Holton

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

RUBEN C. HOLTON, : No. 4:22-CV-70

Plaintiff (Saporito, J.)

Vv. (Caraballo, M.J.)

UNITED STATES OF

AMERICA, :

Defendant

REPORT AND RECOMMENDATION

I. Introduction

On January 13, 2022, plaintiff Ruben Holton, a former federal

inmate previously housed at Federal Correctional Institution,

Schuylkill “FCI Schuylkill”), proceeding pro se, initiated this action

pursuant to the Federal Tort Claims Act (“FTCA”) against the United

States of America and three of its employees, alleging tort injuries

relating to medical treatment he received at FCI Schuylkill. Doc. 1. On

March 11, 2025, the Court dismissed all but two of Holton’s claims

against the sole remaining defendant, the United States. Doc. 53. Those

two claims allege that the United States was negligent, both

professionally and ordinarily, in its treatment of Holton in February

2021 and thereafter, after he complained of Coronavirus disease 2019

“COVID-19”) symptoms, and eventually tested positive for COVID-19.

Doc. 1 at 2-5.

The Court has federal question jurisdiction, pursuant to 28 U.S.C.

§ 1831. On July 25, 2025, the United States moved for summary

judgment on both claims. Doc. 5. The motion is now fully briefed and

ripe for decision, and was referred to the undersigned to issue the

instant Report and Recommendation, pursuant to 28 U.S.C. § 636. As

set forth below, the undisputed material facts show that Holton cannot

establish certain elements of his claims. Accordingly, the undersigned

recommends granting the United States’ motion for summary judgment

and dismissing the remaining claims with prejudice.

II. Background

A. Relevant Procedural History

Holton was an inmate at FCI Schuylkill from March of 2018 to

September 22, 2022. Doc. 33 at 3; Doc. 59 at 2. The facts underlying this

action occurred “over a twenty-one day period in February and March of

2021. During this period, Plaintiff contracted Covid-19, and allegedly

received inadequate treatment.” Doc. 38 at 5.

Holton filed his operative complaint on January 13, 2022. Doc. 1.

In addition to asserting professional and ordinary negligence claims

against the United States, the complaint originally asserted claims

against Bret Brosious, Ellen Liebson-Mace, and Mary Spiese, all of

whom were medical professionals employed at FCI Schuylkill who

treated Holton during February and March of 2021. Id. at 1—5.

The United States moved to dismiss the complaint on February 6,

2028. Doc. 24. In its motion, the United States contended that Holton

failed to file a certificate of merit as required under Pennsylvania law,

and thus failed to state a medical negligence claim, and that the Court

lacked subject matter jurisdiction. Doc. 25 at 5-12,

In a Report and Recommendation filed on August 31, 2023, the

Honorable William I. Arbuckle recommended that the Court deny the

United States’ motion. Doc. 33. Specifically, Judge Arbuckle concluded

that the Court had subject matter jurisdiction over Holton’s claims, and

that Holton was not required to file a certificate of merit. Jd. at 19-24.

He likewise concluded that, in addition to a medical negligence claim,

Holton also advanced an ordinary negligence claim. Id. at 23-25.

Finally, Judge Arbuckle recommended sua sponte dismissal of

defendants Brosious, Liebson-Mace, and Spiese, because they were not

proper parties under the FTCA. Doc. 33 at 25-26. On September 25,

2023, the Court adopted the Report and Recommendation and

dismissed Brosious, Liebson-Mace, and Spiese from the action, but

denied the United States’ motion in all other respects. Doc. 34 at 2-4.

The United States answered the complaint on October 238, 2023.

Doc. 37. On November 16, 2028, the United States moved for judgment

on the pleadings. Doc. 40. In its motion, the United States contended

that Holton’s allegations were insufficient to plead all four required

elements of a negligence claim: duty, breach, causation, and injury. Doe. □

41 at 5. The United States specifically contended that “Holton has not

alleged facts establishing a causal connection between the BOP’s failure

to administer COVID-19 tests on the one hand, and Holton’s exposure

to and contraction of COVID-19 on the other hand.” Jd.

In a Report and Recommendation filed on October 28, 2024, Judge

Arbuckle recommended that the Court deny the United States’ motion.

Doc. 50. Judge Arbuckle concluded that the United States misconstrued

Holton as asserting an ordinary negligence claim for failure to

administer COVID-19 tests, when Holton actually asserted a medical

malpractice claim for such a failure. Id. at 14-15. Judge Arbuckle

further concluded that the United States only addressed the injuries

Holton allegedly suffered as a result of contracting COVID-19, and not

the additional lingering and permanent injuries Holton allegedly

suffered after contracting COVID-19. Id. at 16-17.

On March 11, 2025, the Court adopted the Report and

Recommendation as modified. Doc. 58. Specifically, the Court dismissed

those portions of Holton’s claims alleging that his contraction of

COVID-19 constituted an actionable injury, but declined to dismiss the

allegations that he suffered injury from the development of prolonged

and lingering COVID-19 symptoms. Doc. 52 at 14—25; Doc. 53 at 1. In

addressing the claimed long-term injuries, the Court concluded that

Holton “has pled sufficient facts to support his ordinary and

professional negligence claims for his prolonged and permanent COVID-

19 symptoms, and thus, we will deny the defendant’s motion for

judgment on the pleadings on this claim.” Doc. 52 at 24. The Court

emphasized that its ruling was premised solely on the allegations in the

pleadings, noting that “[t]his holding, however, does not excuse the

plaintiffs burden in proving the requisite elements of a medical

malpractice claim, including potential testimony from a medical expert

to prevail on that claim. ... Our holding, however, does not impact the

potential viability of the defendant’s contention that the plaintiff needs

to present expert testimony to ultimately prevail on his claim.” Id. at

24, n.9.

That historical litigation left Holton with two remaining claims

now before the Court. First, in his professional negligence claim,

commonly referred to as a medical malpractice claim, Holton alleges

that FCI Schuylkill medical professionals had a duty to follow

“generally accepted medical standards.” Doc. 52 at 22; Doc. 1 at 5. He

alleges that FCI Schuylkill medical professionals breached this duty

when, during two medical visits on February 22 and 23, 2021, they

failed to test him for COVID-19 after he complained of COVID-19

symptoms, and that this increased his risk of developing permanent

and prolonged COVID-19 symptoms, which he subsequently developed.

Id. at 3-5; Doc. 52 at 23.

