Ortiz v. United States

1

NATHANIEL ORTIZ, Plaintiff v. UNITED STATES OF AMERICA, et al., Defendants

No. 1:23-cv-00203

United States District Court, M.D. Pennsylvania

April 15, 2024

MEMORANDUM

Yvette Kane, United States District Court District Judge

Before the Court is Defendants' motion to dismiss and/or motion for summary judgment filed pursuant to Rules 12(b) and 56 of the Federal Rules of Civil Procedure. (Doc. No. 19.) Also before the Court is Plaintiff's motion to strike Defendants' motion to dismiss and/or motion for summary judgment. (Doc. No. 31.) For the reasons set forth below, the Court will grant in part and deny in part both of the parties' motions.

I. BACKGROUND

A. Procedural Background

Plaintiff Nathaniel Ortiz (“Plaintiff”) is a convicted and sentenced federal prisoner in the custody of the Federal Bureau of Prisons (“BOP”). (Doc. No. 1 at 4.) He is currently incarcerated at Federal Correctional Institution Fort Dix (“FCI Fort Dix”) in Joint Base MDL, New Jersey. (Id. at 19.) On February 3, 2023, while Plaintiff was incarcerated at FCI Fort Dix, he commenced the above-captioned action by filing a pro se complaint pursuant to the Federal Tort Claims Act (“FTCA”) and Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) (“Bivens”), concerning the allegedly inadequate medical care he received while incarcerated at Federal Correctional Institution Schuylkill (“FCI Schuylkill”). (Id. at 3.) Plaintiff's complaint names as Defendants the United States of America (“United States”) and the following individuals, all of whom work for the BOP: Ian Conners (“Conners”), a National Inmate Appeals Administrator; Scott Finley (“Finley”), the Warden at FCI Schuylkill; Ellen Mace-Leibson (“Mace-Leibson”), the clinical director at FCI Schuylkill. (Id. at 2-3.) In addition, Plaintiff's complaint also names “John & Jane Does 1-10, XYZ Corps. 1-10, Comps. 1-10.” (Id.)

On May 18, 2023, the Court deemed Plaintiff's complaint filed and directed the Clerk of Court to issue summonses with a copy of Plaintiff's complaint to the United States Marshal for service upon Defendant United States in accordance with Rule 4(i)(1) of the Federal Rules of Civil Procedure. (Doc. No. 10.) In addition, the Court also directed the Clerk of Court to serve a copy of, inter alia, Plaintiff's complaint and waivers of the service of summons on the individual Defendants (i.e., Defendants Conners, Finley, and Mace-Leibson). (Id.) On July 6, 2023, the United States and the individual Defendants (collectively, “Defendants”) requested an extension of time in which to respond to Plaintiff's complaint, which was granted by the Court on July 10, 2023. (Doc. Nos. 16, 17.)

Thereafter, on August 16, 2023, Defendants filed a motion to dismiss and/or motion for summary judgment, followed by their supporting brief, statement of material facts, and corresponding exhibits, arguing, inter alia, that Plaintiff's Bivens claim and FTCA claims should be dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) or for failure to state a claim upon which relief can be granted under Rule 12(b)(6) and/or summary judgment should be entered in their favor under Rule 56. (Doc. Nos. 19, 24, 25.) On October 10, 2023, Plaintiff filed a motion for an extension of time in which to file a brief in opposition to Defendants' motion to dismiss and/or motion for summary judgment. (Doc. No. 27.) The Court granted that motion, and Plaintiff filed his brief in opposition on November 2, 2023. (Doc. No. 29.) Plaintiff also filed a request for entry of default against Defendant Mace-Leibson (Doc. No. 30), as well as a motion to strike Defendants' motion to dismiss and/or motion for summary judgment, which includes a supporting declaration (Doc. No. 31). Following an extension of time (Doc. Nos. 32, 33), Defendants filed a reply brief on November 30, 2023, addressing Plaintiff's brief in opposition, as well as Plaintiff's motion to strike and supporting declaration (Doc. No. 34).

B. Factual Background

In accordance with the Court's Local Rules, Defendants have filed a statement of material facts in support of their motion for summary judgment. (Doc. No. 24.) Plaintiff did not file a counter statement of material facts, responding to the numbered paragraphs set forth in Defendants' statement, as required by the Court's Local Rules. Thus, under the Court's Local Rules, Defendants' facts are deemed admitted because:

A failure to file a counter-statement equates to an admission of all the facts set forth in the movant's statement. This Local Rule serves several purposes. First, it is designed to aid the Court in its determination of whether any genuine issue of material fact is in dispute. Second, it affixes the burden imposed by Federal Rule of Civil Procedure 56(e), as recognized in Celotex Corp. v. Catrett, on the nonmoving party ‘to go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designated specific facts showing that there is a genuine issue for trial.' 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotations omitted) (emphasis added).

