Cascella v. United States of America

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JON CASCELLA, No. 4:21-CV-01490

Plaintiff, (Chief Judge Brann)

v.

UNITED STATES of AMERICA,

Defendant.

MEMORANDUM OPINION

AUGUST 30, 2022

Plaintiff Jon Cascella filed the instant lawsuit under the Federal Tort Claims

Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-80. He alleges negligence by three

Federal Bureau of Prisons (BOP) officials during his incarceration at LSCI

Allenwood, in White Deer, Pennsylvania. Defendants move to dismiss the claims

in the amended complaint pursuant to Federal Rule of Civil Procedure 12(b) or for

summary judgment under Federal Rule of Civil Procedure 56. The Court will

grant in part and deny in part Defendant’s motion to dismiss and will deny without

prejudice Defendant’s premature Rule 56 motion.

I. BACKGROUND

Cascella’s complaint is succinct—spanning only four pages—and it is not

particularly complicated.1 Cascella, who suffers from serious mental health

issues,2 claims that in February and March 2020 he was able to commit self-harm

on three occasions due to the negligence of two LSCI Allenwood medical

providers.3 He further alleges that a BOP corrections officer negligently applied

restraints too tightly, causing permanent injuries to his legs.4

Cascella first asserts that, on February 4, 2020, even though he was on

suicide watch, Christine Schmidt, PhD, gave him a “sharp pencil,” which Cascella

used to cut his left arm.5 He next avers that on February 18, 2020, nurse Ariel

Yordy6 gave him a syringe while he was in the “suicide cell,” in violation of BOP

policy and procedure.7 Cascella does not state in his complaint what he did with

the syringe, but it is presumed that he used it to harm himself because he alleges

that the “syringe incident” resulted in “permanent scars.”8

Finally, Cascella asserts that, after the February 18 “syringe incident,” Dr.

Schmidt had him removed from his suicide cell and placed in the special housing

unit (SHU) in a “high risk situation,” which allowed him to acquire a razor blade at

some unspecified time.9 Then, on March 12, 2020, he used that razor blade to cut

2 See, e.g., Doc. 1-3 at 2 (noting in medical records provided by Cascella that he is on

“psychotropic medication” and was on suicide watch as of February 4, 2020).

3 Doc. 1 ¶¶ 3-5.

4 Id. ¶ 5(d).

5 Id. ¶ 5(a).

6 Cascella incorrectly spells Ariel Yordy’s last name as “Yordie” in his complaint. The Court

will use the correct spelling provided by defense counsel. See Doc. 20 at 1.

7 Doc. 1 ¶ 5(b).

8 See id.

9 Id. ¶ 5(c).

himself five times.10 After being treated by medical staff, Cascella alleges that

Lieutenant Justin Foura shackled his legs too tightly, causing “4 deep lacerations”

by the leg restraints in both of his legs.11

Cascella filed an administrative claim with the BOP,12 which was denied on

July 23, 2021.13 He then filed the instant FTCA lawsuit on August 30, 2021.14

Cascella asserts that Dr. Schmidt, Yordy, and Foura “committed [] acts of

negligence” that caused him to suffer “5 lacerations on his left arm and also 2

anterior and 2 posterior laceration[s] on his left and right legs which are now

permanent scars.”15 Notably, Cascella sued the United States,16 the only proper

defendant in an FTCA claim.17 Cascella’s complaint also contains a single

statement that he “brings this action against the defendants”—Dr. Schmidt, Yordy,

and Foura—“as the agents, servants and employees, of defendant, the United

States of America.”18 To the extent that this assertion can be construed as Cascella

suing these federal agents in their official capacities, those claims are barred by

10 Id. ¶ 5(d).

11 Id.

12 See Doc. 1-2 at 2.

13 Id.

14 Doc. 1.

15 Id. ¶¶ 3, 4.

16 See id. ¶ 1 (“Plaintiff brings this action against[] the United States of America, pursuant to the

Federal Tort Claims Act[.]”); see also id. at p.1 (naming only “United States of America” in

caption as the sole defendant).

