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Aboelela v. Fasiciana

September 22, 2009


The opinion of the court was delivered by: Malcolm Muir United States District Judge

(Complaint Filed 06/02/08)

(Judge Muir)



Plaintiff, Said Aboelela, an inmate formerly confined in the Canaan United States Penitentiary, ("USP-Canaan"), Pennsylvania, filed the above captioned action pursuant to the Federal Tort Claims Act ("FTCA") and Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). The named defendants are the following USP-Canaan employees: Warden Cameron Lindsay, Clinical Director Dr. Odeida Dalmasi, Physician Assistant (PA) Francis Fasiciana, Retired Health Services Administrator (HSA) Frank Coleman, Assistant Health Services Administrator (AHSA) Jayne Vander Hey-Wright, and former Public Health Services (PHS) Pharmacist Kelly Stankiewicz. Plaintiff complains of defendants' deliberate indifference and medical malpractice with respect to his serious medical needs. (Doc. 1, complaint).*fn1

Presently pending before the Court is defendants' motion to dismiss or, in the alternative, for summary judgment. (Doc. 21). The parties have fully briefed the issues and the motion is now ripe for disposition. For the reasons that follow, the Court will grant the defendants' motion for summary judgment.

I. Standard of Review

Federal Rule of Civil Procedure 56(c) requires the court to render summary judgment " . . . forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).

A disputed fact is "material" if proof of its existence or nonexistence would affect the outcome of the case under applicable substantive law. Anderson, 477 U.S. at 248; Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An issue of material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 257; Brenner v. Local 514, United Brotherhood of Carpenters and Joiners of America, 927 F.2d 1283, 1287-88 (3d Cir. 1991).

When determining whether there is a genuine issue of material fact, the court must view the facts and all reasonable inferences in favor of the nonmoving party. Moore v. Tartler, 986 F.2d 682 (3d Cir. 1993); Clement v. Consolidated Rail Corporation, 963 F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir. 1988). In order to avoid summary judgment, however, the nonmoving party may not rest on the unsubstantiated allegations of his or her pleadings. When the party seeking summary judgment satisfies its burden under Rule 56(c) of identifying evidence which demonstrates the absence of a genuine issue of material fact, the nonmoving party is required by Rule 56(e) to go beyond the pleadings with affidavits, depositions, answers to interrogatories or the like in order to demonstrate specific material facts which give rise to a genuine issue. Celotex Corporation v. Catrett, 477 U.S. 317, 324 (1986). The party opposing the motion "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). When Rule 56(e) shifts the burden of production to the nonmoving party, that party must produce evidence to show the existence of every element essential to its case which it bears the burden of proving at trial, for "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 323. See Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992).

II. Statement of Facts

From the pleadings, declarations and exhibits submitted therewith, the following facts can be ascertained as undisputed.

On October 5, 2005, Aboelela was transferred from the Metropolitan Detention Center, Brooklyn ("MDC-Brooklyn"), New York, to USP-Canaan. (Doc. 25-13, Ex. A, Att. A, BOP SENTRY Report, Public Information Inmate Data). He remained at USP-Canaan until his transfer to another institution on September 25, 2007. Id. Upon his arrival at USP-Canaan, Aboelela underwent a medical intake screening, in which a positive purified protein derivative of tuberculin ("PPD") test from May 23, 2005 was noted on the "Federal Prisoner In Transit" form from MDC-Brooklyn. (Doc. 25-16, Ex. 2, Att. B, Chronological Record of Medical Care at p. 85). This information was added to Aboelela's intake screening form. Id. at p. 199. As a result, Aboelela was referred to the chronic care clinic for follow-up regarding the positive PPD test. Id.

On October 19, 2005, although he was previously screened, Aboelela was seen by PA Fasiciana for Admissions and Orientation. Id. at p. 84. Aboelela expressed his concerns regarding a toenail fungus he had "for years" and "dark spots around his eyes" which he reported as having for over a year. Id. Aboelela had his vitals read, and was counseled regarding his concerns. Id.