Second, in his ordinary negligence claim, Holton alleges that FCI

Schuylkill medical professionals had a duty to provide him with

“suitable quarters and provide for” his “safekeeping [and] car[e],”

pursuant to Title 18, United States Code, Section 4042. Doc. 52 at 22;

Doc. 1 at 5. He alleges that FCI Schuylkill medical professionals

breached this duty when, during two medical visits on February 22 and

23, 2021, and during Holton’s quarantine after testing positive for

COVID-19 from March 3 to March 15, 2021, they failed to “properly and

satisfactorily look into [] [his] complaint of Chest Pain/Difficulty

Breathing,” and that this increased his risk of developing permanent

and prolonged COVID-19 symptoms, which he subsequently developed.

Id. at 38-5; Doc. 52 at 28.

On July 25, 2025, the United States moved for summary judgment

on these claims, and concurrently filed a statement of material facts.

Doc. 58. In its motion, the United States contends that summary

judgment should be granted in its favor on the professional negligence

claim, because Holton cannot make a prima facie showing of medical

malpractice without expert testimony. Doc. 60 at 10-12. For both the

professional negligence and ordinary negligence claims, the United

States contends that Holton cannot, on the record, establish breach of

any duty of care, or that any breach caused his lingering symptoms. Id.

at 12-15.

Holton filed a timely opposition, albeit without a counter

statement of material facts, on August 20, 2025. Doc. 61. In his

opposition, Holton counters that he has “successfully pled adequate

facts to show a nexus between his lingering & permanent symptoms of

COVID-19 and the Defendants alleged breaches.” Doc. 61-1 at 3. He

also avers that he can “make a Prima Facie showing of Medical

Malpractice without an expert.” Id.!

B. Factual Background

Concurrent with its motion for summary judgment, and pursuant

to Local Rule 56.1, the United States filed a statement of material facts

with supporting exhibits. Docs. 58, 59. As detailed above, Holton has

not submitted his own counterstatement of material facts. Holton has,

however, attempted to oppose some of the United States’ factual

averments in his brief.

1 Holton has a second, similar FTCA action pending before the Court. See Holton v.

United States, No. 4:22-CV-487 (M.D. Pa. 2022). In that action, Holton asserts

claims for ordinary and professional negligence based upon allegations that

“medical professionals at FCI Schuylkill responded negligently to a variety of

medical issues for which he sought treatment.” Id. (Doc. 62 at 1). The United States

also filed a pending motion for summary judgment in that action, where, as here,

they contend that Holton failed to produce medical expert testimony, and that the

evidence does not establish breach and causation. Jd. (Doc. 51 at 10-31).

In this regard, Holton avers that, contrary to the United States’

statement of facts, he “was Symptomatic during his March 2, 2021

COVID-19 Infection and was not checked on regularly during his time

in isolation. Plaintiff also didn’t have Minimal bibasilar March 2, 2021

COVID-19 infection.” Doc. 61-1 at 2 (errors in original) (internal citation

omitted). Moreover, Holton disputes the United States’ characterization

of some of his medical records, contending that while an expert report

generated by the United States claims that he “did not report hallmark

symptoms such as fatigue, cognitive dysfunction etc.,” his records show

that he did report these symptoms. Jd. at 3. Finally, Holton also

contests the expert report's conclusion that his respiratory “complaints

may be confounded by his chronic asthma & tobacco use,” saying that

he never smoked a day in his life and that one of his clinical records

from his time at FCI Schuylkill shows that, regarding his breathing

problems, medical staff said, “recovery from Covid may take some time.”

Id. at 3-4.

This submission, however, is procedurally defective, because

litigants who oppose a motion for summary judgment must submit their

own statement of facts that responds directly and correspondingly to

the movant’s statement of facts. M.D. Pa. L.R. 56.1. In the absence of

such opposition, “[a]ll material facts set forth in the statement required

to be served by the moving party will be deemed to be admitted ....” Id.

Furthermore, pro se litigants are required to follow the local rules

equally with all other litigants. See Vogt v. Wetzel, 8 F.4th 182, 185 (8d

Cir. 2021) (pro se litigants “cannot flout procedural rules—they must

abide by the same rules that apply to all other litigants.”) (quoting Mala

v. Crown Bay Marina, Inc., 704 F.3d 239, 244—45 (8d Cir. 2018)).

Accordingly, as Holton did not avail himself of the opportunity to

submit a complete counterstatement of facts, those portions of the

United States’ statement of material facts and its accompanying

exhibits that Holton did not directly refute are deemed unopposed and

admitted. See Liberty Bell Bank v. Rogers, 726 F. App’x 147, 150—51 (3d

Cir. 2018) (“Because [the defendant] neglected to file a responsive

statement of material facts, the District Court was entitled to deem the

statement of facts as admitted.”); Krushin v. Wolff, 2023 WL 2472601,

at *2—3 (M.D. Pa. 2023) (deeming the accompanying statement of facts

admitted under Local Rule 56.1, for defendant’s failure to respond).

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As set forth in the United States’ statement of material facts and

its accompanying exhibits, prior to February of 2021 and since at least

2012, Holton underwent treatment for asthma. He likewise received

treatment for an anxiety disorder since at least 2020. Doc. 59-3 at 31;

59-4 at 35-40, 48-50, 84-86, 138, 140-41, 146-47, 150, 152, 156.

Additionally, the medical records submitted by the United States show

that Holton was treated on numerous occasions during 2020 for various

physical symptoms with a suspected connection to one or both of those

underlying conditions. Jd. at 146 (“Inmate Holton reported again that

he is ‘really not feeling good, and endorsed various physical symptoms

of anxiety, to include digestive problems/stomach upset, headaches, and

muscle pain/tension. ... [After consultation with Holton’s other

physician,] [s]he reported he has been examined on numerous occasions,

and has continued to endorse additional symptoms, without apparent

medical basis for these concerns.”).

On March 17, 2020, while in Bureau of Prisons (“BOP”) custody,

Holton presented to sick call complaining of shortness of breath,

headache, coughing, and diarrhea. BOP medical staff made normal

examination findings, noting that Holton was not “acutely ill and in no

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acute distress at this time[.]’ Id. at 983-94. Holton returned to sick call

on March 25, 2020, again complaining of shortness of breath and chest

tightening, but reporting that his albuterol inhaler relieved his

symptoms. Jd. at 89. Staff noted no acute distress or illness and

reinforced to Holton the importance of “proper inhaler use.” Jd. at 91.

Holton returned to sick call on June 30, 2020, again complaining

of ear pain spreading to his jaw, neck, and sinuses. Id. at 73. Staff

examined him and noted that his ear drums were “intact, bulging, air

bubbles observed behind membrane” but that there was “[n]o obvious

swelling, drainage, or erythema on section, not warm to touch.” Staff

also confirmed that “hearing appears intact.” Id. at 75. Staff prescribed

antibiotics and ordered an X-ray “to evaluate for mastoid pain.” Staff

otherwise recommended over-the-counter medications. Doc. 59-4 at 75.

