Dixon v. United States of America

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JERMAINE DIXON, : Civil No. 1:17-CV-01716

:

Plaintiff, :

:

v. : Judge Jennifer P. Wilson

:

UNITED STATES OF AMERICA, et al. :

:

Defendants. : Magistrate Judge William I. Arbuckle

MEMORANDUM

Before the court is a motion to dismiss and/or for summary judgment filed

by the Defendants, a report and recommendation from United States Magistrate

Judge William I. Arbuckle that addresses the motion, objections to the report and

recommendation filed by Plaintiff Jermaine Dixon (“Dixon”), and a motion for

leave to file an amended complaint filed by Dixon. (See Docs. 36, 58, 62–63.) For

the reasons that follow, Judge Arbuckle’s report and recommendation is adopted in

part, modified in part, and rejected in part; the Defendants’ motion to dismiss

and/or for summary judgment is granted in part and denied in part; and Dixon’s

motion for leave to file an amended complaint is denied as moot.

STANDARD OF REVIEW

When a party objects to a magistrate judge’s report and recommendation, the

district court is required to conduct a de novo review of the contested portions of

the report and recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3);

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Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989). The district court may

accept, reject, or modify the magistrate judge’s report and recommendation in

whole or in part. 28 U.S.C. § 636(b)(1). The district court may also receive

further evidence or recommit the matter to the magistrate judge with further

instructions. Id. “Although the standard is de novo, the extent of review is

committed to the sound discretion of the district judge, and the court may rely on

the recommendations of the magistrate judge to the extent it deems proper.”

Weidman v. Colvin, 164 F. Supp. 3d 650, 653 (M.D. Pa. 2015) (citing Rieder v.

Apfel, 115 F. Supp. 2d 496, 499 (M.D. Pa. 2000)).

De novo review is not required for portions of a report and recommendation

to which no objections have been raised. Univac Dental Co. v. Dentsply Int’l, Inc.,

702 F. Supp. 2d 465, 469 (M.D. Pa. 2010) (citing Thomas v. Arn, 474 U.S. 140,

149 (1985)). Instead, the court is only required to “satisfy itself that there is no

clear error on the face of the record in order to accept the recommendation.” Id.

(quoting Fed. R. Civ. P. 72 advisory committee’s note to 1983 addition).

THE COURT WILL TREAT THE MOTION AS A MOTION TO DISMISS

The motion that is currently before the court is styled as a motion to dismiss

and/or, in the alternative, for summary judgment. (See Doc. 36.) The decision of

whether a motion to dismiss should be converted into a motion for summary

judgment is left to the sound discretion of the district court. Kulwicki v. Dawson,

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969 F.2d 1454, 1463 n.11 (3d Cir. 1992). Before a court converts a motion,

however, it must provide the parties notice of its intent to do so. Rose v. Bartle,

871 F.2d 331, 340 (3d Cir. 1989). Although a party ordinarily has sufficient notice

when a motion is framed alternatively as either a motion to dismiss or a motion for

summary judgment, Hilfirty v. Shipman, 91 F.3d 573, 578–79 (3d Cir. 1996),

overruled on other grounds, Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 791

(3d Cir. 2000), the court nevertheless finds that Dixon did not have sufficient

notice because the report and recommendation treated the motion as a motion to

dismiss. (See Doc. 58 at 12, 16–17, 19.)

Furthermore, the court finds that conversion is inappropriate given the

apparent lack of discovery that has taken place. Discovery is vital to the

disposition of a motion for summary judgment because “the summary judgment

process presupposes the existence of an adequate record.” Doe v. Abington

Friends Sch., 480 F.3d 252, 257 (3d Cir. 2007). In this case, the court has not yet

issued a case management order to govern the discovery process, and it is unclear

what discovery has occurred. In addition, Defendants have not yet controverted

the factual allegations made in Dixon’s complaint through the filing of an answer.

For those reasons, the court will treat the motion as a motion to dismiss.