On October 20, 2005, Aboelela was examined by Dr. Dalmasi. Id. at p. 83. Dr. Dalmasi discussed Aboelela's positive PPD test and informed him of types of isonicotinic acid hyudrazid ("INH") treatment options for latent tuberculosis.*fn2 Id. Dr. Dalmasi educated Aboelela on the benefits and risks of Isoniazid (INH) therapy. (Doc. 25-16, Ex. 2, Att. B, at p. 83). Aboelela stated that hepatitis was common in his home country of Egypt. Id. He agreed to the INH treatment, but he requested a complete evaluation of his liver function prior to starting the treatment. Id. Dr. Dalmasi ordered a blood test, requesting a complete blood count, complete metabolic profile, and a lipid profile. Id.

On October 26, 2005, Aboelela gave blood for testing. (Doc. 25-17, Ex. 2, Att. B at p. 137).

On November 2, 2005, Dr. Dalmasi reviewed the results, (id. at 148), and determined that Aboelela's complete blood count and complete metabolic count, which included bilirubin levels, were within normal limits. (Doc, 25-26, Ex. 2, Att. B at pp. 81-82). It was also noted that Aboelela's hepatitis profile was negative. Id. at 148.

With Aboelela's consent, Dr. Dalmasi prescribed INH therapy to Aboelela for latent tuberculosis prophylaxis, in accordance with BOP Clinical Treatment Guidelines. (Doc. 25-20, Ex. 3, Dalmasi decl. at ¶ 9; doc. 25-16, Ex. 2, Att. B. at 81-82; and doc. 25-25, Ex. 2, Att. A at 10). Aboelela was informed of the guideline instructions*fn3 , and he agreed and verbalized that he understood them. (Doc. 25-16, Ex. 2, Att. B at 81-82).

On November 3, 2005, Aboelela's chart was reviewed by the pharmacist. Id. at 79.

On November 4, 2005, Aboelela began INH therapy. Id. at 186.

On November 7, 2005, Dr. Dalmasi examined Aboelela during a follow-up for his blood pressure. Id. at 78-79. Aboelela was asymptomatic; his blood pressure was high at 157/102; his pulse was 88; and his dissolved oxygen was 97. Id. Dr. Dalmasi diagnosed Aboelela with uncontrolled hypertension and prescribed a 30-day course of medication as treatment to lower the blood pressure. Id. Dr. Dalmasi also prescribed aspirin, ordered a follow-up in 30 days, submitted a request for an EKG, and ordered a low-salt diet for Aboelela. Id.

In November, 2005, Dr. Dalmasi accepted a position at the Federal Detention Center in Philadelphia. (Doc. 25-20, Ex. 3, Dalmasi decl. at ¶ 11). Because of his transfer, he did not examine Aboelela again. Id.

On December 2, 2005, Aboelela was examined by PA Fasiciana "for renewal of medication as advised on 11/7/05." (Doc. 25-26, Ex. 2, Att. B at 78). Aboelela voiced "no complaints", except that he had "a sore left submandibular area for 5 days but 'I feel good.'" Id. Aboelela weighed 226 pounds, his blood pressure was 122/70, and his eyes, ears, nose, and throat were clear with no swelling of the lymph glands. Id. PA Fasiciana's analysis was that Aboelela's blood pressure was under control with medication and that INH treatment was progressing without complication. Id. PA Fasiciana recommended that Aboelela's blood pressure medication be continued. Id. PA Fasiciana informed Aboelela that his INH-monitoring blood work would be performed later in December, pursuant to Dr. Dalmasi's November 2, 2005 notation. Id. PA Fasiciana recommended that Aboelela be added to the hypertension clinic for an examination in February. Id. PA Fasiciana noted, "Inmate advised of findings. Advised to watch callout in Dec[.] for lab work. Return to clinic as needed. He agreed and understood." Id.

