Petition for Writ of Certiorari — Omar S. Folk, Petitioner v. Federal Bureau of Prisons, et al.

Supreme Court briefAug 23, 2023

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OMAR S. FOLK, Plaintiff v. BUREAU OF PRISONS, et al., Defendants

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

2021 U.S. Dist. LEXIS 44638

Civil No. 3:18-cv-2252

March 10, 2021, Decided

March 10, 2021, Filed

Editorial Information: Subsequent History

Affirmed by, Motion denied by Folk v. Bureau of Prisons, 2021 U.S. App. LEXIS 23798 (3d Cir. Pa., Aug.

11, 2021)

Editorial Information: Prior History

Folk v. Bureau of Prisons, 2019 U.S. Dist. LEXIS 165940, 2019 WL 4724799 (M.D. Pa., Sept. 26, 2019)

{2021 U.S. Dist. LEXIS 1)Omar S. Folk, Plaintiff, Pro se, White Deer,

Counsel

PA.

For Bureau of Prisons, Employee's and Medical Staff, PA-C

Samuel Gosa, Elizabeth Santos/Stahl, Clinical Director, Brian Buschman, D. Parker, M.

Magyar, R. Parkyn, C. Smith, Jennifer Holtz-Apple, PA-C Zalno, Co. Gentzyel, R&D Fausey,

M. Washington, Defendants: Samuel Dalke, US Attorney's Office, Middle District of PA Prisoner, Harrisburg, PA.

For David J. Ball, Defendant: Ari J. Sliffman, German, Gallagher

& Murtagh, PC, Philadelphia, PA; Jacob C. Lehman, German Gallagher & Murtagh, P.C.,

Philadelphia, PA.

Judges: Robert D. Mariani, United States District Judge.

Opinion

Opinion by:

Robert D. Mariani

Opinion

MEMORANDUM

I. Factual Background & Procedural History

Plaintiff Omar Folk ("Folk"), an inmate confined at the Federal Correctional Institution, Allenwood

Medium, in White Deer, Pennsylvania ("FCI-Allenwood"), initiated this action pursuant to Bivens, 1 28

U.S.C. § 1331. (Doc. 1). On March 9, 2020, the Court dismissed Folk's first amended complaint for

failure to comply with Rules 8 and 20 of the Federal Rules of Civil Procedure. (Docs. 82, 83). The

Court directed Folk to file a proposed second amended complaint that strictly complied with Federal

Rules of Civil Procedure 8 and 20. (Id.). After being granted extensions of time, Folk filed his

proposed second amended complaint{2021 U.S. Dist. LEXIS 2} on or about May 11, 2020. (Doc.

101). In the second amended complaint, Folk names approximately fifty-one Defendants. (See id.).

The following Defendants have been served and have representation in this action: Samuel Gosa,

Brian Buschman, Elizabeth Stahl, Beth Zalno, Geona Fausey, Milton Washington, Darlene Parker,

Ryan Parkyn, Michael Magyar, Jennifer Holtzapple, Charles S. Smith, and M. Gentzyel (collectively,

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"BOP Defendants"), and Dr. David J. Ball, a private physician. The remaining newly named

Defendants have not yet been served.

Presently pending before the Court is the BOP Defendants' motion (Doc. 104) to dismiss based on

Folk's failure to comply with Rules 8 and 20 of the Federal Rules of Civil Procedure. For the reasons

set forth below, the Court will grant the motion to dismiss. The Court will also dismiss the unserved

Defendants from this action.

II. Discussion

A. Federal Rules of Civil Procedure 8 and 20

Folk's 247-page proposed second amended complaint contains allegations of distinct acts committed

by disparate parties spanning his entire seven-year term of incarceration. (Doc. 101). He names

approximately fifty-one different Defendants and raises approximately ten different claims. (Id.).

Federal Rule of Civil Procedure 8 establishes the general rules of pleading. See Fed. R. Civ. P. 8.

Rule 8(a) requires a pleading{2021 U.S. Dist. LEXIS 3} to contain "a short and plain statement of the

claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Rule 8(d)(1) speaks to

factual allegations, requiring that ”[e]ach allegation ... be simple, concise, and direct." Fed. R. Civ.

P. 8(d)(1). These rules task the Plaintiff to provide "the defendant notice of what the ... claim is and

the grounds upon which it rests." Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008)

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929

(2007). This standard requires more than legal labels and conclusory assertions: a complaint must

include enough facts to "raise a right to relief above the speculative level." Twombly, 550 U.S. at

555.

Folk's second amended complaint fails to meet these basic pleading requirements. The factual

narrative spans seven years and involves fifty-one different individuals. Folk appears to list all of his

alleged medical ailments, issues, and interactions beginning in 2013 through the present. (See Doc.

101). It is evident that Folk's second amended complaint "l[eaves] the defendants having to guess

what of the many things discussed" constitute causes of action, the legal theory on which those

causes may rest, and the Defendants against whom each cause is lodged. See Binsack v.

Lackawanna Cty. Prison, 438 F. App'x 158, 160 (3d Cir. 2011) (nonprecedential). Folk's second

amended complaint thus fails to comply with Rule 8.

The lack of clarity in Folk's second{2021 U.S. Dist. LEXIS 4} amended complaint causes an

additional problem. Rules 18 and 20 of the Federal Rules of Civil Procedure explain the

circumstances in which multiple claims and multiple defendants may be joined. Rule 18 states that a

party "may join . . . as many claims as it has against an opposing party." Fed. R. Civ. P. 18(a). Thus,

when an action involves only one defendant, a plaintiff may assert every claim he has against that

defendant, regardless of whether the claims are factually or legally related to one another, subject

only to the limits of federal subject-matter jurisdiction. See 7 Charles Alan Wright & Arthur Miller, et

al., Federal Practice & Procedure § 1582 (3d ed. 2019); see also Fed. R. Civ. P. 18(a).

When a plaintiff seeks to assert claims against multiple defendants, Rule 20 also comes into play.

See Wright & Miller, supra, § 1655. Rule 20 governs permissive joinder of parties and explains that a

plaintiff may only join multiple defendants in a single case if (1) "any right to relief is asserted against

them jointly, severally, or in the alternative with respect to or arising out of the same transaction,

occurrence, or series of transactions or occurrences," and (2) "any question of law or fact common to

all defendants will arise in the action." Fed. R. Civ. P. 20(a)(2). In other words, notwithstanding the

broad joinder-of-claims language of Rule 18(a), a{2021 U.S. Dist. LEXIS 5} plaintiff may join

multiple defendants in a single complaint only if he asserts at least one claim linking all defendants

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that (1) arises out of the same transaction or occurrence and (2) involves a common question of law

or fact. Id.\ Wright & Miller, supra, § 1655. That is, there must be at least one common claim against

all named defendants. Once a plaintiff satisfies this requirement, he may invoke Rule 18 to assert

"as many claims as [he] has" against one or more defendants, even if those additional claims are

unrelated to the common claim linking all defendants. See Fed. R. Civ. P. 18(a); Wright & Miller,

supra, § 1655.

The Court finds that Folk's second amended complaint is in violation of Rule 20, as was his first

amended complaint. On March 9, 2020, the Court issued a detailed Memorandum and Order

directing Folk to file a second amended complaint that contained only the claims and Defendants

that were related and involved the same transactions or occurrences and had a common legal and

factual basis as required by Rule 20(a). (Docs. 82, 83). The Court also directed that all claims that

were unrelated must be filed as separate actions. (Doc. 82). Instead of complying with the terms of

the March 9, 2020 Memorandum and Order, Folk filed his second amended complaint which

contains(2021 U.S. Dist. LEXIS 6} numerous allegations and are related only insofar as they all

occurred at FCI-Allenwood. In the second amended complaint, Folk sets forth various, disjointed

claims related to his dental treatment, delay in receiving teeth cleaning and tooth extraction,

inadequate treatment for his gallbladder, inadequate treatment for his mental health condition,

delayed physical therapy, permanent discoloration in his leg and foot, denial of his special diet,

permanent nerve damage in his quadriceps, inadequate treatment for his quadriceps and knee

injuries, and harassment claims. (See Doc. 101). The fifty-one named Defendants and their alleged

conduct are essentially unrelated, and they do not meet the requirements of joinder. It is quite clear

that Folk failed to comply with the March 9, 2020 Order with respect to joining unrelated claims and

parties in one pleading.

Given that the alleged acts have been committed by disparate parties at different times over the

course of seven years, and do not arise out of the same transaction, occurrence, or series of

transactions or occurrences, the Court will dismiss the second amended complaint against the BOP

Defendants.

B. The Unserved Defendants

Although{2021 U.S. Dist. LEXIS 7} in some instances it is appropriate for a Court to dismiss claims,

sua sponte, against parties for whom dismissal is appropriate, but for whatever reason have failed to

join in the motion, the Court declines to do so here because the remaining Defendants have not been

served. See Bryson v. Brand Insulations, 621 F.2d 553, 559 (3d Cir. 1980) ("[F]or a court to grant

judgment on the pleadings, sua sponte, is not error. The district court may on its own initiative enter

an order dismissing the action provided the complaint affords a sufficient basis for the court's

action.”); Ryle v. Fuh, 820 F. App'x 121, 123-24 (3d Cir. 2020) (affirming District Court's granting of

defendant's motion to dismiss, and dismissal against some defendants sua sponte, where the Court

dismissed the complaint with prejudice). Under § 1915(e)(2)(B) of the Prisoner Litigation Reform Act,

however, the Court has an obligation to dismiss a complaint "at any time the court determines" the

complaint is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks

monetary relief against a defendant who is immune from suit. 28 U.S.C. § 1915(e)(2)(B) (emphasis

added). See, e.g., Brown v. Sage, 941 F.3d 655, 659 (3d Cir. 2019) (en banc) (noting that under the

PLRA the district court shall at any time dismiss any case which, inter alia, fails to state a claim upon

which relief may be granted);{2021 U.S. Dist. LEXIS 8} Lopez v. Smith, 203 F.3d 1122, 1126 n.6

(9th Cir. 2000); Bower v. Rey, 2016 U.S. Dist. LEXIS 174356, 2016 WL 7324526 (M.D. Pa. Dec. 16,

2016); Bracey v. Pa. Dep't of Corns., 2012 U.S. Dist. LEXIS 69792, 2012 WL 1825828 (W.D. Pa.

May 18, 2012) ("The Court's obligation to dismiss a complaint under the PLRA screening provisions

is not excused even after defendants have filed a motion to dismiss."). That section applies to this

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action because Folk is a prisoner proceeding in forma pauperis. See 28 U.S.C. § 1915(e)(2).

In determining whether a prisoner's complaint states a claim under § 1915(e)(2)(B), the Court is

guided by the Rule 12(b)(6) motion to dismiss standard. Under Rule 12(b)(6), the Court must "accept

all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and

determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to

relief." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. County of

Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)). While a complaint need only contain "a short and plain

statement of the claim," Fed. R. Civ. P. 8(a)(2), and detailed factual allegations are not required, a

complaint must plead "enough facts to state a claim to relief that is plausible on its face." Twombly,

550 U.S. at 555, 570. "The plausibility standard is not akin to a probability requirement, but it asks for

more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662,

678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (internal quotations omitted).

Folk's claims against the remaining unserved Defendants-approximately thirty-five individuals-suffer

from the same defects{2021 U.S. Dist. LEXIS 9} articulated above. As such, the unserved

Defendants are entitled to dismissal from this action.

