Baumgardner v. Ebbert, 4:CV-10-1459

• Decision Date: 26 March 2013
• Docket Number: No. 4:CV-10-1459,4:CV-10-1459
• Parties: JON BAUMGARDNER, Plaintiff v. DAVID J. EBBERT, et al., Defendants
• Court: U.S. District Court — Middle District of Pennsylvania

JON BAUMGARDNER, Plaintiff

v.DAVID J. EBBERT, et al., Defendants

No. 4:CV-10-1459

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Dated: March 26, 2013

(Judge Nealon)

MEMORANDUM

Plaintiff, Jon Baumgardner, an inmate confined in the Federal Correctional Institution, Allenwood, Pennsylvania ("FCI-Allenwood"), filed the above captioned Bivens¹ action on July 15, 2010. Defendants are the following FCI-Allenwood Federal Bureau of Prison's Medical Health Service and Staff Employees: David J. Ebbert, Warden; Jeffrey Raleigh, former Associate Warden; Jay Miller, Medical Officer; Ronald Laino, Health Services Administrator ("HSA"); Jeremy Simonson, Medical Officer; Debra Spotts, former Assistant Health Services Administrator ("AHSA"); and Michaeleen Powanda, Physician's Assistant ("PA"). Also named as a Defendant is Dr. David J. Ball, a private orthopedic surgeon.

By Memorandum and Order dated September 20, 2011, Defendants' motion to dismiss was granted in part, in that Defendants Ebbert, Riley, Laino, and Simonson were dismissed from the instant action, and the claims pre-dating July 2008 against Defendant Ball were dismissed. (Doc. 30, Memorandum and Order). Defendants' motion to dismiss Plaintiff's EighthAmendment deliberate indifference claims as to Defendants Ball, Miller, Spotts, and Powanda was denied, and Plaintiff was permitted to file an amended complaint. Id.

On September 29, 2011, Baumgardner filed an untitled document which was later determined to be his amended complaint. (Doc. 32). Believing that no amended complaint had yet been filed, Defendants filed Answers to Baumgardner's original complaint. See (Docs. 33, 34).

On December 22, 2011, Government Defendants filed a motion to dismiss the Amended Complaint, (Doc. 37), as well as a brief in support of the motion. (Doc. 38). Baumgardner filed a brief in opposition to Defendants' Motion to Dismiss on January 5, 2012. (Doc. 39). Defendants filed a reply brief on January 20, 2012. (Doc. 40).

On February 11, 2012, Attorney Larrick Stapleton entered his appearance on behalf of Baumgardner and moved the Court for leave to file a second amended complaint and for an enlargement of time to respond to Defendants' pending dispositive motion. (Doc. 45).

On February 17, 2012, Baumgardner's counsel filed a proposed second amended complaint. (Doc. 46). On March 13, 2012, the Court granted Baumgardner leave to file an amended complaint and accepted the Second Amended Complaint as filed. (Doc. 47). Additionally, the Court dismissed the pending dispositive motion as moot. Id.

The Second Amended Complaint names as Defendants all of the Defendants who were named in Baumgardner's original complaint, many of whom were previously dismissed from the case, plus unidentified Defendants BOP Officer John Doe and BOP Officer Richard Roe² , andthe Federal Bureau of Prisons ("BOP"). (Doc. 46, Second Amended Complaint). In addition to the Bivens allegations against the individual Defendants, the Second Amended Complaint raises new claims against the United States pursuant to the Federal Tort Claims Act, pursuant to 28 U.S.C. § 2671, et seq., and additional new claims pursuant to the Americans With Disabilities Act, 42 U.S.C. § 12132. Id.

Presently before the Court is Government Defendants' motion to dismiss and motion for summary judgment, (Doc. 57), and Defendant Ball's motion to dismiss, and motion to dismiss for failure to file a certificate of merit. (Docs. 50, 60). The motions are fully briefed and are ripe for disposition. For the reasons that follow, the Court will grant Defendants' motions to dismiss and for summary judgment.