Holton returned to sick call on September 16, 2020, where he

reported complaints of nausea and chest pain. He reported that “[h]e

doesn’t want to go to work today because of his symptoms, and he also

states that he hasn’t had a day off yet this week.” Id. at 41. His

examination revealed no abnormal findings. Jd. at 39. Holton returned

to sick call the next day, September 17, 2020. Id. at 35. He complained

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of chest pain, breathing problems, ear pain, stomach cramps, and other

symptoms. Medical staff reminded Holton “that he ha[d] been seen for

many of these complaints in HSU a number of times over the past

year|.]” Jd. His physician explained to Holton that his anxiety “can often

cause symptoms similar to what he listed” and encouraged him to take

his anxiety medication. Id. at 39.

On September 18, 2020, Holton had a psychiatric session where he

“endorsed various physical symptoms of anxiety, to include digestive

problems/stomach upset, headaches, and muscle pain/tension.” Id. at

146. Psychiatry staff described Holton’s presentation as “dysphoric” and

noted that “inmate Holton appeared to be actively exaggerating

symptoms, to include rubbing his eyes as though his vision was affected,

rubbing his face/holding his head, tapping his ear as if he was having

difficulty with his hearing/popping his ear, and at times rocking lightly

in his chair as he described symptoms.” Doc. 59-4 at 146. Prior notes

taken by psychiatry staff on September 11, 2020, contained similar

findings to those on September 18, stating that Holton “[d]emonstrates

anxiety symptoms, evidence by physical symptoms of panic (e.g. racing

heart, tight chest), worry, feelings for foreboding, and significant sleep

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disturbances (e.g. nightmares, sleep paralysis, hypnogogic/hypnopompic

hallucinations).” Jd. at 151.

Holton presented again to sick call on October 8, 2020. Id. at 28.

He complained of head and earaches. Jd. Holton’s evaluation revealed

nothing abnormal. Jd. at 30. Medical staff recommended acetaminophen

for pain and Nasacort and Claritin for his sinus discomfort. Id.

Holton made an urgent visit to sick call on November 23, 2020,

complaining of intense chest pain. Jd. at 9-13. Medical staff performed

an EKG on Holton, during which he “appeared in no acute distress... .”

Doc. 59-4 at 11. The EKG revealed no abnormalities. Jd. Holton

presented to sick call again on November 29, 2020, with continued

complaints of chest pain. Id. at 5. Medical staff performed another EKG,

which again revealed normal findings. Jd. at 6. Holton’s vitals were also

normal. Jd. Nonetheless, the BOP sent Holton to an outside emergency

room for further evaluation. Id. At the hospital Holton reported “left

sided chest pain” that “is stabbing and aching in nature.” Id. at 165. An

EKG performed there was “normal.” Doc. 59-4 at 166. Imaging studies

performed at the hospital revealed “no specific evidence of active

disease in the chest.” Jd. at 173.

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On December 14, 2020, the BOP collected a specimen to test

Holton for COVID-19, the results of which were negative. Id. at 160.

This appears to be the first instance in the medical records in which

Holton was tested for COVID-19.

In February 2021, Holton presented twice to sick call complaining

of chest pain and breathing issues. These two visits form the factual

core of Holton’s claims. First, on February 22, 2021, Holton complained

about “the same chest pain he was having before when he went to the

hospital in November[]” 2020. Doc. 59-5 at 105. Medical staff reviewed

those November hospital records with Holton, noting that the hospital

found his chest pain to be musculoskeletal and that his EKG findings

were normal. Jd. For reasons that are unclear, Holton terminated this

encounter before undergoing an examination or receiving any additional

treatment. Id. The following day, February 23, 2021, Holton returned to

sick call and complained of chest pain and difficulty breathing,

explaining to staff that his “symptoms are the same as they always

are.” Id. at 103. Staff performed a general exam and an EKG, both of

which showed no abnormalities. Jd. at 1038-04, 228. Holton was

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discharged and told to return as needed and if his condition worsens. Id.

at 104.

On March 3, 2021, the BOP tested Holton for COVID-19 because

he was identified as a close contact with another inmate who had tested

positive. Doc. 59-5 at 90. Despite Holton being asymptomatic, the test

results came back positive. Id. As noted above, Holton refutes that

characterization, claiming that he was symptomatic during the March

3, 2021, visit, but the medical records he offers in support of this

assertion do not corroborate his claim. Doc. 61-2 at 1-5. Holton was

then placed in isolation and prescribed acetaminophen. Id. at 91.

Although Holton avers that he was not checked on regularly while

in isolation, Doc. 61-1 at 2, the evidence offered by the United States

shows that FCI Schuylkill medical staff monitored Holton and took his

temperature several times over the ensuing days. Id. at 116. On March

8, 2021, Holton first reported intermittent shortness of breath and a

non-productive cough. Id. at 87. He denied fever and chest pain and had

no additional complaints. Jd. Upon examination, Holton’s blood oxygen

was normal, he was alert and oriented, and his lungs sounded clear

bilaterally. Id. Over the next week, medical staff followed up with

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Holton several times and noted that he was asymptomatic, leading to

his release from isolation thereafter. Id. at 116.

Over the remainder of 2021, FCI Schuylkill medical professionals

examined Holton several times. Across these visits, Holton complained

of various symptoms, including breathing problems, eye problems, chest

pain, diarrhea, dizziness, rapid heartbeat, sleep disturbances, and joint

instability. Doc. 59-5 at 49-53, 55-59, 64, 73-75, 82-85, 153. As general

examinations performed at these visits failed to corroborate the alleged

severity of Holton’s symptoms, he was discharged with instructions to

manage his pain and without issue each time. Jd. Throughout this

period, medical records show that Holton continued to be treated for

anxiety and asthma. Jd. at 10—11, 18, 39, 59, 85, 149, 160, 192.

On February 8, 2022, Holton underwent an abdominal and pelvic

computed tomography scan. Among other things, it revealed “small

bilateral pleural effusions” (fluid in lungs) and “[m]inimal bibasilar

atelectasis” (collapsed lung). Doc. 59-6 at 154-55, 164-65, 172-73.

Holton was infected with COVID-19 a second time on July 26, 2022, and

recovered within ten days without developing any significant

symptoms. Id. at 10, 90.