III. Leave to Amend

When a complaint fails to present a prima fade case of liability, district courts must generally grant

leave to amend before dismissing the complaint. See Grayson v. Mayview State Hosp., 293 F.3d

103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000). Specifically, the

Third Circuit Court of Appeals has admonished that when a complaint is subject to dismissal for

failure to state a claim, courts should liberally grant leave to amend "unless such an amendment

would be inequitable or futile." Phillips, 515 F.3d at 245 (citing Alston v. Parker, 363 F.3d 229, 235

(3d Cir. 2004)). For the reasons set forth above, the Court concludes that any further amendment

would be futile, and Folk will not be permitted leave to file a third amended complaint. See Jones v.

Unknown D. 0. C. Bus Driver & Transp. Crew, 944 F.3d 478, 483 (3d Cir. 2019) (where inmate

plaintiff "has already had two chances to tell his story . . . giving him further leave to amend would be

futile.").

IV. Conclusion

The Court will grant the BOP Defendants' motion (Doc. 104) to dismiss the second amended

complaint based on Folk's failure to comply with Rules 8 and 20 of the Federal Rules of Civil

Procedure. The Court will also dismiss the unserved Defendants from this action.

A separate Order shall issue.

Isl Robert D. Mariani

Robert D. Mariani

United States District Judge

Dated. March 10, 2021(2021 U.S. Dist. LEXIS 10}

ORDER

AND NOW, this 10th day of March, 2021, upon consideration of the BOP Defendants' motion (Doc.

104) to dismiss, and for the reasons set forth in the accompanying Memorandum, IT IS HEREBY

ORDERED THAT:

1. The motion (Doc. 104) is GRANTED.

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2. The unserved Defendants are DISMISSED pursuant to 28 U.S.C. § 1915(e).

3. The remaining pending motions (Docs. 133, 134, 135, 138, 142, 145, 151) are DISMISSED as

moot.

4. The Clerk of Court is directed to CLOSE this case.

5. Any appeal from this Order is DEEMED frivolous and not taken in good faith. See 28 U.S.C. §

1915(a)(3).

Isl Robert D. Mariani

Robert D. Mariani

United States District Judge

Footnotes

Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971)

(holding that there exists an implied private action for damages against federal officers alleged to

have violated a citizen's constitutional rights).

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Appendix A

OMAR S. FOLK. Appellant v. BUREAU OF PRISONS, Employees and Medical Staff; PA-C SAMUEL

GOSA; ELIZABETH SANTOS/STAHL, Clinical Director; DR. ROBERT E. PUCELL; JOHN T. BURN;

BRIAN BUSCHMAN; D. PARKER; M. MAGYAR; R. PARKYN; C. SMITH; JENNIFER HOLTZ-APPLE;

DAVID J. BALL; PA-C ZALNO; CO. GENTZYEL; R&D FAUSEY; M. WASHINGTON; L. HUNTER; J.

POTOPE; T. GREELY; T. ANDRESS; T. CULLEN; J. MARIS; A. RODERMEL; A. DEWALT; C.

CRAIG; NICK MAIZE; C. ERICKSON; E. STAHL; J. WALKER; C. CAIN; J. FREYNIK; D.

NICOLLETTE; T. THOMAS

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

2023 U.S. App. LEXIS 12908

Nos. 22-3078 & 22-3208

March 2, 2023, Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or

Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

May 25, 2023, Opinion Filed

Notice:

NOT PRECEDENTIAL OPINION UNDER THIRD CIRCUIT INTERNAL OPERATING PROCEDURE

- RULE 5.7. SUCH OPINIONS ARE NOT REGARDED AS PRECEDENTS WHICH BIND THE ------COURT.PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1

GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.

Editorial Information: Subsequent History

As Corrected May 29, 2023

Editorial Information: Prior History

{2023 U.S. App. LEXIS 1}On Appeal from the United States District Court for the Middle District of

Pennsylvania. (M.D. Pa. Civil Action No. 3:18-cv-02252). District Judge: Honorable Robert D.

Mariani.Folk v. Bureau of Prisons, 2019 U.S. Dist. LEXIS 165940, 2019 WL 4724799 (M.D. Pa., Sept.

26, 2019)

Counsel

OMAR SIERRE FOLK. Plaintiff - Appellant (22-3078, 22-3208): , Pro se,

Minersville, PA.

For FEDERAL BUREAU OF PRISONS, Employee's and

Medical Staff, Defendant - Appellee (22-3078, 22-3208): Samuel S. Dalke, Esq., Navin Jani,

Esq., Office of United States Attorney Middle District of Pennsylvania, Harrisburg, PA.

For DAVID J. BALL, Defendant (22-3078, 22-3208): Jacob C.

Lehman, Esq., Ari J. Sliffman, Esq., German Gallagher & Murtagh, Philadelphia, PA.

Judges: Before: GREENAWAY, JR„ MATEY, and FREEMAN, Circuit Judges.

Opinion

OPINION*

PER CURIAM

Omar Sierre Folk appeals from two orders of the District Court denying his post-judgment motions.

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and terms and conditions of the Matthew Bender Master Agreement.

02/05/2024

For the reasons that follow, we will summarily affirm the District Court's judgment.

In 2018, Folk brought a civil rights action in the District Court regarding his medical care in prison. In

2021, the District Court dismissed his complaint. After Folk appealed, we affirmed the District

Court's judgment, and Folk's subsequent petition for a writ of certiorari was denied. See Folk v.

Bureau of Prisons. No. 21-1543, 2021 U.S. App. LEXIS 23798, 2021 WL 3521143, at *1 (3d Cir. Aug.

11, 2021), cert, denied. 143 S. Ct. 133, 214 L. Ed. 2d 39 (2022).

Folk then{2023 U.S. App. LEXIS 2} returned to the District Court. He filed a motion seeking

reconsideration of the denial of a prior motion he filed to amend his complaint, as well as a motion

for leave to file a certificate of merit regarding his claim of professional negligence. The District

Court denied both motions, noting that Folk's appeal had concluded and that he presented no

argument to support reopening the case. Folk then filed another motion for leave to file a certificate

of merit, which was denied. Folk has appealed both decisions. 1

The District Court properly concluded that Folk's motions did not present an appropriate basis for

reopening his case. See Budget Blinds. Inc, v. White. 536 F.3d 244, 255 (3d Cir. 2008); Max's

Seafood Cafe ex rel. Lou-Ann. Inc, v. Quinteros. 176 F.3d 669, 677 (3d Cir. 1999). Folk had an

opportunity to make arguments about his underlying factual allegations throughout District Court

proceedings and on appeal, and he has made arguments regarding filing a certificate of merit since

early bn in fhe Dfstnct Cburriitiqati6hrCfrSmitTi V. Evans^'853'FT2d 1557T5F73d Cir. 19881

(explaining that motions for reconsideration "may not be used as a substitute for appeal"), overruled

on other grounds by Lizardo v. United States. 619 F.3d 273, 276-77, 54 V.l. 827 (3d Cir. 2010).

(2023 U.S. App. LEXIS 3}Accordingly, we will summarily affirm the District Court's orders.2

Footnotes

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute

binding precedent.

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We may summarily affirm a

district court’s decision if an appeal fails to present a substantial question. See Murray v. Bledsoe.

650 F.3d 246, 247 (3d Cir. 2011) (per curiam).

Folk's pending motions are denied.

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02/05/2024

Case 3:18-cv-02252-RDM-CA Document 213 Filed 11/02/22 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

OMARS. FOLK,

Plaintiff

Civil No. 3:18*cv-2252

(Judge Mariani)

BUREAU OF PRISONS, etal.

Defendants

ORDER

AND NOW, this

dav of November, 2022, upon consideration of Plaintiffs

motion (Doc. 211) for leave to file a certificate of merit, and in light of the fact that this action

was closed on March 10,2021 (Docs. 165,166)1, well in advance of Plaintiffs present

motion for leave to file a certificate of merit, IT IS HEREBY ORDERED THAT the motion

(Doc. 211) is DISMISSED.

Robert D. Mariani

United States District Judge

On August 11,2021, the United States Court of Appeals for the Third Circuit affirmed this

Court's March 10, 2021 Memorandum and Order. (Docs. 181,187, Folk v. Bureau of Prisons, etal., No.

21-1543 (3d Cir. Aug. 11,2021)). Additionally, on October 3,2022, the United States Supreme Court

denied Plaintiffs petition for writ of certiorari. See Folk v. Bureau of Prisons, et a/., No. 21-7861 (2002).

Case 3:18-cv-02252-RDM-CA Document 203 Filed 10/05/22 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Civil No. 3:18-cv-2252

OMARS. FOLK,

Plaintiff

(Judge Mariani)

SCRANTON

BUREAU OF PRISONS, etal.,

OCT 0 5 2021

Defendants

AND NOW, this

per

depwcIerk

ORDER

day of October, 2022, upon consideration of Plaintiff’s

motion (Doc. 196) for leave to file a third amended complaint, and upon further

consideration of the Court’s Memorandum and Order dated March 10,2021 (Docs. 165,

166) closing this matter, and the Mandate of the United States Court of Appeals for the

Third Circuit (Docs. 181,187, Folk v. Bureau of Prisons, et a/., No. 21-1543 (3d Cir. Aug.

11,2021)), affirming this Court’s March 10,2021 Memorandum and Order, IT IS HEREBY

ORDERED THAT the motion (Doc. 196) is DISMISSED as moot.

Robert D. Marianr^

United States District Judge

OMAR S. FOLK, Plaintiff v. BUREAU OF PRISONS, et al„ Defendants

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

2021 U.S. Dist. LEXIS 44635

Civil No. 3:18-cv-2252

March 10, 2021, Decided

March 10, 2021, Filed

{2021 U.S. Dist. LEXIS 1}Omar S. Folk, Plaintiff, Pro se, White Deer,

Counsel

PA.

For Bureau of Prisons, Employee's and Medical Staff, PA-C

Samuel Gosa, Elizabeth Santos/Stahl, Clinical Director, Brian Buschman, D. Parker, M.

Magyar, R. Parkyn, C. Smith, Jennifer Holtz-Apple, PA-C Zalno, Co. Gentzyel, R&D Fausey,

M. Washington, Defendants: Samuel Dalke, US Attorney's Office, Middle District of PA Prisoner, Harrisburg, PA.

For David J. Ball, Defendant: Ari J. Sliffman, German, Gallagher

& Murtagh, PC, Philadelphia, PA; Jacob C. Lehman, German Gallagher & Murtagh, P.C.,

Philadelphia, PA.

Judges: Robert D. Mariani, United States District Judge.

Opinion

Opinion by:

Robert D. Mariani

Opinion

MEMORANDUM

Plaintiff Omar Folk ("Folk"), an inmate confined at the Federal Correctional Institution, Allenwood

Medium, in White Deer, Pennsylvania ("FCI-Allenwood”), initiated this action pursuant to Bivens v.

Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). 1 (Doc.

1). The matter is proceeding via a second amended complaint. (Doc. 101). Named as Defendants

are several individuals employed by the Federal Bureau of Prisons ("BOP”), and Dr. David J. Ball, a

private physician. Presently pending before the Court is Defendant Ball's motion (Doc. 110) to

dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, the

Court will grant the motion{2021 U.S. Dist. LEXIS 2} to dismiss.

I. Allegations of the Second Amended Complaint2

Folk alleges that Dr. Ball violated his Eighth Amendment rights and committed medical negligence

for failing to adequately treat his knee and quadriceps injuries. (Doc. 101). Folk asserts that Dr. Ball

treated him on at least seven occasions from 2013 to 2018. (Id. at IfH 85, 87, 92, 201). Dr. Ball

ordered three magnetic resonance imaging ("MRI") scans and two x-rays of Folk's leg and ordered

nerve tests. (Id. at

85, 92, 201). Dr. Ball recommended injections to help alleviate Folk's pain, but

Folk declined the injections. (Id. at U 201). On April 29, 2016, Dr. Ball performed arthroscopic surgery

on Folk's right knee. (Id. at U 92).