17 See CNA v. United States, 535 F.3d 132, 138 n.2 (3d Cir. 2008).

18 Doc. 1 ¶ 3.

sovereign immunity.19 Consequently, Cascella’s FTCA claims involve a single

Defendant: the United States.

Defendant, after several extensions of time, responded to Cascella’s

complaint with a lengthy motion to dismiss under Rule 12(b)(1) and Rule 12(b)(6)

“and/or” for summary judgment under Rule 56.20 Those motions are ripe for

disposition.

II. STANDARD OF REVIEW

In deciding a motion to dismiss under Federal Rule of Civil Procedure

12(b)(6), courts should not inquire “whether a plaintiff will ultimately prevail but

whether the claimant is entitled to offer evidence to support the claims.”21 The

court must accept as true the factual allegations in the complaint and draw all

reasonable inferences from them in the light most favorable to the plaintiff.22 In

addition to the facts alleged on the face of the complaint, the court may also

consider “exhibits attached to the complaint, matters of public record, as well as

19 See Gary v. F.T.C., 526 F. App’x 146, 149 (3d Cir. 2013) (nonprecedential) (agreeing with

district court that claims against federal employees in their official capacities are barred by

sovereign immunity (citing FDIC v. Meyer, 510 U.S. 471, 475 (1994))). For the same reason,

if Cascella is attempting to sue the BOP, that claim is likewise barred by sovereign immunity.

See id. (agreeing with district court that claims against the FTC are barred by sovereign

immunity).

20 Doc. 44.

21 Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see Nami v. Fauver, 82 F.3d 63, 66 (3d Cir.

1996).

22 Phillips v. County of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008).

undisputedly authentic documents” attached to a defendant’s motion to dismiss if

the plaintiff’s claims are based upon these documents.23

When the sufficiency of a complaint is challenged, the court must conduct a

three-step inquiry.24 At step one, the court must “tak[e] note of the elements [the]

plaintiff must plead to state a claim.”25 Second, the court should distinguish well-

pleaded factual allegations—which must be taken as true—from mere legal

conclusions, which “are not entitled to the assumption of truth” and may be

disregarded.26 Finally, the court must review the presumed-truthful allegations

“and then determine whether they plausibly give rise to an entitlement to relief.”27

Deciding plausibility is a “context-specific task that requires the reviewing court to

draw on its judicial experience and common sense.”28

Because Cascella proceeds pro se, his pleadings are to be liberally construed

and his complaint, “however inartfully pleaded, must be held to less stringent

standards than formal pleadings drafted by lawyers[.]”29 This is particularly true

when the pro se litigant, like Cascella, is incarcerated.30

23 Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp.

v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993)).

24 Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016) (internal citations and

quotation marks omitted) (footnote omitted).

25 Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (alterations in original)).

26 Id. (quoting Iqbal, 556 U.S. at 679).

27 Id. (quoting Iqbal, 556 U.S. at 679).

28 Iqbal, 556 U.S. at 681.

29 Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted).

30 Dooley v. Wetzel, 957 F.3d 366, 374 (3d Cir. 2020) (citation omitted).

III. DISCUSSION

There are two threshold issues that must be resolved before the Court can

address Defendant’s motions. First, there is some confusion as to what type of

negligence claims Cascella is asserting through the FTCA.31 Defendant interprets

the negligence claims against Dr. Schmidt and Yordy as sounding in professional

liability (or medical malpractice),32 while Cascella appears to contend that he is

alleging only common law negligence claims. Second, the Court must clarify what

FTCA claims it has subject matter jurisdiction over in light of the extent of

Cascella’s administrative exhaustion.

A. Negligence or Professional Liability

As noted above, Defendant maintains that Cascella’s claims against Dr.

Schmidt and Yordy implicate medical malpractice. Cascella, for his part, filed

what he titled a “motion for determination as to the necessity of a certificate of

merit pursuant to [Pennsylvania Rule of Civil Procedure] 1042.6(c).”33 In that

motion, however, he appears to take two conflicting positions. First, he asserts that

31 “The FTCA offers a limited waiver of the federal government's sovereign immunity from civil

liability for negligent acts of government employees acting within the scope of their

employment.” Rinaldi v. United States, 904 F.3d 257, 273 (3d Cir. 2018); see also 28 U.S.C.

