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McFadden v. Dalmasi

United States District Court, E.D. Pennsylvania

November 21, 2019



          Juan R. Sánchez, C.J.

         Plaintiff Talli J. McFadden brings this civil rights action pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), asserting claims for violations of his Eighth and Fifth Amendment rights against three medical providers who treated him for a broken nose and a nasal condition while he was in the custody of the Federal Detention Center (FDC) in Philadelphia. Each of the medical providers-Defendants Dr. Odeida Dalmasi, Nurse Practitioner Christine Nelson, and Nurse Akinwale Sogo-has filed a separate motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. Because there is no genuine issue of material fact regarding whether Defendants acted with deliberate indifference, the Court will grant Defendants' motions.

         FACTS [1]

         On Sunday, March 6, 2016, McFadden, a pretrial detainee at the FDC, was involved in a fight with four other inmates. During this fight, McFadden was hit in the face with a padlock in a sock and was sprayed with pepper spray by a correctional officer. McFadden testified he was hit in the face with the lock multiple times. After the fight, McFadden was taken to the Special Housing Unit (SHU) to be separated from the other inmates and to be assessed by medical staff.

         After assessment by prison medical staff, McFadden was referred to outside specialists and was eventually diagnosed with a “comminuted nasal fracture, ” otherwise known as a broken nose. Since the initial injury, McFadden has experienced symptoms of extreme pain, swelling, dizziness, headaches, and difficulty breathing. To address these symptoms, an independent ear, nose, and throat specialist recommended Flonase for treatment. McFadden asserts this treatment did not successfully alleviate his symptoms and faults Defendants for failing to provide a different adequate treatment. As discussed in greater detail below, McFadden argues Defendants were deliberately indifferent to his serious medical needs by (1) failing to provide him with ibuprofen in the first five days after his injury, (2) failing to prescribe an oral decongestant after Flonase did not alleviate his symptoms, (3) failing to seek a second opinion after Flonase did not alleviate his symptoms, and (4) not providing him with any treatment after August 2016, when he stopped using Flonase.[2]

         After the fight on March 6, 2016, Nurse Sogo was the first to see McFadden and assessed him within an hour of his injury. Because the incident occurred on the weekend, Nurse Sogo was the only medical personnel on duty. Nurse Sogo cleaned McFadden's abrasions with iodine and assessed him for neurological injuries but did not request an x-ray or any other emergency care for him. In Nurse Sogo's assessment, McFadden did not require emergency medical care because he did not appear to have a concussion. See Sogo Dep. 95:23-96:3 (stating if inmate presented symptoms of a concussion he would have sent inmate to the hospital); id. 99:16-100:2 (stating McFadden presented no symptoms of having a concussion). McFadden claims that during the assessment, he told Nurse Sogo he was in pain.[3] See McFadden Dep. 88:2‒88:14. However, there is no evidence McFadden requested pain medication, and Nurse Sogo did not give him any. McFadden also claims that later that evening, he asked Nurse Sogo for ice for his nose. Nurse Sogo stated he would bring ice but never did.[4]

         Nurse Sogo took photos of McFadden and created a report of the encounter stating, “superficial laceration to nose, facial swelling also noted. Abrasion to right knuckles.” See Defs.' Ex. 8. Consistent with FDC procedures, Nurse Sogo spoke to the on-call FDC physician that same evening to discuss his assessment of the inmates involved in the fight. Nurse Sogo was also required to have his assessment and clinical encounter note co-signed by an FDC physician. Nurse Sogo knew a physician would follow up on his clinical encounter the next day and recommend any necessary treatment.

         Early the next morning, on March 7, 2016, Dr. Dalmasi, a medical doctor and the clinical director at the FDC, reviewed Nurse Sogo's clinical encounter note and signed off on it. Based on the information provided in the clinical encounter note, Dr. Dalmasi immediately ordered an x-ray for McFadden's nose.

         Also on March 7, 2016, Nurse Practitioner Nelson saw McFadden for a pre-existing sick call unrelated to his nose injury. McFadden testified that during this clinical encounter, he told Nurse Practitioner Nelson he was in pain and that he could not breathe out of his nose.[5] Nurse Practitioner Nelson then provided McFadden with treatment for a rash, which was the basis for the pre-existing sick call. Nurse Practitioner Nelson did not provide any treatment to McFadden for his nose. She stated she did not do so because she knew Dr. Dalmasi had already ordered the x-ray for examination of the injury.

         The x-ray was taken on March 10, 2016, and on March 11, 2016, Dr. Dalmasi received and reviewed the radiologist's report which stated McFadden had a “comminuted nasal fracture.” That same day, Dr. Dalmasi submitted a request for McFadden to be evaluated by an ear, nose, and throat specialist (ENT) outside of the FDC. This request required approval from the FDC's Utilization Review Committee (URC). Requests to the URC must be classified as emergent, urgent, or routine. Emergent means a patient will be taken to the emergency room immediately, while urgent means a patient should be seen in a fairly timely manner although there is no set timeframe. Dr. Dalmasi classified McFadden's request as urgent.