Folk further alleges that he suffered a ruptured quadriceps muscle and Dr. Ball refused to perform

surgery on the quadriceps. (Id. at fflj 85, 92). Dr. Ball recommended that Folk participate in physical

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therapy and use a stationary bike. (Id. at If 92).

II. Legal Standard

A complaint must be dismissed under Fed. R. Civ. P. 12(b)(6) if it does not allege "enough facts to

state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127

S. Ct. 1955, 167 L. Ed. 2d 929 (2007). The plaintiff must aver "factual content that allows the court to

draw the reasonable inference that the defendant{2021 U.S. Dist. LEXIS 3} is liable for the

misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868

(2009).

"Though a complaint 'does not need detailed factual allegations, ... a formulaic recitation of the

elements of a cause of action will not do." DelRio-Mocci v. Connolly Props. Inc., 672 F.3d 241,245

(3d Cir. 2012) (citing Twombly, 550 U.S. at 555). In other words, "[factual allegations must be

enough to raise a right to relief above the speculative level." Covington v. Int'l Ass'n of Approved

Basketball Officials, 710 F.3d 114, 118 (3d Cir. 2013) (internal citations and quotation marks

omitted). A court "takefs] as true all the factual allegations in the Complaint and the reasonable

inferences that can be drawn from those facts, but. . . disregardfs] legal conclusions and threadbare

recitals of the elements of a cause of action, supported by mere conclusory statements." Ethypharm

S.A. France v. Abbott Laboratories, 707 F.3d 223, 231, n.14 (3d Cir. 2013) (internal citations and

quotation marks omitted).

Twombly and Iqbal require [a district court] to take the following three steps to determine the

sufficiency of a complaint: First, the court must take note of the elements a plaintiff must plead

to state a claim. Second, the court should identify allegations that, because they are no more

than conclusions, are not entitled to the assumption of truth. Finally, where there are

well-pleaded factual allegations, a court should assume their veracity and then determine

whether they plausibly give rise to an entitlement{2021 U.S. Dist. LEXIS 4} for relief.Conne//y v.

Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013).

"[WJhere the well-pleaded facts do not permit the court to infer more than the mere possibility of

misconduct, the complaint has alleged - but it has not show[n] - that the pleader is entitled to relief."

Iqbal, 556 U.S. at 679 (internal citations and quotation marks omitted). This "plausibility"

determination will be a "context-specific task that requires the reviewing court to draw on its judicial

experience and common sense." Id.

However, even "if a complaint is subject to Rule 12(b)(6) dismissal, a district court must permit a

curative amendment unless such an amendment would be inequitable or futile." Phillips v. Cnty. of

Allegheny, 515 F.3d 224, 245 (3d Cir. 2008).

[E]ven when plaintiff does not seek leave to amend his complaint after a defendant moves to

dismiss it, unless the district court finds that amendment would be inequitable or futile, the court

must inform the plaintiff that he or she has leave to amend the complaint within a set period of

tim e.ld.

III. Discussion

Dr. Ball moves to dismiss the second amended complaint on three grounds: (1) Dr. Ball is not a

federal actor subject to an Eighth Amendment claim;3 (2) failure to state an Eighth Amendment

claim; and, (3) failure to obtain a certificate of merit for the professional negligence claim, see Pa. R.

Civ. P. 1042.3. (Doc. 111).

A. Eighth Amendment Claim

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and terms and conditions of the Matthew Bender Master Agreement.

70838087

Folk alleges that{2021 U.S. Dist. LEXIS 5} Defendant Dr. Ball was deliberately indifferent to his

serious medical needs, in violation of the Eighth Amendment, for failing to adequately treat his knee

and quadriceps injuries. The Eighth Amendment prohibits the infliction of cruel and unusual

punishment on prisoners. Fuentes v. Wagner, 206 F.3d 335, 344 (3d Cir. 2000). In the context of

medical care, the Eighth Amendment "requires prison officials to provide basic medical treatment to

those whom it has incarcerated." Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). To establish an

Eighth Amendment claim based on a prison's denial of medical care, an inmate must allege acts or

omissions by prison officials that were sufficiently harmful to establish deliberate indifference to a

serious medical need. See Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004); Natale v. Camden Cty.

Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003). The relevant inquiry is whether the defendant: (1)

was subjectively deliberately indifferent (2) to the plaintiffs objectively serious medical needs.

Farmer v. Brennan, 511 U.S. 825, 834, 837, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994); Chavarriaga

v. N.J. Dep't of Corn, 806 F.3d 210, 226 (3d Cir. 2015).

The "deliberate indifference" prong of the applicable Eighth Amendment analysis requires that the

defendant actually know of and disregard "an excessive risk to inmate health or safety." Farmer, 511

U.S. at 837. Circumstantial evidence can establish subjective knowledge on the part of the defendant

if it shows that the excessive risk was so obvious that the official must have known about it. See

Beers-Capitol v. Whetzel, 256 F.3d 120, 133 (3d Cir. 2001) (citing Farmer, 511 U.S. at 842). The

Third Circuit has found deliberate indifference when a prison{2021 U.S. Dist. LEXIS 6} official: "(1)

knows of a prisoner's need for medical treatment but intentionally refuses to provide it; (2) delays

necessary medical treatment based on a non-medical reason; or (3) prevents a prisoner from

receiving needed or recommended medical treatment.” Rouse, 182 F.3d at 197.

The second prong of the Eighth Amendment inquiry is whether the plaintiff's medical needs were

serious. A serious medical need is "one that has been diagnosed by a physician as requiring

treatment or one that is so obvious that a lay person would easily recognize the necessity for a

doctor's attention." Monmouth Cty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987).

Not every condition is a serious medical need; instead, the serious medical need element

contemplates a condition of urgency, namely, one that may produce death, degeneration, or extreme

pain. See id.

Moreover, because only egregious acts or omissions can violate this standard, mere medical

malpractice cannot result in an Eighth Amendment violation. White v. Napoleon, 897 F.2d 103,

108-10 (3d Cir. 1990); Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976)

("[Mjedical malpractice does not become a constitutional violation merely because the victim is a

prisoner.”). The Supreme Court has held that negligence or inadvertence alone do not rise to the

level of a constitutional violation. Whitley v. Albers, 475 U.S. 312, 106 S. Ct. 1078, 89 L. Ed. 2d 251

(1986). The Supreme Court has also noted that "Mack of due care suggests no more than{2021 U.S.

Dist. LEXIS 7} a failure to measure up to the conduct of a reasonable person." Daniels v. Williams,

474 U.S. 327, 332, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986). Where a state of mind is relevant, the

complaint is inadequate if it merely contains conclusory allegations describing the requisite state of

mind such as "intentionally" or "recklessly" without supporting factual allegations. Wilson v. Seiter,

501 U.S. 294, 111 S. Ct. 2321, 115 L. Ed. 2d 271 (1991).

Prison medical authorities are given considerable latitude in the diagnosis and treatment of inmate

patients, see Young v. Kazmerski, 266 F. App'x 191, 194 (3d Cir. 2008), and a doctor's disagreement

with the professional judgment of another doctor is not actionable under the Eighth Amendment. See

White, 897 F.2d at 108-10. Furthermore, it is well-settled that an inmate’s dissatisfaction with a

course of medical treatment, standing alone, does not give rise to a viable Eighth Amendment claim.

lyccases

and terms and conditions of the Matthew Bender Master Agreement.

See Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990) ("[A]s long as a physician

exercises professional judgment his behavior will not violate a prisoner's constitutional rights.");

Pearson v. Prison Health Serv., 850 F.3d 528, 535 (3d Cir. 2017) ("[Wjhen medical care is provided,

we presume that the treatment of a prisoner is proper absent evidence that it violates professional

standards of care.").

Here, Folk acknowledges that Dr. Ball treated him on several occasions for his knee and quadriceps

injuries. Dr. Ball evaluated Folk's quadriceps injury and determined that surgery would not be

successful and could lead to severe and{2021 U.S. Dist. LEXIS 8} permanent nerve damage. (Doc.

101 92). Folk maintains that Dr. Ball should have performed surgery on his quadriceps, rather than

the alternate treatments prescribed by Dr. Ball. Over the course of his treatment of Folk, Dr. Ball

ordered diagnostic testing, including MRIs, x-rays, and nerve tests. (Id. at fflj 85, 92, 101). Dr. Ball

also performed arthroscopic knee surgery, recommended pain injections, and referred Folk to

physical therapy. (Id. at

92, 201).

Stripped to its essentials, Folk's claim is simply a dispute between an inmate and his doctor over the

precise nature of his medical treatment. A showing of deliberate indifference requires more. See

Brown, 903 F.2d at 278; Pearson, 850 F.3d at 535. Folk's own allegations provide that he receivedv

regular medical care from Dr. Ball, as well as other physicians and medical personnel. Although-Polk

disagrees with-Dr.-Ball about the proper course of treatment-such disagreement is not tantamount to'*

,ajC'onstitutibbaJ Violation. The most that can be said of Folk's claim is that it asserts that Dr. Ball's

professional judgment was deficient. As articulated above, this is not enough to rise to the level of a

constitutional violation and courts will not second guess whether a particular{2021 U.S. Dist. LEXIS

9} course of treatment is adequate or proper. See Parham v. Johnson, 126 F.3d 454,' 458 n.7 (3d Cir.

1997) (quoting Inmates of Allegheny Cty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979)); Spruill,

372 F.3d at 235 (holding that "mere disagreement as to the proper medical treatment" is insufficient

to state a constitutional violation). Moreover, there is no indication that Dr. Ball's actions were based

on an ulterior motive beyond providing routine patient care. See Spruill, 372 F.3d at 237 (noting that

in order to state a deliberate indifference claim, a plaintiff should in some way "connectfcHbTs.factual

allegationsto'thealleged'mentalstates=of:the-defehdants)~Accofaingly7The'Court-will-grantrDr-.

Ball:§ motion'to-clismjssTthe-Eighth-AmendmentTGlaim.

B. Professional Negligence Claim

Defendant Dr. Ball next argues that Folk's professional negligence claim must be dismissed based

on his failurejojimely file a certificate of merit!fCOM'"f, as required by Pennsylvania Rule of Civil

Procedure'?f042:3/(D6c~1117pjo^15^il5). Rule 1042.3 requires a plaintiff alleging professional

negligence to file a jCOM]within sixty (60)'days of filing the complaint.^Pa'. R. CivVP. ~1042:3f The

certificate must include one of the following: a written attestation by "an appropriate licensed

professional" that there is a "reasonable probability that the care, skill or knowledge exercised or

exhibited” by the defendant "fell below acceptable professional standards,"(2021 U.S. Dist. LEXIS

10} and that this was the cause of the plaintiff's injuries; a statement that the claim against the

defendant is based only on the professional-negligence,, of those for whom the defendant is

responsible; or a statement that expeTHestimony is unnecessary for the plaintiffs claim to proceed.

Pa. R. CivTP. ld42.3(ay(T)-(3). Failure to file a certificate of merit is fatal to a plaintiffs claim.tRa. ,r0

Civ. P. 1042.7}. A defendant seeking to disrniss for want of a certificate must first file written notice of

their intent to do so, no sooner than thirty[(30) days}after the complaint was filed. 'PSTR-IGiy^R.

As a threshold matter, the Court finds that!Rule~1042:3'applies to this action'.The Third Circuit has

determined that the certificate of merit requirement is a substantive rule of Pennsylvania law,

lyccases

and terms and conditions of the Matthew Bender Master Agreement.

70330067

applicable to federal court actions under Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct.

817, 82 L. Ed. 1188 (1938). See Liggon-Redding v. Estate of Robert Sugarman, 659 F.3d 258 (3d

Cir. 2011); Chin v. Chrysler LLC, 538 F.3d 272, 278 (3d Cir. 2008).

