Ortiz

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

NATHANIEL ORTIZ, :

Plaintiff : No. 1:23-cv-00203

:

v. : (Judge Kane)

:

UNITED STATES OF AMERICA, et al., :

Defendants :

MEMORANDUM

Currently before the Court is Defendant United States of America (the “Government”)’s

motion for summary judgment on pro se Plaintiff Nathaniel Ortiz (“Ortiz”)’s remaining state-law

claims under the Federal Tort Claims Act (“FTCA”). For the reasons stated below, the Court

will grant the Government’s motion, direct the Clerk of Court to enter judgment in its favor and

against Ortiz on Ortiz’s remaining FTCA claims, and close this case.

I. BACKGROUND

A. Procedural History

Ortiz is a convicted and sentenced federal prisoner currently in the custody of the Federal

Bureau of Prisons (“BOP”) at Federal Correctional Institution Gilmer in West Virginia. See

(Doc. Nos. 1 at 2, 4; 56 at 1). On February 3, 2023, while Ortiz was incarcerated at Federal

Correctional Institution Fort Dix (“FCI Fort Dix”) in New Jersey, he commenced the instant

action by filing a pro se complaint raising state-law claims for failure to supervise, ordinary

negligence, medical malpractice, and negligent infliction of emotional distress (“NIED”) under

the FTCA as well as Eighth Amendment claims under Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388 (1971) for deliberate indifference to his serious

medical needs, all of which related to allegedly inadequate medical care he received while

incarcerated at Federal Correctional Institution Schuylkill (“FCI Schuylkill”) from early 2020

through the middle of 2021. See (id. at 3, 6, 16–18). Ortiz names as Defendants the

Government and the following individuals, all of whom allegedly worked for the BOP during the

events alleged in his complaint: (1) Ian Conners (“Conners”), a National Inmate Appeals

Administrator; (2) Scott Finley (“Finley”), the Warden at FCI Schuylkill; (3) Dr. Ellen Mace-

Leibson (“Dr. Mace-Leibson”), the Clinical Director at FCI Schuylkill; and (4) “John & Jane

Does 1–10, XYZ Corps. 1–10, Comps. 1–10.” See (id. at 2–3). Ortiz initially sought to proceed

in forma pauperis in this case, see (Doc. Nos. 2–3, 6–7); however, he later remitted the filing fee.

See (Doc. No. 9).

On May 18, 2023, the Court issued an Order which, inter alia, (1) deemed Ortiz’s

complaint filed; (2) directed the Clerk of Court to issue a summons and transmit it along with a

copy of the complaint to the United States Marshal for service upon the Government in

accordance with Federal Rule of Civil Procedure 4(i)(1); and (3) directed the Clerk of Court to

serve waiver of service forms and copies of the complaint on Conners, Finley, and Dr. Mace-

Leibson. See (Doc. No. 10 at 1). On July 6, 2023, Defendants requested an extension of time in

which to respond to Ortiz’s complaint (Doc. No. 16), which the Court granted on July 10, 2023

(Doc. No. 17).

Thereafter, on August 16, 2023, Defendants filed a motion to dismiss and/or a motion for

summary judgment, followed by their supporting brief, statement of material facts, and

corresponding exhibits, arguing, inter alia, that the Court should dismiss Ortiz’s claims for lack

of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), dismiss his claims

for failure to state a claim upon which relief can be granted under Federal Rule of Civil

Procedure 12(b)(6), or grant summary judgment in their favor on his claims pursuant to Federal

Rule of Civil Procedure 56. See (Doc. Nos. 19, 24, 25). On October 10, 2023, Ortiz filed a

motion for an extension of time in which to file a brief in opposition to Defendants’ combined

motion (Doc. No. 27), which the Court granted on October 18, 2023 (Doc. No. 28). Ortiz then

timely filed his brief in opposition to Defendants’ combined motion on November 2, 2023.

(Doc. No. 29.) He also filed a request for entry of default against Dr. Mace-Leibson (Doc. No.

30), as well as a motion to strike Defendants’ motion to dismiss and/or motion for summary

judgment, which included a supporting declaration (Doc. No. 31). Following an extension of

time (Doc. Nos. 32, 33), Defendants filed a reply brief addressing Ortiz’s brief in opposition, as

well as his motion to strike and supporting declaration (Doc. No. 34).

On April 15, 2024, the Court issued a Memorandum and Order which, inter alia: (1)

granted Defendants’ Rule 12(b)(1) motion to dismiss Ortiz’s Eighth Amendment Bivens claims

and dismissed those claims for lack of jurisdiction; (2) granted Defendants’ Rule 12(b)(6) motion

to dismiss Ortiz’s failure-to-supervise claim under the FTCA due to his failure to exhaust his

administrative remedies; (3) denied Defendants’ motions as to Ortiz’s negligence, medical

malpractice, and NIED claims under the FTCA; (4) indicated that this case would proceed on

only Ortiz’s FTCA claims for negligence, medical malpractice, and NIED against the

Government;1 (5) directed the Clerk of Court to terminate Conners as a Defendant on the caption

in this case; (6) granted Ortiz’s motion to strike insofar as he sought to proceed to discovery on

his surviving claims under the FTCA; (7) denied Ortiz’s motion to strike as to his Eighth

Amendment Bivens claim; and (8) established deadlines for the Government to file an answer to

Ortiz’s complaint, as well as for the parties to complete discovery and file dispositive motions.

1 Although the Court’s Order also indicated that the FTCA claims would proceed against Finley

and Dr. Mace-Leibson, see (Doc. No. 36 at 1), the “Government is the only proper defendant in a

case brought under the FTCA.” See CNA v. United States, 535 F.3d 132, 138 n.2 (3d Cir. 2008),

as amended (Sept. 29, 2008). Hereinafter, the Court will refer to the Government as the only

remaining Defendant in this case.

See (Doc. Nos. 35, 36). After seeking and receiving an extension of time (Doc. Nos. 37, 38), the

Government filed an answer and affirmative defenses to Ortiz’s complaint on May 8, 2024 (Doc.

39).

Ortiz filed a motion to appoint counsel on September 12, 2024. (Doc. No. 42.) On

January 14, 2025, the Government filed its motion for summary judgment. (Doc. No. 43.) It

later filed a statement of undisputed material facts and a supporting brief on March 7, 2025, and

March 10, 2025, respectively. (Doc. Nos. 49, 51.)

On May 5, 2025, the Court conditionally granted Ortiz’s motion to appoint counsel and

referred this case to Michael A. O’Donnell, Esq., Chair of the Federal Bar Association’s Pro

Bono Committee, to attempt to locate volunteer counsel to represent Ortiz in this case. See

(Doc. No. 53 at 6). The Court also stayed Ortiz’s deadline to respond to the Government’s

motion for summary judgment until Attorney O’Donnell notified the Court about whether

counsel would enter their appearance on Ortiz’s behalf. See (id. at 7).

Attorney O’Donnell notified the Court that he was unable to locate counsel to represent

Ortiz in this case; consequently, the Court issued an Order on September 30, 2025, which lifted

the stay on Ortiz’s deadline to file a response to the Government’s motion for summary

judgment and directed him to file his response within thirty days. See (Doc. No. 55 at 1). On

November 17, 2025, the Court directed the Clerk of Court to resend a copy of the September 30,

2025 Order to Ortiz because it appeared that he was transferred to a different federal prison

shortly after the issuance of that Order. See (Doc. Nos. 58 at 1–2; 57 at 1). The Court also

provided Ortiz with another thirty-day period to file his response to the Government’s motion for

summary judgment. See (Doc. No. 58 at 2).

On November 20, 2025, Ortiz filed a combined motion for an extension of time to file his

response to the motion for summary judgment, and a motion seeking an Order allocating funds to

him so he could hire an expert witness. (Doc. No. 59.) On the same date, the Court issued an

Order denying both motions. (Doc. No. 60.)

Ortiz timely filed a response to the Government’s motion for summary judgment on

December 19, 2025. (Doc. No. 61.) The Government then timely filed a reply brief in further

support of its motion on December 31, 2025 (Doc. No. 62), and Ortiz sought and received leave

to file a sur-reply brief (Doc. Nos. 63, 65), which was docketed on February 3, 2026 (Doc. No.

64). The Government’s motion for summary judgment is ripe for disposition.

B. Allegations in Ortiz’s Complaint

Ortiz was confined at FCI Schuylkill from “at least” January 1, 2020, until January 11,

2022. See (Doc. No. 1 ¶ 3). On or about March 1, 2020, the BOP “engaged in an unprecedented

lock-down [sic] of all federal prisons in light of the then-novel Coronavirus Pandemic that was

gripping the nation.” See (id. ¶ 9). Ortiz alleges that due to the lockdown, the BOP “essentially

ceased” certain health services, such as canceling “proper physical exams, sick call, . . . other on-

site services[, and r]efferals for outside medical services,” because Finley and another individual

“did not want to implement a proper plan to protect these . . . services.” See (id. ¶ 10). For

instance, Ortiz asserts that prior to the pandemic, “an inmate complaining of acute or chronic

injuries or illnesses could report to a daily sick-call where they would be triaged and a human

being would determine if [they] required immediate care or could wait until a reasonably

scheduled appointment could be made.” See (id. ¶ 11). Following the start of the pandemic, and

during the times relevant to this case, “sick call was no longer conducted by the inmate reporting

to sick call[; r]ather, the inmate was required to await medical services personnel to conduct

rounds to their assigned cells.” See (id. ¶ 12). Moreover, Dr. Mace-Leibson determined that

“physical exams were no longer a necessary precursor to a proper medical diagnosis.” See (id.).

