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Jackson v. United States

United States District Court, E.D. Pennsylvania

August 27, 2019

UNITED STATES OF AMERICA, et al., Defendants.


          JEFFREY L. SCHMEHL, J.

         Plaintiff Terence D. Jackson, a prisoner incarcerated at the Federal Detention Center in Philadelphia (“the FDC”), filed this civil action along with a motion for leave to proceed in forma pauperis. Jackson asserts claims pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971) and the Federal Tort Claims Act (“FTCA”) against the United States and several federal employees at the FDC in their official and individual capacities. Before the Court had an opportunity to address Jackson's Complaint, he filed an Amended Complaint, which is now the governing pleading in this case.[1] (ECF No. 7.) For the following reasons, the Court will grant Jackson leave to proceed in forma pauperis, dismiss certain Defendants and claims with prejudice, and dismiss certain Defendants and claims without prejudice for failure to state a claim. The Court will permit Jackson to file a second amended complaint if he is able to cure the defects identified by the Court in the claims dismissed without prejudice. Alternatively, Jackson may opt not to file a second amended complaint and instead proceed at this time on his remaining claims, i.e., the claims the Court did not dismiss.

         I. FACTS[2]

         The gist of Jackson's claims is that for seven months, medical officials at the Federal Detention Center allowed a serious infection in his nose to go untreated. According to the Amended Complaint, Jackson began to suffer constant nose bleeds on or about January 1, 2019 while in custody at the FDC. (ECF No. 7 at 3, ¶ 17.) He began submitting sick call requests, but they went unanswered until January 11, 2019, when he was seen by a medical professional who prescribed ointment and told Jackson not to put anything in his nose. (Id. at 3, ¶ 19.)

         The bleeding continued, so Jackson submitted a sick call slip on January 29, 2019. He also submitted “cop outs” to the medical department stating that something was “really wrong” with his nose” because it has been bleeding constantly, and that the “old blood has been in [his] nose for so long that it's starting to smell.” (Id. at 3-4, ¶¶ 20-23.) It appears he was seen by Defendant Nurse Practitioner Nelson during this time and that Nelson prescribed him a saline rinse. On February 21, 2019, Jackson was seen by medical providers and prescribed antibiotics after a large purple mass was found in his nose.

         Over the next few days, Jackson sent more “cop outs” to the medical department about his nose, noting that the infection was “leaking out of [his] nose everyday” and affecting his ears, eyes, and mouth. (Id. at 4, ¶ 24.) He also reported having trouble breathing and that his eyes had turned red. Around this time, Jackson began corresponding with Defendants Dalmasi and Cassano about his condition.[3]

         On February 25, he was treated by Defendant Kistler, a nurse practitioner in the FDC medical department. (Id. at 4.) Kistler observed that Jackson had bloodshot eyes, a swollen face and a purple mass that had grown over his right nostril. (Id.) That same day, February 25, 2019, Jackson was seen at Hahnemann Hospital where he had a radiological scan and was diagnosed with conjunctivitis and a rounded soft tissue within the anterior nares, most likely an “atypical nasal polyp/papilloma with anterior nasal cavity obstruction.” (Id.) An unidentified person, presumably Kistler, wrote in notes that were presumably sent to the hospital that Jackson had:

recurrent right epistaxis for the past two months, unresponsive to conservative treatment. Large purple mass found in right nares 2/21/19. Not present at previous exam on 2/5/19. Patient started on Bactrim (his history of MRSA) 2/21/19. With significant right-sided facial swelling and photophobia. Please perform CT if indicated to rule out sinusitis vs orbital cellititis.

(Id.) Jackson was prescribed antibiotics and released. (Id.) He alleges that officials at the FDC were instructed to follow up on his discharge instructions within three to five days with the Drexel Otolaryngology Clinic. (Id.)

         Thereafter, Jackson received eye drops and his antibiotic was changed because his testing came back positive for MRSA. (Id.) His course of antibiotics was due to run through March 11, 2019. (Id.) Jackson continued to have nose bleeds during this period and complained in emails to the medical unit that the medicine was ineffective. (Id.) He received responses from the medical unit on March 11, 19, and 20 stating he was scheduled to be seen. (Id. at 5-6.) On March 20, Jackson showed a correctional officer and Defendant Nelson that his nose was still bleeding and stated that he had an infection in his nose and eyes. (Id. at 6.)

         Jackson continued to exchange emails with Defendants Dalmasi, Lawrie[4] and Cassano through April 15, 2019 about his condition and was seen again at Hahnemann Hospital on April 17. (Id.) The Amended Complaint suggests that Jackson did not receive any treatment from when his course of antibiotics finished on March 11 until his hospital visit on April 17. Jackson continued to suffer from his symptoms, and emailed Dalmasi, Lawrie and Cassano on numerous dates. (Id. 7.)

         On May 15, 2019, Jackson was sentenced on his underlying criminal charges. See United States v. Jackson, Crim. Nos. 17-71 (E.D. Pa.) In response to a concern that Jackson receive medical treatment for his conditions, the Court entered an Order that same day directing that the Bureau of Prisons shall not transfer Jackson from the FDC pending further order of the Court. (See Id. ECF No. 621.) The Court also recommended that Jackson be designated to a facility where he could receive treatment for his medical issues. (Id. ECF No. 634 at 3.)

         Around this time, Jackson emailed Dalmasi and Cassano to let them know that he had eight bumps with brownish-white puss in them, one of which was on his leg and the size of a softball. (ECF No. 7 at 7.) Jackson received a response from Lawrie that he was on the list to be seek in two weeks and that he should report to sick call if the conditions got worse. (Id.) Jackson responded that he could not wait two weeks to be seen because the bumps were itchy, causing him to scratch them and bleed. (Id.) Defendant Lawrie responded that he spoke with Jackson's ENT and that they will arrange the first appointment available that coordinated with schedules for the doctor and the Marshal Service. (Id.) On June 4, Jackson sent another email to Dalmasi, Lawrie, and Cassano about a tingling feeling on his skin that he attributed to the infection. (Id.) Lawrie replied that his symptoms sounded unrelated to his sinus issues, but that he forwarded the concerns to the doctors and Cassano. (Id.) Lawrie also suggested reporting to sick call to be seen for the skin issue. (Id.)

         Jackson continued to send emails to Defendants Dalmasi, Lawrie and Cassano complaining about the lack of treatment for his nasal condition. According to Jackson, on July 5, Defendant Lawrie replied:

I think we are well aware that we are awaiting a surgery date for the nose. We are at the mercy of your ENT doctor and when he is available they will conduct surgery. Due to Hahnemann Hospital closing this is a complicating issue that we are awaiting your doctor privileges to be approved at another hospital. However, we are continuing to be persistent in getting this surgery.

(Id. at 8.) Jackson replied that he knows he needs surgery to remove the mass in his nose, but that his bigger concern was that in the meantime, no one was addressing what he considered a separate infection in his nose ...

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