Pursuant to Pennsylvania law, "a court may consider two equitable exceptions when a plaintiff has

improperly failed to file a COM: whether the plaintiff has substantially complied with Rule 1042.3 and

whether the plaintiff has offered a reasonable explanation or legitimate excuse for failure to comply."

Ramos v. Quien, 631 F. Supp. 2d 601,611 (E.D. Pa. 2008) (citing Womerv. Hilliker, 589 Pa. 256,

908 A.2d 269, 276, 279 (Pa. 2006)). Federal courts have since applied these equitable

considerations to determine if a plaintiff who fails to timely file{2021 U.S. Dist. LEXIS 11) a

certificate of merit may be relieved from the requirement if he provides a reasonable explanation or

legitimate excuse. See Perez v. Griffin, 304 F. App'x 72, 74 (3d Cir. 2008) (observing that "failure to

comply with Rule 1042.3 is not fatal to claims of professional liability if the Plaintiff can show

'reasonable excuse' for the noncompliance'') (quoting Womer, 908 A.2d at 279-80).

In the instant action, Folk was required to file a certificate of merit producing expert testimony that

his medical treatment deviated from acceptable medical standards, and to show that the deviation

was the proximate cause of any injuries. Folk's medical claims are not within the knowledge of lay

persons, as they relate to allegations that Dr. Ball was negligent in providing medical care.

Specifically, Folk claims that he was not provided adequate treatment for his quadriceps and knee

injuries.^This claim is clearly "an integral part of the process of rendering medical treatment" which

involves professional medical judgment which is beyond the realm of the lay person. Paige y.

ffoltzappleji2009 U.S. Dist. LEXIS 73624, 2009 WL 2588849, *4 (M.D. Pa. 2009) ("Where the

conduct at issue constituted an integral part of rendering medical treatment, and involved diagnosis,

care, and treatment by a licensed professional, . . . the action is one that is characterized as a

professional{2021 U.S. Dist. LEXIS 12} negligence action requiring expert testimony."). It cannot be

said that a decision of whether, when or what type of treatment should be provided "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." Hightower-Warren v. Silk, 548 Pa. 459, 698 A.2d 52, 54 n.1 (Pa.

1997). Accordingly, a certificate of merit is required for the professional negligence claim.

Folk filed his second amended complaint on or about May 11, 2020. (Doc. 101). Folk did not file the

requisite certificate of merit, did not request an extension of time in which to do so, and failed to

show a reasonable explanation or legitimate excuse for failure to timely file a certificate of merit.

Consequently, the Court will grant Dr. Ball's motion to dismiss the professional negligence claim

based on Folk's failure to file a certificate of merit.

IV. Leave to Amend

When a complaint fails to present a prima facie case of liability, district courts must generally grant

leave to amend before dismissing the complaint. See Grayson v. Mayview State Hosp., 293 F.3d

103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000). Specifically, the

Third Circuit Court of Appeals has admonished that when a complaint is subject to dismissal for

failure to state a claim, courts should liberally grant leave to amend{2021 U.S. Dist. LEXIS 13}

"unless such an amendment would be inequitable or futile." Phillips, 515 F.3d at 245 (citing Alston v.

Parker, 363 F.3d 229, 235 (3d Cir. 2004)). For the reasons set forth above, the Court concludes that

any further amendment would be futile, and Folk will not be permitted leave to file a third amended

^complaint: See Jones v. Unknown D.O.C. Bus Driver & Transp. Crew, 944 F.3d 478, 483 (3d Cir.

2019) (where inmate plaintiff "has already had two chances to tell his story . .. giving him further

leave to amend would be futile.").

V. Conclusion

lyccases

and terms and conditions of the Matthew Bender Master Agreement.

\ % •* , r

The Court will grant Defendant Ball's motion (Doc. 110) to dismiss. A separate Order shall issue.

Is/ Robert D. Mariani

Robert D. Mariani

United States District Judge

Dated: March 10, 2021

ORDER

AND NOW, this 10th day of March, 2021, upon consideration of Defendant Ball's motion (Doc. 110)

to dismiss, and for the reasons set forth in the accompanying Memorandum, IT IS HEREBY

ORDERED THAT:

1. The motion (Doc. 110) is GRANTED.

2. The claims against Defendant David J. Ball are DISMISSED.

Isl Robert D. Mariani

Robert D. Mariani

United States District Judge

Footnotes

In Bivens, the United States Supreme Court created a federal tort counterpart to the remedy created

by 42 U.S.C. § 1983 as it applies to federal officers.

The Court only includes the allegations pertaining to Dr. Ball.

For purposes of this Memorandum, the Court finds that Dr. Ball is a federal actor subject to liability

on the Eighth Amendment Claim. As such, the Court moves directly to the merits of the claims.

lyccases

and terms and conditions of the Matthew Bender Master Agreement.

70338087

¥ '

Case 3:18-cv-02252-RDM-CA Document 203 Filed 10/05/22 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

OMARS. FOLK,

Civil No. 3:18-cv-2252

Plaintiff

(Judge Mariani)

Fli ED

SCRANTON

BUREAU OF PRISONS, etal.

0C7 0 5 2022

Defendants

PER

DEpWCLERK

ORDER

AND NOW, this

day of October, 2022, upon consideration of Plaintiff's

motion (Doc. 196) for leave to file a third amended complaint, and upon further

consideration of the Court's Memorandum and Order dated March 10,2021 (Docs. 165

166) closing this matter, and the Mandate of the United States Court of Appeals for the

Third Circuit (Docs. 181,187, Folk v. Bureau of Prisons, et a/., No. 21-1543 (3d Cir. Aug.

11,2021)), affirming this Court’s March 10,2021 Memorandum and Order, IT IS HEREBY

ORDERED THAT the motion (Doc. 196) is DISMISSED as moot.

Robert D. MaTrani-^

United States District Judge

02/05/2024

4NTHE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

OMARS. FOLK,

• Civil No. 3:18-cv-2252

Eiaiatiff.

"V.

SCRAMTON

BUREAU OF PRISONS, etal.,

OCT 2 5 2022

Defendants"

PER

ORDER

AND NOW, this &

■ DaPUYY$[iRK-T^

1day of October, 2022, upon consideration of Plaintiffs

motion (Doc. 205} for reconsideration of the October 4, 2022 Court Order (Doc. 203)

dismissing as moot his motion for leave to file a third amended complaint1, and in light of the

fact that this action was closed on March 10, 2021 (Docs. 165,166), well in advance of

Plaintiffs motion for leave to amend, the Court finds no reason to revisit its October 4,2022

Order and that Plaintiff has failed to demonstrate reliance on one of three major grounds

needed^for a proper motion for reconsideration. A/orf/? River Ins. Co. v. Cigna Reinsurance

Co., 52 F.3d 1194,1218 (3d Cir. 1995) (stating that the three major grounds include: “(1) an

intervening change in controlling law; (2) the availability of new evidence [not available

previously]; [or], (3) the need to correct clear error [of law] or prevent'manifest injustice.”),

1 On October 4, 2022, the Court dismissed as moot Plaintiffs motion for leave to file a third

amended complaint. (Doc. 203). The Court noted that this action was closed on March 10, 2021, and that

the United States Court of Appeals for the Third Circuit affirmed this Court's March 10,2021 Memorandum

and Order. Additionally, on October 3, 2022, the United States Supreme Court denied Plaintiffs petition for

writ of certiorari. See Folk v. Bureau of Prisons, etal., No. 21-7861 (2002),

02/05/2024

-but,, instead,-simply-disagFees-with-the-GouFtVdispGsition-ofthis-matterrmS HEREBY

ORDERED THAT:

The motion (Doc. 205) for reconsideration is DENIED.

The motion (Doc. 208) for leave to file a certificate of merit is DISMISSED.

j r

RdBert D. MarianfJ

United"States-Bi3trict Judge

. 11

02/05/2024

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

OMAR S. FOLK,

Plaintiff

Civil No. 3:18-cv-2252

(Judge Mariani)

BUREAU OF PRISONS, et al.

Defendants

ORDER

AND NOW, this

day of November, 2022 upon consideration of Plaintiffs

motion (Doc. 211) for leave to file a certificate of merit, and in light of the fact that this

action

was closed on March 10, 2021 (Docs. 165,166)’, well in advance of Plaintiffs present

motion for leave to file a certificate of merit, IT IS HEREBY ORDERED THAT the motion

(Doc. 211) is DISMISSED.

Robert D. Mariani

United States District Judge

Court’s March 10 20? I];202 1 Unit®dnS!ates Court of Appeals for the Third Circuit affirmed this

21-^543 (3dCi AuaZTZrnd ^ iD°CS‘ 1B1*187’Folk v• Bureau of Prisons, etal., No.

denied Plaintiffs iL V

} ,Addltlona!ly'on 0ctober 3- 2022, the United States Supreme Court

denied Plaintiffs petition for writ of certiorari. See Folk v. Bureau of Prisons, et al., No 21 7861 (2002)

02/05/2024

Exhibit A

Doc. 196

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

OMAR S. FOLK

Plaintiff,

THIRD AMEND COMPLAINT

JURY TRIAL DEMANDED

vs.

UNITED STATES OF AMERICA et al.,

Defendant's

SETTLEMENT

No. 3:18-CV-2252

(Hon. Robert D. Mariani)

(Mag. C. Carlson)

PLAINTIFF’S THIRD AMEND COMPLAINT FOR

MOTION TO LEAVE AN AMEND UNDER FED. R.

CIV. P. 15(c)(1)(B) TO REPOSE SECOND

AMEND COMPLAINT 15(a)(2) DOC. 30

Plaintiff Omar S. Folk, for his Third Amend Complaint against

defendant’s United States' as sole defendant-for .all defendant’s

in Doc. 30 under there individually and official capacities.

THIRD AMEND COMPLAINT

I. Parties in this Complaint.

A. Plaintiff:

1.) Plaintiff, Omar S. Folk was living in York PA. Plaintiff

is currently a federal prisoner. Plaintiff was at all times, during

the alleged events, housed as a federal prisoner at FCI Allenwood

Complex.

B. Def endants

2.) United States Sole defendant to follow in Doc. 30.

II. Basis For Jurisdiction.

02/05/2024

3.)

28 U.S.C. § 1331 and 28 U.S.C. § 1346 states that "the

District Court shall have original jursidiction of all Civil Actions

arising under the constitution, Laws, or Treaties of the United

States."

Diversity Jurisdiction.

4.)

28 U.S.C. § 1332(a) and 28 U.S.C. § 1441 states that, the

District Courts shall original Jurisdiction of all Civil Actions where

the matter in controversy exceed the sum value of $75,000, exclusive

of interest and costs, and is between (1) citizens of different states.

5.)

Plaintiff believes his Action provides this honorable

Court with both Federal Question Jurisdiction - and Diversity Jurisdiction.

III. Venue.

6.) It is important to note that if the Action is based on

Diversity and a Federal Question, the venue provision for a Federal

Question case applies. 28 U.S.C. § 1391(b) provides generallyfor

venue in (1) a judicial District where any Defendant resides, if all

Defendants reside in the same State, (2) a judicial District in which

a substantial part of the events giving rise to claim occurred, or (3)

a judicial District in which any Defendant may be found, if there is

rio District in which the Action may otherwise be brought.

7.) Plaintiff beleives that all Defendants reside in the

State of Pennsylvania. All events giving rise to Plaintiff's claim

arose in

the State of Pennsylvania. Plaintiff is reasonably sure

that all Defendants can be found in the State Pennsylvania at the

present time.