On the evening of December 25, 2005, Aboelela walked to the Health Services Unit from his housing unit after his unit officer called and reported that Aboelela was sick. Id. at 77. Aboelela was seen by Emergency Medical Technician (EMT) Jeremy Simonson, who noted that Aboelela complained of having stomach cramps and nausea for five days and reported that he had vomited three times that night. Id. EMT Simonson observed that Aboelela was alert and oriented times three, with no acute distress and no shortness of breath. Id. He showed no signs of dehydration and reported that he had not been able to eat, but had forced himself to eat that day. Id. Aboelela did not complain that he was experiencing nausea during the examination. Id. EMT Simonson noted that Aboelela did not have abdominal pain, abdominal sounds were noted as negative, and Aboelela did not complain of pain upon palpitation. Id. Normal bowel movement was noted, and bowel sounds were good "times four." Id. Aboelela stated that his urine was dark and that he "was concerned about INH [treatment]." Id. His vitals were taken, his blood pressure was 154/94, his heart rate was 94 beats per minute, respirations were 16, and his body temperature was 97.4 degrees. Id. EMT Simonson performed an EKG test. Id. He then determined that Aboelela was experiencing abdominal discomfort and vomiting and directed Aboelela to report to the Physician's Assistant in the morning, to increase his intake of clear fluids, to eat toast or dry cereal if hungry, and to avoid spicy or dairy foods. Id.

On December 26, 2005, Aboelela was examined by PA Tucker. Id. at 76. Aboelela reported that he was feeling better, but still feeling weak. Id. Aboelela's vital signs read normal, his blood pressure was 124/80, his pulse was 84, and his lungs were clear bilaterally. Id. PA Tucker noted that Aboelela's bowel sounds were active, and the abdomen was soft, non-tender with no masses. Id. He diagnosed Aboelela as suffering from a viral syndrome and determined that no treatment was needed, but that Aboelela needed to increase his fluid intake and keep well-hydrated and recommended that Aboelela maintain a light diet for the next 24 hours. Id.

On December 30, 2005, Health Service Administrator Coleman observed Aboelela at the mid-day meal and referred him to the Health Services Unit. Id. at 76. Aboelela was seen by PA Fasiciana at about 11:30 a.m. Id. PA Fasiciana noted that Aboelela presented yellow sclera and appeared to be jaundiced. Id. Aboelela reported that he had stopped taking his blood pressure medication over the past sevens days "because of how I felt," and that he had "itchy skin all over." Id. Aboelela's weight was 216. Id. PA Fasiciana's diagnosis is stated as: "Chemical hepatitis secondary to INH vs Infectious Hepatitis." Id. PA Fasiciana recommended that Aboelela discontinue the INH immediately, and he notified the pharmacy. Id. The medical records reflect that Dr. Hendershot, a BOP physician from FCI Schuylkill, ordered that Aboelela be placed in the Special Housing Unit ("SHU") and a full laboratory test of Aboelela's liver be conducted "ASAP." Id. The prescription for Isoniazid was immediately discontinued, and an ultrasound evaluation of Aboelela's liver and a repeat measurement of hepatic enzymes were ordered. Id.

On December 30, 2005, Aboelela was admitted to Marian Community Hospital. Id. The diagnosis of the outside physician was acute jaundice and generalized pruritus secondary to hyperbilirubinemia. Id. at 278-80. In-depth liver work and diagnostic studies were ordered to rule out gall bladder or other liver pathology. Id. at 290-306.

On January 2, 2006, Aboelela reported to pulmonary consultant Dr. Meena Desai that "[h]e himself stopped the medication [INH and pyridoxine*fn4 ]about one week prior to his initial admission." Id. at 301. Later, Aboelela reported that his last taken dose was a "few days ago." Id. at 303. Records indicate that Aboelela accepted his last dose of INH from the pharmacist on December 27, 2005; however, it is unknown whether he ingested that dose of the medicine. Id. at 184.

On January 5, 2006, an esophagogastrodoudenoscopy (EGD) with a biopsy was performed upon Aboelela. Id. at 73, 273-74. The results revealed gastritis, a small hiatal hernia, and H. Pylori infection. Id. The ultrasound studies of the abdomen were normal, and the liver tests showed a decreased level of hepatic enzymes. Id. Prior to his discharge from the hospital, Aboelela's liver enzymes ...

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