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On May 19, 2025, the United States deposed Holton. Doc. 59-3 at

1. In in his deposition, Holton clarified that the “pain of mind and body”

COVID-19 injuries he referenced in his complaint referred to partially

collapsed lungs with fluid buildup, asthma, deteriorating eyesight, and

“mental strain’—1.e., worsening depression, anxiety, and sleep

disturbances. Doc. 59-3 at 14-16, 21. Holton also confirmed that he was

originally diagnosed with asthma around 2012, and acknowledged that

no medical professional has ever attributed his anxiety or vision

problems to his 2021 COVID-19 infection. Id. at 31, 35-36. Holton

testified that his vision problems were caused by his COVID-19

infection because his vision “started getting blurred after” it, and he

claimed that “Dr. Bybel” at FCI Schuylkill explained that his collapsed

lung was a byproduct of his COVID-19 infection. Jd. at 17—20. Finally,

Holton claimed that a surgeon who operated on him for a hernia

recommended in December of 2021 that he be put on “some water pills”

for the fluid buildup in his lungs. Jd. at 24—25.

On June 24, 2025, defense expert Kenneth Rictor, M.D., generated

a report premised on his review of Holton’s medical records, allegations,

and deposition testimony. Doc. 59-8 at 2. In his report, Dr. Rictor

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concluded that clinical records showed that Holton’s alleged injuries did

not “align with the typical diagnostic framework for Long COVID.” Id.

at 14. As explained by Dr. Rictor, the typical diagnostic framework of

Long COVID includes symptoms such as fatigue, dyspnea or shortness

of breath, chest pain or palpitations, sleep disorders, cognitive

disturbances known under the umbrella term “brain fog,” anxiety or

depression, myalgias or joint pain, and autonomic dysfunctions such as

postural tachycardia syndrome. Id. at 10-12.

Dr. Rictor found Holton’s alleged injuries inconsistent with the

above symptoms, saying that

The delayed findings of a partially collapsed lung and pleural

effusion nearly a year after infection are not consistent with

common pulmonary sequelae observed in Long COVID, which

tend to manifest within 3-6 months post-infection and are

often preceded by severe or hospitalized illness. Furthermore,

his pre-existing diagnosis of asthma, history of anxiety, and

age-related visual changes are more plausible explanations

for the symptoms he attributes to Long COVID.

The symptoms Mr. Holton later attributed to long COVID—

specifically a partially collapsed lung, pleural fluid, poor

eyesight, and ‘mental strain’—do not match the most common

or clinically accepted long COVID presentations. His asthma

was pre-existing, and the 2022 CT findings do not temporally

correlate with his 2021 COVID-19 illness. There is no

longitudinal clinical evidence linking these pulmonary

findings to sequelae of COVID-19.

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Id. at 14.

Thus, Dr. Rictor ultimately concluded that “the available scientific

and clinical data support the conclusion that Mr. Holton’s complaints

are unrelated to COVID-19 and attributable to baseline comorbid

conditions such as asthma or anxiety, and not representative of long

COVID syndrome.” Id. at 15. Continuing his analysis, Dr. Rictor further

concluded that, contrary to Holton’s allegations,

The Bureau of Prisons met the standard of care in diagnosing

and managing Mr. Holton’s COVID-19 infection in early 2021.

Available treatment options were provided, and his symptoms

remained mild. No therapies known to reduce long COVID

risk were omitted. His later complaints, reviewed above, are

not medically attributable to the COVID infection based on

current evidence. Therefore, there is no clinical basis to

conclude a causal link between the 2021 COVID-19 infection

and his reported lingering symptoms.

Mr. Holton’s mild COVID-19 illness in March 2021 was

managed appropriately according to national standards. His

post-illness complaints do not conform to long COVID criteria,

and no medical evidence establishes a probable causal link

between his 2021 COVID-19 infection and later symptoms

such as partial lung collapse, poor eyesight, or anxiety.

Therefore, it is my opinion, to a reasonable degree of medical

certainty, that:

1. The BOP met the standard of care in evaluating and

managing Mr. Holton’s COVID-19 infection.

2. No viable therapeutic options were omitted that could have

altered the course of his illness.

3. Mr. Holton does not exhibit clinical evidence of long COVID.

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4. His reported ongoing symptoms are more likely

attributable to chronic co-morbidities or unrelated conditions

rather than sequelae of COVID-19.

Id. at 18. Holton does not offer any rebuttal expert report.

III. Discussion

A. Motion for Summary Judgment Standard

Summary judgment is appropriate only when record materials,

including but not limited to, “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.”

Wishkin v. Potter, 476 F.3d 180, 184 (8d Cir. 2007); Fed. R. Civ. P. 56(a),

(c)(1)(A). In determining whether a genuine issue of material fact exists,

the court must view the evidence “in the light most favorable to the non-

moving party and must make all reasonable inferences in that party’s

favor.” Wishkin, 476 F.3d at 184.

A factual dispute is genuine “if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a fact is

material only if it “might affect the outcome of the suit under the

21

governing law... Id. But “a complete failure of proof concerning an

essential element of the nonmoving party’s case necessarily renders all

other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986).

The movant “bears the initial responsibility of informing the

district court of the basis for its motion, and identifying those portions

of [the record, including but not limited to] the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the

affidavits, if any, which it believes demonstrate the absence of a

genuine issue of material fact.” Id. “ ‘[T]he non-moving party must

[then] oppose the motion and, in doing so, may not rest upon the mere

allegations or denials of his pleadings’ but, instead, ‘must set forth

specific facts showing that there is a genuine issue for trial. Bare

assertions, conclusory allegations, or suspicions will not suffice.’ ”

Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 288-89 (8d Cir. 2018)

(quoting D.E. v. Cent. Dauphin Sch. Dist., 765 F.3d 260, 268-69 (8d Cir.

2014)).

Even where, as here, the movant argues that the non-movant has

failed to produce sufficient evidence to prevail on a claim at trial, the

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movant must still satisfy the initial burden of informing the court of the

basis for its motion. Celotex Corp., 477 U.S. at 323 (‘[A] party seeking

summary judgment always bears the initial responsibility of informing

the district court of the basis for its motion].]”). This means that

“lw]here the moving party does not have the burden of proof on the

relevant issues,” and they have pinpointed in their motion “deficiencies

in the opponent’s evidence” sufficient to show no reasonable jury could

return a verdict for the non-movant, they are entitled to “judgment as a

matter of law.” Anchorage Assocs. v. Virgin Islands Bd. of Tax Rev., 922

F.2d 168, 175 (8d Cir. 1990).

B. Holton’s Negligence Claims Under the FTCA

As previously construed by the Court, Holton’s complaint

advances claims for medical malpractice and ordinary negligence under

the FTCA. Doc. 1 at 1, 4-5. The FTCA is a limited waiver of sovereign

immunity that authorizes suits against the United States

for injury or loss of property, or personal injury or death

caused by the negligent or wrongful act or omission of any

employee of the United States while acting within the scope

of his office or employment, under circumstances where the

United States, if a private person, would be liable to the

claimant in accordance with the law of the place where the act

or omission occurred.

