IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

LINWOOD WILKERSON, :

 :

Plaintiff, : CIVIL NO. 4:07-CV-2228

 :

v. : (Judge McClure)

 :

UNITED STATES OF AMERICA, :

 :

 Defendant. :

MEMORANDUM

April 9, 2010

I. Introduction

Plaintiff Linwood Wilkerson (“Plaintiff” or “Wilkerson”), an inmate presently

confined at the Allenwood Low Security Correctional Institution (“FCI Allenwood

Low”) in White Deer, Pennsylvania, commenced the above action pro se by filing a

Complaint raising claims under the Federal Tort Claims Act (“FTCA”). In his

Complaint, filed on December 7, 2007, Wilkerson alleges that on 

September 19, 2006, he “slipped and fell on a puddle of a water-like substance that

covered a portion of the cafeteria floor in the chow-line access area” at FCI

Allenwood. (Rec. Doc. No. 1, First Count, ¶ 3.) 

 Presently before the Court is a motion for summary judgment filed on behalf of 

Defendant the United States of America. (Rec. Doc. No. 30.) For the reasons set

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forth below, the motion will be granted.

II. Procedural History

Service of Wilkerson’s Complaint was directed by Order dated January 23,

2008. (Rec. Doc. No. 9.) On April 3, 2008, Defendant filed an Answer to the

Complaint raising affirmative defenses. (Rec. Doc. No. 16.) In a scheduling Order

dated November 12, 2008, the parties were directed to complete discovery within

sixty (60) days, and the deadline for the submission of dispositive motions was set for

forty-five (45) days after the close of discovery. (Rec. Doc. No. 24.) 

On January 20, 2009, Wilkerson filed a motion in which he requested that this

Court direct that he be provided with an independent medical examination, including a

Magnetic Resonance Imaging (“MRI”) test, at Defendant’s expense. (Rec. Doc. No.

25.) He also filed a motion to appoint counsel. (Rec. Doc. No. 26.) Defendant filed

opposition to Wilkerson’s motions on February 4, 2009. (Rec. Doc. Nos. 28-29.) By

Order dated April 20, 2009, Wilkerson’s motions were denied. (Rec. Doc. No. 33.)

On March 13, 2009, Defendant filed the instant motion for summary judgment. 

(Rec. Doc. No. 30.) Defendant thereafter filed a supporting brief (Rec. Doc. No. 31),

statement of facts (Rec. Doc. No. 32), and a supporting exhibit (Rec. Doc. No. 31-2). 

At the time of the Court’s April 20, 2009 Order disposing of his motions for

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independent medical examination and to appoint counsel, Wilkerson had not yet filed

any opposition to the instant motion. Therefore, in the April 20 Order, he was

directed to file his opposition, including an opposing brief and statement of material

facts as required by M.D. Pa. L R 56.1, within fifteen (15) days. (See Rec. Doc. No.

33.) On May 4, 2009, Wilkerson timely filed his opposition, including an opposing

brief (Rec. Doc. No. 34), statement of facts in response to Defendant’s statement,

along with supporting exhibits (Rec. Doc. No. 36), and an objection (Rec. Doc. No.

35) to the instant motion on the basis that it was untimely filed. On May 15, 2009,

Defendant filed a reply brief. (Rec. Doc. No. 37.) Accordingly, the instant motion is

fully briefed and ripe for disposition. 

III. Factual Background

Wilkerson does not dispute Defendant’s three (3) paragraph statement of

material facts (“SMF”), which state as follows:

Wilkerson states in his response to Defendant’s first set of interrogatories (Rec.

Doc. No. 31-2) that the basis for his belief that a prison staff member had actual

knowledge that there was a water-like substance on the floor at the time of his fall is

that an unsafe condition existed on a daily basis since a water-like substance regularly

accumulated on the chow hall floor. (Rec. Doc. No. 32, Dft.’s SMF, ¶ 1; Rec. Doc.

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No. 36, Pltf.’s SMF, ¶ 4.) Wilkerson further states that this accumulation of a waterlike substance was occasioned on a daily basis by the proximity of the chow hall food

line in relation to the tray distribution area. (Rec. Doc. No. 32 ¶ 2; Rec. Doc. No. 36 ¶

5.) In addition, Wilkerson states that wet and dripping trays were regularly

transported from the dishwashing area to the tray distribution location and the floor

became wet and slippery as this occurred. (Rec. Doc. No. 32 ¶ 3; Rec. Doc. No. 36 

¶ 6.) 