During the pandemic, the cells at FCI Schuylkill “remained locked at all times,” and

Ortiz “had no ability to seek out help for the problems he developed.” See (id. ¶ 13). In

addition, when medical services personnel arrived at Ortiz’s cell door, they would not open the

door or conduct a physical exam. See (id.). Instead, they would examine him by “look[ing]

through the small sliver of a window” in the cell door. See (id.).

On or about March 2, 2020, Ortiz informed Dr. Mace-Leibson that he was experiencing

pain and swelling in his left shoulder. See (id. ¶ 15). Dr. Mace-Leibson told Ortiz that “there

was nothing wrong and terminated the encounter.” See (id.). Then, on or about April 30, 2020,

Ortiz reported to “someone whom [sic] appeared to be a nurse or other qualified medical care

provider” a/k/a “Jane Doe #1”, that he had “a large bump on his left shoulder” and had pain in

that area. See (id.). Jane Doe #1 instructed Ortiz to move around his arm and stretch and, after

Ortiz did so, she “informed [him] that there was nothing wrong with his range of motion and

concluded the visit.” See (id. ¶ 16). Jane Doe #1 never physically examined Ortiz or made an

“assessment as to [his] complaint,” and she reported that his complaint was “cosmetic” and did

not require medical intervention by the medical staff. See (id.).

Between April 30, 2020, and May 4, 2020, Ortiz “attempted to acquire [sic] the attention

of any [BOP] employee to report that his shoulder was in extreme pain and that there was a large

bump there.” See (id. ¶ 17). He submitted two “electronic requests to staff requesting medical

care for his shoulder.” See (id.). Since Ortiz did not receive any responses from prison officials,

he then unsuccessfully pursued relief through the BOP’s Administrative Remedy Program

(“ARP”). See (id. ¶¶ 17–23, 26–30; Doc. Nos. 1-1–1-10).

While Ortiz was pursuing relief through the ARP, he reported to prison officials on or

about June 16, 2020, that he was experiencing “unbearable” pain in his shoulder and required

treatment. See (Doc. No. 1 ¶ 24). Ortiz was examined, after which he was informed that “there

was indeed ‘swelling’ and asymmetry” to his left trapezius which was indicative of ‘injury to the

muscle or tendon of the shoulder.’” See (id.). He also was “informed to take ibuprofen that he

could purchase at the commissary for the injury and to ‘massage’ the swelling.” See (id.).

By May 16, 2021, Ortiz’s “situation became dire enough” that he was transported to a

hospital’s emergency room. See (id. ¶ 30). At the time, Ortiz was “no longer able to feel [his]

fingers [in] his left hand, the mass still had not abated from his left shoulder, and he was still

experiencing . . . excruciating pain . . . [in his] shoulder area.” See (id. ¶ 30). During his time in

the emergency room, Ortiz “was given an actual physical examination by a physician,” which

“reveal[ed] that [his] complaints for the previous year and a half were legitimate and explained

all of his symptoms.” See (id. ¶ 31). The physician found that he “had a ‘large mobile, slightly

tender, soft, moveable mass oblong (approx. 10x6 cm) with possible extension or separate small

mass infraclavicular . . . .’” See (id. ¶ 32). The physician also ordered at CT scan with contrast,

which showed that Ortiz “had a large ‘lipomatous mass arising in the upper back and lower neck

within the superficial muscles.’” See (id. ¶¶ 34–35). Based on this scan, the physician

“diagnosed [Ortiz] as having a lipoma (or a fatty benign tumor)[,] . . . recommended that [Ortiz]

and his custodians[] consider surgical referral” as well as “pain medication as needed.” See (id.

¶ 36).

On May 24, 2021, Dr. Mace-Leibson reviewed Ortiz’s emergency room records. See (id.

¶ 37). However, Ortiz then waited “another five months [or approximately twenty months since

he first complained about his shoulder] to have the tumor removed from his body.” See (id.).

On October 8, 2021, a general surgeon removed the lipoma from Ortiz’s “left shoulder, neck,

and back areas.” See (id. ¶ 38).

Ortiz alleges that between May 26, 2021, and January 11, 2022, he raised a claim through

the BOP’s ARP that “he was deprived his rights under the Eighth Amendment for the epic

failures that shadowed [sic] his injuries.” See (id. ¶ 40). He did not receive administrative relief

on his Eighth Amendment claim. See (id.). Ortiz also asserts that he exhausted claims for

monetary damages under the FTCA for negligence, medical malpractice, failure to supervise and

train, and NIED. See (id. ¶ 42).

Due to “the extreme delay in providing [him with] medical care,” Ortiz believes “he

would not have the pain that has persisted since the surgical excision.” See (id. ¶ 39). Ortiz

asserts that he “suffered with despair, hopelessness, melancholy, stress, anxiety, nausea,

headaches, nightmares, [and] depression because he had a reasonable belief that a mass was

growing inside him that was cancerous and that ever [sic] passing day would lead to his death

because nobody would take his complaints seriously” or “provide him with “any diagnosis and

treatment.” See (id. ¶ 41). For relief, Ortiz seeks more than $5 million in compensatory

damages as well as nominal damages and declaratory relief. See (id. at 5).

II. LEGAL STANDARDS

A. Motions for Summary Judgment

The Court must render summary judgment “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” See

Fed. R. Civ. P. 56(a). “[T]his standard provides that the mere existence of some alleged factual

dispute between the parties will not defeat an otherwise properly supported motion for summary

judgment; the requirement is that there be no genuine issue of material fact.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986).

A disputed fact is “material” if proof of its existence or nonexistence would affect the

outcome of the case under applicable substantive law. See id. at 248; Gray v. York Newspapers,

Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). A dispute of material fact is “genuine” if “the

evidence is such that a reasonable jury could return a verdict for the nonmoving party.” See

Anderson, 477 U.S. at 257. When determining whether there is a genuine dispute of material

fact, the Court must view the facts and all reasonable inferences in favor of the nonmoving party.

See id. at 255 (“The evidence of the non-movant is to be believed, and all justifiable inferences

are to be drawn in [their] favor.”).

To avoid summary judgment, the nonmoving party may not rest on the unsubstantiated

allegations of their pleadings. When the party seeking summary judgment satisfies their burden

to demonstrate the absence of a genuine dispute of material fact, the burden of production shifts

to the nonmoving party, who must “go beyond the pleadings” with affidavits, “depositions,

answers to interrogatories, and the like” to show specific material facts giving rise to a genuine

dispute. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); id. at 328 (White, J.,

concurring). The nonmoving party “must do more than simply show that there is some

metaphysical doubt as to the material facts.” See Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586 (1986) (citation omitted). Instead, they must produce evidence to show

the existence of every element essential to their case that they bear the burden of proving at trial,

for “a complete failure of proof concerning an essential element of the nonmoving party’s case

necessarily renders all other facts immaterial.” See Celotex Corp., 477 U.S. at 323; see also

Harter v. GAF Corp., 967 F.2d 846, 852 (3d Cir. 1992) (explaining that since plaintiff had the

burden of proof, “he must make a showing sufficient to establish the existence of every element

essential to his case” (citations omitted)).

As noted supra, when determining whether a dispute of material fact exists, the Court

must consider the evidence in the light most favorable to the non-moving party. See Matsushita

Elec. Indus. Co., 475 U.S. at 588 (citation omitted). In doing so, the Court must “accept the non-

movant’s allegations as true and resolve any conflicts in [their] favor.” See White v.

Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988), abrogated on other grounds by Hazen

Paper Co. v. Biggins, 507 U.S. 604 (1993). However, a party opposing a summary judgment

motion must comply with Local Rule 56.1, which specifically directs the oppositional party to

submit a “statement of the material facts, responding to the numbered paragraphs set forth in the

statement required [to be filed by the movant], as to which it is contended that there exists a

genuine issue to be tried”; if the nonmovant fails to do so, “[a]ll material facts set forth in the

statement required to be served by the moving party will be deemed to be admitted.” See L.R.

56.1. A party cannot evade these litigation responsibilities in this regard simply by citing the fact

that they are a pro se litigant because these rules apply with equal force to all parties. See Mala

v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (noting that pro se parties “cannot

flout procedural rules—they must abide by the same rules that apply to all other litigants”).

Even if the Court deems the facts in the moving party’s submission to be admitted due to

the nonmoving party’s failure to comply with Local Rule 56.1, the Court cannot simply grant the

motion for summary judgment as unopposed. Instead, the Court can only grant the motion if the

Court “find[s] that judgment for the moving party is ‘appropriate.’” See Anchorage Assoc. v.

V.I. Bd. of Tax Rev., 922 F.2d 168, 175 (3d Cir. 1990). The analysis for determining whether

judgment is “appropriate” depends on whether the party moving for summary judgment bears the

“burden of proof on the relevant issues”:

Where the moving party has the burden of proof on the relevant issues, this means

that the district court must determine that the facts specified in or in connection

with the motion entitle the moving party to judgment as a matter of law. Where the

moving party does not have the burden of proof on the relevant issues, this means

that the district court must determine that the deficiencies in the opponent’s

evidence designated in or in connection with the motion entitle the moving party to

judgment as a matter of law.

See id. (citing Celotex Corp., 477 U.S. 317).

B. The FTCA

Generally speaking, “[t]he United States, ‘as a sovereign, is immune from suit unless it

consents to be sued.’” See S.R.P. ex rel. Abunabba v. United States, 676 F.3d 329, 332 (3d Cir.

2012) (“Abunabba”) (quoting Merando v. United States, 517 F.3d 160, 164 (3d Cir. 2008)). The

FTCA, however, 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 Government 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.