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28 U.S.C. § 13846(b)(1). Essentially, the FTCA renders the United States

“liable to the same extent as a private party for certain torts committed

by federal employees acting within the scope of their employment.”

United States v. Orleans, 425 U.S. 807, 813 (1976).

The 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 United States in federal

court.” In re Orthopedic Bone Screw Prod. Liab. Litig., 264 F.3d 344,

862 (3d Cir. 2001). As such, FTCA claims require that courts “apply the

law of the state in which the act or omission occurred.” Hodge v. United

States Dep't of Justice, 372 F. App’x 264, 267 (38d Cir. 2010) (citing

Gould Elecs. Inc. v. United States, 220 F.3d 169, 179 (8d Cir. 2000)).

Thus, because the conduct giving rise to Holton’s claims occurred at FCI

Schuylkill, which lies within the Middle District of Pennsylvania,

Pennsylvania state law applies to his claims.

1. Medical Malpractice Claim

The United States seeks summary judgment on Holton’s medical

malpractice claim on the premise that he failed to obtain the expert

testimony necessary to establish a prima facie claim under

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Pennsylvania law. Doc. 60 at 7-10. Holton contends in rebuttal that he

can make a prima facie showing of medical malpractice without an

expert, because “[t]he Court stated in it’s March 11, 2025 decision that,

a reasonable factfinder can find the defendants alleged failure to

‘properly [and] satisfactorily look into [the plaintiff's] complaint of Chest

Pain/Difficulty Breathing’ increased the risk of permanent [and]

prolonged symptoms.” Doc. 61-1 at 3 (errors in original). As the record

confirms that Holton has not produced the requisite expert testimony,

and cannot avail himself of the narrow exception to that requirement,

summary judgment on the professional negligence claim is warranted in

the United States’ favor.

Under Pennsylvania law, medical malpractice, or medical

negligence, is defined as “the unwarranted departure from generally

accepted standards of medical practice resulting in injury to a patient,

including all liability-producing conduct arising from the rendition of

professional medical services.” Toogood v. Owen J. Rogal, D.D.S., P.C.,

824 A.2d 1140, 1145 (Pa. 2008) (citing Hodgson v. Bigelow, 7 A.2d 338

(Pa. 1939)). It is not enough in medical malpractice cases to prove the

existence of an injury. Mitchell v. Shikora, 209 A.3d 307, 315 (Pa. 2019).

25

Rather, for a party to prevail in a medical malpractice action, it must

“establish the defendant owed a duty of care to the plaintiff, that duty .

was breached, the breach resulted in the plaintiffs injury, and the

plaintiff suffered an actual loss or damages.” Merlini ex rel. Merlini v.

Gallitzin Water Auth., 980 A.2d. 502, 506 (Pa. 2009) (citing Martin v.

Evans, 711 A.2d 458, 461 (Pa. 1998)). Plaintiffs bear the burden of proof

on these elements by a preponderance of the evidence. Rippee v. Grand

Valley Mfg. Co., 762 F.2d 25, 27 (8d Cir. 1985).

Critically, “to state a prima facie case of medical malpractice, a

plaintiff must provide a medical expert who will testify as to the

applicable standard of care (i.e. the duty) that the physician owed the

patient, that the physician breached that standard or duty, and that the

breach was the proximate cause of the harm suffered.” Miville v.

Abington Mem Hosp., 377 F.Supp.2d 488, 490-91 (E.D. Pa. 2005).

Pennsylvania law delineates the necessary qualifications to offer an

opinion as a medical expert in a malpractice action, providing that:

(a) General rule.—No person shall be competent to offer an

expert medical opinion in a medical professional liability

action against a physician unless that person possesses

sufficient education, training, knowledge and experience

to provide credible, competent testimony and fulfills the

26

additional qualifications set forth in this section as

applicable.

(b) Medical testimony.—An expert testifying on a medical

matter, including the standard of care, risks and

alternatives, causation and the nature and extent of the

injury, must meet the following qualifications:

(1)Possess an unrestricted physician’s license to practice

medicine in any state or the District of Columbia.

(2)Be engaged in or retired within the previous five

years from active clinical practice or teaching.

Provided, however, the court may waive the requirements

of this subsection for an expert on a matter other than the

standard of care if the court determines that the expert is

otherwise competent to testify about medical or scientific

issues by virtue of education, training or experience.

40 P.S. § 138038.512.

“The only exception to the requirement of expert testimony in

medical malpractice cases applies where the matter is so simple or the

lack of skill or care is so obvious as to be within the range of experience

and comprehension of even non-professional persons.” Miville, 377 F.

Supp. 2d at 491 n.2 (citing Hightower-Warren v. Silk, 698 A.2d 52, 54

n.1 (Pa. 1997)). This “very narrow exception” only applies, however,

“when the physician’s failure is clear even to a non-professional[,|”

meaning that the conduct and harm at issue must be so egregious that

they fall well outside the bounds of “a simple mistake of judgment,

27

failure of treatment, or an accidental occurrence.” Brown v. Hahnemann

Univ. Hosp., 20 F. Supp. 38d 538, 542-43 (E.D. Pa. 2014).

As previously construed by the Court, Holton’s medical

malpractice claim is premised on the contention that the medical

professionals at FCI Schuylkill owed Holton a duty to abide by

“senerally accepted medical standards.” Doc. 1 at 5; Doc. 52 at 6, 28. He

avers that this duty was breached when medical professionals at FCI

Schuylkill failed to test him for COVID-19 during his two medical visits

on February 22 and February 28, 2021, when he complained of COVID-

19 symptoms. Id.; Doc. 1 at 3-5. Holton, moreover, alleges that this

purported breach increased his risk of developing lingering and

permanent COVID-19 symptoms, which he claims he later developed.

Id. at 5; Doc. 52 at 28.

A review of the nature of Holton’s claim, coupled with the evidence

of record, concludes that the testimony of a medical expert is necessary

here to determine the precise contours of the alleged breach and

purported causation. The evidence shows that FCI Schuylkill medical

professionals rendered medical treatment to Holton on the dates in

question, see Doc. 59-5 at 103—05, and therefore, that they owed Holton

28

a duty of care to adhere to acceptable professional medical standards.

See Iwanejko v. Cohen & Grigsby, P.C., 249 F. App’x. 938, 944 (8d Cir.

2007) (concluding that, where medical treatment has been rendered,

medical malpractice claims ask whether that treatment “violated

acceptable professional standards|[.]”) (quotations omitted).