         Dr. Dalmasi testified she did not believe McFadden's request was emergent because he did not appear to have any other symptoms. She stated, “[i]n order to have an emergency, he had to have more symptoms; hearing problem, speaking problem, a smelling problem, tingling, numbness in the face. Something that's telling me something bigger happen[ed] that day.” Dalmasi Dep. 45:10-45:15. According to Dr. Dalmasi, the determination of whether a situation is an emergency is based on the circumstances of the case, including whether the injury or complaint is life- threatening. Dr. Dalmasi's medical opinion was that McFadden's situation was urgent. Her decision would not have changed even if Nurse Sogo's clinical encounter note stated McFadden was in pain.

         On March 11, 2016, apart from Dr. Dalmasi's initiated treatment, another FDC nurse prescribed McFadden 600-mg ibuprofen due to his complaints of pain. On March 15, 2016, Nurse Practitioner Nelson renewed McFadden's ibuprofen and filed an administrative note to continue Motrin for pain, pending the outcome of the ENT consultation.

         The URC approved Dr. Dalmasi's request for McFadden to be seen by an ENT specialist on March 15, 2016. Dr. Dalmasi had no control over the scheduling of the appointment. Although it could possibly take a month for a patient to see an outside doctor, Dr. Dalmasi testified she did not believe such a wait would have had a negative effect on McFadden's medical condition.

         After the fight, McFadden remained in the SHU for approximately 40-50 days. During this period, Dr. Dalmasi made rounds in the SHU on Thursdays. Dr. Dalmasi saw McFadden on at least three occasions. Each time, she looked in on McFadden, listened to his complaints regarding difficulty breathing out of his nose and pain, and told him that he would be seen by a specialist. Due to security reasons, Dr. Dalmasi could not tell McFadden any details about when he would be seen. Dr. Dalmasi was not aware of any problems or delays on McFadden's request to see an outside ENT.

         Nurse Sogo also conducted rounds in the SHU during this period on a regular basis. During these rounds, McFadden requested medical treatment from Nurse Sogo for his face and nose. Nurse Sogo told McFadden to “stop acting like a baby” and did not provide any medical treatment. According to McFadden, on some occasions, Nurse Sogo would just ignore him. Other times, Nurse Sogo would suggest McFadden needed rest.[6]

         Nurse Sogo stated he would see inmates in the SHU if they complained of any medical needs. If an inmate presented an “acute injury, ” Nurse Sogo would request to open the inmate's cell for an assessment by FDC medical staff. If an inmate complained of trouble breathing, and it appeared to be emergent, Nurse Sogo would have, at a minimum, taken the inmate's vitals. From this period, there is no evidence showing McFadden presented an acute injury nor is there any record of Nurse Sogo taking McFadden's vitals.

         On March 23, 2016, while McFadden was waiting to be seen by an ENT specialist, Nurse Practitioner Nelson had a clinical encounter with McFadden. McFadden complained of pain in his wrist and nose, and stated his pain was at a subjective level of five on a scale of one to ten. Nurse Practitioner Nelson determined McFadden had a sprain in his wrist or hand and ordered an x-ray. Because Nurse Practitioner Nelson was aware McFadden was awaiting an appointment with an ENT specialist, she did not provide any treatment for his nose. On March 25, 2016, Nurse Practitioner Nelson renewed McFadden's ibuprofen prescription because she had previously overlooked the renewal at the March 23, 2016, clinical encounter.

         Ultimately, McFadden was seen by an outside ENT, Dr. Busch, on April 12, 2016.[7] On his appointment paperwork, McFadden listed the following symptoms: headaches, blurred vision, runny nose, nosebleeds, asthma/wheezing, shortness of breath, frequent or recurring headaches, lightheadedness and dizziness. By the time Dr. Busch met with McFadden, the nasal fracture had already healed. During his assessment, Dr. Busch found McFadden had a midline septum- meaning McFadden's septum was normal-along with nasal lining that was swollen, inflamed, and enlarged. Dr. Busch did not believe the nasal bones were obstructing McFadden's breathing. In his report, Dr. Busch diagnosed McFadden with non-allergic rhinitis, a chronic condition, which he believed caused McFadden's symptoms. Dr. Busch testified he did not believe McFadden's symptoms were caused by the injury from March 6, 2016, because the bones were healed by the time of his evaluation. Dr. Busch then recommended prescribing Flonase to treat McFadden's symptoms and noted that, if Flonase were unsuccessful, an oral decongestant could be added. Dr. Busch did not recommend surgery for McFadden's nose.

