Nellson v. U.S. Fed. Bureau of Prisons
| Decision Date | 24 January 2022 |
| Docket Number | Civil Action 3:20-cv-00963 |
| Parties | EDWARD NELLSON, #31408-007, Plaintiff, v. U.S. FEDERAL BUREAU OF PRISONS, et al., Defendants. |
| Court | U.S. District Court — Middle District of Pennsylvania |
REPORT AND RECOMMENDATION
This federal civil rights case commenced on March 22, 2020, when the plaintiff, Edward Nellson, appearing through counsel filed a fee-paid complaint in the United States District Court for the District of Columbia, where it was docketed as Case No. 1:20-cv-00788. (Doc. 1.) The case was subsequently transferred for lack of venue to the United States District Court for the Eastern District of Kentucky, where it was docketed as Case No. 7:20-cv-00065. (Doc. 34.) On the plaintiff's motion, various claims were severed and transferred to federal judicial districts where the scattered individual defendants could be found. (Doc. 43.) The plaintiff's Bivens and state-law medical malpractice claims against three defendants-Dr. Dianne Sommer, Dr. Philip J. Hlavac, and PA-C Heather Walters-concerning medical treatment provided (or not provided) while he was incarcerated at USP Canaan, which is located in Wayne County, Pennsylvania, were transferred here.[1] (Id.)
On January 14, 2022, the United States was substituted in place of Dr. Sommer and PA-C Walters with respect to the state-law medical malpractice claims against these defendants, pursuant to the Westfall Act, 28 U.S.C. § 2679(d). (Doc. 96; Doc 97.)[2] The plaintiff's Bivens claims, however, remained pending against all three individual defendants.[3]
The defendants have filed motions for dismissal or summary judgment. (Doc. 69; Doc. 79.) These motions are fully briefed and are ripe for decision. (Doc. 70; Doc. 77; Doc. 78; Doc. 80; Doc. 81; Doc. 85; Doc. 86.)
Edward Nellson is a federal prisoner in the custody of the Federal
Bureau of Prisons (“BOP”). His claims stem from an injury he suffered in March 2016 while incarcerated at the Oklahoma City Transfer Center. Over the next two years, Nellson was transferred to various BOP facilities around the country, repeatedly seeking medical care for his symptoms, which included headaches, seizures, and an inability to walk. In October 2017, an outside neurologist recommended that, because of his inability to walk, Nellson should receive a spinal MRI. That MRI, however, was not performed until March 2018. The MRI revealed what the amended complaint characterizes as “significant” damage to Nellson's spine.
Nellson was incarcerated at USP Canaan between November 2017 and June 2018. Dr. Sommer is the clinical director and a physician providing medical services at USP Canaan; she is a BOP employee. PA-C Walters is a physician assistant providing medical services at USP Canaan; she is a BOP employee. Dr. Hlavac is a neurosurgeon who provided medical services to Nellson under contract with the BOP.
During his in-processing at USP Canaan, the medical department flagged Nellson for a follow up. PA-C Walters reviewed his medical records, but despite his reports of pain and an inability to walk unassisted, she refused to prescribe a walker to Nellson. While at USP Canaan, however, Nellson began to receive physical therapy.
On February 12, 2018, Nellson was seen in medical by Dr. Sommer, who reviewed his medical records. She allegedly ignored “pages and pages” of medical records, including findings by outside physicians, pointing to untreated neurological issues, and she instead characterized Nellson as “a liar.”
On February 16, 2018, Nellson was seen at the door of his housing unit by PA-C Walters. Despite having reviewed Nellson's prior medical records, Walters characterized Nellson's complaints as a “self-reported injury to spinal cord/back that causes him to have difficulty walking.” Despite Nellson's complaints of pain, she declined to prescribe pain medication. Despite Nellson reporting that he had fallen due to his difficulty ambulating unassisted, and a resultant shoulder injury, Walters denied Nellson's request for a push walker, referring him instead for physical therapy, without any prescribed ambulatory assistive device.
On March 22, 2018, Nellson finally received an MRI of his spine. In relevant part, the MRI revealed:
On May 15, 2018, Nellson presented for a neurology consultation with Dr. Hlavac regarding his March 22, 2018, MRI results. Dr. Hlavac reviewed the MRI results as well as Nellson's previous medical records. Despite Nellson's reported symptoms and the spinal injuries described in the MRI report, Dr. Hlavac “failed to connect the MRI results to Mr. Nellson's symptoms.” Despite reviewing the MRI report and Nellson's other medical records, Dr. Hlavac did not address the injuries to his spine revealed by the MRI. Dr. Hlavac also failed to prescribe any pain medication for Nellson.
Nellson was transferred out of USP Canaan in June 2018. At one of the facilities where he was subsequently incarcerated, Nellson was prescribed pain medication for the first time. Ultimately, at another facility, Nellson was redesignated as a “Care Level 3” and then “Care Level 4” inmate, reflecting an apparent recognition by the BOP of Nellson's functional limitations and his need for significantly enhanced medical services. At the time when the amended complaint was filed, Nellson remained incarcerated at a “Care Level 2” institution, notwithstanding his “Care Level 4” inmate designation.
The plaintiff bears the burden of establishing the existence of subject matter jurisdiction under Rule 12(b)(1). See Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991). A defendant may challenge the existence of subject matter jurisdiction in one of two fashions: it may attack the complaint on its face or it may attack the existence of subject matter jurisdiction in fact, relying on evidence beyond the pleadings. See Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). Where a defendant attacks a complaint as deficient on its face, “the court must consider the allegations of the complaint as true.” Mortensen, 549 F.2d at 891. “In deciding a Rule 12(b)(1) facial attack, the court may only consider the allegations contained in the complaint and the exhibits attached to the complaint; matters of public record such as court records, letter decisions of government agencies and published reports of administrative bodies; and ‘undisputably authentic' documents which the plaintiff has identified as a basis of his claims and which the defendant has attached as exhibits to his motion to dismiss.” Medici v. Pocono Mountain Sch. Dist., No. 09-CV-2344, 2010 WL 1006917, at *2 (M.D. Pa. Mar. 16, 2010). However, when a motion to dismiss attacks the existence of subject matter jurisdiction in fact, “no presumptive truthfulness attaches to plaintiff's allegations, ” and “the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Mortensen, 549 F.2d at 891. This case falls into the former category.
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move to dismiss for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds the plaintiff's claims lack facial plausibility.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). In deciding the motion, the Court may consider the facts alleged on the face of the complaint, as well as “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). Although the Court must accept the fact allegations in the complaint as true, it is not compelled to accept “unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation.” Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)). Nor is it required to credit factual allegations contradicted by indisputably authentic documents on which the complaint relies or matters of public record of which we may take judicial notice. In re Washington Mut. Inc., 741 Fed. App'x 88, 91 n.3 (3d Cir. 2018); Sourovelis v. City of Philadelphia, 246 F.Supp.3d 1058, 1075 (E.D. Pa. 2017); Banks v. Cty. of Allegheny, 568 F.Supp.2d 579, 588-89 (W.D. Pa. 2008).
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be granted only if “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). A fact is...
To continue reading
Request your trial