By contrast, the record is devoid of competent evidence

establishing that these medical professionals breached acceptable

professional medical standards by not testing Holton for COVID-19. A

review of Holton’s deposition reveals that he made a single potential

reference to an alleged breach of the duty of care owed to him by FCI

Schuylkill’s medical professionals, testifying that he suffered mental

strain as a result of “[p]retty much the things that I went through when

I had COVID, far as, like not getting the adequate treatment that I may

have thought I deserved.” Doc. 59-3 at 21. It is unclear whether that

testimony specifically referenced Holton’s medical visits in February

2021, or whether the treatment sought was a COVID-19 test.

Even construing that testimony in Holton’s favor, however, no

expert opinion in the record supports his contention that failing to test

him for COVID-19 was a breach of a professional duty. Moreover,

29

Holton’s testimony alone is insufficient to create a genuine, material

factual dispute, because he does not possess the qualifications necessary

under Pennsylvania law to testify before a factfinder on the subjects of

professional medical duty and breach. See Maresca v. Mancall, 135 F.

App’x. 529, 531 (8d Cir. 2005) (“In the absence of such [expert]

testimony, the District Court was bound to grant judgment as a matter

of law in the Defendants’ favor.”); 40 P.S. § 18038.512.

Furthermore, the expert testimony exception does not apply here,

because “the conduct at issue constituted an integral part of rendering

medical treatment, and involved” complicated, multi-faceted medical

questions involving “diagnosis, care, and treatment by a licensed

professional|.]” Paige v. Holizapple, 2009 WL 2588849, at *4 (M.D. Pa.

2009). Thus, to avoid a factfinder employing “conjecture, surmise[,] or

speculation” to determine if the conduct at issue breached a professional

medical duty, Toogood, 824 A.2d at 1145, Holton was required to

produce his own supporting expert testimony. His failure to do so

precludes him from succeeding on his medical negligence claim. See

Maresca, 135 F. App’x. at 531 (“In the absence of such [expert]

30

testimony, the District Court was bound to grant judgment as a matter

of law in the Defendants’ favor.”); 40 P.S. § 1803.512.

Even if a material issue existed for breach, Holton’s medical

malpractice claim would not survive summary judgment on causation.

The record is devoid of competent evidence establishing that FCI

Schuylkill medical professionals’ failure to test Holton for COVID-19 in

February 2021 caused his alleged lingering injuries. Rather, the only

competent evidence in the record on the subject of causation lies in the

expert report authored by Dr. Rictor on behalf of the United States.

Dr. Rictor’s expert report refuted the allegations of causation in

Holton complaint, opining that “[t]he symptoms Mr. Holton later

attributed to long COVID—specifically a partially collapsed lung,

pleural fluid, poor eyesight, and ‘mental strain—do not match the most

common or clinically accepted long COVID presentations.” Doc. 59-8 at

14. Rather, Dr. Rictor found that “[Holton’s] pre-existing diagnosis of

asthma, history of anxiety, and age-related visual changes are more

plausible explanations for the symptoms... .” Id. Dr. Rictor thus

concluded that, “no medical evidence establishes a probable causal link

between [Holton’s] 2021 COVID-19 infection and later symptoms such

31

as partial lung collapse, poor eyesight, or anxiety[,]” and “to a

reasonable degree of medical certainty, that” “[Holton’s] reported

ongoing symptoms are more likely attributable to chronic co-morbidities

or unrelated conditions rather than sequelae of COVID-19.” Jd. at 18.

The competing evidence in the record arises from Holton’s

deposition testimony and record evidence that he highlights. Holton

testified that “Dr. Bybel” at FCI Schuylkill explained that his collapsed

lung was a byproduct of his COVID-19 infection. Doc. 59-3 at 17-20.

Holton, however, does not offer any testimony from Dr. Bybel. Thus,

Holton’s testimonial statement that Dr. Bybel explained that Holton’s

collapsed lung was a byproduct of his COVID-19 infection is not

competent evidence of causation. As Holton would need to offer this out-

of-court statement into evidence at trial to “prove the truth of the”

causal matter it asserts, and because Dr. Bybel is the declarant, the

statement is hearsay under Fed. R. Evid. 801. Hearsay, cannot be

considered at the summary judgment stage, unless the “nonmoving

party explains that it can be produced in an admissible form at trial.”

Travillion v. Wetzel, 2025 WL 971669, at *3 (8d Cir. 2025) (citing

Fraternal Order of Police, Lodge 1 v. City of Camden, 842 F.3d 231,

32

238-39 (3d Cir. 2016)). Thus, because Holton has failed to explain how

this hearsay statement can be produced in admissible form at trial, it

“may not be considered for purposes of summary judgment.” Smith v.

City of Allentown, 589 F.3d 684, 693 (8d Cir. 2009).

Holton also testified that COVID-19 caused his vision problems,

because his vision “started getting blurred after” his COVID-19

infection. Doc. 59-3 at 17—20. He further cites portions of the record that

the undersigned construes as attempts to refute Dr. Rictor’s expert

opinion on the issue of causation.

First, Holton disputes Dr. Rictor’s conclusion that medical records

do not show that Holton exhibited hallmark Long COVID symptoms

“such as fatigue, cognitive dysfunction etc.” Doc. 61-1 at 3. In response,

Holton highlights medical records from 2021 that he contends show he

suffered from such hallmark symptoms. Jd. And indeed, a review of the

2021 medical records Holton cites to shows that, in at least one instance

on July 22, 2021, FCI Schuylkill medical staff found that Holton

reported the “hallmark” Long COVID symptom of fatigue. Doc. 61-2 at

23.

33

Second, Holton disputes Dr. Rictor’s conclusion that Holton’s

respiratory “complaints may be confounded by his chronic asthma &

tobacco use.” Doc. 61-1 at 3. Holton counters this conclusion by

asserting that he has “never smoked a day in his life,” and he flags

medical records from 2021 that he contends show that his respiratory

complaints were a result of COVID-19. Jd. Again, a review of these

records shows that, in at least one instance on March 26, 2021, FCI

Schuylkill medical staff noted in an encounter with Holton that he was

“aware that recovery from COVID” and building his respiratory

capacity back up for exercise purposes “may take some time.” Doc. 61-3

at 1.

But neither Holton’s testimony concerning his blurry vision, nor

the medical records he cites, are accompanied by any interpretive

expert testimony that directly refutes Dr. Rictor’s conclusion that

Holton’s injuries were not caused by his COVID-19 infection, as

required under 40 P.S. § 1303.512. Thus, this evidence shows only that

Holton’s vision “started getting blurred” sometime after his COVID-19

infection, and, likewise, that Holton was reported as having fatigue and

a diminished respiratory capacity sometime after his COVID-19

34 □

infection. Even viewed in the light most favorable to Holton, however,

‘this evidence only establishes correlation with Holton’s COVID-19

infection, not that his injuries of a collapsed lung, pleural fluid, poor

eyesight, and ‘mental strain,’ were caused by his COVID-19 infection;

the precise analysis for which expert testimony is required. See

Maresca, 185 F. App’x. at 531. Accordingly, Holton has not “overcome

his own hurdle in order to withstand the motion for summary

judgment.” D.E., 765 F.3d at 268.