IV. Statement of Claim.

8.) On or about 11-22-13 "United States": Folk encounter MD Brian

Buschman for intakeeat USP Allenwood Allenwood. During this time

02/05/2024

Folk had in his possession ’’Hinge-Knee-Brace" that had a lock-out

mechanism for 120° and 90° degrees. MD Brian Buschman "United States 99 "

taken Folk ”hinge-Knee-Brace" due to security reason and order consult

to see Ortho Doctor Ball 11-26-13 and PA-C C. Craig was witness

■if

<iw — ■■nf ■

this point Dr

Ball order that Hinge-Knee-Brace be taken also and

order Cane, Medium Sleeve and Physical Therapy. Folk receive Physical

Therapy off and on since 2014 up to 4-1-15 X-Ray for right-knee liga

ment tare and infection/Osteomyelitis. On 4-21-15 MRI result shown Vquadricep and Patella tendon appear expanded and heterogenous and

considerable artifact is present from the surgical sutures which' limit

our evaluation for continulity of the tendons. On 5-20-15 Folk encounter

Dr. Ball and he order Folk to ride bike as altered insteadoof surgery.

On 11-24-15 Folk encounter Dr. Ball again and Folk was still stating

right-leg keep giving out and I’m suffering pain in right-knee. On

4-29-16 Folk encounter Dr. Ball in Geisinger Hospital Right-Knee

operation was perform. 5-24-16 Folk encounter Dr. Ball and he mention

how is your knee now after I taken allograph out of your right-knee

and scrape black mineral off your knee bone. Also mention Dr. Ball

"United States" I did not perform any treatment on right v-quadricep.

On 7-5-16 Folk was called down to Health by PA-C Holtzapple for his

Cane to be taken. On 8--10-16 Folk encounter PA-C Woods for "NMES"

machine that will treat and send electric shocks to right-V-Quadrieep

muscle. On 10-12-16 receive X-Ray that resulted into Chronic Cortical

irreegularity inferior patella pole. On Dec. 7, 2016 Folk encounter

PT Andrews and explain to PT Andrews I have not really been using

NMES machine as I have been suffering excruciating pain in right-side

and I m waiting for "Cholecystectomy". On Dec. 15, 2016 Folk was

02/05/2024

Transfer to FCI Allenwood Medium. On or about 1/10/17 Folk encounter

PA-C Gosa .pertaining to a new Patella-Knee-Brace and size 16 soft shoe.

Folk original "Hinge-Knee-Brace" was taken on 11-22-13. On 4-26-17

Folk encounter PT Andrews and she noted some improvement in Right V**!•»«**

Quadricep area but still lacking in full extension and distal quad

and knee extension AROM 5-10, promo. Folk explain to PT Andrews he

still suffer pain in dent area of my right-leg. Then PT Andrews "

United States" stated to Folk you have permanent deformity in rightleg and cannot do nothing eles for you Folk. On 11/16/17 Folk encounter

"United States" PA-C Gosa requesting X-Ray due to pain in right-knee.

On 12-8-17 Plaintiff receive X-Ray it shown mild to med DJD (R) Knee.

On 3-26-18 Folk encounter Dr. Ball as :he suffer ripped up "Strap-KneeBrace" and pain Right V-Quadricep Dr. Ball check the V-Quadricep and

rule out rupture quad and also noted,Folk still has only 20° degrees

full extension after all these years and order MRI-,also re-issue the

"Hinge-Knee-Brace". On 4t24-18 Folk encounter PA-C Gosa and he provided

Folk with "Hine-Knee-Brace".* On 5-30-18 MRI was provided only on Right

V-Quadricep. On 7-24-18 Folk encounter Dr. Ball in regard to operation

of Right V-Quadricep. Dr. Ball mention if you don't suffer permanent

damage or not I will not perform surgery as you have permanent deformity

in that area of V-quadricep anyway. Folk assist on re-attaching the

right V-quadricep. On 11-5-18 Folk receive BP-11 response pertaining

to "Hinge-Knee-Brace" being to big. This complaint point to PA-C Gosa,

Dr. Ball, AHSA R. Parkyn and Dr. T. Cullen. On 11-7-18 8:57am Plaintiff

sent email Acting PA-C Zalno inregards to Large-Hinge-Knee-Brace and

size 16 soft ’shoe, on 3:10pm Folk encounter Geona Fausey after leaving

the law. library and entering the shack to be patted down. At this point

02/05/2024

Folk was target for retaliation by R&D Mailroom staff by asking Folk

to take off his "Hinge-Knee-Brace" and order to walk through the

metal detector. Folk stated clear I had this "Hinge-Knee-Brace"

since 4-24-18 and was never told to take it off. R&D Mailroom Fausey

stated who is your PA-C Gosa but who is Acting for him is PA-C Zalno.

At this time R&D Mailroom Ms. Fausey called down to Health Service

and spoke with PA-C Powanda in regards to another inmate who was told

not to take off his hinge-brace. But when spoke to PA-C Zalno she

stated Folk can take off his "Hinge-Knee-Brace"..At this time this

began continues doctrine of retaliation thereafter. On 5pm Rec move

Folk encounter R&D Mailroom Ms. Fausey and CO. M. Gentzyel as Ms.

Fausey"United States" retaliated on Folk once again by ordering Folk

to take off "Hinge-Knee-Brace" and walk through metal detector without

any support on right-knee or right-V-Quadricep. Then suffer unsanitary

condition and emotional Distress and Deliberate Indifference.. On 1110-18 Folk encounter M. Gentzyel who follow the lead in R&D Fausey

by ordering Folk to take off his "Hinge-Knee-Brace" "United States"

sole defendant liable 100%. On 11-13-18 ,7:30am Folk encounter A-W

Washington during mainline explaining about to him about "Hinge-KneeBrace" and LT John Doe present. Folk explain that M. Gentzyel order

me take off my VHinge-Knee-Brace" on 11-10-18 and stated Folk you

were getting sassy with my guard. On or about 10:30am Co.. Murphy

on 3A-came looking for Folk to be sent down to R&D Mailroom to be

re-^profile but it was not successful due to amount of metal in "HingeKnee-Brace . On.,or about 11-19-18 Folk encounter M. Gentzyel who

retaliated on Folk by tell me to take "Hinge-Knee-Brace and walk

through the metal detector around 11:30am and Folk refuse /to go

02/05/2024

through the shack. Folk now go and put on his "Strap-Knee-Brace"

do to being -fretaliated on . Now Folk go down to LawSLibrary at 12:30pm.

But early.r:recall occur because "Fog" now Folk leaving from Law Library

and entering the shack and was harass about his mesh bag by Co. Matting

ly when. .Folk stated clear you are retaliating on me. At this point Folk

request to see LT and was order to the bench by Mattingly. Folk walk to

the bench and M. Gentzyel came over and stated lets go inside andithen

demand Folk to strip search. Folk stated am I going to the SHU at this

time M. Gentzyel stated no. Folk was deprive of his Fourth Amendment

-r4ght-s— when-'-thi'rdr;t''im«-squattrng—a£-ter—being—coTnpl'et'el'y~na'ked~t'hrs Cot

M. Gentzyel order Folk to:squat an say "LET ME SEE IT ff If ASS HOLE". .

Folk fourth amendment rights, first amendment rights, eighth amendment

rights also fifth amendment. At this point Folk spoke to LT Walker and

another LT John Doe "United States" sole defendant. Then Folk was told

by Capt. Hunter to go back on the 3A block. On 6-4-19 Folk encounter

M. Gentzyel during control movement while patted down he squeeze Folk

left-leg after know Folk suffer bacterial infection..1. Folk was retaliated

on due to to "Hinge-Knee-Brace" because Capt. Hunter order all staff

to patdown search Folk. On 6/19 Folk experience lump on Eight-Eye

Ptergyium , causing puss in right eye and pain. On 7/30/19 Folk encounter

PA-C Gosa and Dr. T. Cullen as I explain first to PA-C Gosa during a

chronic care ;visit that the lump is on my eye-lid.then same to Dr. T.

Cullen. 0n9^24-19 the Optometrist stated it is Chalazion order eye

drops.This.occurred from M. Gentzyel squeezing Folk left-leg during

control movement becuase he was authorize to wear "Hinge-Knee-Brace"

instead of taken it off during the control movement. On 7-30-19 Folk

encounter "United States" M. Gentzyel on 3A after Folk left and went

02/05/2024

down to law library this Co. M. Gentzyel trash Folkrcell and confiscated

mailling stamps and Folki"NMES" battery. When he bacame aware Folk file

to ADA for help and Prison Soceity advocate John. "‘-"Folkesuf fer retaliation

emotional distress.* Fourth Amendment violation 9 J Fifth Amendment viola

>•<=.•7. Jr. ♦Sawm|P»» fc»«—mi« ihst*

■

tion under Class of One violation. On 8-13-19 Folk encounter SIS Cain,

LT Walker and Co. M. Gentzyel upon being harass in the shack after

being patted down by Co. Stigar couple times in the morning. Now during

control movement in after noon hours Folk was confronted by Co. M.

Gentzyel as he order to Co. Stigar to not patdown Folk as she "Female"

and she should not patdown search you Folk. At this time Folk stated

you not patting me down as last time you squeeze my left-leg and now

I suffer lump on right-eye lid. Folk walk away and M. Gentzyel order

Folk to LT office. At this time Folk was harass and retaliated on as

he was strip naked and had legal mail taken by SIS Cain. Folk suffer

from Fourth Amendment violation, emotional distress, retaliation,

eighth amendmentviolation and Negligence for unsanitary condition.

This.-stem again from Hinge-Knee-Brace as the Capt. Hunter stated Folk

will be patted down. Now M. Gentzyel makes sex remark in regards , to

a women staff patting down Folk in the shack fifth amendment violation.

On 9-19 Folk encounter Dr. Ball and refuse his service. On 3-24-20

Folk encounter Dr. Ball now this time he order Folk to see Nerve

Specialist and receive a new "Hinge-knee-Brace" when before Folk

last visit 7-24-18 he refuse operation of right v-quadricep. When

the facts Folk encounter PT Andrews and she noted-that Folk Right VQuadricep was not firing in lower-position. On 6-2-20 Folk encounter

Nerve Specialist Mr. Hallstrom "United States" during this encounter

Folk receive a nerve test on each leg which establish function with

02/05/2024

impulse accept for Right V-Quadricep when.-needle was place into that

area Folk receive ho response at all even when Nerve Specialist Mr.

Hallstrom stated to lift up right-foot and right leg. Eolk stated

still no response and Mr. Hallstrom stated you need to Ortho Doctor

*~<wir

'ah^irt'at^^o^tKTng^;;Wro^g^^Tr^uI^Wimr^dr'*:scah~rresiTerToTR;;

mention the PT Andrews stated in the past before 3-26-18, Folk right

V-Quadricep muscle was firing but still had complication. Then stated

to further use NMES machine to build up muscle mass. Folk further

mention to Mr. Hallstrom that on 2-11-20 PT Andrews stated clear

to Folk right V-Quadricep has no function and you need to see Dr. ’.Ball

and Folk mention Dr. Ball does not want to perform surgery. Then PT

Andrews stated you can see another Ortho Doctor on the board of

Geisinger Medical Hospital. On 6-23-20 Folkj;encounter Dr. Ball while

house in SHU with handcuff due to retaliation reasons. At this time

Dr. Ball stated lets look at the Nerve Test results which at this

point'he noted that Mr. Hallstrom said it was normal. Folk directed

his attention that this is impossible while LPN Bloom was present

as witness "United States"-sole defendant under § 4042(a)(2). Then

Folk has explain in the record up above therefore it's no need to

move any further. On 4-27-21 Folk encounter Dr. Ball again in

regards to his new "Hinge-Knee-Brace" as Folk(Was house in SHU

and was not allowed to wear his "Hinge-Knee-Brace" during 6-23-20

appointment by Dr. Ball. This further led to to MRI for left-knee

having Creptis and cracking in knee. On 5-21-21 Folk encounter

M. Gentzyel in SHU before outside transit making remarks to harass

and intimidate Folk for outside trip. Folk has made clear before

M. Gentzyel retaliated on number of reason upon "Hinge-Knee-Brace".

02/05/2024

On 8-27-21 Folk encounter Dr. Lynn who stated Folk did not suffer

any infection although Folk just receive medication Keflex which

cure Folk infection in Left-toes and left thigh.elhis was from

diabetes Type II when on 5-21-21 doctor noted 1.3cm marginal spurring,

•=Rrai:ti¥o,ca^^iton’dro'S;ts'Wirh'"TTs^'ilriR^a'hd''Trid^T*a'Tl'<?h'

ancf TaTeraT'~£T5ia ’‘ ’

subluxation. Then in the same time Folk pink-eye in left-eye, resolve

after taking the Keflex from 7-30-21 to 8-6-21.