See 28 U.S.C. § 1346(b)(1). Accordingly, “[t]he FTCA is a ‘partial abrogation’” of the United

States’ sovereign immunity, see Abunabba, 676 F.3d at 332 (quoting Gotha v. United States, 115

F.3d 176, 179 (3rd Cir. 1997)), because it authorizes suits against the United States for such

negligent or wrongful acts or omissions of federal employees while acting within the scope of

their employment. See 28 U.S.C. § 1346(b)(1); Rinaldi v. United States, 904 F.3d 257, 273 (3d

Cir. 2018) (stating that “[t]he 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” (citations omitted)).

To prove a FTCA claim, a plaintiff must establish six (6) elements:

“‘[(1)] [a claim] against the United States, [(2)] for money damages, . . . [(3)] for

injury or loss of property, or personal injury or death [(4)] caused by the negligent

or wrongful act or omission of any employee of the Government [(5)] while acting

within the scope of [their] office or employment, [(6)] 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.’”

See Brownback v. King, 592 U.S. 209, 212 (2021) (quoting FDIC v. Meyer, 510 U.S. 471, 477

(1994)).

II. DISCUSSION

A. Factual Record2

1. Events Occurring from September 2019 Until the End of 2020

Ortiz was confined at FCI Schuylkill from September 23, 2019, until October 27, 2022.

See (SOF ¶ 5). On February 27, 2020, Ortiz had a preventative health visit with non-party

Registered Medical Assistant (“RMA”) Delong, during which Ortiz reported “issues with [his]

left shoulder” but, according to RMA Delong’s Clinical Encounter report, Ortiz did not report he

was in pain. See (id. ¶ 6; Doc. No. 49-5 at 16). RMA Delong’s assessment of Ortiz was that he

was “well and ha[d] no concerns at th[at] time,” and RMA Delong counseled Ortiz to “[f]ollow

up for sick call as needed, [to] eat[] healthy, [and to] exercise.” See (SOF ¶ 7; Doc. No. 49-5 at

19).

2 Although Ortiz filed a response to the Government’s motion for summary judgment (Doc. No.

61), he did not specifically respond to the Government’s statement of undisputed facts (“SOF”)

as required by Local Rule 56.1. As such, the Court considers the facts in the Government’s SOF

to be undisputed for purposes of resolving its motion. See M.D. Pa. L.R. 56.1 (requiring the

non-moving party to file a “separate, short and concise statement of the material facts,

responding to the numbered paragraphs set forth” in movant’s statement of material facts).

Nevertheless, the Court will also consider the entirety of the record in determining whether

summary judgment is appropriate in this case.

On March 2, 2020, Ortiz reported to Health Services for an evaluation performed by Dr.

Mace-Leibson. See (SOF ¶ 8). Dr. Mace-Leibson’s Clinical Encounter report from this visit

states that Ortiz’s chief complaint was “[b]ack [p]ain” and indicates that:

Pt reports “my trap” as his issue. Pt reports “like that for a year”. Denies any pain

or hx of pain that he remembers “just got like that”. Pt reports exercising regularly

and doing dead lifts. He is most concerned with it being asymmetrical from other

side and wants to “get it fixed”. Says other guys told him it could be fat tumor that

could be cut out.

See (id. ¶¶ 9–11; Doc. No. 49-5 at 12). Dr. Mace-Leibson examined Ortiz, and her post-exam

comments were: “[E]xam of ms is completely uncharged from his OCT [sic] 28, 2019 visit[.

N]o evidence of lipoma, it is shortened ms body c/w old injury (i.e., rupture distal tendon)[.] ms

otherwise well defined and strength is symmetrical and normal b/l and he has obviously been

working out regularly[.]” See (SOF ¶ 12; Doc. No. 49-5 at 14). Dr. Mace-Leibson assessed

Ortiz with “Injury muscle/fascia/tendon at shoulder/uppper [sic] arm, . . . Current – left

trapezius,” informed him to “[f]ollow-up at Sick Call as [n]eeded,” provided him with a “back

care booklet,” “discussed at length” with him about “proper form and stretching,” and “advised

[him] that his ms body is permanently shortened and is just [a] cosmetic issue.” See (SOF ¶ 13;

Doc. No. 49-5 at 14).

Ortiz had an evaluation encounter scheduled with FCI Schuylkill’s Health Services at

12:30 p.m. on March 13, 2020, but he did not appear for this visit. See (SOF ¶ 14; Doc. No. 49-

5 at 11). Approximately forty-five days later, on April 30, 2020, non-party Certified Registered

Nurse Practitioner (“CRNP”) Swabowski evaluated Ortiz in his cell for a sick call. See (SOF ¶

15). Ortiz informed CRNP Swabowski that his “left trap [had been] swollen for over a year,”

and he requested a “second opinion.” See (SOF ¶ 15; Doc. No. 49-5 at 9). CRNP Swabowski’s

notes from this visit state that Ortiz did not complain of pain or an injury, denied “numbness,

weakness or loss of function [in his] left arm,” and reported “exercising and lifting [his] upper

body regularly.” See (SOF ¶ 15; Doc. No. 49-5 at 9). CRNP Swabowski conducted an

examination of Ortiz, during which he noticed that Ortiz had “[s]welling and asymmetry [in his]

left trapezius,” observed Ortiz “reach[ his] left arm above [his] head without difficulty[,]” and

noted that Ortiz had “[w]ell[-]developed upper body musculature.” See (SOF ¶ 16; Doc. No. 49-

5 at 9). He assessed Ortiz with an “[i]njury muscle/fascia/tendon at shoulder/uppper [sic] arm,”

and he directed Ortiz to “[f]ollow-up at Sick Call as [n]eeded.” See (SOF ¶ 17; Doc. No. 49-5 at

9).

On June 16, 2020, CRNP Swabowski again saw Ortiz at his cell during sick call. See

(SOF ¶ 18). Ortiz complained of “[c]onstant pain [in his] left neck and shoulder,” which he

described as “nerve pain.” See (SOF ¶ 19; Doc. No. 49-5 at 7). Ortiz also reported that he was

“taking ibuprofen as needed which” was ineffective. See (SOF ¶ 19; Doc. No. 49-5 at 7).

CRNP Swabowski examined Ortiz and noticed “[s]welling and asymmetry [in his] left

trapezius” as well as Ortiz’s “[w]ell[-]developed upper body musculature.” See (SOF ¶ 20; Doc.

No. 49-5 at 7). CRNP Swabowski also discussed the cosmetic nature of the issue with the

Clinical Director, recommended over-the-counter analgesics as needed, and determined that no

further treatment was necessary at the time. See (SOF ¶ 21; Doc. No. 49-5 at 7).

Approximately a week later, on June 25, 2020, CRNP Swabowski met with Ortiz at his

cell during medical rounds. See (SOF ¶ 22). Ortiz “complained of increasing pain [in the] left

[side of his] neck.” See (SOF ¶ 22; Doc. No. 49-5 at 6). Ortiz also reported that his over-the-

counter pain medication was ineffective, and he requested further treatment. See (SOF ¶ 22;

Doc. No. 49-5 at 6). In his Clinical Encounter report, CRNP Swabowski noted that Ortiz did not

appear to be in acute distress or have a functional deficit. See (SOF ¶ 22; Doc. No. 49-5 at 6).

The report also indicates that CRNP Swabowski discussed Ortiz’s issue with the Clinical

Director, concluded that no further treatment was needed at the time, and “[r]einforced [the]

current treatment plan with [Ortiz].” See (SOF ¶ 23; Doc. No. 49-5 at 6).

On July 8, 2020, CRNP Swabowski met with Ortiz during medical rounds. See (SOF ¶

24). In his Clinical Encounter report, CRNP Swabowski notes that Ortiz requested further

treatment due to “increasing pain [in the] left [side of his] neck” and again reported that the over-

the-counter pain medication he was taking was ineffective. See (SOF ¶ 24; Doc. No. 49-5 at 5).

CRNP Swabowski also noted that Ortiz did not appear to be in acute distress or have a functional

deficit, and he determined that no further treatment was necessary at that time. See (SOF ¶ 24;

Doc. No. 49-5 at 5).

On September 8, 2020, non-party Physician Assistant (“PA”) Steffan saw Ortiz at Health

Services due to shoulder pain and a testicular lump. See (SOF ¶ 26; Doc. No. 49-5 at 1). Ortiz

refused a testicle/scrotal exam, but he inquired about “what [was] going to be ‘done about his

trapezius muscle” because he was “[c]onvinced he ha[d] ‘nerve damage.’” See (SOF ¶ 27; Doc.

No. 49-5 at 3). PA Steffan’s Clinical Encounter report states that he educated Ortiz about, inter

alia, the findings of his multiple prior visits and findings from his previous examinations. See

(SOF ¶ 28; Doc. No. 49-5 at 3). PA Steffan also counseled Ortiz to “[f]ollow-up at Sick Call as

[n]eeded” and to “[r]eturn [t]o Sick Call if [n]ot [i]mproved.” See (SOF ¶ 28; Doc. No. 49-5 at

3).

2. Events During 2021

Ortiz tested positive for COVID-19 at a screening encounter with non-party PA

Andreuzzi on March 4, 2021. See (SOF ¶ 29). During this encounter, Ortiz denied any

“symptoms or complaints” and did not have any “fatigue, aches, pains, headache, [or] persistent

pain in [his] chest.” See (SOF ¶ 30). Approximately three weeks later, on March 23, 2021, Ortiz

did not appear for his appointment at Health Services relating to “wanting [his] inhaler back.”

See (SOF ¶ 31; Doc. No. 49-6 at 46).

On May 10, 2021, non-party Registered Nurse (“RN”) McIntyre examined Ortiz in his

housing unit, and Ortiz told RN McIntyre that he had “a torn ligament in [his] shoulder and it

keeps getting bigger,” which he thought was “affecting [his] breathing” and his ability to work.

