Sergio Orozco-Baraja, F.C.I. Fort Dix, Fort Dix, NJ, Plaintiff pro se.
Karen Helene Shelton, Esq., Assistant U.S. Attorney, Trenton, NJ, and Michael E. Campion, Assistant U.S. Attorney, Newark, NJ, Counsel for Defendants.
NOEL L. HILLMAN, District Judge.
This case concerns Plaintiff Sergio Orozco-Barajas's claims that the Defendants failed to provide constitutionally adequate medical care for a chronic leg injury while he was confined at the Federal Correctional Institution at Fort Dix, New Jersey. Presently before the Court are the Motion  of the individually-named defendants, for summary judgment, as to the claim for damages, and to dismiss the claim for injunctive relief as moot, and the Motion  of the United States to dismiss, for lack of jurisdiction, the claim asserted under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2401(b), 2671 et seq.
This matter was opened to the Court in June 2011, when Plaintiff filed a Complaint  describing a chronic leg injury and alleging that various federal correctional officials and medical professionals had failed to properly treat the injury in at least three different federal correctional institutions over a period of several years. Plaintiff sought damages for the alleged denial of appropriate medical care and injunctive relief, in the form of an order to provide the care he alleged was necessary. See generally Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388 (1971); Carlson v. Green , 446 U.S. 14 (1980).
This Court screened the Complaint for dismissal, pursuant to 28 U.S.C. § 1915A and 42 U.S.C. § 1997e, and in an Opinion and Order [5, 6] entered April 25, 2012, ordered that: (1) Plaintiff's Eighth Amendment medical-care claim for damages could proceed as against Defendants Clinical Director Dr. Abigail Lopez de Lasalle, Assistant Health Services Administrator Ed Eichel, Mid-Level Practitioner Jose Ravago, Dr. Williams, and Dr. Samir Sulayman, (the "individually-named Defendants"), (2) Plaintiff's Eighth Amendment claim for injunctive relief, in the form of an order for treatment, could proceed as against Defendant Warden Donna Zickefoose, and (3) all remaining claims would be dismissed.
On October 2, 2012, the individually-named Defendants filed a Motion  to dismiss the claim for injunctive relief as moot, arguing that Plaintiff had received the treatment he requested in his Complaint, and for summary judgment as to the Eighth Amendment claim for damages, arguing that the undisputed evidence demonstrates (1) that there is no evidence that Defendant Ed Eichel had any personal involvement in Plaintiff's care or treatment decisions, and (2) that Plaintiff received timely and appropriate medical care for his leg injury. That Motion is supported by a Statement of Undisputed Material Facts, the Declaration of Dr. Abigail Lopez de Lasalle, with exhibits, and the Declaration of Ed Eichel.
Thereafter, on February 14, 2013, this Court entered an Order  granting Plaintiff's Motion , dated November 1, 2012, to file an Amended Complaint. The Amended Complaint  restates the same claims against the existing individually-named Defendants and asserts a new claim, under the Federal Tort Claims Act, against the United States, arising out of the same factual allegations.
On February 22, 2013, Plaintiff filed a Brief  in opposition to the pending Motion  for summary judgment. Plaintiff's Brief is not supported by any counter-statement of undisputed material facts or other affidavits or exhibits. Instead, Plaintiff argues that the undisputed facts demonstrate that the individually-named Defendants were deliberately indifferent to his need for medical care. Plaintiff did not respond to the suggestion that his claim for injunctive relief had become moot. In their Reply Brief , the individually-named Defendants note that the claims against them remain unchanged in the Amended Complaint and they renew their arguments in favor of their pending Motion to dismiss and for summary judgment.
Also on February 22, 2013, the United States filed its Motion  to dismiss the claim under the Federal Tort Claim Act ("FTCA") for lack of jurisdiction. See Fed.R.Civ.P. Rule 12(b)(1). More specifically, the United States asserts that Plaintiff failed to file his FTCA claim within six months after denial of his administrative claim. See 28 U.S.C. §§ 2401(b), 2675. Plaintiff has not opposed the United States' Motion to dismiss.
A. The Motion of the Individually-Named Defendants
1. The Summary Judgment Standard
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, a district court shall grant summary judgment, as to any claim or defense, "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Summary judgment is appropriate where the Court is satisfied that the materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, or interrogatory answers, demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Celotex Corp. v. Catrett , 477 U.S. 317, 330 (1986).
An issue is "genuine" if it is supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id . In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence "is to be believed and all justifiable inferences are to be drawn in his favor." Marino v. Industrial Crating Co. , 358 F.3d 241, 247 (3d Cir.2004) (quoting Anderson , 477 U.S. at 255).
Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id . Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Anderson , 477 U.S. at 256-57; Fed.R.Civ.P. Rule 56(c). A party opposing summary judgment must do more than just rest upon mere allegations, general denials, or vague statements. Saldana v. Kmart Corp. , 260 F.3d 228, 232 (3d Cir.2001).
Here, Plaintiff has failed to submit a counter-statement of material facts or otherwise to dispute the statement of material facts submitted by the individually-named Defendants. Accordingly, this Court will consider the facts, as presented by the individually-named Defendants, undisputed for purposes of ...