I. Standards of Review

A. Bivens Standard

Plaintiff's claims are filed pursuant to 28 U.S.C. § 1331, in accordance with Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, (1971). Under Bivens. the District Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331 to entertain an action brought to redress alleged federal constitutional or statutory violations by a federal actor. Id Pursuant to Bivens. "a citizen suffering a compensable injury to a constitutionally protected interest could invoke the general federal question jurisdiction of the district court to obtain an award of monetary damages against the responsible federal official." Butz v. Economou, 438 U.S. 478, 504 (1978). A Bivens-stvle civil rights claim is the federal equivalent of an action brought pursuant to 42 U.S.C. § 1983 and the same legal principles have been held to apply. See Paton v. LaPrade, 524 F.2d 862, 871 (3d Cir. 1975); Veteto v. Miller,829 F. Supp. 1486, 1492 (M.D. Pa. 1992); Young v. Keohane, 809 F. Supp. 1185, 1200 n.16 (M.D. Pa. 1992). In order to state an actionable Bivens claim, a plaintiff must allege that a person has deprived him of a federal right, and that the person who caused the deprivation acted under color of federal law. See West v. Atkins, 487 U.S. 42, 48 (1988); Young v. Keohane, 809 F. Supp. 1185, 1199 (M.D. Pa. 1992); Sharpe v. Costello, 2007 WL 1098964, *3 (M.D. Pa. 2007).

B. Summary Judgment

Federal Rule of Civil Procedure 56(c) requires the court to render summary judgment "...forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). "[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).

A disputed fact is "material" if proof of its existence or nonexistence would affect the outcome of the case under applicable substantive law. Anderson, 477 U.S. at 248; Gray v. York Newspapers. Inc., 957 F.2d 1070,1078 (3d Cir. 1992). An issue of material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 257; Brenner v. Local 514, United Brotherhood of Carpenters and Joiners of America, 927 F.2d 1283, 1287-88 (3d Cir. 1991).

When determining whether there is a genuine issue of material fact, the court must view the facts and all reasonable inferences in favor of the nonmoving party. Moore v. Tartler, 986 F.2d 682 (3d Cir. 1993); Clement v. Consolidated Rail Corporation, 963 F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir. 1988). In order to avoid summary judgment, however, the nonmoving party may not rest on the unsubstantiated allegations of his or her pleadings. When the party seeking summary judgment satisfies its burden under Rule 56(c) of identifying evidence which demonstrates the absence of a genuine issue of material fact, the nonmoving party is required by Rule 56(e) to go beyond the pleadings with affidavits, depositions, answers to interrogatories or the like in order to demonstrate specific material facts which give rise to a genuine issue. Celotex Corporation v. Catrett, 477 U.S. 317, 324 (1986). The party opposing the motion "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). When Rule 56(e) shifts the burden of production to the nonmoving party, that party must produce evidence to show the existence of every element essential to its case which it bears the burden of proving at trial, for "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 323. See Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992).

C. Motion to Dismiss

The Court in Williams v. Hull, 2009 WL 1586832, *2-*3 (W.D. Pa. 2009), set forth the Motion to Dismiss standard of review, as annunciated by the Supreme Court in Bell AtlanticCorp. v. Twombly, 550 U.S. 544, (2007), and as refined in Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009), as follows:

The issue is not whether the plaintiff will prevail at the end but only whether he should be entitled to offer evidence to support his claim. Neitzke; Scheuer v. Rhodes, 419 U.S. 232 (1974). A complaint must be dismissed pursuant to Rule 12(b)(6) if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (rejecting the traditional 12(b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). SeealsoAshcroft v. Iqbal, --- U.S. ----, ----, 129 S.Ct. 1937, ----, 173 L.Ed.2d 868, ----, 2009 WL 1361536 (May 18, 2009) (specifically applying Twombly analysis beyond the context of the Sherman Act). The court must accept as true all allegations of the complaint and all reasonable factual inferences must be viewed in the light most favorable to plaintiff. Angelastro v. Prudential-Bache Securities, Inc., 764 F.2d 939, 944 (3d Cir. 1985). The Court, however, need not accept inferences drawn by plaintiff if they are unsupported by the facts as set forth in the complaint. SeeCalifornia Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir.2004) citing Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997). Nor must the court accept legal conclusions set forth as factual allegations. Twombly, 550 U.S. at 556, citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 556. Although the United States Supreme Court does "not require heightened fact pleading of specifics, [the Court does require] enough

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