Although Holton seeks to survive summary judgment: by

leveraging the Court’s decision on the United States’ motion for

judgment on the pleadings, Doc. 52, that reliance is misplaced.

Claiming that he can make a prima facie showing of medical

malpractice without expert testimony, Doc. 61-1 at 3, Holton cites the

Court’s statement that “a reasonable factfinder could find the

defendant’s alleged failure to properly & satisfactorily look into [the

plaintiff's] complaint of Chest Pain/Difficult Breathing increased the

risk of permanent and prolonged symptoms[,]” and that “[t]he plaintiff

has pled sufficient facts to support his ordinary and professional

negligence claims for his prolonged and permanent COVID-19

35

symptoms[.]” Doc. 52 at 23-24. What Holton overlooks, however, was

the Court’s emphasis that its ruling was premised solely on the

allegations in the pleadings, and forewarning that its “holding .. . does

not excuse the plaintiffs burden in proving the requisite elements of a

medical malpractice claim, including potential testimony from a

medical expert to prevail on that claim... . [and] does not impact the

potential viability of the defendant’s contention that the plaintiff needs

to present expert testimony to ultimately prevail on his claim.” Id. at 24

n.9. Holton fails to carry that burden here, despite having been put on

notice that expert testimony was potentially integral to pursue his

claim past the pleadings stage.

Accordingly, as Holton has not offered any expert evidence to

create a genuine issue of fact concerning his professional negligence

claim, and no reasonable factfinder could find that the United States

committed medical malpractice based on the existing record, summary

judgment is warranted.

2. Ordinary Negligence Claim

The United States requests summary judgment on the grounds

that there is insufficient record evidence to support a finding that its

36

conduct breached an ordinary duty of care. Doc. 60 at 9-18. In the

alternative, the United States avers that Holton cannot establish

through record evidence that any breach caused an increased risk of

long-term COVID-19 complications. Jd. at 13-15. Holton contends in

rebuttal that he has “successfully pled adequate facts to show a nexus

between his lingering [and] permanent symptoms” of COVID-19 and the

United States’ conduct, claiming that “[g]eneral delays in treatment for

illnesses can certainly embody causation for injuries separate from the

illness itself[.]” Doc. 61-1 at 3. As the record evidence does not evince a

disputed issue concerning whether prison staff breached a duty of care,

summary judgment is warranted in the United States’ favor.

Under Pennsylvania law, a plaintiff must prove the following

elements to establish a prima facie claim for negligence: “(1) the

defendant had a duty to conform to a certain standard of conduct; (2)

the defendant breached that duty; (3) such breach caused the harm in

question; and (4) the plaintiff incurred actual loss or damage.” Kreniz v.

Consol. Rail Corp., 910 A.2d 20, 27 (Pa. 2006). The plaintiff bears the

burden of proving these elements by a preponderance of the evidence.

Rippee, 762 F.2d at 27.

37

As previously construed by the Court, Holton’s ordinary

negligence claim is premised on two interrelated contentions. First, that

the staff at FCI Schuylkill owed Holton a duty to provide him with

“suitable quarters [and] provide” for his “safekeeping[] [and] car[e]”

pursuant to 18 U.S.C. § 4042. Doc. 1 at 5; Doc. 52 at 6-7, 23. Second,

that this duty was breached when medical professionals at FCI

Schuylkill allegedly failed to “properly and satisfactorily look into” his

“complaint of Chest Pain/Difficultly Breathing” during his medical

visits on February 22 and 23, 2021, and during his subsequent

quarantine after testing positive for COVID-19 from March 8 to 15 of

2021. Id.; Doc. 1 at 3-5. Holton, moreover, alleges that this purported

breach increased his risk of developing lingering and permanent

COVID-19 symptoms, which he claims he later developed. Jd. at 5; Doc.

52 at 23.

The duty at issue is set by federal statute, which provides that the

United States has a duty to “provide suitable quarters and provide for

the safekeeping, care, and subsistence of all persons charged with or

convicted of offenses against the United States, or held as witnesses or

otherwise].]” 18 U.S.C. § 4042(a)(2). Thus, as a federal prisoner at FCI

38

Schuylkill, the United States owed Holton a duty of “ordinary diligence

to keep [him] safe from harm.” Hossic v. United States, 682 F.Supp. 23,

25 (M.D. Pa. 1987); Balter v. United States, 2014 WL 1865905, at *26

(M.D. Pa. 2014) (“The duty of care as provided by 18 U.S.C. § 4042 is

that of ordinary diligence to keep prisoners safe from harm.”) (internal

quotations omitted).

In his claim, Holton alleges that medical professionals at FCI

Schuylkill breached this duty of ordinary diligence when they failed to

sufficiently evaluate his complaints of chest pain and difficulty

breathing on February 22 and 23, 2021, and during his subsequent

quarantine after testing positive for COVID-19 from March 8 to 15 of

2021. Doc. 1 at 8-5. “Courts of the Third Circuit, in limited

circumstances, have recognized that certain acts or omissions by prison

medical staff can constitute a breach of an ordinary negligence duty.”

Grundowski v. United States, 2012 WL 1721781, at *6 (M.D. Pa. 2012)

(emphasis added). The recognized limited circumstances have included

prison staff failing to treat an inmate’s diabetes, see id. at *10; prison

staff denying an inmate their prescribed medication, see Jones v. United

States, 91 F.3d 628, 625 (8d Cir. 1996); prison staff failing to treat an

39

inmate for dental problems, see Hill v. Lamanna, 2006 WL 2433778, at

*9 (W.D. Pa. 2006); and prison staff failing to schedule an inmate for

necessary medical treatment in a timely fashion, see Aviles v. United

States, 2012 WL 3562370, at *6 (E.D. Pa. 2012). In other words, general

failures to provide or provide access to medical treatment that do not

“involve an issue of medical judgment,” the latter of which lie

appropriately in medical malpractice claims. Grundowski, 2012 WL

1721781, at *6.

A review of the record finds insufficient evidence for a factfinder to

conclude that the United States’ conduct breached its duty under 18

U.S.C. § 4042. Record evidence corroborates Holton’s claim that he was

examined by FCI Schuylkill medical staff on February 22 and 23 of

2021 for both chest pain and difficulty breathing. Doc. 59-5 at 103-05.

Additionally, record evidence confirms that at least once during

Holton’s isolation for COVID-19, he complained to medical staff that he

had intermittent shortness of breath. Id. at 87.

