1

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- 245 NOT PRECEDENTIAL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 Possi ble 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 : A ug u st 1 0 , 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 h is complaint for2

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 wi th 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 Stat es 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 ord er 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, a mong 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 prof

essional standard. The Magistrate Judge conducted an analysis of3

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 n ot 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

. 1 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 C ir. 2004) ; se e also Newell v. Ruiz , 286 F.3d 166, 167 n.2 (3d Cir. 2002) (considering New Jersey’s ―affidavit of merit‖ requirement).
II I .

1 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. 1 976) (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 C ourt has provided a set amount of time within which to amend, and the plaintiff does not d o 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 twen ty days to amend his complaint. Instead of amending h is complaint, Smith appealed. The twenty

- day a mendment period has concluded. Accordingly, Smith elected to stand on his complaint and this Court has jurisdiction pursuant to 28 U.S.C. § 1291

.4

We agree with the District Court’s decision to dismiss Smith’s FTCA claim for medical negligence because he fail ed 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 pr obability that the care provided fell outside acceptable professional standards , or that expert testimony of an appropriate licen sed professional is unnecessary

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

w here, as here, the claim is brought in federal court. See Liggon

- Redding v. Estate of Sugarman , 659 F.3d 258, 2 64

– 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)

. Sm ith 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

2 To the extent Sm ith alleges ordinary negligence in addit ion to medical malpractice, the allegati ons 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 dev oid of further factual enhancement‖ does not satisfy federal pleading requirements) (quotation marks and citations omitted).5

Bresnahan v. Schenker , 498 F. Supp. 2d 758, 762 (E.D. Pa. 2007) ; se e 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 fa ctual detail to sustain a claim. See Iqbal , 5 56 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 t he 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 claim s 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.