§ 1346(b)(1). “[T]he FTCA does not itself create a substantive cause of action against the

United States; rather, it provides a mechanism for bringing a state law tort action against the

federal government in federal court. Thus, ‘the extent of the United States’ liability under the

FTCA is generally determined by reference to state law.’” In re Orthopedic Bone Screw Prod.

Liab. Litig., 264 F.3d 344, 361-62 (3d Cir. 2001) (quoting Reo v. U.S. Postal Serv., 98 F.3d

73, 75 (3d Cir. 1996)).

32 See Doc. 27 ¶ 19; Doc. 60 at 22.

33 Doc. 36.

he should be able to proceed under Rule 1042.3(a)(3),34 which permits a plaintiff to

file a certificate of merit for a professional liability claim stating that “expert

testimony of an appropriate licensed professional is unnecessary for prosecution of

the [professional liability] claim.”35 He then asks the Court to “amend [his] claim

of medical malpractice to straightforward negligence” because his complaint

involves “the failure of prison personnel to comply with specified Bureau of Prison

protocols and not the assessment of professional judgment.”36 These two positions

are contradictory because the first (filing a certificate of merit under Rule

1042.3(a)(3)) involves pursuing a professional liability claim and the second

(seeking to assert only negligence claims, not medical malpractice claims) does

not.

The Court observes that, in its December 8, 2021 Order, it specifically noted

that “upon review of [Cascella]’s complaint, it is not clear that [he] is asserting

claims of medical malpractice against the medical defendants. A certificate of

merit is only required under Pennsylvania law when the plaintiff’s action is ‘based

upon an allegation that a licensed professional deviated from an acceptable

professional standard,’ i.e., ‘professional liability’ or malpractice.”37 The Court

then informed Cascella that if he desired “to clarify that any claim in his complaint

34 See Doc. 36 at 1.

35 PA. R. CIV. P. 1042.3(a)(3).

36 Doc. 36 at 2.

37 Doc. 33 at 2 n.8.

against a medical provider does not involve professional liability and thus does not

necessitate a certificate of merit, he may file a motion pursuant to PA. R. CIV. P.

1042.6(c).”38

Cascella has filed such a Rule 1042.6(c) motion. The Court finds that most

of Cascella’s allegations do not implicate professional judgment or integral

medical treatment decisions.39 He essentially alleges that he was negligently given

sharp objects by Dr. Schmidt and Yordy while in a “suicide cell,” in contravention

of BOP policy.40 These claims sound in common law negligence, and thus no

certificate of merit is required.

However, the allegation that Dr. Schmidt negligently placed Cascella in the

SHU instead of a “suicide cell,” allowing him to acquire a razor blade,41 appears to

be one that implicates medical judgment. But, as Cascella has filed a substantially

compliant certificate of merit under Rule 1042.3(a)(3),42 that professional liability

claim is not subject to summary dismissal. Nevertheless, as the Pennsylvania

Rules of Civil Procedure caution: if a plaintiff “certifies under subdivision (a)(3)

that an expert is unnecessary for prosecution of the claim, in the absence of

38 Id.

39 See Iwanejko v. Cohen & Grigsby, P.C., 249 F. App’x 938, 944 (3d Cir. 2007)

(nonprecedential) (explaining that a “critical feature” of a medical malpractice action is that it

“turns on ‘questions involving medical judgment’” (quoting Ditch v. Waynesboro Hosp., 917

A.2d 317, 322 (Pa. Super. Ct. 2007))).

40 Doc. 1 ¶ 5(a), (b).

41 Id. ¶ 5(c).

42 See Doc. 36.

exceptional circumstances the [plaintiff] is bound by the certification and,

subsequently, the trial court shall preclude the plaintiff from presenting testimony

by an expert on the questions of standard of care and causation.”43 In other words,

absent exceptional circumstances, a plaintiff—like Cascella—who chooses to

proceed via subdivision (a)(3) is bound by that choice in later stages of the

litigation.