In his response to Defendant’s statement of facts, Wilkerson submits the

memorandum of Cook Supervisor J. Hodish, a Federal Bureau of Prisons (“BOP”)

employee to support his statements that, on September 19, 2006, Hodish heard

someone yell from the dorm side of the dining room, he turned to see inmate

Wilkerson pulling himself off the dining room floor, and as he walked over toward

him, he noticed that someone had spilled water on the floor. (Rec. Doc. No. 36, Pltf.’s

SMF, ¶ 1; Rec. Doc. No. 36 at 6, Hodish Memo.)

Wilkerson also submits the affidavit of fellow inmate Juan Fermin, in which

Fermin states that he witnessed Wilkerson fall on the dining room floor on September

19, 2006, and also witnessed BOP personnel hurry to his side to provide him with

assistance. (Rec. Doc. No. 36, Pltf.’s SMF, ¶ 2; Rec. Doc. No. 37 at 7-8, Fermin Aff.)

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Finally, Wilkerson submits his own affidavit to support his statements that, as

an incarcerated prisoner, his freedom of choice and movement is extremely limited, he

must eat in the prison cafeteria, meals are eaten in a rush, and there is insufficient time

to inspect for hazardous conditions. (Doc. 36, Pltf.’s SMF., ¶ 7; Doc. 36 at 9 

¶ 3, Wilkerson Aff.) Wilkerson also cites to his affidavit to support his statement that,

prior to his slip and fall, he observed a Corrections Officer stationed in the area of the

incident who should have observed the accumulated water on the floor and taken

appropriate steps to warn him of this potential hazard. (Doc. 36, Pltf.’s SMF, 

¶ 8; Doc. 36 at 10 ¶ 5.) Finally, Wilkerson cites his affidavit to support his statements

that, on at least one occasion prior to his fall, he witnessed a fellow inmate slip and

fall in the cafeteria while entering the chow line at FCI Allenwood, that BOP staff

were aware that the floors often were wet in the area where he fell, and that BOP staff

frequently placed “wet floor” signs in this area. (Rec. Doc. No. 36, Pltf.’s SMF, ¶ 3;

Rec. Doc. No. 36 at 10 ¶¶ 6-8.) 

IV. Standard of Review

It is appropriate for a court to grant a motion for summary judgment “if the 

pleadings, the discovery and disclosure materials on file, and any affidavits show that

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there is no genuine issue as to any material fact and that the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(c). An issue is genuine “if the

evidence is such that a reasonable jury could return a verdict for the nonmoving

party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Material facts”

are those which might affect the outcome of the suit. Id.; Justofin v. Metropolitan Life

Ins. Co., 372 F.3d 517, 521 (3d Cir. 2004). 

Regardless of who bears the burden of persuasion at trial, the party moving for

summary judgment has the burden to show an absence of genuine issues of material

fact. Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080 (3d Cir. 1996)

(citations omitted). To meet this burden when the moving party does not bear the

burden of persuasion at trial, the moving party must show that the evidentiary

materials of record, if reduced to admissible evidence, would be insufficient to carry

the nonmovant's burden of proof at trial.' ” Jalil v. Avdel Corp., 873 F.2d 701, 706 (3d

Cir. 1989) (quoting Chippollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d. Cir.

1987)); see Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). More simply put, a

party moving for summary judgment who does not bear the burden of persuasion at

trial is not required to negate the nonmovant's claim, but only point out a lack of

evidence sufficient to support the nonmovant's claim. Country Floors, Inc. v.

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Partnership Composed of Gepner and Ford, 930 F.2d 1056, 1061 (3d Cir. 1991).

 Once the moving party meets its burden of showing an absence of genuine 

issues of material fact, the nonmoving party must provide some evidence that a issue of

material fact remains. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

586 (1986). The nonmoving party, however, cannot do so by merely offering general

denials, vague allegations, or conclusory statements; rather the party must point to

specific evidence in the record that creates a genuine issue as to a material fact. Celotex,

477 U.S. at 323; Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 252 (3d Cir.

1999).