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MOTION TO DISMISS STANDARD

In order “[t]o survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the

plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. (quoting

Twombly, 550 U.S. at 556). “Conclusory allegations of liability are insufficient” to

survive a motion to dismiss. Garrett v. Wexford Health, 938 F.3d 69, 92 (3d Cir.

2019) (quoting Iqbal, 556 U.S. at 678–79). To determine whether a complaint

survives a motion to dismiss, a court identifies “the elements a plaintiff must plead

to state a claim for relief,” disregards the allegations “that are no more than

conclusions and thus not entitled to the assumption of truth,” and determines

whether the remaining factual allegations “plausibly give rise to an entitlement to

relief.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012).

In determining whether to dismiss a complaint brought by an unrepresented

litigant, a district court must interpret the complaint liberally. Sause v. Bauer, __

U.S. __, 138 S. Ct. 2561, 2563 (2018). The complaint, “however inartfully

pleaded, must be held to less stringent standards than formal pleadings drafted by

lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). Nevertheless,

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unrepresented litigants “still must allege sufficient facts in their complaints to

support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir.

2013).

PROCEDURAL HISTORY

Dixon initiated this case by filing a complaint on September 21, 2017. (Doc.

1.) The complaint named as defendants the United States of America and various

individuals who were employed at the Federal Correctional Institution in

Minersville, Pennsylvania (“FCI Schuylkill”). (Id.) Dixon amended his complaint

on May 17, 2018. (Doc. 16.) The amended complaint is based on allegedly

inadequate medical care Dixon received at FCI Schuylkill before and after

undergoing surgery on his leg in 2014. (Id.) The amended complaint raises a

Bivens claim for deliberate indifference to a serious medical need under the Eighth

Amendment and a state tort claim under the Federal Tort Claims Act (“FTCA”).

(Id.)

On September 24, 2018, Defendants filed a motion to dismiss and/or for

summary judgment. (Doc. 36.) Defendants’ brief in support of the motion raises

four arguments for dismissal. First, Defendants argue that Dixon’s amended

complaint should be dismissed because Dixon failed to exhaust his administrative

remedies under the Prison Litigation Reform Act (“PLRA”). (Doc. 41 at 20–22.)

Second, Defendants argue that all claims against Defendants Purdue, McKinney,

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and Simonson, should be dismissed because the amended complaint does not

allege that they were personally involved in Dixon’s medical care. (Id. at 22–29.)

Third, Defendants argue that Dixon’s Eighth Amendment claim should be

dismissed for failure to state a claim upon which relief may be granted. (Id. at 29–

36.) Finally, Defendants argue that Dixon’s FTCA claim should be dismissed

because he failed to file a certificate of merit as required by Pennsylvania Rule of

Civil Procedure 1042.3. (Doc. 41 at 36–38.)

Dixon filed a brief in opposition to the motion on October 5, 2018, followed

by another brief on November 7, 2018. (Docs. 43, 47.) Defendants filed a reply

brief on December 3, 2018. (Doc. 50.) On December 18, 2018, Judge Arbuckle

granted Dixon’s request for leave to file a sur reply, and the Clerk of Court

docketed Dixon’s proposed sur reply brief on the same date. (Docs. 52–53.) Judge

Arbuckle addressed the motion in a report and recommendation on November 5,

2019. (Doc. 58.)

JUDGE ARBUCKLE’S REPORT AND RECOMMENDATION

In his report and recommendation, Judge Arbuckle first recommends that the

court sua sponte dismiss all claims against the United States because the United

States is entitled to sovereign immunity. (Doc. 58 at 12.) Judge Arbuckle then

recommends that Dixon’s Eighth Amendment claim be dismissed for failure to

state a claim upon which relief may be granted. (Id. at 12–16.) Judge Arbuckle

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notes that an Eighth Amendment claim would only be actionable if Defendants

chose “not to treat Plaintiff after being notified of his needs.” (Id. at 16.) Judge

Arbuckle concludes that was not the case here and that the Eighth Amendment

claims should therefore be dismissed. (Id.)