See (SOF ¶¶ 32, 34; Doc. No. 49-6 at 42, 43). Ortiz reported that he “told them [he] needed [his]

inhaler back.” See (SOF ¶ 32; Doc. No. 49-6 at 42). Despite Ortiz’s report of affected

breathing, RN McIntyre’s notes state that his lungs were “clear to auscultation,” his Sp02 was

98%, and he did not appear at his last “call out pertaining to being re-prescribed [an] inhaler.”

See (SOF ¶ 34; Doc. No. 49-6 at 43).

RN McIntyre’s assessment notes that Ortiz had a “baseball[-]size[d] swelling [in his] left

shoulder” and “[n]o erythema.” See (SOF ¶ 33; Doc. No. 49-6 at 43). Ortiz also reported that he

“was told in the past that he had a ‘torn ligament’ but [said it was] getting worse” and

“complain[ed] of internal pain to palpation.” See (SOF ¶ 33; Doc. No. 49-6 at 43). Based on

this encounter, RN McIntyre recommended that Ortiz should be “[e]valuated by [the p]rovider”

and “[f]ollow-up at Sick Call as [n]eeded.” See (SOF ¶ 35; Doc. No. 49-6 at 43).

The day after Ortiz’s visit with PA McIntyre, PA Andreuzzi evaluated him at Health

Services about complaints of shoulder pain and shortness of breath. See (SOF ¶ 36). In his

Clinical Encounter report, PA Andreuzzi describes his visit with Ortiz as follows:

Inmate sent to HSU from mainline to be evaluated for c/o SOB and left shoulder

pain. Inmate was very evasive in answering questions, giving vague answers, no

answer at all or changing the subject when asked questions. States was diagnosed

in 2003 with asthma but doesn’t know and/or can’t remember what type of testing

was done to determine had it. States only had a rescue inhaler. Asked if ever used

long[-]acting inhaler several times and would never give an answer. States now is

experiencing SOB at night and needs his inhaler back. States has not had an inhaler

since 2016 and didn’t need it until now. Asked what causes to feel SOB or triggers

asthma and says it depends what causes it and will not give more definite answer

than this. States did smoke 1 ppd for 5-6 years but not in last 17 years. States when

had inhaler would use it 2 times a day. Also states having pain in left trap/shoulder.

States initially injured in 2019 while at Ray brook [sic] but they didn’t do anything

for it as they were sending me here and we would take care of it. Asked how injured

and states was working out and next day got swollen. Asked several times what

specifically did to injure and will not say. Asked several times how long has been

swollen and will not say. Just that it is getting bigger. States is causing pain in left

arm and chest but nothing further. Denies additional complaints.

See (SOF ¶¶ 37–42; Doc. No. 49-6 at 39). Based on this visit with Ortiz, PA Andreuzzi ordered

a consultation request for Ortiz’s left trapezius area, noting that the mass “measur[ed] from

anterior aspect 3.5 inches [in] length, 4 inches wide[,] and 3 inches high” and was “firm, tender

to palpation, [and had] little mobility.” See (SOF ¶ 43; Doc. No. 49-6 at 40).

On May 12, 2021, an FCI Schuylkill lieutenant sent Ortiz to Health Services because of

Ortiz’s complaints of chest pain. See (SOF ¶ 44; Doc. No. 49-6 at 37). During this visit, Ortiz

reported to PA Andreuzzi that, inter alia: (1) he had been “having episodes of poking sensation

[sic] in [the] left [side of his] chest that come[ and] go and only last a few seconds” over the past

two weeks; (2) the area felt worse if he pressed on it; (3) did not have any associated symptoms;

(4) the “lump in [his] left trap [was] causing mad pain,” and he wondered whether it was causing

the pain in his chest; and (5) the lump “caus[ed] pain when he trie[d] to lift [up his] arm” and it

will no longer go above his head. See (SOF ¶ 45; Doc. No. 49-6 at 37). PA Andreuzzi

examined Ortiz, discussed cardiac versus non-cardiac chest pain, reviewed Ortiz’s EKG,

answered Ortiz’s questions, and informed Ortiz that he ordered a consult for his left trapezius

mass that was pending approval and scheduling. See (SOF ¶ 46; Doc. No. 49-6 at 82).

On May 16, 2021, Ortiz pressed the duress button in his cell at 4:00 a.m. after he awoke

“with trouble breathing and pain/stiffness” in his left arm/hand. See (SOF ¶ 47; Doc. No. 49-6 at

33). Ortiz was taken to Health Services, where he was examined by a member of the medical

staff and found to have fingertips which were cold to the touch as well as a delayed capillary

refill. See (SOF ¶ 48; Doc. No. 49-6 at 32–33). Ortiz was then sent to the emergency room for

further evaluation. See (SOF ¶ 49).

Later the same day, Ortiz returned to FCI Schuylkill from the hospital with a diagnosis of

a lipoma. See (id. ¶ 50). Ortiz’s discharge instructions from the hospital recommended: “PAIN

MEDICATION AS NEEDED. CONSIDER SURGICAL REFERRAL.” See (SOF ¶ 51; Doc.

No. 49-6 at 29, 170, 203). Ortiz’s hospital records and report from this visit to the emergency

room were scanned into his BOP medical record, and those records explain that a lipoma is a

“noncancerous (benign) tumor that is made up of fat cells.” See (SOF ¶ 52; Doc. No. 49-6 at

171).

On May 20, 2021, PA Andreuzzi, after consulting with the Clinical Director, noted that

an inhaler was not clinically indicated for Ortiz and, as such, canceled an ultrasound consultation

for him. See (SOF ¶ 53; Doc. No. 49-6 at 28). PA Andreuzzi also noted that he would request a

“general surgery consult” once they received Ortiz’s CT scan report from the hospital. See (SOF

¶ 53; Doc. No. 49-6 at 28).

PA Andreuzzi met with Ortiz in the housing unit to discuss his lipoma, treatment plan,

and the inhaler, on May 26, 2021. See (SOF ¶ 54). In his Clinical Encounter report following

the visit, PA Andreuzzi summarizes his visit with Ortiz as follows:

To inmate housing unit performing sick call and to speak with inmate regarding

neck mass and inhaler. Told inmate that just received CT scan report from hospital,

spoke with the CD and will be placing surgery consult. Inmate states the doctor

diagnosed me wrong and how do I know what this is in my neck. I told the inmate

the CT scan says it is a lipoma, which is noncancerous, and once you see the

surgeon they will determine what happens next. Inmate continues on about not

being diagnosed right. I then told inmate I spoke with the CD and is no current

indication for inhaler. Inmate then states my breathing is fine now but what

happens when it is not. I again told inmate there is currently no clinical indication

for an inhaler and one will not be issued. Inmate then states is having coldness and

swelling in left arm form [sic] mass but is fine now. States is having pain in left

arm and chest and what am I going to do about it. States is buying and taking pain

medicine from commissary and isn’t working. I asked inmate what job is in Unicor

and states is forklift driver. I asked inmate what does for exercise and will only

state I haven’t exercised for awhile [sic]. Will not tell what does for exercise, how

long has supposedly stopped or answer any further questions. Denies additional

complaints.

See (SOF ¶¶ 55–57; Doc. No. 49-6 at 26). PA Andreuzzi also notes that, inter alia: (1) Ortiz

“continued to be evasive in answering questions”; (2) a review of Ortiz’s commissary purchases

over the past six months showed only one purchase of Motrin on May 25, 2021, which

contradicted his statements about buying and taking over-the-counter pain medicine; (3) Ortiz

was observed “walking around housing talking with other inmates without difficulty or

symptoms” and was “moving, twisting, bending [his] head, spine, [and] arms without difficulty

or symptoms”; and (4) Ortiz’s “physical appearance/musculature is inconsistent with someone

who states [they are] not exercising.” See (SOF ¶ 58; Doc. No. 49-6 at 26, 27). PA Andreuzzi

also questioned whether Ortiz had a “secondary agenda.” See (SOF ¶ 58; Doc. No. 49-6 at 27).

He nevertheless requested a surgery consultation with a general surgeon. See (SOF ¶ 59; Doc.

No. 49-6 at 27).

On June 2, 2021, Ortiz became confrontational with PA Andreuzzi while being assessed

for a sick call at Ortiz’s housing unit. See (SOF ¶ 60; Doc. No. 49-6 at 25). PA Andreuzzi

describes this encounter with Ortiz in his Clinical Encounter report as follows:

To inmate housing unit performing sick call with inmate approaching this MLP in

confrontational manner to c/o about pain from mass in neck. States is causing to

have pain in neck and also in chest (pointing to mid left chest anterior axillary line

area). States was to be prescribed something for pain from hospital and has never

gotten it. Told inmate is to be purchasing own pain medicine from commissary

with inmate stating can’t take the motrin as is burning a hole in my stomach. Told

inmate I reviewed his commissary for past 6 months the last time we spoke and

have only seen 1 purchase of pain medicine Motrin on 5-25-21 with inmate

continuing to be confrontational immediately stating I am supposed to be getting

something from the hospital for pain and you aren’t giving it to me. Told inmate

will review hospital record to see if something was recommended but will still have

to purchase own from commissary and to purchase Tylenol then if motrin is

upsetting stomach as states. Inmate then walked away from this MLP with no

further interaction. Review of hospital record shows no recommended or

prescribed medicine for pain and only with statement of pain medication as needed.

Must continue to believe secondary agenda by inmate as continues to provide

information that is not supported by record.

See (SOF ¶¶ 60–65; Doc. No. 49-6 at 25).

