United States District Court, E.D. Pennsylvania
Amin Dancy alleges that Defendant United States of America
violated the Federal Tort Claims Act, 28 U.S.C. § 2674
("FTCA"), when it negligently: provided medical
care (Count I); established prisoner medical care policies
(Count II); and applied those policies (Count III). See
Second Am. Compl. ("SAC") (doc. 33) ¶¶
94-113. Dancy also alleges, pursuant to Bivens v. Six
Unknown Named Agents of the Federal Bureau of Narcotics,
403 U.S. 388 (1971), that: Defendants Christine Nelson and
Antonio Fausto unconstitutionally deprived him of adequate
medical care (Count IV); and Defendant Odeida Dalmasi
maintained policies that created an unreasonable risk that
such constitutional violations would occur (Count V).
Id. ¶¶ 114-130.
seek to dismiss all but the first count, arguing: (1) Dancy
failed to exhaust his administrative remedies under both the
FTCA and the Prison Litigation Reform Act ("PLRA"),
(2) his prison policy challenges are barred by the FTCA's
discretionary function exception, and (3) he has failed to
properly allege a constitutional claim against Nelson,
Fausto, and Dalmasi. See Def. Partial Mot. to
Dismiss (doc. 35); Def. Br. 1.
reasons explained below, Defendants' motion is granted.
Standard of Review
Rule of Civil Procedure 12(b)(1) authorizes dismissal when a
plaintiff has failed to establish subject matter
jurisdiction. See Gould Elecs. Inc. v. United
States, 220 F.3d 169, 178 (3d Cir. 2000). "Because
at issue in a factual 12(b)(1) motion is the trial
court's jurisdiction-its very power to hear the
case-there is substantial authority that the trial court is
free to weigh the evidence and satisfy itself as to the
existence of its power to hear the case." Mortenson
v. First Fed. Sav. & Loan Ass'n, 549 F.3d 884,
891 (3d Cir. 1977).
complaint may also be dismissed for "failure to state a
claim upon which relief can be granted, " Fed.R.Civ.P.
12(b)(6), if it does not "contain sufficient factual
matter, accepted as true, to 'state a claim to relief
that is plausible on its face, '" Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly. 550 U.S. 544, 556 (2007)).
When the factual allegations are insufficient to "raise
a right to relief above the speculative level, " the
motion to dismiss should be granted. West Run Student
Housing Assocs, LLC, v. Huntington Nat'l Bank, 712
F.3d 165, 169 (3d Cir. 2013) (quoting Twombly, 550
U.S. at 555). "To decide a motion to dismiss, courts
generally consider only the allegations contained in the
complaint, exhibits attached to the complaint and matters of
public record." Pension Benefit Guar. Corp. v. White
Consol. Indus.. Inc., 998 F.2d 1192, 1196 (3d Cir.
following facts are accepted as true:
is incarcerated at the Federal Detention Center Philadelphia
("FDCP"), a Federal Bureau of Prisons
("BOP") institution. SAC ¶ 4. Dancy sought
medical attention for his left knee in April 2014 while
incarcerated in Louisiana, and in July 2014, a specialist
determined Dancy needed surgery. Id. ¶¶
10, 12. Dancy was transferred to FDCP before the surgery.
Id. ¶ 14. In November 2015, a new orthopedic
surgeon noted Dancy would "probably require
approximately 2 weeks of protection after his surgery [then]
gradual resumption of activity with therapy type
exercises." Id. ¶¶ 20-21, Ex. A. Dr.
Dalmasi, the FDCP Medical and Clinical Director, reviewed the
surgeon's notes. Id. ¶¶ 5, 22, Ex. A.
January 8, 2016, Dancy underwent knee surgery. Id.
¶ 23. His surgeon provided rehabilitation guidelines,
which recommended Dancy ice his knee five times per day to
reduce pain and swelling. Id. ¶¶ 24-25,
Ex. B. Although one goal was to "protect the knee from
overstress, " the guidelines also told Dancy he could
"bear weight and walk on the leg as [he was] able unless
otherwise directed." Id. at Ex. B.
then requested a bottom bunk on the bottom tier of his unit,
Id. ¶ 30, but was instead assigned a
second-floor cell that required him to use stairs,
Id. ¶ 33. Although he notified several people
that the ice machine was broken, no one fixed it, and he
received ice only once. Id. ¶¶ 37-39.
Dancy again requested ice and a bottom-tier bunk assignment a
week later from an Assistant Health Services Administrator.
Id. ¶¶ 41-45. No. action was taken.
Id. ¶¶ 46-47.
January 14, 2016, Dancy told Nelson, a nurse practitioner,
that he was concerned about climbing stairs due to pain and
inability to bend his knee. Id. ¶¶ 48-49.
Nelson informed Dancy he did not meet the criteria for a
bottom-tier pass, although she refused to disclose those
criteria. Id. ¶¶ 51-53. Although he
submitted a sick call slip and sent follow-up emails
describing his ongoing pain and difficulty navigating stairs,
no one reassigned him to a bottom-tier cell or prescribed
stronger pain medication. Id. ¶¶ 55-61.
February 1, 2016, Dancy's right knee buckled as he was
descending the stairs. Id. ¶ 63. His surgically
repaired left knee then gave out, and Dancy fell on his back
and slid down the stairs. Id. ¶ 64. The fall
left him with severe knee and lower back pain, and he was
taken to Health Services. Id. ¶¶ 65-66.
Defendant Fausto ordered x-rays of Dancy's back and both
knees, which showed a fractured tailbone. Id. ¶
69, Exs. H, I, J. Although Dancy spent the next month in a
wheelchair, he was not given a pillow to ease the pressure on
his tailbone, and he received only one dose of Ibuprofen two
days after his fall. Id. ¶¶ 72-74.
April 2016 MRI showed Dancy had mild cartilage damage in his
right knee. Id. ¶¶ 77-78, Ex. M. Nelson
noted Dancy should temporarily be reassigned to a bottom tier
bunk, and gave him ...