9.) On or about S-=22-14 Folk encounter Robert Purcell Jr. for Endoscopy

which tested positive by Pathologist "Eosiniphilic-Esophagitis" and

Hiatel Hernia also Reflux EsophagitisJ abdnominal pain from greasy

foods along with nausea and vomiting and continuing PPI RX. On 10-.214J5

7:j<17am Folk encounter Dr. Burn and twi t ness Jane Doe now during:; this

time Folk explain about pain in right-side sharp stabbing pain when

eating greasy foods. At this time Dr. Burns stated littles ones are

the ones needed remove "GALLSTONES". Folk stated I need my gallbladder

remove or something because I have been going through this for years

without no improvement. Dr. Burns order for Carafate and Folk mention

I had this medication down in county on 6-13-13 for 14sdays lg before

each meal. Folk also mention to Dr. Burns I had precsribe course of

treatment that was record back in DCP 7-20-12 pointing to Memorial

Hospital York PA. 17402 on 7-19-12 when experiencing pain in stomach

burning pain and nausea an^ vomiting that night after eating pi zza

and sausage from Car Auction and Fast food place. On 12-2-15 Folk

encounter Robert Purcell Jr. for Endoscopy test and was rule again

from positive biopsy "Eosiniphilic-Esophagitis". Folk direct the

Ultrasound 7-16-15 size 18x15x9mm "Gallstone Size". On 5/2/16 18x16mm

-Cholelithiasis". On 10-7-16 Folk encounter Dr. Buschman at Chronic

02/05/2024

Care Visit when explaining to him Folk still suffer burning pain

in stomach and stabbing needle pain after eating food’s out of

the Kitchen in USP Allenwood. At this point I tell Dr. Buschman

if you don't do somethinggl will be force .to file Civil Action

as this been going on uphere for almost Three years. On £^-£7^16

Folk encounter Dr. Bradley J. Mudge,attd witness John Doe in PA•

Of fice. Doctor Mudge stated what did they say was wrong and

Folk

mention they stated I have Eosiniphilic-Esophagitis, Reflux-Esophagitis

and Hiatel Hernia also uclers. At this point Dr. Mudge stated what is

wrong you need your gallbladder remove. On 2/3/17 Folk undergo surgery

at Evangelical Community Hospital Do. Bradley J. Mudge remove Gallbladdei

and One Single Yellow Green Egg-Shaped Calculus and Cystic Artery. On

3-30-17 Folk encounter PA-C Gosa explaing to him why did'nt I see

Dr. Mudge about my after care of my gallbladder removal. I have

bloatedness and cramps. "Something is Wrong" I need a upper GI check.

At this point PA-C Gosa stated Dr. Mudge donnot what to see you Folk.

On 6-1-17 Folk file a grievance on PA-C Gosa for not ordering a

consult with Dr. Mudge as he still had pain on right-side with

bloatedness and cramps. On 6-19-17 Folk receive Ultrasound of abdomen

which reviewed my liver size went down one cm from

previous Ultra.

United States is sole defendant and Clinical Director Stahl. On 12-13-17

Folk encounter Casemanager Parker Team/jand spoke about custody

classification points when the facts Folk points drop after seeking

medical attention for gallbladder removal. At this time Ms Parker

became made and put Folk on FRP restriction and did not provide ./a

special diet as commissary was Folk only food supply after having

gallbladder remove. Retaliation, Emotional Distress, Negligence

02/05/2024

Fifth Amendment Violation as Folk suffer discrimination under

due process of lawwwhen other inmate not "Folk color was not'

subject to FRP restriction on 12-13-17 for not paying FRP fine*

On 12-20-17 Folk encounter PA-C Gosa during Chronic Visit and

<fr-' T* r

»««•

Folk request once again for outside Dr. Mudge and Upper GI to

rule pain on right-side and bloatedness, crampssafter, gallbladder

removal with the request for Special Diet. All was denied by PA-C

Gosa. On 4-9-18 Folk encounter Dental Chief Barkauskas and HYG. Heap

who stated to Folk my teeth look good. On 7-30-18 Folk encounter

HYG. Ms. Heap upon this X-Ray Ms. Heap ’’United States” stated to

Folk your No. 12 tooth is "Black” during this encounter Folk

mention he did not suffer any pain after teeth clean. But HYG.

Ms. Heap further stated to iFolk you need No. 12 extracted. At

this point Folk stated I will have this tooth remove. All this

occurred from not receiving special diet and suffer from Diabetes.

On 8-13-18 Folk encounter "United States" Dentist Wright^who

extracted No. 12 tooth. On 8.^20-18 Folk encounter Dentist Wright

after seeing him on two other occasion 8-15-18 and 8-17-18. Now

Folk seeks to receive antibiotics due to face swelling and pain

after Folk spoke with LPN Bloom who mention to Folk your face is

swollen. At this point Dentist Wright did not want to prescribe

antibiotics until Folk stated clear I will file BP-8 on you and

go down to mainline and address my concerns to Warden. On 9-19-18

Folk sent email to PA-C Gosa explaining I have been waking up

in need of urinating almost five times.;a night. Before this

Folk also seend Dr. Cullen directing my issue of moles .growing

under armpits and after gallbladder remove and still having pain

02/05/2024

water only for the days. On 6-12-19 Folk encounter Dr. Burns at

Giesinger Hospital for his procedure of Endoscopy and Colonoscopy

that reveal irriration more so because season was salty and evaluate

my high blood pressure. Then this was also the reason of Folk looking

like ate up with cuts like a knife was slicing my inside. Beside

the point of suffer MRSA and other bacterial infection that was

cause by Diabetes. On 6-25-19 Folk recommended Nutrient Supplement

dirnk and was denied by Regional Pharmist. On 8-9-19 Folk encounter

Dietitian from Health Service under "United States" who denied Folk

recommendation for Nutrient Supplement drink-and Special Diet. By

stating Folk receive special diet out in commissary. On 9-24-19

Folk encounter Optemtrist after seeing Dr. Cullen and PA-C Gosa

in July 7-2019 at this time Folk right-eve-lid was swollen and a

pimple was on the inside. Folk belief it was MRSA or bacterial

infection. Which was to be from not receiving a special diet and

Diabetes. On 12-10-19 Folk encounter Optemtrist after taking

Napcon which did not work and now Optemtrist rule-out Chazalion.

Which once again Folk suffer from Diabetes and do from not receiving

Special Diet. On Jan. 31. 2020 Folk encounter M. Gentzyel who harass

and retaliated on Folk for filing about his medical condition- PA-C

Gosa was present during this encounter did nothing to remove this

officer from outside trip. On. 3-10-20 Folk was denied once again

medical treatment for CT-Scan and retaliated on with negligence

and deliberate indifference also emotional distress. On 6-9-20

Folk encounter M. Gentzyel who denied Folk medical itreatment and

by lying on Folk for threatening him to assault him and his fellow

guards supported false accussation that led Folk to SHUr, Folk did

02/05/2024

40 days in SHU and lost good time credit for 27 days. After the

facts Warden Howard and Capt. Hunter knew Folk had file multiple

grievance against this staff. On 7-16-20 Folk was release from SHU

and "NMES" machine was stolen. Folk suffer Fourth Amendment violation,

Retaliation, Emotional Distress and Deliberate Indifference and

Negligence. This led to Folk filing multiple grievances even after

trying either to receive new "NMES" or to have "NMES" machine remove

from "MDS" chart by medical staff PA-C Gosa who still, continue to not

schedule Physical Therapy consult by PT Ms. Andrews. This occurred

from Folk filing Second Amend Complaint Doc. 101 and United States

response on 6-4-20 Doc. 104. On 3/13/20 Folk encounter Ophthamologist

stated to Folk you should stop taking "Napcon" eye drop due to con

suming for long time can lead to eye lost. Then further prescribe Folk

steriod drop and mention he could cut the lump out but it would be a

positive for MRSA or bacterial infection "United States" mention about

Pterygium and Chazalion". Folk stated clear after left-leg was squeeze

M. Gentzyel "United States" on June 4, 2019, thereafter my right-eye-lid

swollen up. Folk suffer retaliation, negligence, emotional distress and

deliberate indifference from Diabetes and stemming from Folk denied

special diet. On 3-26-20 Folk encounter "United States" Ms. Parker

who denied Folk Special Diet instead place Folk on restriction and

denied Folk food to eat. On 6-17-20 Folk encounter PA-C Fabian and

Dr. Burns while house in SHU. Folk explain to them I ate greasy potatoes

in SHU and started to suffer diarrhea and blood in stool. Folk encounter

Co.

Ames for help and next morning PA-C Gosa was encounter now PA-C

Gosa did not want take specimen of stool and blood on tissue in clear

bag. Which PA-C Gosa denied to take. Dr. Burn order Folk to take colest14

02/05/2024

ipol 1 GM to help make stool solid. Folk suffer from not receiving

special diet that cause diabetes. On 7-10-20 Folk encounter Dr. T.

Cullen and witness who check Folk blood pressure and weight. Folk

explain after Dr. T. Cullen mention to Folk you are healthy. But

did not address why the weight loss happen so fast as Folk stated

I don't work out. Then Folk stated this stemming from tooth extraction

in Aug. 13, 2018 and wound care from 9-20-18 up to 10-24-18 which was

from MRSA, Cellulitis and being denied special diet. In the event Folk

suffer from retaliation, emotional distress, negligence and deliberate

indifference ,Diabetes. On 8-14-20 Folk encounter Dr. Burn and PA-C

Fabian, at this time Folk has started gaining weight back and Dr. Burns

stated ok you don't have colitis and Crohn's. Folk explain this stem

from bacterial infection MRSA. Now PA-C Fabian stated after Folk

mention he need special diet and she mark it. Folk was retaliated

because last page it was stratch out. On 8-25-20 Folk denied consult

to see Dietitian due to retaliation, emotional distress, negligence,

and deliberate indifference after being prescribe recommendation by

Dr. Burns and PA-C Fabian for special Diet. Folk was never called

down for Telemed visit. On 9-2-20 Folk encounter "United States" CTScan and during the exam it was Hiatal Hernia was present. On 9-21-20

Folk encounter "United^States" M. Gentzyel at Evangical Hospital in

Lewisburg PA upon undergoing Cystoscopy by "United States" Urologist

Dr. Knight. Folk ask Dr. Knight did he do a biopsy on penis to, rule

out Reddish/Purple discoloration which Folk belief stem from vasculitis/

Diabetes. Urologist Dr. Knightmention only in regards to the prostate

being size of a 50 cent peice. Folk encounter "United States" Ms .

