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ALD-245 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-1800

___________

BILLY RAY SMITH,

 Appellant

v.

UNITED STATES OF AMERICA

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil No.11-00221)

District Judge: Honorable John E. Jones, III

____________________________________

Submitted for Possible Dismissal Due to a Jurisdictional Defect or 

Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)

or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

August 2, 2012

Before: SLOVITER, FISHER and WEIS, Circuit Judges

(Opinion filed: August 10, 2012)

_________

OPINION

_________

PER CURIAM.

Billy Ray Smith, a prisoner formerly housed at the Low Security Allenwood 

Federal Correctional Institution (―FCI-Allenwood‖), appeals from an order of the United 

States District Court for the Middle District of Pennsylvania dismissing his complaint for 
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failure to state a claim. For the reasons below, we will summarily affirm the District 

Court’s order.

I.

Smith, a federal prisoner filing pro se, brought suit under the Federal Torts Claim 

Act, 28 U.S.C. §§ 1346(b), and 2671–2680 (―FTCA‖). Smith alleges that, during his 

confinement at FCI-Allenwood, the United States infected him with Hepatitis-C. 

According to the complaint, in early 2010 a medical technician—who was acting as an 

agent for the United States—used syringes contaminated with Hepatitis-C to draw 

Smith’s blood, causing him to contract the virus. Smith alleges that the United States 

intentionally infected him as part of an experiment to which he did not consent, similar to 

the syphilis experiments conducted by the United States Public Health Service in 

Guatemala in the 1940s and to the infamous Tuskegee experiment. In the alternative, 

Smith alleges the infection was the result of negligence. Smith also alleges that the 

United States transferred him to another facility in order to interfere with this lawsuit, in 

violation of his First Amendment rights.

Approximately six months after Smith first filed suit, the Defendant moved to 

dismiss Smith’s complaint under Federal Rule of Civil Procedure 12(b)(6). The 

Defendant argued, among other things, that Smith failed to comply with Pennsylvania 

Rule of Civil Procedure 1042.3(a), which requires him to file a Certificate of Merit 

(―COM‖) to proceed on his negligence allegation that a medical technician deviated from 

an acceptable professional standard. The Magistrate Judge conducted an analysis of 
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Smith’s claims and agreed with the Defendant that Smith’s medical negligence claim 

failed because he did not comply with state law requiring a COM. The Magistrate Judge 

also concluded that Smith could not bring a constitutional tort claim against the United 

States under the FTCA and that the FTCA provision creating liability for assault is not 

applicable in this instance. Accordingly, the Magistrate Judge issued a Report & 

Recommendation (―R&R‖) recommending that the case be dismissed with an opportunity 

to amend. The District Court adopted the R&R and granted the Defendant’s Motion to 

Dismiss, dismissing the case without prejudice and providing Smith with twenty days to 

amend his complaint. Instead of amending the complaint, Smith appealed. 

II.

This Court has jurisdiction pursuant to 28 U.S.C. § 1291.

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 We exercise plenary 

review over the District Court’s decision to grant a motion to dismiss. DeHart v. Horn, 

390 F.3d 262, 272 (3d Cir. 2004); see also Newell v. Ruiz, 286 F.3d 166, 167 n.2 (3d 

Cir. 2002) (considering New Jersey’s ―affidavit of merit‖ requirement). 

III.

 

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 Generally, ―an order which dismisses a complaint without prejudice is neither final nor 

appealable . . . .‖ Borelli v. City of Reading, 532 F.2d 950, 951–52 (3d Cir. 1976) (per 

curiam). Such an order becomes final and appealable, however, if the plaintiff declares 

his intention to stand on the complaint. Id. When the District Court has provided a set 

amount of time within which to amend, and the plaintiff does not do so, the court may 

conclude that the plaintiff has elected to stand on his complaint. See Batoff v. State Farm 

Ins. Co., 977 F.2d 848, 851 n.5 (3d Cir. 1992). Here, the District Court gave Smith 

twenty days to amend his complaint. Instead of amending his complaint, Smith appealed. 

The twenty-day amendment period has concluded. Accordingly, Smith elected to stand 

on his complaint and this Court has jurisdiction pursuant to 28 U.S.C. § 1291. 
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We agree with the District Court’s decision to dismiss Smith’s FTCA claim for 

medical negligence because he failed to file a COM. The FTCA requires a court to apply 

the tort laws of the state in which the alleged tort arose. Gould Elec. Inc. v. United 

States, 220 F.3d 169, 179 (3d Cir. 2000). Here, the alleged tort of medical malpractice 

occurred in Pennsylvania and Pennsylvania’s law applies. Pennsylvania law requires a 

plaintiff alleging medical malpractice to file a COM.2 The certificate must attest either 

that an appropriate licensed professional supplied a written statement that there exists a 

reasonable probability that the care provided fell outside acceptable professional 

standards, or that expert testimony of an appropriate licensed professional is unnecessary. 

Pa. R. Civ. P. 1042.3(a)(1) & (3). This requirement is a substantive rule and applies even 

where, as here, the claim is brought in federal court. See Liggon-Redding v. Estate of 

Sugarman, 659 F.3d 258, 264–65 (3d Cir. 2011). Ignorance of the rule does not excuse 

failure to comply, even for a pro se plaintiff. See Hoover v. Davila, 862 A.2d 591, 594

(Pa. Super. Ct. 2004). 

Smith did not file the required COM, nor did he make a substantial effort to 

comply with the rule or provide a reasonable excuse for failing to do so. Accordingly, 

the District Court properly dismissed his FTCA malpractice claim without prejudice. See

 

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 To the extent Smith alleges ordinary negligence in addition to medical malpractice, the 

allegations fail to provide sufficient factual details to sustain that claim. See Ashcroft 

v. Iqbal, 556 U.S. 662, 678 (2009) (stating that ―[a] pleading that offers [merely] labels 

and conclusions‖ or ―naked assertions devoid of further factual enhancement‖ does not 

satisfy federal pleading requirements) (quotation marks and citations omitted).
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Bresnahan v. Schenker, 498 F. Supp. 2d 758, 762 (E.D. Pa. 2007); see also Womer v. 

Hilliker, 908 A.2d 269 (Pa. 2006).

IV.

Smith’s allegations that the United States experimented on him without his 

consent lack sufficient factual detail to sustain a claim. See Iqbal, 556 U.S. at 678. 

Because the intentional tort allegations fail on that basis we need not reach the issue of 

whether the FTCA would provide redress for those claims. 

V.

We agree with the District Court that the United States is not liable under the 

FTCA for money damages for suits arising out of constitutional violations. See Couden 

v. Duffy, 446 F.3d 483, 499 (3d Cir. 2006). Accordingly, the District Court properly 

rejected Smith’s constitutional tort claims seeking monetary damages of one hundred 

million dollars. 

VI.

There being no substantial question presented by Smith’s appeal, we will 

summarily affirm the District Court’s order of March 8, 2012, which dismisses this case. 

To the extent Smith’s Notice of Appeal incorporates a motion for appointment of 

counsel, that motion is denied.