V. Discussion

A. Exhaustion of Administrative Remedies

The FTCA, 28 U.S.C. § 2671 et seq., is a statutory waiver of sovereign immunity

for tort claims. Gotha v. United States, 115 F.3d 176, 179 (3d Cir. 1997). The FTCA

allows the government to be sued “in the same manner and to the same extent as a private

individual under like circumstances.” 28 U.S.C. § 2674. However, as the FTCA is an

express waiver of sovereign immunity, strict compliance with its provisions is required.

Livera v. First Nat’l Bank, 879 F.2d 1186, 1194 (3d Cir. 1989). As a prerequisite to a suit

under the FTCA, a claim first must be presented to, and denied by, the federal agency.

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The FTCA provides:

An action shall not be instituted upon a claim 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.

28 U.S.C. § 2675(a). 

Defendant admits that Wilkerson exhausted his administrative remedies with

respect to his claims asserted under the FTCA. (See Rec. Doc. No. 16 at 2 § III.) The

record shows that, on January 24, 2007, Wilkerson filed an administrative tort claim with

the BOP Northeast Regional Office in which he sought compensatory damages in the

amount of $900,000 based on his claim that when he fell at FCI Allenwood on September

19, 2006, he injured his back. (See Rec. Doc. No. 1 at 5, 7/11/07 Response to Tort

Claim.) The record further shows that, on July 11, 2007, BOP Regional Counsel Henry

J. Sadowski issued the following response to Wilkerson’s claim:

After careful review of this claim, I have decided not to offer a settlement.

Investigation reveals that [on] September 19, 2006, you reported to staff that

you fell on a puddle of water. You claim your back was injured as a result

of the fall and that you have continued pain. Investigation further reveals

that staff immediately placed a wet floor sign in the area and had another

inmate mop the area. You were evaluated by medical services and received

regular follow up treatments to address your complaints. An x-ray of your

back was taken on September 20, 2006, with negative results for fracture.

There is no evidence to suggest you experienced a compensable loss as the

result of negligence on the part of any Bureau of Prisons’ employee.

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Accordingly, your claim is denied.

(Id.) Based on the foregoing, Wilkerson successfully exhausted his administrative

remedies with respect to his claims asserted under the FTCA in his Complaint. 

B. Analysis

Preliminarily, the Court addresses Wilkerson’s objection to the instant motion on

the basis that it was untimely filed. (See Rec. Doc. No. 35.) Pursuant to this Court’s

November 12, 2008 scheduling Order, which set the deadline for the completion of

discovery at sixty (60) days from the date of the Order, or January 12, 2009, and the

deadline for the submission of dispositive motions at forty-five (45) days from the close

of discovery, dispositive motions were due to be filed on or before February 26, 2009.

(See Rec. Doc. No. 24.) Therefore, the instant motion, filed on March 13, 2009, was not

timely filed. In its reply brief, Defendant concedes that its motion was untimely filed as

a result of an error in calculating the dispositive motion deadline, but submits that judicial

economy would best be served if we accept the motion as timely filed in order to dispose

of the case without the expense of trial. (See Rec. Doc. No. 37 at 2 n.1.) The Court

agrees, and therefore, we overrule Wilkerson’s objection. Accordingly, we turn to an

analysis of the instant motion.

The FTCA confers subject matter jurisdiction on district courts over negligence

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actions against the United States. It provides, in relevant part, as follows:

. . . the district courts . . . shall have exclusive jurisdiction of civil actions on

claims against the United States, for money damages . . . 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

circumstances 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). It is well-settled that, in considering a FTCA action, a federal

district court must apply the law of the state in which the alleged tortious conduct

occurred. Id.; Turner v. Miller, 679 F. Supp. 441, 443 (M.D. Pa. 1987). To establish a

cause of action for negligence in Pennsylvania, a plaintiff must prove the following

elements: (1) a duty or obligation recognized by law; (2) a breach of that duty; (3) a

causal connection between the conduct and the resulting injury; and (4) actual damages.

Northwest Mutual Life Ins. Co. v. Babayan, 430 F.3d 121, 139 (3d Cir. 2005); Pittsburgh

Nat’l Bank v. Perr, 637 A.2d 334, 336 (Pa. Super. Ct. 1994). 

“The standard of care a possessor of land owes to one who enters upon the land

depends upon whether the person entering is a trespasser, licensee, or invitee.”