On August 19, 2021, Ortiz again met with PA Andreuzzi at Health Services. See (SOF ¶

66). PA Andreuzzi’s notes relating to visit are as follows:

Inmate presents to HSU SC asking why hasn’t been seen yet for mass on neck.

Inmate told again that a consult was placed, had to be approved, and once approved

then is scheduled with the date being what the provider offers. Inmate then

becomes confrontational stating has been waiting for a few months to get this taken

care of and hasn’t yet. I reviewed record and told inmate that there was a date and

time to be evaluated by the surgeon and it will not be removed at that visit.

[A]nother consult will have to be written, approved and then scheduled for the

surgery with inmate continuing to be confrontational states needs something for

pain from neck mass. I again told inmate as previously that needs to buy pain

medicine from commissary if feels needs it. Inmate said I buy the Motrin and can’t

take it because it hurts my stomach. I again told inmate he can then purchase

Tylenol for pain if he can’t take the Motrin with inmate continuing to be

confrontational states he isn’t going to buy any pain medicine and I need to give

him something for it. I again told inmate he needs to purchase own pain medicine

and visit was terminated at this point. Review of inmates record shows three

purchases of pain medicine motrin on 5-25 and 6-2-21 and Tylenol on 6-30-21 with

nothing before or since. Continue to believe inmates [sic] actions driven by

secondary agenda as continues to not comply with recommended treatments.

See (SOF ¶¶ 66–71; Doc. No. 49-6 at 24).

On August 26, 2021, Ortiz met with Dr. Neil W. Fisher of Integrated Medical Group,

P.C. regarding a “large, soft tissue mass at the base of his left neck.” See (SOF ¶ 72; Doc. No.

49-6 at 123). Dr. Fisher determined that Ortiz had “a large, multilobulated mass” at the base of

his left neck, which measured 20 cm x 12 cm. See (SOF ¶ 73; Doc. No. 49-6 at 124). Dr. Fisher

also recommended a “[s]urgical excision under general anesthesia with complex closure and

probable placement of a drain.” See (SOF ¶ 73; Doc. No. 49-6 at 124).

On September 8, 2021, PA Andreuzzi requested that Ortiz have surgery to have the mass

removed. See (SOF ¶ 74). PA Andreuzzi then ordered labs for pending surgery on September

22, 2021. See (id. ¶ 75). Less than a week later, PA Andreuzzi met with Ortiz regarding his

complaints of shoulder pain and vision issues, at which time PA Andreuzzi reminded Ortiz that

he was placed on the optometrist schedule, and Ortiz would see the optometrist once there was

an appointment scheduled. See (id. ¶ 76; Doc. No. 49-6 at 21). PA Andreuzzi also told Ortiz

that he needed to take over-the-counter medication because he “continu[ed] to be noncompliant

with [the] recommended treatment” as shown by the records of his limited commissary

purchases. See (SOF ¶ 76; Doc. No. 49-6 at 21).

Dr. Fisher removed the lipoma from Ortiz’s shoulder/back area on October 8, 2021, and

the lipoma weighed 263 grams and measured 14x8x5cm. See (SOF ¶ 77). Ortiz returned to FCI

Schuylkill later that day, and PA Andreuzzi noted Ortiz’s prescribed medication and wound care

recommendations. See (SOF ¶ 78; Doc. No. 49-6 at 18).

On October 12, 14, 15, and 16, 2021, FCI Schuylkill medical staff provided Ortiz with

care for his wound following his surgery. See (SOF ¶ 79). Then, on November 16, 2021, CRNP

Swabowski ordered a surgical follow up appointment to occur by December 29, 2021. See (id. ¶

80). On December 9, 2021, FCI Schuylkill staff transported Ortiz to his surgical follow-up

appointment with Dr. Fisher, but upon their arrival, the staff was informed that the appointment

was canceled without prior notice to the prison. See (id. ¶ 81).

3. Events During 2022

Ortiz had his post-surgical consultation with Dr. Fisher on January 3, 2022, during which

Ortiz expressed no complaints of pain or discomfort at the surgical site. See (id. ¶ 82; Doc. No.

49-7 at 72–73). In addition, Dr. Fisher noted that Ortiz’s incision was well-healed, he had

normal range of motion, his neurovascular examination was normal, and that his asserted

symptomology was unrelated to his surgery. See (SOF ¶ 83; Doc. No. 49-7 at 73). Dr. Fisher

also noted that Ortiz did not have any restrictions from a surgical standpoint and no further

surgical follow up was scheduled. See (SOF ¶ 84).

The BOP’s medical records show that Ortiz did not seek medical attention for his

trapezius/shoulder for the remainder of his time at FCI Schuylkill, i.e., until October 27, 2022.

See (id. ¶¶ 85–86). Moreover, Ortiz’s medical records from February 27, 2020, when he first

complained of shoulder pain, and October 27, 2022, lack any report, diagnosis, or treatment of

anxiety, depression, nausea, sleeplessness, or headaches. See (id. ¶ 87).

4. Events During 2023

Ortiz sought and received medical treatment for his shoulder pain at FCI Fort Dix on

January 27, 2023. See (id. ¶ 88). Ortiz’s exam was normal, medical staff ordered ibuprofen, and

they instructed him to return to sick call if needed. See (id.).

Approximately three months later, on April 21, 2023, Ortiz sought medical treatment for

his shoulder pain at FCI Fort Dix. See (id. ¶ 89). His examination was negative for muscle

atrophy, swelling, erythema, or frozen shoulder. See (id.). Medical staff instructed Ortiz to

obtain ibuprofen and return to sick call if needed. See (id.).

On September 1, 2023, Ortiz requested medical attention for left-side shoulder and neck

pain at FCI Fort Dix. See (id. ¶ 90). The medical staff examined him and determined that his

shoulder presented normal anatomical landmarks without erythema or swelling, he had full range

of motion, and muscle strength at 5 on a scale of 5. See (id.). They also ordered a radiology

consultation for Ortiz’s cervical spine. See (id. ¶ 91).

On December 14, 2023, a doctor at FCI Fort Dix examined Ortiz in the Chronic Care

Clinic. See (id. ¶ 92). The doctor noted that, inter alia, Ortiz did not have any issues ambulating,

there was “[n]o sign or movement to suggest [that he was] symptomatic from lumbar disease,”

Ortiz could “get on and off the exam table without difficulty,” and he had “[full range of motion”

x 4 motor 5/5 in all extremities.” See (Doc. No. 49-8 at 2). On December 20, 2023, Ortiz had an

x-ray performed of his cervical spine at FCI Fort Dix. See (SOF ¶ 93).

5. Events During 2024

On September 18, 2024, Ortiz attended a Chronic Care Clinic visit with a doctor at FCI

Fort Dix, who noted that Ortiz has a history of “chronic left upper extremity numbness that starts

along [his] neck and goes onto [his] arm and forearm to his hand.” See (id. ¶ 94; Doc. No. 49-9

at 21). The doctor also noted that Ortiz “claim[ed] he has had this problem since his surgery for

his lipoma on [his] neck,” and he explained that “[t]he numbness comes and goes at times” and is

“not always there.” See (SOF ¶ 94; Doc. No. 49-9 at 21). Ortiz also denied any weakness at the

time. See (SOF ¶ 94; Doc. No. 49-9 at 21). During this visit, the doctor renewed Ortiz’s

Albuterol medication, ordered routine labs, requested a routine neurology consultation and EMG

for Ortiz’s left upper extremity, and made a provisional diagnosis of “Neuropathy of the Brachial

Plexus.” See (SOF ¶ 95; Doc. No. 49-9 at 22–23).

Ortiz attended an outside neurology appointment and underwent EMG testing on

November 7, 2024. See (SOF ¶ 96). Ortiz’s neurology examination indicated that he did not

display any swelling or edema, his strength was reasonable with some guarding, he had no fixed

sensory deficit, and he was negative for “Tinel’s phenomena” at the wrist and elbow points. See

(id. ¶ 97). Additionally, the EMG study marked normal results and did “not support the

electrical diagnosis of an active radiculopathy or a discrete localized brachial plexus lesion.” See

(id. ¶ 98).

6. Events During 2025

On January 16, 2025, Ortiz complained that the medication prescribed for his left

shoulder pain was not helping, and the medical provider increased the dosage. See (id. ¶ 99).

On February 10, 2025, Ortiz’s medication was renewed. See (id. ¶ 100).

7. Expert Opinion of the Government’s Expert

Board-certified General and Cosmetic Surgeon J. John Makipour, M.D., FACS, reviewed

Ortiz’s BOP electronic medical records from October 2019 through September 2024, and

prepared an expert report that the Government attaches to its SOF. See (id. ¶ 101; Doc. No. 49-

11). In his report, Dr. Makipour states as follows:

Ortiz is a patient who complained about pain in the location of his left trapezius

muscle in March of 2020. At this time, physical exams were limited nationally due

to the Covid pandemic. An encounter was documented at this time noting . . .

Ortiz’s concerns, and a diagnosis of asymmetry due to prior muscular injury was

made. Anti-inflammatories were recommended. At the time, physical exam

documented appropriate musculature and active range of motion. Multiple requests

were then processed through the [BOP]. He contracted Covid in March of 2021

and was isolated. In May of 2021, [h]e presented to the Emergency Department,

where a CT scan diagnosed an 11x4x4 cm lipoma of the left trapezious [sic]. He

was discharge[d], and given a handout regarding lipoma. An elective referral to a

general surgeon was made. He was evaluated 3 months later by a general surgeon,

and had excision of the mass weeks after the initial consult. Time from complaint

to diagnosis was approximately 15 months, and time from diagnosis to surgery was

approximately 5 months. He was seen 3 months after surgery for a post-operative

visit that was uneventful, and no residual postoperative concerns were documented.