Turning to the claims against Defendants Perdue, McKinney, and Simonson,

Judge Arbuckle recommends that Dixon’s claims against those defendants be

dismissed both because Dixon fails to allege their personal involvement in the

alleged harms and because they are entitled to qualified immunity. (Id. at 16–17.)

Judge Arbuckle then recommends that Dixon’s FTCA claim be dismissed because

Dixon has failed to file a certificate of merit as required by Pennsylvania Rule of

Civil Procedure 1042.3. (Id. at 19–25.) Finally, Judge Arbuckle finds that

dismissal for failure to exhaust is not appropriate because there is a fact question as

to whether Dixon exhausted his administrative remedies. (Id. at 25–31.)

Dixon filed objections to the report and recommendation on December 16,

2019, along with a motion for leave to file an amended complaint. (Docs. 62–63.)

Dixon argues he has pleaded sufficient facts to state an Eighth Amendment claim

upon which relief may be granted. (Doc. 62 at 2–4.) Dixon then objects to Judge

Arbuckle’s conclusion that a certificate of merit is required to state an FTCA

claim. (Doc. 62 at 6–7.) Dixon argues that this conclusion is based on an

erroneous reading of Dixon’s prior arguments as advancing the position that a

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certificate of merit is not needed. (Id.) Dixon asserts that he did not previously

advance such a position; rather he was merely asking the court for guidance as to

whether a certificate of merit would be necessary. (Id.) Finally, Dixon argues that

evidence of record supports all of his claims. (Id. at 8–10.)

In his motion for leave to file an amended complaint, Dixon argues leave

should be granted because it would allow him to cure many of the defects

identified in the report and recommendation and facilitate the Defendants’ ability

to file a response to the complaint. (Doc. 63.) Defendants filed a brief in

opposition to the motion for leave to file an amended complaint on December 20,

2019, arguing that leave to amend should be denied because it would be futile.

(Doc. 65.) Dixon filed a reply brief on January 17, 2020. (Doc. 67.)

DISCUSSION

A. The United States Is entitled to Sovereign Immunity

The court will first address Judge Arbuckle’s recommendation that the court

sua sponte dismiss all claims against the United States because the United States is

entitled to sovereign immunity. (Doc. 58 at 12.) Dixon does not object to this

conclusion and acknowledges that it was error to name the United States as a

defendant. (Doc. 62 at 1–2.) The court agrees with Judge Arbuckle’s conclusion

that the United States is entitled to sovereign immunity. See FDIC v. Meyer, 510

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U.S. 471, 477–78, 484–86 (1994). Accordingly, the recommendation is adopted,

and all claims against the United States are dismissed.

B. Defendants’ Motion to Dismiss Dixon’s Deliberate Indifference

Claim Is Denied

The court turns next to the recommendation that the court dismiss Dixon’s

deliberate indifference claim for failure to state a claim upon which relief can be

granted. (Doc. 58 at 16.) For the following reasons, the court rejects the

recommendation because it is based on an impermissible factual determination.

The Eighth Amendment prohibits a prison official’s deliberate indifference

to an inmate’s serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976).

To state a claim for deliberate indifference, “an inmate must allege (1) a serious

medical need; and (2) acts or omissions by prison officials which demonstrate

deliberate indifference to that need.” Hollihan v. Pa. Dep’t of Corr., 159 F. Supp.

3d 502, 511 (M.D. Pa. 2016) (citing Estelle, 429 U.S. at 104.)

In this case, Dixon adequately pleads a claim for deliberate indifference

because he alleges that he needed to have a bullet surgically removed from his leg,

that the defendants delayed providing the needed surgery, and that the defendants

provided inadequate medical care following the surgery. (See Doc. 16 at 4–9.)