Carrender v. Fitterer, 469 A.2d 120, 123 (Pa. 1983) (citing Davies v. McDowell Nat’l

Bank, 180 A.2d 21 (Pa. 1962); Restatement (Second) of Torts §§ 328-343B (1965)).

“Pennsylvania courts have found that ‘an inmate’s status is most closely to that of an

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invitee under common law.’” Yudenko v. Guarini, Civil No. 06-4161, 2008 WL 4055826

*11 n.8 (E.D. Pa. 2008) (quoting Graf v. County of Northhampton, 654 A.2d 131, 133-34

(Pa. Commw. 1995)). “Possessors of land owe a duty to protect invitees from foreseeable

harm.” Carrender, 469 A.2d at 123 (citing Restatement, supra, §§ 341A, 343, 343A).

The Carrender Court further stated as follows:

With respect to conditions on the land which are known to or discoverable

by the possessor, the possessor is subject to liability only if he:

‘(a) knows or by the exercise of reasonable care would discover the

condition and should realize that it involves an unreasonable

risk of harm to such invitee, and

(b) should expect that they will not discover or realize the danger,

or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the

danger.’

Id. (quoting Restatement, supra, § 343). If “both the condition and the risk are apparent

to and would be recognized by a reasonable man, in the position of the visitor, exercising

normal perception, intelligence and judgment,” then under Pennsylvania law, there is no

liability. Id. However, “‘the law of Pennsylvania does not impose liability if it is

reasonable for the possessor to believe that the dangerous condition would be obvious to

and discovered by the invitee.’” Atkins v. Urban Redevelopment Authority of Pittsburgh,

414 A.2d 100, 104 (1980) (quoting Palenscar v. Michael J. Bobb, Inc., 266 A.2d 478,

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480 (Pa. 1970)). 

 In the instant case, the record establishes that, on September 19, 2006, 

Defendant was unaware of the water on the floor, but as soon as the condition was made

known, Food Services staff immediately placed a “wet floor” sign in the area and had the

area mopped by the inmates working in that area of Food Services. (See Rec. Doc. No.

36 at 6, Hodish Memo.) Although Wilkerson argues that Defendant should be held liable

because BOP staff allegedly knew of the dangerous condition on that date and failed to

warn him about it, he has not provided any evidence to support his argument. See Myers

v. Penn Traffic Co., 606 A.2d 926, 928 (Pa. Super. Ct. 1992) (quoting Moultrey v. Great

Atlantic & Pacific Tea Co., 422 A.2d 593, 596 (Pa. Super. Ct. 1980) (“the mere existence

of a harmful condition in a public place of business, or the mere happening of an accident

due to such a condition is neither, in and of itself, evidence of breach of the proprietor’s

duty of care to his invitees, nor raises a presumption of negligence.”) Rather, the

undisputed evidence establishes that Wilkerson was well aware of the fact that, on a daily

basis, water accumulated on the floor in the particular area of the dining room floor where

he fell on September 19, 2006. (See Rec. Doc. No. 32, Dft.’s SMF, 

¶¶ 1-3; Rec. Doc. No. 36, Pltf.’s SMF, ¶¶ 3-6.) Therefore, Defendant cannot be held

liable under Pennsylvania law for any injuries Wilkerson sustained as a result of his fall,

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see Carrender, 469 A.2d at 123 (quoting Restatement, supra, § 343), and Defendant is

entitled to judgment as a matter of law. 

VI. Conclusion

For the foregoing reasons, Defendant’s motion for summary judgment (Rec. Doc.

No. 30) will be granted. An appropriate Order will enter.

 s/ James F. McClure, Jr. 

JAMES F. McCLURE, JR.

United States District Judge

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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

LINWOOD WILKERSON, :

 :

Plaintiff, : CIVIL NO. 4:07-CV-2228

 :

v. : (Judge McClure)

 :

UNITED STATES OF AMERICA, :

 :

 Defendant. :

ORDER

April 9, 2010

In accordance with the foregoing Memorandum, IT IS HEREBY ORDERED

AS FOLLOWS:

1. Defendant’s motion for summary judgment (Rec. Doc. No. 30) is 

GRANTED.

2. The Clerk of Court is directed to enter JUDGMENT in favor of 

Defendant.

3. The Clerk of Court shall CLOSE this case.

 s/ James F. McClure, Jr. 

JAMES F. McCLURE, JR.

United States District Judge

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