In April of 2023 He [sic] complained of left shoulder pain but not muscle atrophy

or other acute concerns were documented. In September of 2023, he complained

of residual pain at the surgical site but physical exam was unremarkable. By

February of 2024, He [sic] had full range of motion on exam and no pain

documented.

Overview of Pathology:

Lipomas are benign (not cancer) fatty masses that typically originate in the soft

tissues. They tend to occur independently of the surrounding fatty tissues—they

do not increase in size with . . . weight gain or get smaller with weight loss. They

are generally asymptomatic, although complaints of mild pain are occasionally

seen. Most liomas [sic] don’t need treatment. However, a lipoma can be removed

if requested.

Expert Opinion:

In my expert opinion the standard of care was at all times met in the evaluation,

diagnosis, and management of . . . Ortiz’s care. While there was a postponement

in the diagnosis of his lipoma; this was precipitated by the extraordinary

circumstances of minimizing contact during patient evaluations due to the Covid

pandemic that was instituted universally around the globe. Timliness [sic] of

diagnosis was reasonable given the benign nature of his disease, minimal symptoms

reported, and circumstances of the time. Even if a timelier diagnosis had been

made, most hospitals around the country had restricted elective (non-

urgent/emergent) surgeries such as lipoma removal, and treatment would have been

appropriately delayed during this period in any case. Furthermore, it is more

probable than not that there were no adverse outcomes due to the delay in treatment.

I think it is likely he would have had a similar recovery whether surgery had been

performed a year earlier or a year later. The fact that he had surgery 5 months after

diagnosis, and 6 weeks after meeting with a surgeon, adds credence to the fact that

lipomas are not time sensitive pathologies. His postoperative appointment with his

surgeon did not identify any lingering complications from surgery, and the last

exam in his charge dated February 12[th] 2024 documented full range of motion

with no residual neck or back pain. I do not believe . . . Ortiz will have any lasting

medical issues related to the timing of diagnosis or surgery of his lipoma.

My conclusions and opinions relating to this case are based on my education,

training, experience as a general surgeon, research with which I have been

involved/conducted/participated, my teaching, and publications, which are outlined

in my CV, as well as my ongoing continuing medical education, my familiarity

with the standards of medical practice in the community, and the information

contained in [Ortiz’s] medical records . . . . My opinions are also based upon

information which is of a type reasonably relied upon by physicians who have

expertise in such areas . . . .

See (SOF ¶¶ 102–10; Doc. No. 49-11 at 2–3).

8. The BOP’s Covid-19 Policies

On or about August 31, 2020, the BOP published its Covid-19 Pandemic Response Plan,

version 1.0. See (SOF ¶ 111; Doc. No. 49-12). The Pandemic Response Plan was divided into

eleven modules based on guidance from the Centers for Disease Control, the World Health

Organization, and the Department of Justice. See (SOF ¶ 112; Doc. No. 49-12). Each module

was intended to provide a detailed outline of recommendations for BOP facilities to follow, and

the modules included, inter alia, “Module 7. Non-COVID-19 Routine Medical & Dental

Services.” See (SOF ¶¶ 112–13; Doc. No. 49-12). Module 7 generally suggested that inmates

should have continued access to health care during the pandemic and that the institutions

consider alternatives to the sick call process and postpone non-urgent consultations. See (SOF ¶

114).

B. Analysis

1. Ortiz’s Summary Judgment Responses

As noted above, Ortiz never filed a “separate, short and concise statement of the material

facts, responding to the numbered paragraphs set forth in” Defendants’ SOF, as to which he

“contend[s] that there exists a genuine issue to be tried,” as required by the Local Rules. See

M.D. Pa. L.R. 56.1; infra at 13 n.1. Additionally, in his opposition and sur-reply briefs (Doc.

Nos. 61, 64), Ortiz never cites to any evidence in the summary judgment record during the

limited portions of those submissions in which he references alleged facts in this case.

In his opposition brief, Ortiz’s identification of alleged facts consists of only the

following:

Surgery was needed to not only remove a large mass (see attached photographs) on

his shoulder and neck area, but, importantly, to perform laboratory testing for

cancerous cells. Ortiz had numerous outside medical appointments cancelled [sic]

over a two[-]year period. The prison doctor discounted Ortiz’s complaints about

the steady increase in size of the mass that was growing in his left shoulder area by,

initially, concluding, without performing any tests, or having a biopsy procedure,

that the tumor or mass was non-cancerous, and that it was caused by Ortiz’s

exercise regimen. In addition, the prison doctor surmised that surgery could wait

until Ortiz’s release from prison, and that any surgery would be strictly of a

cosmetic nature. Meanwhile, the mass continued to increase in size and area.

Throughout the aforesaid two-year period, the plaintiff suffered extreme anxiety

and mental depression from a great fear that the mass was cancerous, and that he

would die in prison. Those fears were totally discounted by the prison doctor, who

advised that surgery would be of a cosmetic nature, and not medically necessary

even though the mass was increasing in size.

Following the cancellation [sic] of several outside consultations with surgeons, and

a two-year wait, surgery was performed to remove the mass or tumor, from Ortiz’s

left shoulder area. Testing revealed it was benign and non-cancerous, however, the

cause for its existence was not revealed.

See (Doc. No. 61 at 2–3).3 In his sur-reply brief, Ortiz includes only the following alleged

factual references:

The medical records in this proceeding clearly demonstrate that Nathaniel Ortiz

complained of chronic pain for an extended period, and of his inherent fear that the

mass on his neck and shoulder area was cancerous. His complaints and fears were

dismissed for no stated reason or explanation.

. . .

[T]he present plaintiff . . . [was] diagnosed as suffering from a condition for which

surgery was the sole option; and his condition not only caused a great amount of

pain, but, was a potential life threatening situation unless treated through surgical

intervention, thereby causing him a great amount of stress and anxiety, with

associated sleeplessness and nervousness, etc.

3 Although Ortiz mentions that he attached photographs to his opposition brief, there were no

such photographs attached to it. See generally (Doc. No. 61). There were, however, three

photographs attached to his sur-reply brief. See (Doc. No. 64-1 at 1–2). Presuming those

photographs are of Ortiz, they are insufficient to create a genuine issue of material fact in this

case because, inter alia: (1) two of the three photographs are so poorly lit that they do not show a

lump on Ortiz’s body, see (id.); (2) it is not evident that there is a lump on Ortiz’s body in the

sole photograph in which the Court can view the left side of Ortiz’s upper body, see (id. at 2); (3)

if there is a lump, the photograph does not show its size, especially considering that it appears

that Ortiz’s shoulders and upper back are muscular, see (id.); and (4) the photographs are

undated, and Ortiz does not indicate in his reply brief when the photographs were taken. See

(Doc. No. 64 at 5 (referencing photographs)).

. . .

Attached hereto, are copies of the plaintiff’s medical records and results of testing

and evaluations, which clearly demonstrate that for a period of at least fifteen (15)

months, the prison’s medical personnel discounted the symptoms he was

experiencing, and which were visibly apparent (see the photographs included as

exhibits). Those records corroborate that the plaintiff’s complaints commenced

during the year of 2019, and continued until May of 2021, when surgery was

performed to remove the mass, diagnosed to be Lipoma [sic].

Although surgery removed the Lipoma, lingering effects remain as plaintiff

experienced numbness in his arm and hand, including fingers. In addition, the

plaintiff was instructed to refrain from heavy lifting, and no reaching in an upward

manner.

See (Doc. No. 64 at 3, 4–5).

Ortiz’s limited references to facts allegedly in the summary judgment record in this case

is inadequate when responding to the Government’s motion for summary judgment. Once the

Government shows that there is no genuine issue of material fact, the burden shifts to Ortiz to

show that such a genuine dispute exists by “citing to particular parts of materials in the record,

including depositions, documents, electronically stored information, affidavits or declarations,

stipulations (including those made for purposes of the motion only), admissions, interrogatory

answers, or other materials,” or by “showing that the materials cited” by the Government “do not

establish the absence . . . of a genuine dispute . . . .” See Fed. R. Civ. P. 56(c)(1) (emphasis

added). Ortiz has not taken either of these steps to satisfy his burden as the non-moving party in

this case.

Ortiz’s failure to properly reference the record is problematic for another reason, namely,

the lack of evidence in the record to support many of his limited factual assertions contained in

his briefs. For instance, although Ortiz alleges that he “needed” surgery “to perform laboratory

testing for cancerous cells,” see (Doc. No. 61 at 2), he points to no documentary evidence

showing that any medical professional recommended that he receive laboratory testing for

cancerous cells or needed surgery on his lipoma to test for cancer.

Ortiz also asserts that he had “numerous outside medical appointments canceled over a

two[-]year period,” see (id.), even though his medical records show that the only appointment

cancellation pertaining to the lump on his shoulder occurred on December 9, 2021, when FCI

Schuylkill staff transported Ortiz to his surgical follow-up appointment with Dr. Fisher, only to

learn on their arrival that the appointment was canceled without notice to the prison. See (SOF ¶

81).4 Ortiz also states that “[t]he prison doctor discounted [his] complaints about the steady

increase in size of the mass” without performing any tests or referring him for a biopsy and

concluded that it was caused by his exercise regimen. See (Doc. No. 61 at 2–3). However, Ortiz

does not identify the “prison doctor,” and even if the Court presumes that he references Dr.