B. Administrative Exhaustion

Before a plaintiff can bring an FTCA claim in federal court, he must first

exhaust available administrative remedies.44 Exhaustion of FTCA claims is

jurisdictional in nature and cannot be waived.45 And federal courts are obligated to

satisfy themselves that they have jurisdiction before proceeding to the merits of a

claim, even if neither party raises the issue.46 “Although an administrative claim

need not propound every possible theory of liability in order to satisfy section

2675(a), . . . a plaintiff cannot present one claim to the agency and then maintain

suit on the basis of a different set of facts.”47 Thus, a plaintiff must “(1) give[] the

43 PA. R. CIV. P. 1042.3(a)(3), Note.

44 See 28 U.S.C. § 2675(a).

45 Shelton v. Bledsoe, 775 F.3d 554, 569 (3d Cir. 2015); Roma v. United States, 344 F.3d 352,

362 (3d Cir. 2003) (citation omitted).

46 Gonzalez v. Thaler, 565 U.S. 134, 142 (2012); GBForefront, L.P. v. Forefront Mgmt. Grp.,

888 F.3d 29, 34 (3d Cir. 2018); Nesbit v. Gears Unlimited, Inc., 347 F.3d 72, 77 (3d Cir. 2003)

(explaining that “the court can raise sua sponte subject-matter jurisdiction concers”).

47 Roma, 344 F.3d at 362 (quoting Deloria v. Veterans Admin., 927 F.2d 1009, 1011-12 (7th Cir.

1991)).

agency written notice of his or her claim sufficient to enable the agency to

investigate and (2) place[] a value on his or her claim.”48

Cascella filed an administrative claim and provided a copy of the BOP’s

denial along with his federal complaint.49 In the BOP’s response, Regional

Counsel gave the following rationale for denying Cascella’s claim:

Your Administrative Claim . . . has been considered for settlement as

provided by the [FTCA] . . . . Damages are sought in the amount of

$95,000.00 based on a personal injury claim. Specifically, you allege

on March 12, 2020, you were not provided proper mental health care

by staff at LSCI Allenwood, resulting in you cutting your wrist and

being injured by tight restraints. An investigation reflects there is not

sufficient evidence to substantiate the allegations of this claim. On

March 12, 2020, you found a razor blade in your cell and began making

statements of self-harm. You refused direct orders to drop the razor

and submit to hand restraints. You began cutting your wrist. Staff

deployed chemical munitions pursuant to policy, but you continued to

cut yourself. Staff deployed a second round of chemical munitions, at

which point you complied with staff orders and were placed in hard

ambulatory restraints. A medical staff member assessed your restraints

and confirmed you had proper circulation. You were medically

evaluated and treated for your injuries. There is no evidence you

experienced a compensable loss as the result of negligence on the part

of any Bureau of Prisons employee. Accordingly, your claim is

denied.50

Through the lens of this administrative denial, it appears that the only claims

Cascella presented to the BOP involved the March 12, 2020 events. Neither the

February 4 nor the February 18 incident is mentioned or discussed in the denial.

48 Id. (quoting Tucker v. United States Postal Serv., 676 F.2d 954, 959 (3d Cir. 1982)).

49 See Doc. 1-2 at 2.

50 Id. (emphasis added).

Consequently, the only FTCA claims that Cascella seems to have exhausted

involve Dr. Schmidt and Foura and concern the March 12, 2020 events of self-

harm and leg restraints, as Cascella “cannot present one claim to the agency and

then maintain suit on the basis of a different set of facts.”51

Cascella—if he is able—will be permitted to supplement the record with

evidentiary support establishing that he properly exhausted the other underlying

negligence claims in the instant FTCA action. Failure to do so will result in

dismissal, for lack of subject matter jurisdiction, of the FTCA claim involving

Yordy and the February 18, 2020 incident, as well as any claims based on the

events of February 4, 2020.52

C. Motion to Dismiss

Defendant moves under Rule 12(b)(1) to dismiss the FTCA claim involving

Foura’s placement of the leg restraints as barred by the discretionary function

exception to the FTCA. Defendant describes the claim as “challeng[ing] the

decision to place [Cascella] in ambulatory restraints instead of placing him on

suicide watch after he cut his wrists with a razor blade on March 12, 2020.”53

Defendant argues that such a decision is a discretionary function for BOP officers

and is therefore insulated from suit under the FTCA.