See Williams v. Gavins, No. 13-cv-00387, 2015 WL 65080, at *5 (M.D. Pa. Jan. 5, 2015), affd sub nom. Williams v. Gavin, 640 Fed.Appx. 152 (3d Cir. 2016) (unpublished) (emphasis in original) (citation omitted). In fact, Defendants advised Plaintiff in their statement of material facts that, “pursuant to Local Rule 56.1, all facts set forth in [their] statement [would] be deemed admitted unless controverted by [Plaintiff] with references to the record supporting his position.” (Doc. No. 24 at 1.)^[1] Accordingly, the material facts in this Memorandum are derived from Defendants' statement of undisputed material facts. That being said, the Court has conducted a thorough and impartial review of the record in this matter. To the extent that there are any disputed issues of material fact that are relevant to Defendants' motion for summary judgment, the Court expressly notes such disputes herein.

1. Plaintiff's Incarceration History

Plaintiff is currently serving an aggregate sentence of three hundred and sixty (360) months imposed by the Southern District of New York for Conspiracy to Distribute and Possession with Intent to Distribute a Cocaine Base, see 21 U.S.C. § 846, and Brandishing a Firearm During and in Relation to a Narcotics Conspiracy, see 18 U.S.C. § 924. (Doc. No. 24 ¶ 3.) Plaintiff's expected release date, via Good Time Credit, is June 26, 2041. (Id. ¶ 4.) Plaintiff is currently incarcerated at FCI Fort Dix (id. ¶ 1), but the allegations underlying his claims arise from events that allegedly occurred between January 1, 2020, and January 11, 2022, while he was incarcerated at FCI Schuylkill (id. ¶ 2; id. ¶ 5 (stating that Plaintiff was housed at FCI Schuylkill from September 23, 2019, until October 27, 2022)).

2. Plaintiff's Medical History

On February 27, 2020, Plaintiff had a preventative health visit with Registered Medical Assistant (“RMA”) Delong, at which time Plaintiff reported “issues with left shoulder.” (Id. ¶ 27.) RMA Delong assessed Plaintiff, noted that Plaintiff “[was] well and ha[d] no concerns at [that] time[,]” and counseled Plaintiff to “follow up for sick call as needed, eating healthy, and exercise.” (Id. ¶ 28.)

On March 2, 2020, Plaintiff reported to health services for an evaluation by Defendant Mace-Leibson. (Id. ¶ 29.) At that time, Plaintiff's chief complaint was back pain, and he identified his “trap” (i.e., his trapezius muscle) as the issue. (Id. ¶ 30.) Plaintiff reported that it had been “like that for a year” and “just got like that[.]” (Id. ¶ 31.) Plaintiff denied pain or any history of pain and stated that he was exercising regularly and doing deadlifts. (Id.) Plaintiff was most concerned with his trapezius muscles appearing asymmetrical; he wanted to “get it fixed” and said that “other guys told him it could be fat tumor that could be cut out.” (Id. ¶ 32.) Defendant Mace-Leibson examined Plaintiff and noted that “exam of ms is completely unchanged from his OCT 28, 2019 visit, no evidence of lipoma, it is shortened ms body c/w old injury (i.e., rupture distal tendon), ms otherwise well-defined and strength is symmetrical and normal b/l and he has obviously been working out regularly.” (Id. ¶ 33.) Defendant Mace-Leibson provided Plaintiff a booklet on back care, discussed proper form and stretching, noted that his muscle is permanently shortened, and advised him that his issue was cosmetic. (Id. ¶ 34.)

On March 13, 2020, Plaintiff failed to report for his scheduled appointment with the health services. (Id. ¶ 35.) On April 30, 2020, Certified Registered Nurse Practitioner (“CRNP”) Swaboski evaluated Plaintiff in his cell for a sick call. (Id. ¶ 36.) Plaintiff complained that his left trapezius had been swollen for over a year, but he reported no pain or injury, and he denied numbness, weakness, or loss of function in his left arm. (Id.) CRNP Swaboski's exam noted: “Swelling and asymmetry noted left trapezius. Inmate observed reaching left arm above head without difficulty. Well-developed upper body musculature noted.” (Id. ¶ 37.) CRNP Swaboski counseled Plaintiff to utilize sick call as needed. (Id. ¶ 38.)

Plaintiff did not seek medical services again until June 16, 2020, when CRNP Swaboski treated him during a sick call in the housing unit. (Id. ¶ 39.) At that time, Plaintiff complained of “constant pain left neck and shoulder[,]” which he described as “nerve pain[,]” and he reported taking ibuprofen as needed but that it was not effective. (Id. ¶ 40.) CRNP Swaboski assessed Plaintiff and reported “swelling and asymmetry” in his left trapezius. (Id. ¶ 41.) CRNP Swaboski discussed the cosmetic nature of the...