         Although Dr. Busch saw McFadden on April 12, 2016, his report was not provided to the FDC for several weeks. Nurse Practitioner Nelson made efforts to obtain the report more promptly by emailing the FDC staff member responsible for communicating with IMS, the outside contractor that arranged the visit with Dr. Busch. IMS made several requests for the report, including faxing Dr. Busch's office on April 13, 2016, and April 18, 2016. But Dr. Dalmasi and Nurse Practitioner Nelson were not able to review Dr. Busch's report until May 6, 2016.

         Both Dr. Dalmasi and Nurse Practitioner Nelson understood from Dr. Busch's report that McFadden did not have an obstruction from his nasal fracture and that his symptoms were instead caused by swelling and inflammation in his nose due to rhinitis. Dr. Dalmasi believed the recommended Flonase treatment would alleviate, although not eliminate, McFadden's symptoms. Dr. Dalmasi did not prescribe an oral decongestant because it is unavailable on the Bureau of Prisons formulary and because it provides the same relief as Flonase but with more adverse side effects. See Dalmasi Dep. 100:18-101:6. Had an oral decongestant been necessary, Dr. Dalmasi could have requested it for an inmate. Id. 82:3-82:14. After McFadden began Flonase treatment, Dr. Dalmasi's personal involvement in McFadden's care was limited to co-signing a few clinical encounter notes, as discussed below.

         Nurse Practitioner Nelson was familiar with Flonase and believed it would treat nasal inflammation. Nurse Practitioner Nelson met with McFadden on May 6, 2016, the same day she reviewed Dr. Busch's report, to explain the report to McFadden and prescribe Flonase as recommended. In her clinical encounter note, Nurse Practitioner Nelson reported McFadden disagreed with Dr. Busch's recommendation. McFadden received Flonase within 1-2 days of meeting with Nurse Practitioner Nelson.

         On May 8, 2016, almost immediately after he started taking Flonase, McFadden complained the Flonase did not work. He made similar complaints on May 9, 2016, and May 18, 2016. From May 2016 until September 2016, when Nurse Practitioner Kistler began to take over McFadden's care, McFadden sent numerous emails complaining of the same symptoms: trouble breathing out of his nose, nosebleeds, headaches, and blurry vision. Although the emails were addressed to Nurse Practitioner Nelson, they were not sent to her directly, but were instead sent to the account for Health Services, the administrative health department at the FDC.[8] Nurse Practitioner Nelson would regularly see McFadden for his sick call requests and complaints during this period.

         On May 20, 2016, McFadden had a follow-up clinical encounter with Nurse Practitioner Nelson. McFadden reported he could not breathe through his nose, had bleeding from the left side of his nose, and had blurry vision in the morning. Nurse Practitioner Nelson reported McFadden's pain as a subjective level of five and noted she prescribed “Flonase, Motrin” for intervention. Defs.' Ex. 31. Nurse Practitioner Nelson believed, in her medical judgment, McFadden was not using Flonase correctly. She thus re-educated him on the correct use and told him to continue using the medication. Dr. Dalmasi co-signed Nurse Practitioner Nelson's clinical encounter note the same day.

         On May 29, 2016, Nurse Sogo had a clinical encounter with McFadden during which McFadden complained of “not being able to breathe.” Defs.' Ex.34. In his clinical encounter note, Nurse Sogo stated McFadden's vital signs were unremarkable and his oxygen saturation results were normal, confirming that McFadden was getting enough oxygen. Nurse Sogo also reported McFadden did not complain of any pain. On May 31, 2016, Nurse Practitioner Nelson co-signed Nurse Sogo's clinical encounter. After the May 29, 2016, clinical encounter, Nurse Sogo had no other involvement in the treatment for McFadden's nose. See McFadden Dep. 259:11-259:15.

         On July 5, 2016, Nurse Practitioner Nelson had a clinical encounter with McFadden, in which the chief complaint was bleeding from the nose. Nurse Practitioner Nelson informed McFadden that nosebleeds are a common side effect of using Flonase and suggested he stop using Flonase to see if the nosebleeds would stop. She also informed McFadden the FDC does not provide oral decongestants as alternatively prescribed by Dr. Busch. Because Nurse Practitioner Nelson suggested the discontinuation of Flonase, the only treatment she recommended at this point was ibuprofen.[9]

         Nurse Practitioner Nelson had another clinical encounter with McFadden on August 1, 2016, in which he complained of the same symptoms as in prior visits. She prescribed a seven-day supply of ibuprofen and advised McFadden to get ibuprofen from commissary from then on. Nurse Practitioner Nelson also noted that McFadden was aware no further treatment was recommended. Nurse Practitioner Nelson had additional clinical encounters with McFadden on August 22 and August 30, 2016, during which Nurse Practitioner Nelson assessed McFadden but prescribed no new treatment. Dr. Dalmasi co-signed Nurse Practitioner Nelson's clinical encounter notes for both visits. Dr. Dalmasi, at no point, changed McFadden's treatment plan, prescribed an oral decongestant, or sent McFadden to a different ENT specialist. Dr. Dalmasi testified she did not believe McFadden's continued symptoms warranted a change in treatment, because his symptoms were chronic. See Dalmasi Dep. 87:20-88:2; 88:24-89:9.

