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Dancy v. United States

United States District Court, E.D. Pennsylvania

May 22, 2018

AMIN DANCY, Plaintiff,
UNITED STATES, et al., Defendants.


         Plaintiff 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.

         Defendants 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.

         For the reasons explained below, Defendants' motion is granted.

         I. Standard of Review

         Federal 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).

         A 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. 1993).

         II. Facts

         The following facts are accepted as true:

         Dancy 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.

         On 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.

         Dancy 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.

         On 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.

         On 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.

         An April 2016 MRI showed Dancy had mild cartilage damage in his right knee. Id. ΒΆΒΆ 77-78, Ex. M. Nelson noted Dancy should temporarily be reassigned to a bottom tier bunk, and gave him ...

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