Mace-Leibson, the summary judgment record shows that she saw him on one occasion, March 2,

2020, and her notes from this visit indicate that Ortiz told her that the issue with “his trap” had

been “like that for a year.” See (SOF ¶¶ 8–13; Doc. No. 49-5 at 12–14). There is no indication

from Dr. Mace-Leibson’s notes from this visit that Ortiz complained about the lump increasing

in size, and her notes do not show that she determined that it was caused by his exercise regimen

(even if she stated it appeared to be from a previous injury). See (Doc. No. 49-5 at 12–14).

Moreover, although Ortiz contends that “the prison doctor surmised that surgery could wait until

[his] release from prison, and that any surgery would be strictly of a cosmetic nature” there is no

evidence in the record showing that any doctor, including Dr. Mace-Leibson, told him that

4 The only other cancellation the Court located in the record occurred when PA Andreuzzi, after

consulting with the Clinical Director, noted that an inhaler was not clinically indicated and

canceled an ultrasound consultation on May 20, 2021. See (SOF ¶ 53; Doc. No. 49-6 at 28).

surgery could wait until after he was released from prison,5 or that he would need surgery to fix

his “cosmetic” issue.

Finally, Ortiz asserts that his medical records show that he consistently “complained”

about “his inherent fear that the mass on his neck and shoulder area was cancerous,” and that he

suffered from a condition that was “potential[ly] life threatening unless treated through surgical

intervention.” See (Doc. No. 64 at 4). He points to no medical records, and the Court could not

find any, showing that he consistently complained for over a year about his fear that his lump

was cancerous, or any records indicating that Ortiz’s lipoma was potentially life threatening

unless he had surgery. Additionally, the medical records Ortiz attaches to his sur-reply brief do

not support his factual assertions. See (Doc. No. 64-1 at 3–12).

Overall, Ortiz’s failure to directly and clearly provide the Court with, or at least cite to,

record evidence that contradicts the Government’s asserted undisputed facts, warrants this Court

granting summary judgment in the Government’s favor. It is not this Court’s obligation, despite

Ortiz’s pro se and incarcerated status, to search through the entire record to determine if portions

of it support his factual assertions or argument that there are genuine issues of material fact as to

his FTCA claims in this case. See Doeblers’ Pa. Hybrids, Inc. v. Doebler, 442 F.3d 812, 820 n.8

(3d Cir. 2006) (“‘Judges are not like pigs, hunting for truffles buried in’ the record.” (quoting

Albrechtsen v. Bd. of Regents of Univ. of Wis. Sys., 309 F.3d 433, 436 (7th Cir. 2002))), as

amended (May 5, 2006). Nevertheless, despite Ortiz’s failure to meet his obligations when

responding to Defendants’ motion for summary judgment, the Court will address whether

summary judgment is appropriate on each of Ortiz’s FTCA claims.

5 According to the BOP’s Inmate Locator (https://www.bop.gov/inmateloc/), Ortiz has an

anticipated release date of August 6, 2040.

2. Medical Malpractice

The Government moves for summary judgment on Ortiz’s FTCA medical malpractice

claim because (1) Ortiz lacks an expert opinion stating that there was a breach in the applicable

duty of care, (2) Ortiz’s medical records and the expert opinion of Dr. Makipour show that no

breach of care occurred, and (3) Ortiz failed to produce any evidence, including an expert

opinion, showing that any breach caused him to suffer an injury. See (Doc. No. 51 at 24–32). In

response, Ortiz contends that the evidence in the record shows that FCI Schuylkill’s medical

staff (including the “prison doctor”) discounted his complaints of pain, his concerns about

potentially having cancer, and the increasing size of the lump, despite not performing any exam

on his person. See (Doc. No. 61 at 2–3). He further argues that he does not require an expert in

this case based on res ipsa loquitor, because:

a layperson would discern that an unexplained and untested tumor would cause a

person to suffer great anxiety, sleeplessness, fear, and mental depression from

watching the tumor grow larger on a daily basis over a two-year period without

access to a surgeon for its removal and testing. No medical expert is required in

order for a jury of laypersons to be able and comprehend a plaintiff’s fear, anxiety,

and mental depression, from not knowing whether the tumor is life threatening, or

whether it will continue to grow and create other problems from its presence, all

because prison doctors refused to provide the proper treatment to resolve the

problem.

See (id. at 4–5). As explained below, the Court agrees with the Government that Ortiz’s failure

to produce any expert evidence in support of his medical malpractice claim is fatal, in itself, to

this claim.

For a plaintiff to prevail on a professional negligence/medical malpractice claim under

Pennsylvania law, “the plaintiff must prove that the defendant’s treatment fell below the

appropriate standard of care.” See Brady v. Urbas, 111 A.3d 1155, 1161 (Pa. 2015) (citations

omitted); Toogood v. Owen J. Rogal, D.D.S., P.C., 824 A.2d 1140, 1145 (Pa. 2003) (stating that

“medical malpractice can be broadly defined as the unwarranted departure from generally

accepted standards of medical practice resulting in injury to a patient . . . .”). “[W]hen a

plaintiff’s medical malpractice claim sounds in negligence, the elements of the plaintiff’s case

are the same as those in ordinary negligence actions.” Toogood, 824 A.2d at 1145; accord Ditch

v. Waynesboro Hosp., 917 A.2d 317, 322 (Pa. Super. Ct. 2007), aff’d, 17 A.3d 310 (Pa. 2011),

(providing that “the basic elements of medical malpractice and ordinary negligence are the same

. . . ” (citation omitted)). Thus, for ordinary and medical negligence claims, a plaintiff must

establish: (1) a duty of care owed by the physician to the patient; (2) a breach of that duty; (3) the

breach of that duty was the proximate cause of the harm suffered by the patient; and (4) the

damages suffered were a direct result of that harm. See Mitchell v. Shikora, 41 A.3d 307, 314

(Pa. 2019) (citing Hightower-Warren v. Silk, 698 A.2d 52, 54 (Pa. 1997)). Put another way, “to

prevail on a claim of medical negligence, the plaintiff must prove, inter alia, that the defendant’s

treatment fell below the appropriate standard of care—that is, varied from accepted medical

practice.” See Mitchell v. Shikora, 209 A.3d 307, 314–15 (Pa. 2019). The plaintiff bears the

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

Valley Mfg. Co., 762 F.2d 25, 27 (3d Cir. 1985).

As “[w]ith all but the most self-evident medical malpractice actions[,] there is also the

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

elements of duty, breach, and causation.” See Quinby v. Plumsteadville Fam. Prac., Inc., 907

A.2d 1061, 1070–71 (Pa. 2006) (citation omitted); accord Mitchell, 209 A.3d at 315 (providing

that a “plaintiff in a medical negligence matter is required to present an expert witness who will

testify, to a reasonable degree of medical certainty, regarding the standard of care (duty); that the

acts of the physician deviated from the standard or care (breach); and that such deviation was the

proximate cause of the harm suffered” (citation omitted)). The instances in which expert

opinions may be unnecessary in medical malpractice cases are limited:

Courts sitting in medical malpractice cases require detailed expert testimony because

a jury of laypersons generally lacks the knowledge to determine the factual issues of

medical causation; the degree of skill, knowledge, and experience required of the

physician; and the breach of the medical standard of care. In contrast, plaintiffs in res

ipsa loquitur cases rely on the jury to fill in the missing pieces of causation and

negligence, inherent in their cases, with the jury’s common experience. Determining

whether there was a breach of duty, however, involves a two-step process: the court

must first determine the standard of care; it then must examine whether the defendant’s

conduct measured up to that standard. Not only does the plaintiff have the burden of

proving that the defendant did not possess and employ the required skill and

knowledge, or did not exercise the care and judgment of a reasonable professional, he

or she must also prove that the injury was caused by the failure to employ that requisite

skill and knowledge. We have previously concluded that this must be accomplished

with expert medical testimony presented at trial by doctors testifying as expert

witnesses.

Res ipsa loquitur must be carefully limited, for to say whether a particular error on the

part of a physician reflects negligence demands a complete understanding of the

procedure the doctor is performing and the responsibilities upon him at the moment of

injury. Thus, in evaluating a doctor’s decision to administer a nerve block injection in

a particular location, an intelligent jury analysis requires some understanding of the

results of giving the injection in various places; the skill required in pinpointing a

specific location; and the likelihood of giving the injection in an unintended site. We

reaffirm our earlier conclusion, set forth in numerous decisions of this Court that,

medicine being an applied science, the realm of reasonable choice is best defined by

those engaged in the practice, and expert medical testimony on this issue is required.

As aptly noted by the Justices of the Supreme Court of New Mexico, “The cause and

effect of a physical condition lies in a field of knowledge in which only a medical

expert can give a competent opinion. . . . [Without experts] we feel that the jury could

have no basis other than conjecture, surmise or speculation upon which to consider

causation.” Woods v. Brumlop, 71 N.M. 221, 377 P.2d 520, 523 (1962).

See Toogood, 824 A.2d at 1149.

Here, Ortiz’s arguments about the ability of a layperson to discern that the lump on his

left shoulder warranted more treatment than he received at FCI Schuylkill are unavailing.6

Ortiz’s medical malpractice claim raises issues about the appropriateness of the examinations

and treatment he received while confined at FCI Schuylkill as well as causation.

The uncontradicted evidence in the record shows that Ortiz received medical attention

and treatment for the lump on his back. Presuming that the record confirms Ortiz’s allegation

that the lump increased in size over time, whether he should have been referred to a specialist or

surgeon sooner, and whether he should have received different medical treatment, tests, or

examinations for his lump at the times he visited with medical staff at FCI Schuylkill, are not

matters within the common knowledge of the average layperson. Although Ortiz claims that the

applicable standard of care required Dr. Mace-Leibson to physically examine the lump on his left

shoulder, he provides no evidence that this was the applicable standard of care, and even if it

was, that Dr. Mace-Leibson or any other medical professional at FCI Schuylkill deviated from

the accepted medical standard, particularly while providing medical care to inmates like Ortiz

during the Covid-19 pandemic.