         Nurse Practitioner Nelson did not have any further clinical encounters with McFadden until 2017, when she saw him on a few occasions. At one point, she re-prescribed Flonase and informed McFadden to drink plenty of water. Nurse Practitioner Nelson also prescribed cold pills and allergy medicine for related symptoms.

         Based on the foregoing events, McFadden brought this suit alleging Eighth and Fifth Amendment claims against Defendants. He alleges Defendants failed to provide him with adequate medical care or denied or delayed treatment for his medical needs. Defendants each moved separately for summary judgment. The Court heard oral argument on the motions on October 8, 2019. At oral argument, counsel for McFadden clarified his claims challenge only the denial or delay of treatment when Defendants (1) did not provide McFadden with ibuprofen in the first five days after his injury, (2) did not prescribe an oral decongestant after Flonase did not alleviate McFadden's symptoms, (3) did not seek a second opinion after Flonase did not alleviate McFadden's symptoms, and (4) did not provide any treatment once McFadden discontinued the use of Flonase. Counsel expressly stated McFadden was not challenging the adequacy of the care provided between March 11, 2016, when Dr. Dalmasi reviewed the x-ray of McFadden's nose, and sometime in August 2016, when McFadden discontinued the use of Flonase.


         Summary judgment shall be granted “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). “Material” facts are those facts “that might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the [non-moving] party.” Id.

         “[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the [record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (citation and internal quotation marks omitted). To defeat summary judgment, “the non-moving party must present more than a mere scintilla of evidence; there must be evidence on which the jury could reasonably find for the [non-movant].” Burton v. Teleflex Inc., 707 F.3d 417, 425 (3d Cir. 2013) (alteration in original) (citation and internal quotation marks omitted). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted).

         This action is brought pursuant to Bivens v. Six Unknown Named Agents, in which the Supreme Court recognized “an implied private action for damages against federal officers alleged to have violated a citizen's constitutional rights.” Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009). The implied cause of action is the “federal analog to suits brought against state officials under . . . 42 U.S.C. § 1983.” Id. at 675-76. “A Bivens claim is brought against the individual official for his or her own acts, not the acts of others.” Ziglar v. Abbasi, 137 S.Ct. 1843, 1860 (2017). An individual officer can only be liable for his or her own unconstitutional conduct, and not for the unconstitutional conduct of subordinates under a theory of respondeat superior. See id.

         McFadden alleges Defendants violated his Eighth and Fifth Amendment rights due to their conduct in providing, or not providing, medical care for his nose injury as a pretrial detainee. Because McFadden was a federal pretrial detainee at the time of the events in question, his claims are properly analyzed pursuant to the Due Process Clause of the Fifth Amendment. See Kost v. Kozakiewicz, 1 F.3d 176, 188 (3d Cir. 1993) (applying Due Process Clause to federal pretrial detainees' claims for inadequate medical care); accord Montgomery v. Ray, 145 Fed.Appx. 738, 739 (3d Cir. 2005) (“The District Court correctly noted that a claim involving inadequate medical treatment of a federal pretrial detainee is analyzed pursuant to the Due Process Clause of the Fifth Amendment.”); cf. Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 581 (3d Cir. 2003) (noting the Eighth Amendment's prohibition against cruel and unusual punishment “applies only after [the Government] has secured a formal adjudication of guilty in accordance with due process of law” (internal quotation marks and citation omitted)).

         The standard in the Third Circuit for evaluating a pretrial detainee's claim of inadequate medical treatment under the Due Process Clause is not entirely clear. Due process rights of a pretrial detainee are at least as great as the Eighth Amendment rights of convicted prisoners. See Ray, 145 Fed.Appx. at 740. The Third Circuit has suggested the appropriate standard is “whether the conditions of confinement (or here, inadequate medical treatment) amounted to punishment prior to an adjudication of guilt.” Id. (citations and internal quotation marks omitted). But the Third Circuit has also continued to evaluate medical care claims by pretrial detainees under the Eighth Amendment standard. See Hubbard v. Taylor, 399 F.3d 150, 166 n.22 (“[E]ven though the constitutional protections afforded [to] prisoners and pretrial detainees against inadequate medical care arise from [the prohibition on cruel and unusual punishment and due process, respectively], the standards governing the ...

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