The report and recommendation nevertheless recommends dismissing Dixon’s

deliberate indifference claim because Defendants acted within a reasonable time

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and provided Dixon adequate medical care. (Doc. 58 at 15–16.) That

recommendation is rejected because it is based on factual determinations that the

court may not make at this stage of litigation—specifically, that Defendants acted

within a reasonable time frame and provided Dixon adequate medical care. See

Flora v. Cty. of Luzerne, 776 F.3d 169, 175 (3d Cir. 2015) (noting that a district

court deciding a motion to dismiss “may not make findings of fact and, insofar as

there is a factual dispute, the court may not resolve it” (citing Animal Sci. Prods.,

Inc. v. China Minmetals Corp., 654 F.3d 462, 469 n.9 (3d Cir. 2011))). Thus,

because the recommendation is based on factual determinations that may not be

made at this stage of litigation and Dixon has alleged adequate facts to support his

claim, the recommendation is rejected and the motion to dismiss Dixon’s

deliberate indifference claim is denied.

C. The Complaint Alleges Personal Involvement by Defendant

Simonson, But Does Not Allege Personal Involvement by Defendants

Perdue or McKinney

A defendant in a Bivens case “must have personal involvement in the alleged

wrongs; liability cannot be predicated solely on the operation of respondeat

superior.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). “Personal

involvement can be shown through allegations of personal direction or of actual

knowledge and acquiescence.” Id.

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Here, Judge Arbuckle recommends that all claims against Defendants

Perdue, McKinney, and Simonson be dismissed because the complaint does not

allege that those Defendants were personally involved in the alleged harms. (Doc.

58 at 16–17.) Although he does not specifically object to this recommendation, a

liberal construction of Dixon’s objections suggests that he does object to the

conclusion regarding Defendant Simonson’s personal involvement. (See Doc. 62

at 2 (arguing that the amended complaint sufficiently alleged that Simonson and

other Defendants failed to provide Dixon with adequate medical care).) Dixon

does not object to the recommendation regarding Defendants Perdue and

McKinney.

Having conducted a de novo review of the relevant portions of the report and

recommendation, the court disagrees with the report and recommendation as to

Defendant Simonson’s personal involvement. The court finds that the amended

complaint adequately alleges Simonson’s personal involvement in Dixon’s claims.

In the amended complaint, Dixon alleges that he went to FCI Schuylkill’s medical

department on September 24, 2015 and spoke with Simonson—the prison’s Health

Services Administrator—who told Dixon that he could not help him. (Doc. 16 at

5.) Simonson subsequently ordered an x-ray on Dixon’s leg, and, while the x-ray

was ongoing, commented that Dixon’s leg “looked bad.” (Id. at 6.) Dixon asked

Simonson why he would not tell the other medical staff at the prison about this

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opinion, but Simonson allegedly did not respond. (Id.) Dixon then spoke with

Simonson again on October 13, 2015, and told him that the pain and swelling in his

leg would not go away. (Id. at 7–8.) Simonson allegedly told Dixon that nothing

else could be done about the leg because of Dixon’s arthritis. (Id. at 8.) The court

finds that such factual allegations are sufficient to allege that Simonson had actual

knowledge of Dixon’s inadequate medical care and acquiesced in that care. See

Rode, 845 F.2d at 1207. Accordingly, the motion to dismiss is denied to the extent

it seeks the dismissal of Dixon’s claims against Simonson.

As for Defendants Perdue and McKinney, the court agrees with Judge

Arbuckle that Dixon fails to allege their personal involvement in his claims.

Accordingly, Dixon’s claims against those defendants are dismissed. When

dismissing a civil rights complaint for failure to state a claim upon which relief

may be granted, however, a district court “must permit a curative amendment,

unless an amendment would be inequitable or futile.” Phillips v. Cty. of Allegheny,

515 F.3d 224, 236 (3d Cir. 2008) (citing Grayson v. Mayview State Hosp., 293

F.3d 103, 108 (3d Cir. 2002)). Here, the court finds that amendment of Dixon’s

complaint would not be inequitable or futile as to his claims against Defendants

Perdue and McKinney, and the court will accordingly modify Judge Arbuckle’s

report and recommendation to permit Dixon to file an amended complaint.