Parker for special diet still continue to retaliate on Folk upon

02/05/2024

payment. Folk encounter ’'United States

as he suffer Emotional Distress,

retaliation and deliberate indifference. On 3-2-21 #24 for complication

pain in lower teeth. This stem from Diabetes is cause of this and denied

special diet to treat disease. On 5-21-21 Folk encounter "United Staes"

and it was documented that CT-Scan with contrast did not show any

deformities. But Folk previous CT-Scan without contrast, shown Hiatal

Hernia and in previous EGD was shown the same. Folk suffer retaliation,

emotional Distress, Deliberate Indifference and neglience. Folk MRI on

5-21-21 "United States" shoivn 1.3cm cyst or tumor on left-knee that

stem from diabetes. On 7-1-21 Folk encounter "United States" # 15B

tooth Filled due to diabetes stemming^ from denied special dieti On

7-19-21 Folk receive teeth clean by HYG Heap "United States" on 7-20-21

Folk encounter "United States" on 7-20-21 Folk encounter "United States"

PA-C Gosa, Folk now had issue with his left-toes. This occurred from

diabetes and not receiving special diet. On 7-30-21 Folk encounter

United States PA-C Gosa after filing grievance to be seen and Unit

Team Mr. Divers stated for Folk to go down to medical after I explain

about toes and left-leg- When previous Folk encounter PA-C Gosa he

threaten to put Folk in SHU on 7-27-21- Now upon Folk encounter "United

States" PA-C Gosa after complaining that left-knee swollen real bad and

red spot on left-thigh that was warm to the touch. Folk stated to PA-C

Gosa to give him antibiotics now he order Keflex which Folk mention

just months ago he need. Folk suffer diabetes and denied special diet

and retaliation, emotional distress, negligence and deliberate

Indifference. See(Egbert v. Boule, Case No. 21-147(Cert- Granted Nov.

5, 2021)(Whether a Bivens remedy should be available for a federal

agent’s vilation of a person's First Amendment and Fourth Amendment

02/05/2024

violation) V. STATUTE OF LIMITATION

10.) For Constitutional tort claims and Bivens Action

Courts

borrow the statute of limitations for personal torts and suits from

v. Straub, 490 U.S. 536, 538.

109 S.Ct. 1998, 104 L = Ed. 2d 582(1989); See(Fortune v. Bitner, 2004

U.S, Dist. Dist. Lexis 33519 No. 3:cv-01-011! MD PA. Feb. 5, 2004)

Third Amend Complaint was met under Fed. R. Civ. P. 15(c)(2)); See(PubHealth Equip. & Supply Co. v. Clarke Mosquito Control Prods, 410 Fed.

Appx. 738; 2010' U .S . App. Lexis 25241 No. 10-50193 5th Cir. Dec-9,

2010); Lane v. Varner. 2007 U.S. Dist. Lexis 61260 No. 3:cv-07-0177

MD PA Aug. 21, 2007)(Second Amend Complaint superceded original and

First Amend Complaint)See(Cotton v. Alleghany County, et al,, 2012

U.S . Dist. Lexis 144058 No. 11-969 WD PA Oct. 4, 2012)(Third Amend

Complaint granted out of the same conduct

transaction and occurrence

as alleged in the original complaint and other requirements of Fed.

R. Crv. P. 15(c) were, thus, the claim related back also inmate

adequately stated a Monell claim against-phe county); See(SEPTA v.

Orrstown Fin. Servs., 12 F.4th; 2021 U.S. App. Lexis 26503; 110 Fed.

R. Servs. 3d(Callaghan) 1356 No. 20-2829 3d.Cir. Sept. 2, 2021)(District

Court properly granted plaintiff leave to amend because Fed. R. Civ. P.

15(c) allowed amendment of pleading after expiration of repose period,

subject to Rule's ordinary constraints, because Rule's "relation-back"

doctrine left legislatively mandated deadline intact and did not disturb

defendant s vested rights to repose in case. Which First Amend and

Second Amend would have met the relevant statutue of repose). See.also

(Buttolph v. Prime Care Medical INC, 750 Fed. Appx. 168; 2018 U.S. App.

02/05/2024

Lexis 26636 No'. 17-1651(3d cir. 9/19/18); See(gashington v

Link', 750

Fed. Appx. 84; 2018 U.S. App. Lexis 25418 No. 18-1791 3d-Cir . Sept.

7, 2018)(NMES has been stolen since 6-9-20 dueito Retaliation as

the same and MDS chart states Folk has possession of Tens Unit that

U.S. App. 29194 No. 19-1056 3d Cir. Sept. 15, 2020)(Hinge-Knee-Brace

delayed for retaliated reason for Folk requesting smaller Hinge-kneeBrace).

VI. Injuries .

1;) Denied (Special Diet) to treat Diabetes Type II or I that

cause Tooth Extraction's 2014 to 2018 and teeth filling

up-to 2021, Osteomyletis, MRSA, Gallbladder Remove and

One Single Yellow Green Egg-Shaped Caeulus , Left-leg

Purple-Reddish-Black in Coloration, Toe-Nails Black,

Loss of Vision in both-eye's, Eosiniphilic-Esophagitis;

Blood Clots, Black in Coloration in teeth on jaw-bones

and-.knee's, ulcers and erythema,

2.) Insufficient Physical Therapy without "Hinge-Knee-Brace"

cause surgery in April 29, 2016 R-Knee, Right V-Quadricep

Rupture Mar. 27, 2018, receive new "Hinge-KneerBrace" on

4-24-18 to 11-5-18 BP-11 Response, Retaliation Strip Search,

Left-Leg Squeeze causepermanent Reddish/Purple discoloration

Penis, Right Eye-Lid Lump and lost of eye sight, Quarter

Searches stolen NMES battery 7-30-sl9. and NMES machine permanent

stolen 7-16-20, SHU lost of 27 good time days, Right-Lower VQuadricep permanent damage 2-11-20 and 6-2-20.

VII. Exhaustion of Administrative Remedies.

11.) Plaintiff's claims arose while he was confined-at UUSP

Allenwood" and "FCI Allenwood Medium" a courts have explained that

a failure to exhaust administrative remedies may be excused where

where certain conditions are met. Under Ross v. Blake, 136 S.Ct.

1850, 195 L.Ed 2d 117(2016), the proper inquiry is "whether admini

strative remedies were actually available to the aggrieved inmate."

and .VJthpeq -circumstances" make such remedies unavailable, even if

02/05/2024

■'Tr .

those remedies are-"officially on the the books

First, an admini-

strative remedy may be unavailable when" it operates as a simple

dead end-with officers unable or consistenly unwilling to provide

any relief to aggrieved inmates." Second, "an administrative scheme

might be so opaque that it becomes, practically speaking, incapable

of use." In other words, "Some mechanism exists to provide relief,

but no ordinary prisoner can discern or navigate it." Third, an

administrative remedy may be unavailable "when prison administrators

thwart inmates from taking advantage of a grievance process through

machination, misrepresentation, or intimidation."See(Korbr v. Haystings,

2021 U.S. App. Lexis 16970 No. 19-2826 3d Cir. June 8, 2021)(The district

court erred by concluding that a curative amendment as to the claims

against the prison officials would be futile based upon the prisoner's

failure to exhaust his administative remedies because the prisoner's

adequately supplemented his complaint to show that he had exhausted his

administrative remedies order vacated and matter remanded); See(Gooch v.

Young, 24 F. 4th 624; 2022 U.S. App. Lexis=2042jNo. 21-1702 7th Cir. 24,

2022) (District Court erred by granting summary ^judgment on prisoner's

Eighth Amendment claim for alleged failure to exhaust administrative

remedies under 42 U.S.C.S § 1997(e) B-9 grievance form. Further, prisoner

attested that he feared for his life if he continued with the BOP's

administrative-remdey process as guards told him that he was going to

die if he complained about prison staff order vacated

and case remanded).

VIII. Relief Sought

12.) As approximate result of the Defendant's tortious acts,

Plaintiff suffered irreparable harm for which there is no longer adequate

remedy at law. Plaintiff prays this Honorable Judge Marian! would find

02/05/2024

that Plainiff's is entitLed to the following award: 36.5 Million Dollars.

(1)

Plaintiff will consolidate under Rule 42(a) § 1983. § 1346

and § 1331 civil action's under No. 3:cv-13-474 and 3:18-cv-2252 also

FTCA claims Doc. 66,169 and 174.

IX. Previous Lawsuits.

13.) Plaintiff file previously lawsuit's in No. 3:07-cv-1499 and

3:cv-13-474 that don't count for three strikes under PLRA remedy.

I declare under penalty of perjury that the foregoing is true and

correct. ~

’

.............

' ......

Signed this 5 day of May, 2022 X

Om'afr s. F olk#7O338-067•

FCI Allenwood Medium

P..0. Box „ 2000

White Deer, PA. 17887

Via Mai-1

Navin JaniAUSA

ACCOUNT

228 Walnut St.

Suite 220

P.0- Box. 11754

Harrisburg. PA. 17108

02/05/2024

Exhibit B.

Doc. 197

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

OMAR S. FOLK

Plaintiff,

vs .

UNITED STATES OF AMERICA,et al.,

Respondent.

Civil No. TRT-NER-2021-07321

No. .TRT-NER-2022-00 788

No. TRT-NER-2022-00197

No. TRT-NER-2022-00790

No. TRT-NER-2022-01.230

No. TRT-NER-2021-05374

No. 3:18-02252

(Judge Mariani)

(Magistrate Judge Carslon)

PLAINTIFF'S FILE A-NOTICE OF INTENT

TO PURSUE UNDER ORDINARY NEGLIGENCE

T 01 CP RCTCEME DP NEC EREIMKjATE.’ OF i MERIT

AND NOW, Here Comes Plaintiff's Omar S. Folk Pro-Se

who avers the

following relief which be explain below:

PA. R. C. P. No. 1042.3("Rule 1042.3") provides in pertinent

part; Rule 1042.3(a) ( 3) . Certificateeof Merit

(a) In any action based upon an allegation that a licensed

deviated

from

an acceptable professional standard, the

attorney for the:Plaintiff if not represented, shall

rile with the complaint or within sixty days after the

filing of the complaint, a certificate of merit signed

by attorney or party that either

(I) an.appropriate licensed professional has supplied a

written statement that there exist a reasonable

probality. that_ the care skill or knowledge exercised

or exhibited in the treatment, practice or work that

is the subject of the complaint,,fel 1 outside acceptable

professional standards and that such conduct was a cause

in bringing about the harm, or

(2) the claim that the defendant deviated from acceptable

professional standards is based soley on allegations

that other licensed professional for whom this

defendant is responsible deviated from an acceptable

professional standard,

02/05/2024

(3) expert testimony of an appropriate licensed professional

unnecessary for prosecution of, the claim.

■ Upon this Folk will move forward under PA. R. C. Civ. P. 1042.3(a)(3).

TvrTng' TdiTthVth'e "negligence claims "arising' from TCI "Allenwood Medium. These

event will proceed with TRT-NER-2022-00790, TRT-NER-2022-05374

TRT-NER-

2022-00788, TRT-NER-2022-00197, .TRT-NER-2022-1230 and TRT-NER-2Q21-G7321.

TSeeTSHinirTrTrlSnaTiEi^^

1074-75

(PA. Super'. Ct . 2007) (quoting PA. R. Civ. 1042.3).'

Plaintiff will consolidate Doc. 66. 169 and 174 to be "joined by

other FTCA claims up above. The record.should follow Plaintiff suffer

Diabetes Type II due to not receiving special diet. Amongst otherthings

•Plaintiff suffer re-occurifing Injuries which consolidate each FTCA claim

as one. Then the record in other Circuit Court's states "COM" can be waive

as a split in Circuit's Court state a failure to file "COM" is not grounds

for dismissal. See(Pledger v. Lynch Case .No. 18-2213 U.S. App. Lexis 21587

(4th Cir. July 21, 2021); See(Gallivan v. US

943 F.3d 291, 294(6th Cir.

2019); See(Young v. US, 942 F.3d 349, 351(7th Cir. 2019); See(Shady Grove

Orthopedic Associates P.A. v. Allstate Insurance C., 599 U.S. 393, 130

S.Ct. 1431, 176 L.Ed. 2d 311(2010)(Supreme Court decided "COM" is not

warranted to plead action in Federal Court); See(All Plaintiffs v. All

Defendants, 645 F.3d 329, 337(5th Cir. -2011); See(Shields v. US, 436 F..

