move

for dismissal thirty days prior to doing so. See Schmigel v. Uchal, 800 F.3d 113,

121-24 (3d Cir. 2015).5

Courts within this circuit have recognized that Rule 1042.3 is substantive

law and should be applied by federal courts sitting in diversity. Schwalm v.

Allstate Boiler & Construction, 2005 WL 1322740 *1 (M.D. Pa. May 17,

2005)(Caputo, J.); Scaramuzza v. Sciolla, 345 F. Supp.2d 508, 509-10 (E.D. Pa.

2004). It has also been held that a Plaintiff pursuing an FTCA claim must comply

5

 Schmigel, which was announced well after the filing of this action, also held

that the thirty day notice requirement was substantive law which had to be provided to

a plaintiff before dismissal of an action could occur. Schmigel was announced

approximately six weeks prior to the filing of the pending dispositive motion. The

Defendant thereafter requested an enlargement of time to ensure compliance with

Schmigel before proceeding with its request for dismissal. See Doc. 61.

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with Pennsylvania substantive law. Arrington, 2006 WL 860961 at *7. In

addition, Plaintiff’s incarceration or pro se status is not a viable basis upon which

to excuse non-compliance with Rule 1042.3 or the requirement of coming forth

with expert medical testimony. See Perez v. Griffin, 2008 WL 2383072 *3 (M.D.

Pa. June 9, 2008)(Rule 1042.3 applies to incarcerated and pro se plaintiffs and

constitutes a rule of substantive state law to which plaintiffs in federal court must

comply). 

A review of the docket shows that Regassa was served with a notice of intent

to seek dismissal under Rule 1042.3, dated November 13, 2015. See Doc. 50-2. 

Plaintiff acknowledged receipt of that notice by letter dated November 18, 2015. 

See Doc. 53. Regassa thereafter filed a one page handwritten certificate of merit

which simply reasserted his pending claims and generally states that he has

suffered “severe multiple internal and external injuries” Doc. 56, p. 1. This

“certificate” did not identify any medical expert and Plaintiff has not submitted a

report from any medical expert. 

In order to ensure full compliance with the thirty day notice requirement, a

second thirty day notice of intent to seek dismissal for failure to file a certificate of

merit was sent by the Moving Defendant to Regassa at his current place of

confinement. Plaintiff submitted in response an opposing brief vaguely arguing

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that expert testimony is unnecessary because his injuries were obvious and he was

provided with an untimely COM notice. See Doc. 84.

It is noted that the undisputed docket entries clearly show that Plaintiff was

provided with the thirty day notice required under Schmigel, a decision which was

not announced until well after the initiation of this action. In fact, Regassa was

provided with two such notices and he filed a proposed certificate of merit. I

conclude that Regassa was clearly given an abundance of time in which to file a

proper certificate of merit. Moreover, the Moving Defendant’s supporting brief

which sought dismissal under Rule 1042.3 was filed months after Plaintiff first

received notice of intent that such dismissal would be pursued. In sum, Regassa’s

contention that the thirty day notice was untimely lacks merit.

Second, in order to state a prima facie case of negligence under the FTCA

with respect to Plaintiff’s vague contention of suffering unaddressed multiple

severe internal and external injuries, it is the conclusion of this Court that Regassa

must come forward with expert testimony to support his claim that the treatment

and decisions afforded to him following the July 8, 2013 incident by the USPLewisburg medical staff deviated from acceptable medical standards; Regassa must

also show that the deviation was the proximate cause of his injuries. Regassa’s

alternative self-serving assertion that expert testimony is not required is not

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compelling particularly given his unsupported contention that he suffered severe

multiple internal and external injuries. 

In light of Plaintiff’s failure to present any valid reason as to why an expert

witness is not required, it is appropriate for this Court to dismiss his FTCA claim

of negligent medical care without prejudice. See Osorio v. United States, 2007

WL 2008498 *2 (W.D. Pa. July 5, 2007); see also Henderson v. Pollack, 2008 WL

282372 *4 (M.D. Pa. Jan 31, 2008)(Caldwell, J.)(citing Hartman v. Low Security

Correctional Institution, Allenwood, 2005 WL 1259950 *3 (M.D. Pa. May 27,

2005)(Muir, J.). For the reasons set forth herein, Defendant’s motion for partial

summary judgment will be granted. An appropriate Order will enter.

BY THE COURT:

 s/ Matthew W. Brann 

Matthew W. Brann

United States District Judge

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