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D. Defendants Are Not Entitled to Qualified Immunity at this Stage

In addition to recommending dismissal for their lack of personal

involvement, Judge Arbuckle also recommends that the court sua sponte dismiss

the claims against Defendants Perdue, McKinney, and Simonson because they are

entitled to qualified immunity. (Doc. 58 at 17–18.) Like the recommendation

regarding Dixon’s deliberate indifference claim, however, this claim is based on

factual determinations that may not be made at this stage of litigation.

Specifically, the report and recommendation concludes that Dixon was given

medical care during the relevant time period and that Dixon “has failed in his effort

to establish that the prison officials were deliberately indifferent to his medical

needs.” (Id.) Such factual conclusions may not be made in deciding a motion to

dismiss, Flora, 776 F.3d at 175, and the court accordingly rejects the finding that

Defendants Perdue, McKinney, and Simonson are entitled to qualified immunity.

E. Dixon’s FTCA Claim Is Dismissed Because He Did Not File a

Certificate of Merit

A claim brought under the FTCA must be analyzed under the substantive

tort law of the state “where the act or omission occurred.” Gould Elecs. Inc. v.

United States, 220 F.3d 169, 178 (3d Cir. 2000) (quoting 28 U.S.C. § 1346(b)(1)).

There is no dispute in this case that the Defendants’ allegedly negligent acts

occurred in Pennsylvania, and under Rule 1042.3 of the Pennsylvania Rules of

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Civil Procedure, a plaintiff alleging professional negligence or malpractice must

file a certificate of merit. Pa. R. Civ. P. 1042.3; Schmigel v. Uchal, 800 F.3d 113,

116 (3d Cir. 2015).

Judge Arbuckle recommends that Dixon’s FTCA claim be dismissed for

failure to file the certificate of merit required by Rule 1042.3. (Doc. 58 at 24–25.)

In his objections to the report and recommendation, Dixon argues that Judge

Arbuckle erred by reading Dixon’s previous arguments as advancing the position

that no certificate of merit was required, but he does not contest Judge Arbuckle’s

conclusion that no certificate of merit was filed. (See Doc. 62.) To the contrary,

Dixon acknowledges in his objections that he “never certified his position pursuant

to Pa. Rule 1042.3(a)(3).” (Id. at 8.) Accordingly, the court reviews Judge

Arbuckle’s conclusion only for clear error. See Univac Dental Co., 702 F. Supp.

2d at 469 (noting that de novo review is not required for portions of a report and

recommendation to which no objections have been raised). Having conducted

such a review, the court finds no clear error and accordingly adopts Judge

Arbuckle’s recommendation. Dixon’s FTCA claim is therefore dismissed for

failure to file a certificate of merit as required by Rule 1042.3.

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F. A Question of Fact Remains as to Whether Dixon Exhausted His

Administrative Remedies

Finally, Judge Arbuckle recommends that the motion to dismiss be denied to

the extent it seeks dismissal for failure to exhaust because there is a fact question

as to whether Dixon exhausted his administrative remedies. (Doc. 58 at 25–31.)

Because neither party objects to this conclusion, the court reviews it only for clear

error. Univac Dental Co., 702 F. Supp. 2d at 469. Having conducted such a

review, the court finds no clear error and will adopt Judge Arbuckle’s

recommendation.

G. Dixon’s Motion for Leave to File an Amended Complaint Is Denied

as Moot

As discussed above, Defendants’ motion to dismiss has been granted in part

and denied in part, and Dixon has been granted leave of the court to amend those

portions of his complaint for which amendment would be neither inequitable nor

futile. Accordingly, Dixon’s motion for leave to file an amended complaint is

denied as moot, because the court is granting leave to amend as specified in this

memorandum and accompanying order.

CONCLUSION

For the foregoing reasons, Judge Arbuckle’s report and recommendation is

adopted in part, modified in part, and rejected in part; the Defendants’ motion to

dismiss and/or for summary judgment is granted in part and denied in part; and

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Dixon’s motion for leave to file an amended complaint is denied as moot. An

appropriate order follows.

s/Jennifer P. Wilson

JENNIFER P. WILSON

United States District Court Judge

Middle District of Pennsylvania

Dated: March 23, 2020

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