United States District Court, E.D. Pennsylvania
TALLI J. MCFADDEN
ODEIDA DALMASI MEDICAL & CLINICAL DIRECTOR, et al.
R. Sánchez, C.J.
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'
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.
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.
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. 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.
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
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
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. 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.
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.
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.
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.
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
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.
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.
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.
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.
McFadden was seen by an outside ENT, Dr. Busch, on April 12,
2016. 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
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.
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.
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
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. Nurse Practitioner Nelson would
regularly see McFadden for his sick call requests and
complaints during this period.
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
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
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.
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.
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.
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.
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 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
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.
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)).
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 ...