Supp. 3d 540, 543-44(D. Conn. 2020);See(Corley v

US, 2021 U.S. App.

Lexis 25504 2d Cir. Aug. 25, 2021); See,also(Petrus v. United States,

No . cv-16-53, 2022 WL 910263, at *2(D.V.I. Mar. 29, 2022)(Savage J.)

(finding the reasoning of -these■Circuit courts persuasive and holding

that Minnesota s certificate of merit requirement did not apply in

FTCA case).

Plaintiff's assertion is develope upon each matter differently as

TRT-NER-2022-00790: Folk follow in denial Special Diet after being place

"O 3c.- '

02/05/2024

on FRF restriction that ’cause Folk to be denied commissary in Doc.

197 "at "11 and 16c''Thrs' in "action 'ia—not to be "supported "by expert

testimony but credibility as "United States" cause Folk to suffer

emotional' distress, retaliation, negligence and deliberate indifference.

FRP"payment at all' from other enthic background which develope into

class of one discrimination under 1st Amendment and Fifth Amendment

Rights after the facts Folk was denied Special Diet after suffering

Diabetes Type II or I. See(Doc, 1 $S .tp £ons.odida.t.e wathoDoey: ,1.:97:?

— ------- Pl-a-r-tVtif f ? s a-s-s-erinron—i~s—d-e-v-edbope—upon-—e-a-eh—fn-a-frteic—dirFf-e-r-e-n-t-l-y

as TRT-NER-2021-05374; Folk turn to Physical Therapy Doc. 174 at 3Line

5-14 and Doc. 197 at 2-8. Folk denied prescribe course of treatment

for "Hinge-Knee-Brace" with physical therapy that led to Folk substitu

ting Cane, Medium Sleeve and Electric device "NMES" machine. "United

States" realize physical therapy led to multiple operation and permanent

damage to Right V-Quadricep and Folk not fully being able extend Right

Leg. Folk conclusion is not subject on Malpractice but negligence and

credibility issue as "United States" authorize Folk to receive "HingeKnee-Brace." on 4-24-18 after taking it on 11-22-13 and realizing Folk

still cannot receive the full range in Right-Leg. Then right-quad has

permanent nerve damage after Mr. Hallstrom place needle in Folk lower

Right-V-Quadricep that had no response at all after multiple times

needle-was place all the way-down in -lower right v-quadricep. Folk

suffer deliberate indifference, emotional distress, negligence and

retaliation.See(Doc. 174 at 3 Line 5-23”to consolidate with Doc. 197).

Plaintiff's assertion is develope -:.up' on each matter differently

as TRT-NER-2022-00788'"; Folk follow in recommendation by OpKthalmogist

02/05/2024

_to_stop taking "Napcon A" for long period of time can lead to lost

of sight. When the record also clear Folk suffer from Diabtes that

cause Osteomyelitis, Cellulitis and MRSA as Folk suffer toes, leg’s

and teeth infection's all do to Folk not receiving Special Diet.

Folk turn to Doc. 174 at 2 Line 6-22 and DocTT97Tt9Ti^T~nd~rt

12-16 this cause Folk to suffer deliberate indifference

emotional

distress, negligence and retaliation.Sie(Doc, 174 at 2 Line 23-27 : a t 3 )

.................. PlaintiffIs assertion.is. develope upon each matter differently

as TRT-NER-00197; Folk contention is directed on credibility when PA-C

Gosa has a-clear mindset- to.deflect and cause Folk to suffer from not

receiving Special Diet which could treat Diabtes illness.See(Doc. 197

at 10-12). Then PA-C Gosa failure to document Folk high blood pressure

condition, heart condition timely when record is very simple PA-C Gosa

failed to provide Folk with medical treatment from Dr. Mudge for consult

since 2-3-17 up to present"time. As Folk suffer (Ketone) in urine with

combination of blood in urine and protein in urine. These clinically

finding are from Hyperglycemia and Hypoglycemia as Folk suffer waking

up with need to urinate multiple .times at night and in the morning

need to consume sugar as my.sugar is low due to Diabetes Type II or

I. Which Folk to this day has not receive any medication as such

metformin or Endocrinologist consult but this deadly disease run in

each side of my family and high blood pressure as well as heart

failure. Now PA-C Gosa should be remove from PA when causing Folk

to suffer retaliation, emotional distress, negligence and deliberate

indifference.See(Doc. 66

Doc. 169 to consolidate with Doc. 197).

Plaintiff.'s is develope upon each matter differently as

lTRT-NER-2022-01230;

Folk follow in the failure to protect when Folk

■

02/05/2024

•denied medical treatment for outside medical treatment. See(Doc. 197

.. at 7-8' and 13-14'' "Third Amend' Complaint”) . At ' this point Folk position

turn on credibility fact finding and "United States" is liable to

ordinary negligence when Folk suffer "High Blood Pressure" during

retaliated on f i ling ""about medical treatment. Folk lost 27 days good

time credit and prescribe medical treatment also legal mail tampering

which should follow in Discovery under "Admission" and Deposition, Folk

suffer deliberate indifference, emotional distress, retaliation and

negligence .----- ••••---------- — ...- ........

.......................................... —

-.... —

Plaintiff assertion is develope upon each matter differently

as TRT-NER-2021-07321; Folk turn to Third Amend Complaint Doc. 197 at 16,

which should proceed in ordinary negligence and deliberatecindifference

as Folk suffer Diabetes Type II. When record follow to up above in the

Third Amend- Complaint to follow with teeth

toes infection, black toe

nails, both knee's and leg's infection's that is clearly enable to not

rule out this disease. Therefore Malpractice is off the table when this

fact finding should be resolve on credibility and discovery. Furthermore

Folk direction is very simple (Osteomyelitis) is hand to hand with

(Diabetes)Which is the cause of the deadly disease when Folk suffering

black in coloration from jawbone(teeth)

legs and. knee's all the way down

to toe nails . Folk suffer deliberate indifference, negligence, emotional

distress and retaliation when -being-denied diagnose for Diabetes all these

years BOP Breach Duty Care § 4042(a)(2) denying medical treatment, sui.table living condition. See(Dinks v. J. Potope. et al;, 2020 U,S. Dist,

Lexis 139477 No. 4-19-cv-1460 MD PA. Aug. • 5, 2020)(Folk suffer same..issue

with only the facts of being denied Glucose Check by health providers and

02/05/2024

soft shoes Apex were approve). These conclusion up above are guided by

Folk theory in alleging administrative failure rather than medical

malpractice, the complaint sound in ordinary negligence. As Plaintiff

will also satisfy licensed professional is unnecessary for prosecution

of the claims.” According to Plaintiff the gravamen of his claims :.is

that his-prison health care providers neglected to ensure that he

received adequate medical treatment, something which is apparent without

the necessity or benefit of an expert witness in this case. Plaintiff

unequivocally asserts that his claims of negligence are so patently

obvious. that expert testimony is not required, pursuant to Pa- R. C-P.

;

1042(3) (a) (3) . In Liggon-Redding v. F.state of Sugman, 659 F.3d 258; 265

(3d Cir, 2011), a case involving another pro-se Plaintiff,.the Court of

Appeals provide the district court with specific guidance regarding the

course of the district court should follow when considering a pro-se

filing to a notice under Rule 1042.3 which stated pursuant to rule 1042.3

(a)(3) that expert testimony was not required to prove that Plaintiff's

claim. Which the facts also clear it's split in other circuit's that

"COM” is not needed to be filed.

Wherefore Mr. Folk prays Honorable Judge Mariani "GRANTED"

"Plaintiff's File A Notice of Intent To Pursue under Ordinary Negligence

To Proceed on Certificate of Merit."

Date; Mav 9, 2022

Respectfully Submitted,

/vOmar S, Folk#70338067

FCI Allenwood Medium

£.0. Box. 2000

White Deer, PA. 17887

02/05/2024

05/05/23 °fcgfck

£fif>ri!&ABriInniifiWif QiiHQUmaMb^

I Cf *4*1073*2

Exhibit. G

•'i'HNl

Lab Medidne

HNLlab Medicine

7M Mbit Raid, Mrtawn, RMattMUO

(87TJ 402-4321

MtVflWL«em

RATBQLOGY REPORT__________

Patient:

FOLK, OMAR SIERRE

DOB/Sex:

.Address:

-Phone:

Acct/MRM:

’ Located:

CcBwtDate:

Copy to:

(Age: 41) M

ylkill

PO BOX 700

MINERSVtLl^ FA 17854

}

110593233/ M010S96S5

C7435 Schuylkill Endoscopy Center

4/1712023

Receive Date: 4/19G023

No Copy to physicians specSed

£25423364

DIAGNOSIS:

;

Provider:

AMRIT P NARULA

46 TUNNEL ROAD

STE104

POTTSV11LE, FA 17001

. A GE JUNCTION. BlOPSf:

(* Gasfroesophageal junctk>r»!rnucoaa with acute Inflammation and malted btraapitheBaTeosSnophilfa (up to approdmataty 200

; eosinophils per high povw fieid); (see comment)

; - Negative for Mestfral metaplasia or dysplasia

COMMENTS:

The differential diayresis would include eostncphifo esophagitis and reflux esophagitis, although Ihe marked degree cf eoanophSa

would fever the former. Cfinleal and endoscopic correlation are recommended.

. ""Bectronlcalty Sighed Out by Christopher Sebsstlano, MD. “*

'ftAovxas

, RmHzed 4/24/209

Wng Fee CednA: UV43S330S

CSnlcal History & Preoperetive Diagnosis:

i Pro-Op: Dysphagia

' Post-Op: Esophageal ulcers, Eopsisd; Normal stomach; Normal examined duodenum; LA Grade D reflux esophagitis; 1 cm hiatal

hernia

'GROSS DESCRIPTION:

. A The specimen is submitted in formalin and labeled with the patient's name, date of birth, and "esophagus gastroesophageal

'junction multiple esophageal ulcers and esophagus gastroesophageal junction muBiple esophageal ulcere" on the accompanying

protocol and specimen container. The specimen consists cf four tan soft tissue fragments measurttg (L2 cm to <13 cm h greatest

' <£mantaea The entire specimen is Eubrrfited in one cassette. Cote ischemia Tone: Net even

'»i aasttm

BecironicellyRefesssd e 794 Robte Rout. A/Untown, PA 19109

, libKrector: CaKBn terrphy. PhD

Stain Notes:

l For M end Estetaed sections, a pathologist has verified the stab as eccepfebte..

On* or mere tithe states performed may have been developed end ttt performance characteristics ditcrmlnsd by either HHL Lab

Mullein* or ui outside reference lahondocy. Stains such os this have not been eleerad or approved by the IL a Food and Drug

Administration. The FDA has dstermteod that such clearance or approval is not necessary, This tost Is used for dinted wposes

end should not be reported as Investigation^! or for research. This laboratory and our reference laboratories are certified fewer the

Ctinicel Laboratory Improvement Amwnbnerts of 1988ICUA1 a outlined to perform Hah complexity dtntcet laboratory testing.

M355m?Air^

140583293

Hams: FOLK OMAB8IERREPage 1 of 2

FCI/FPC Schuylkill

P.O. Br:'7C.

Mincrsviiie, j^l79^i

02/05/2024

Attach. A, p.53

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.