The record also reveals, however, that Holton underwent

examinations for these complaints, except for his February 22, 2021,

visit, when Holton instead elected to terminate the encounter with

40

medical staff before an examination could be conducted. Jd. at 105. The

two examinations that Holton underwent, conducted on February 24,

2021, and March 8, 2021, show that although Holton complained of

difficulties breathing and chest pains, his vital signs were normal, such

as his heart rate, temperature, oxygen saturation level, and his lung

sounds. Id. at 87-88, 1038—04. Furthermore, an electrocardiogram

(“EKG”) taken on February 24, 2021, showed unremarkable findings.

Id. at 104, 228.

Notwithstanding these exam results, Holton contends that staff

should have done more for him, and that their corresponding failure

constitutes breach. In particular, Holton testified that “[p]retty much

the things that I went through when I had COVID, far as, like not

getting the adequate treatment that I may have thought I deserved.”

Doc. 59-3 at 21. Holton does not, however, offer any record evidence,

and the undersigned has not identified any, showing that prison

medical staff failed to provide Holton with medical treatment, or

delayed any necessary medical treatment.

To the contrary, record evidence shows that, on the relevant dates

where Holton complained of chest pain and difficulties breathing,

4]

medical staff, when allowed the opportunity, examined Holton and

treated him for his complaints. Doc. 59-5 at 87-88, 103-04. On

February 22, 2021, when Holton complained about “the same chest pain

he was having before when he went to the hospital in November|]”

2020, medical staff reviewed the hospital records with Holton, noting

that the hospital found his chest pain to be musculoskeletal and that

his EKG findings were normal, before he ended the encounter. Jd. at

105. The following day, when Holton again complained of chest pain

and difficulty breathing, medical staff performed a general exam and an

EKG, both of which showed no abnormalities. Id. at 103—04, 228.

Medical staff thereafter recommended that Holton continue taking his

medications and seek further treatment if his condition worsened. Id. at

88, 104.

Similarly, while Holton remained in quarantine following his

positive COVID-19 test in March 2021, medical staff monitored him and

took his temperature several times over the ensuing days. Doc. 61-1 at

116. On March 8, 2021, when Holton reported intermittent shortness of

breath and a non-productive cough, medical staff conducted an

examination, finding that Holton’s blood oxygen was normal, he was

42

alert and oriented, and his lungs sounded clear bilaterally. Jd. at 87.

Over the next week, medical staff followed up with Holton several times

and noted that he was asymptomatic, leading to his release from

isolation thereafter. Id. at 116.

Nothing in the record evinces any refusal to administer, or delays

in administering medical treatment, and Holton does not identify any

evidence corroborating his claims. Jd. Nor does he explain, through

evidence or otherwise, how the treatment he received was flawed or

delayed, or what additional treatment he should have received, but did

not. At most, Holton offers only his deposition testimony, in which he

claimed that he did not receive “adequate treatment,” and that an

unspecified time, he did not receive “diuretics .. . water pills for the

fluid in the lungs.” Doc. 59-3 at 21, 23. That testimony, bereft of any

corroborating medical records, cannot create a disputed issue of fact in

consideration of the medical evidence provided by the United States

that refutes any claimed breach of duty.

Indeed, Dr. Rictor’s expert report concluded that, even if Holton

had required additional COVID-19 treatment, staff had no ability to

provide it for him, because “[a]s of early 2021, no preventive therapies

48

had been validated to mitigate the risk of Long COVID in asymptomatic

or mild cases. Accordingly, the care provided by the BOP did not deviate

from standard practice... .” Doc. 59-8 at 15.

Here, the evidence of record shows that Holton received consistent

treatment from prison medical staff in response to his complaints.

Although Holton concludes that this treatment was inadequate, the

record contains no evidence corroborating his claims. Holton thus has

failed to demonstrate a disputed issue of material fact concerning

whether the United States breached its duty of care. Accordingly,

summary judgment on Holton’s ordinary negligence claim is warranted

in the United States’ favor.

2 As the undersigned recommends granting summary judgment on the element of

breach, there is no need to address the parties’ contentions concerning causation.

That said, the causation inquiry may well present a disputed issue of fact that

cannot be determined on summary judgment. The United States relies on Dr.

Rictor’s opinion that Holton’s injuries are incompatible with the medical condition

known as Long COVID. Id. at 18-14. The United States also contends that record

evidence evinces that Holton’s preexisting asthma and anxiety are the causes of his

claimed injuries. Jd. at 14-15. In response, Holton offers both his competing

testimony and medical records that show at least potential correlation, if not

causation, between his COVID-19 infections and subsequent symptoms, including

statements from FCI Schuylkill medical staff in March and July of 2021, indicating

that Holton might suffer from Long COVID symptoms. See Doc. 59-3 at 17-20, Doc.

61-1 at 2-4; Doc. 61-2 at 23; Doc. 61-3 at 1. As expert testimony is not required for

an ordinary negligence claim, Holton’s evidentiary showing on causation indicates a

disputed issue of material fact. Jutrowski, 904 F.3d at 289.

44

IV. Recommendation

For the reasons set forth above, it is RECOMMENDED that:

1. The Defendant’s motion for summary judgment (Doc. 58) be

GRANTED, and all remaining claims and defendants be

DISMISSED WITH PREJUDICE; and

2. The Clerk’s Office be DIRECTED to TERMINATE the

United States of America as Defendant and CLOSE this

case.

The parties are further placed on notice that pursuant to Local

Rule 72.3:

Any party may object to a magistrate judge’s proposed

findings, recommendations or report addressing a motion or

matter described in 28 U.S.C. § 636 (b)(1)(B) or making a

recommendation for the disposition of a prisoner case or a

habeas corpus petition within fourteen (14) days after being

served with a copy thereof. Such party shall file with the clerk

of court, and serve on the magistrate judge and all parties,

written objections which shall specifically identify the

portions of the proposed findings, recommendations or report

to which objection is made and the basis for such objections.

The briefing requirements set forth in Local Rule 72.2 shall

apply. A judge shall make a de novo determination of those

portions of the report or specified proposed findings or

recommendations to which objection is made and may accept,

reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge. The judge,

however, need conduct a new hearing only in his or her

discretion or where required by law, and may consider the

45

record developed before the magistrate judge, making his or

her own determination on the basis of that record. The judge

may also receive further evidence, recall witnesses or

recommit the matter to the magistrate judge with

instructions.

M.D. Pa. L. R. 72.8. The failure to file timely objections to the foregoing

Report and Recommendation may constitute a waiver of any appellate

rights. See Nara v. Frank, 488 F.3d 187, 194 (8d Cir. 2007).

Date: February 3, 2026 s/ Phillip J. Caraballo

Phillip J. Caraballo

United States Magistrate Judge

46