6 In his complaint, Ortiz limits his medical malpractice claim to Dr. Mace-Leibson’s alleged

failure “to provide [him] with reasonable medical care[,] including[,] but not limited to[,] an

actual physical exam where the physician would touch the injured area in an effort to make a

clinical diagnosis.” See (Doc. No. 1 at 17). He alleges that Dr. Mace-Leibson breached her duty

to give him a physical exam “by failing to open the door, physically touch [his] left shoulder, and

conduct a full physical examination of the area on [his] body.” See (id.). He further alleges that

this breach “caused [him] to suffer with extreme, unbearable, and excruciating pain for nearly

two years and further caused [him] to suffer permanent injury to his left arm and hand in that he

still suffers from numbness and weakness to the area.” See (id.). Based on these allegations, it is

arguable that Ortiz’s medical malpractice claim is limited to Dr. Mace-Leibson’s sole visit with

him on March 2, 2020, or is at least limited to her, and no other medical professional at FCI

Schuylkill’s, interaction with him during the period at issue. Nonetheless, the Court will address

Ortiz’s medical malpractice claim as if it pertains to the medical treatment he received at FCI

Schuylkill until the date of Dr. Fisher’s surgery to remove his lipoma because the ultimate result

in this case would not change.

In addition, Ortiz claims that the failure to properly examine and treat his lump (which

was later diagnosed as a lipoma) caused him “to suffer permanent injury to his left arm and hand

in that he still suffers from numbness and weakness to the area.” See (Doc. No. 1 at 17). Other

than Ortiz’s belief that the delayed treatment of his lipoma caused permanent injury to his left

arm, there is no evidence in the record showing that he has suffered such a “permanent” injury

and, more importantly, no evidence that any delayed treatment of his lipoma (or any aspect of his

lipoma) was the proximate cause of any issues with his left arm and hand. Moreover, it is

beyond common knowledge to determine what injury, if any, Ortiz sustained due to Dr. Mace-

Leibson not touching the lump on his shoulder on March 2, 2020, or any delays in treatment

thereafter. Ortiz needs an expert to explain to the jury what should have been done under the

circumstances (i.e., the applicable standard of care), whether Dr. Mace-Leibson or other FCI

Schuylkill medical professionals deviated from that standard of care (i.e., breached the

applicable standard of care), and whether any alleged deviations from the applicable standard of

care caused his emotional injuries and physical injuries to his left arm and hand (i.e., proximate

cause). Because issues relating to the absence of due care and causation are not sufficiently

obvious to permit a factfinder to decide Ortiz’s medical malpractice claim, and the proper

diagnosis and treatment of a lipoma is beyond common knowledge, the Court will grant the

Government’s motion for summary judgment on this claim.

3. Ordinary Negligence

The Government moves for summary judgment on Ortiz’s FTCA claim for ordinary

negligence because (1) his ordinary negligence claim is actually a medical malpractice claim

insofar as both claims are based on the same alleged breach—the failure to properly and

promptly treat the lump on his left shoulder/upper back, (2) the Discretionary Function

Exception to the FTCA bars Ortiz’s claim to the extent he bases it on the BOP’s Covid-19

policies and procedures, and (3) his ordinary negligence claim is meritless. See (Doc. No. 51 at

25–43). As explained below, the Government is entitled to summary judgment on Ortiz’s

ordinary negligence claim.

Ortiz does not expressly address any of the Government’s arguments in favor of

summary judgment on his ordinary negligence claim in his opposition or sur-reply briefs.

Instead, Ortiz repeatedly references the standard applicable to deliberate-indifference-to-serious-

medical-needs claims under the Eighth Amendment and cases addressing deliberate-indifference

claims in those portions of his submissions in which he does not discuss medical malpractice or

the need for an expert at the summary judgment stage. See, e.g., (Doc. Nos. 61 at 1–2, 5–7; 64 at

1–5). Ortiz’s failure to address any of the Government’s arguments for summary judgment

constitutes a waiver of his ordinary negligence claim. See Brenner v. Loc. 514, United Bhd. of

Carpenters & Joiners of Am., 927 F.2d 1283, 1298 (3d Cir. 1991) (“It is well established that

failure to raise an issue in the district court constitutes a waiver of the argument.”); Reilly v.

Lehigh Valley Hosp., 519 F. App’x 759, 762 (3d Cir. 2013) (unpublished) (concluding that the

plaintiff waived argument on appeal because, inter alia, he did not oppose the defendant’s

“summary judgment motion on th[at] ground in the District Court”); Brown v. Johnson, 116 F.

App’x 342, 345 (3d Cir. 2004) (unpublished) (“If a party fails to assert a legal reason why

summary judgment should not be granted, that ground is waived and cannot be considered or

raised on appeal”); Campbell v. Jefferson Univ. Physicians, 22 F. Supp. 3d 478, 487 (E.D. Pa.

2014) (“[W}hen a plaintiff responds to a defendant’s summary judgment motion but fails to

address the substance of any challenge to particular claims, that failure ‘constitutes an

abandonment of those causes of action and essentially acts as a waiver of th[o]se issues.’”

(quoting Skirpan v. Pinnacle Health Hosps., No. 07-cv-01703, 2010 WL 3632536, at *6 (M.D.

Pa. Apr. 21, 2010)), report and recommendation adopted, 2010 WL 3632702 (M.D. Pa. Sept. 10,

2010)); Wilkes-Barre Fire Fighters Ass’n Loc. 104, No. 04-cv-01920, 2006 WL 3742700, at *3

n.1 (M.D. Pa. Dec. 18, 2006) (“Even if Plaintiff did raise these claims in his Amended

Complaint, because he ignored them at summary judgment, they are deemed waived.” (citing

Scott v. Beard, No. 02-cv-00691, 2006 WL 2645150, at *4 (M.D. Pa. Sept. 14, 2006), aff’d, 252

F. App’x 491 (3d Cir. 2007) (unpublished))), aff’d sub nom. Turinski v. Loc. 104 Int’l Ass’n of

Fire Fighters, 269 F. App’x 184 (3d Cir. 2008) (unpublished); see also Gray v. White, 18 F.4th

463, 469 (5th Cir. 2021) (“[W]hen a party fails to raise an argument in opposition to a motion for

summary judgment and instead raises it for the first time in a motion to alter or amend judgment,

that argument is waived.” (citation omitted)); Paskert v. Kemna-ASA Auto Plaza, Inc., 950 F.3d

535, 540 (8th Cir. 2020) (“The failure to oppose a basis for summary judgment constitutes

waiver of that argument, because the non-moving party is responsible for demonstrating any

genuine dispute of material fact that would preclude summary judgment.” (citation and internal

quotation marks omitted)). Accordingly, the Court will grant the Government’s motion insofar

as it seeks summary judgment on Ortiz’s FTCA ordinary negligence claim.7

4. NIED

The Government moves for summary judgment on Ortiz’s NIED claim. It argues that

Ortiz “cannot establish a prima facie claim of medical or ordinary negligence because he cannot

establish that the United States deviated from the medical standard of care or otherwise breached

7 Even if the Court determined that Ortiz opposed the Government’s motion by arguing that

there was a genuine issue of fact as to his ordinary negligence claim, the Court would still

conclude that Ortiz waived this cause of action by failing to address the Government’s arguments

about his ordinary negligence claim sounding in medical malpractice and the application of the

Discretionary Function Exception.

a duty owed to him or that any such breach was the cause of harm to him.” See (Doc. No. 51 at

44).8 The Court need not address the substance of the Government’s argument because, as with

his ordinary negligence claim, Ortiz waived his NIED claim by failing to address the

Government’s arguments for summary judgment on this claim in his opposition brief or his sur-

reply brief, and he does not otherwise mention NIED at all in either submission. See generally

(Doc. Nos. 61, 64). Therefore, the Court will also grant the Government’s motion for summary

judgment on Ortiz’s FTCA NIED claim.

IV. CONCLUSION

For the reasons stated above, the Court will grant the Government’s motion for summary

judgment, direct the Clerk of Court to enter judgment in its favor and against Ortiz on Ortiz’s

remaining FTCA claims for medical malpractice, ordinary negligence, and NIED, and close this

case. An appropriate Order follows.

s/ Yvette Kane

Yvette Kane, District Judge

United States District Court

Middle District of Pennsylvania

8 “[A]bsent a finding of negligence, [a] negligent infliction of emotional distress claim cannot

survive.” Jordan v. Pa. State Univ., 276 A.3d 751, 774 (Pa. Super. Ct. 2022) (citation and

internal quotation marks omitted). In other words, a plaintiff must establish a negligence claim

to prevail under any theory of a negligent infliction of emotional distress claim. See id.

In addition to having to allege an underlying negligence claim, a negligent infliction of

emotional distress claim is limited to the following four (4) theories of recovery under

Pennsylvania law: “(1) situations where the defendant owed the plaintiff a pre-existing

contractual or fiduciary duty (the special relationship rule); (2) the plaintiff suffered a physical

impact (the impact rule); (3) the plaintiff was in a zone of danger and reasonably experienced a

fear of immediate physical injury (the zone of danger rule); or (4) the plaintiff observed a

tortious injury to a close relative (the bystander rule).” See id. at 774 (citation and internal

quotation marks omitted)); Toney v. Chester County Hosp., 961 A.2d 192, 197–98 (Pa. Super.

Ct. 2008), aff’d, 36 A.3d 83 (Pa. 2011) (recognizing these same four elements (citation

omitted)).