51 Roma, 344 F.3d at 362 (quoting Deloria v. Veterans Admin., 927 F.2d 1009, 1011-12 (7th Cir.

1991)).

52 See id. at 363.

53 Doc. 60 at 33 (citing Doc. 1 ¶ 5(d)).

The Court disagrees with Defendant’s interpretation of the complaint. While

Cascella does mention that he should have been placed in a suicide cell, the

gravamen of his claim against Foura is that Foura allegedly “tightened the shackles

so tight he caused the leg restraints to cut 4 deep lacerations into both of

[Cascella’s] legs” and left him with permanent scarring.54 The discretionary

function exception would not apply to such a claim.55 As such, Defendant’s Rule

12(b)(1) motion will be denied.

D. Motion for Summary Judgment

Defendant’s motion for summary judgment as to the merits of Cascella’s

FTCA claims requires only brief discussion. Such a motion, at this procedural

juncture, is premature. There has been no ruling on a motion to dismiss or an

answer filed, nor has a case management order been issued setting discovery and

dispositive-motion deadlines. Moreover, as explained in this Memorandum

54 Doc. 1 ¶ 5(d).

55 To the extent that Cascella is challenging the use of restraints, Defendant is correct that such a

claim would be barred by the discretionary function exception. See Baer v. United States, 722

F.3d 168, 172 (3d Cir. 2013) (explaining that discretionary function exception eliminates

“jurisdiction for claims based upon the exercise of a discretionary function on the part of any

employee of the government”) (citing 28 U.S.C. § 2680(a)). BOP regulations clearly authorize

(but do not mandate) the application of restraints when an inmate attempts suicide or inflicts

injury upon himself. See U.S. DEP’T OF JUSTICE, FED. BUREAU OF PRISONS, Program Statement

P5566.06 Use of Force & Application of Restraints § 1(c), (d) (2005); see also 28 C.F.R. §

552.20(c), (d). And these types of disciplinary and inmate-protection decisions are clearly “the

kind that the discretionary function exception was designed to shield.” Baer, 722 F.3d at 172

(citation omitted). “[I]f a regulation allows the employee discretion, the very existence of the

regulation creates a strong presumption that a discretionary act authorized by the regulation

involves consideration of the same policies which led to the promulgation of the regulations.”

Id. at 172-73 (quoting United States v. Gaubert, 499 U.S. 315, 324 (1991)).

Opinion, there were disagreements between the parties as to the type of negligence

claims involved and there remains an unresolved jurisdictional issue concerning

administrative exhaustion. Thus, the Court would be remiss to address a Rule 56

motion challenging the merits of Cascella’s claims without first resolving the

jurisdictional issues and granting Cascella adequate time and opportunity to engage

in discovery.56 Therefore, the Court will dismiss Defendant’s Rule 56 motion

without prejudice to Defendant’s right to refile said motion at the appropriate time.

IV. CONCLUSION

Based on the foregoing, the Court will grant in part and deny in part

Defendant’s motion to dismiss and will deny without prejudice Defendant’s

motion for summary judgment. Cascella will be given an opportunity to establish

jurisdiction for his FTCA claims, as more fully explained above. An appropriate

Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge

56 See Doe v. Abington Friends Sch., 480 F.3d 252, 256-57 (3d Cir. 2007) (explaining that courts

must provide adequate time to obtain discovery to oppose a Rule 56 motion, since “by its very

nature, the summary judgment process presupposes the existence of an adequate record”).