Antonio Pearson v. Prison Health Service , 850 F.3d 526 ( 2017 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______
No. 16-1140
______
ANTONIO PEARSON,
Appellant
v.
PRISON HEALTH SERVICE; SOMERSET COUNTY
HOSPITAL; MEDICAL DIRECTOR R. MCGRATH; CHCA
M. VISINAKY; CHCA OVERTON; SYLVIA GIBSON;
GERALD L. ROZUM; CAPT. PAPUGA; LT. DOYKA;
SGT. RITTENOUR; ROBERT SOLARCZYK; JOHN DOE-
1; TAMMY MOWRY; SUSAN BARNHART; DR. PAUL
NOEL; KAREN OHLER; DR. SAMUEL WATTERMAN;
MELINDA SULLIVAN; D. TELEGA; DON KLOSS; CRAG
HOFFMAN; KUMUDA PRADHAN; D. RHODES;
THOMAS MAGYAR; DENISE THOMAS; D. BEDFORD;
COI FOUST; LINDA KLINE; RAYMOND J. SOBINA;
COI HEATH
______
On Appeal from the United States District Court
for the Western District of Pennsylvania
(W.D. Pa. No. 3-09-cv-00097)
District Judge: Honorable Kim R. Gibson
______
Argued December 7, 2016
Before: FISHER ∗, KRAUSE and GREENBERG, Circuit
Judges.
(Filed: March 7, 2017)
Robert J. Ridge
Brandon J. Verdream [ARGUED]
Clark Hill
301 Grant Street
One Oxford Centre, 14th Floor
Pittsburgh, PA 15219
Counsel for Appellant
Kemal A. Mericli [ARGUED]
Office of Attorney General of Pennsylvania
564 Forbes Avenue
6th Floor, Manor Complex
Pittsburgh, PA 15219
Counsel for Department of Corrections Appellees
Kathryn M. Kenyon [ARGUED]
Meyer Unkovic & Scott
535 Smithfield Street
1300 Oliver Building
Pittsburgh, PA 15222
Counsel for Appellee Medical Director McGrath
______
∗
Honorable D. Michael Fisher, United States Circuit
Judge for the Third Circuit, assumed senior status on
February 1, 2017.
2
OPINION OF THE COURT
______
FISHER, Circuit Judge.
Antonio Pearson is a prisoner who suffered from two
serious medical needs during his incarceration at
Pennsylvania State Correctional Institution–Somerset (“SCI-
Somerset”). In 2009, he filed suit under 42 U.S.C. § 1983,
claiming that various prison officials and an independent
medical contractor were deliberately indifferent to those
needs in violation of the Eighth Amendment. In this appeal,
Pearson challenges the District Court’s order granting
summary judgment in favor of the five defendants remaining
in this case. For the reasons set forth below, we will reverse
the District Court’s order, in part, insofar as it grants
summary judgment in favor of Nurse David Rhodes. We will,
however, affirm the District Court’s order in all other
respects.
I
A
In April 2007, medical officials at SCI-Somerset sent
Pearson to the hospital twice within the same week to
undergo surgery. The first was a surgery to remove his
appendix. The second was a surgery to repair a urethral tear
caused by the insertion of a catheter during the first surgery.
The defendants are five individuals who were either aware of
or responded to Pearson’s requests for medical treatment
before those surgeries. Dr. McGrath is a medical contractor
who examined Pearson when he complained of bleeding after
his first surgery. The other four defendants are Department of
3
Corrections employees, including three nurses who examined
Pearson, and a guard who was informed of Pearson’s
bleeding on the morning of his second surgery.
Events Leading to Surgery for Appendicitis
On April 10, 2007, Pearson began experiencing sharp
pains in his abdomen and requested an appointment with the
medical unit. At 1:00 p.m., Nurse Denise Thomas examined
Pearson and noted that his pain intensified with certain
movements and never fully relieved. Diagnosing him with a
pulled muscle, she placed him on sick call for the following
day without ordering additional treatment.
Pearson’s excruciating pain continued and he returned
to medical at 5:00 p.m. This time, Nurse Linda Kline
examined him, offered Tylenol or Maalox, and instructed him
to rest until his sick-call appointment in the morning.
According to Pearson, she told him that his gallbladder was
failing.
At approximately 11:00 p.m. that night, Pearson told
the block officer that he was in severe pain and asked him to
call the medical unit. After speaking with the medical unit,
the officer returned to Pearson’s cell and told him that Nurse
David Rhodes would not come to see him because two nurses
had already examined him, and he was on sick-call for the
following day. Left in excruciating pain, Pearson screamed
for several hours until the officer called medical again. This
time, Nurse Rhodes came to his cell with a wheelchair—but
Nurse Rhodes was upset, Pearson alleges, and told him that
he would not be taken to medical unless he placed himself in
the wheelchair. Unable to walk and in pain, Pearson claims
that he was forced to crawl across the floor to the wheelchair.
Nurse Rhodes took Pearson to the infirmary and
examined him. He checked his vitals and recognized that
Pearson had possible signs of appendicitis. Because
4
abdominal pain has many causes and Pearson was scheduled
for a doctor’s examination in the morning, Nurse Rhodes
thought a period of watchful waiting would be prudent and
placed Pearson inside an infirmary cell for observation. At
this time, Nurse Rhodes put an order on Pearson’s chart for
“nothing by mouth” as a precaution in case he needed surgery
but did not elevate Pearson’s condition to another medical
official. J.A. 124, 288-91. Continuing to suffer in pain,
Pearson screamed throughout the night.
At approximately 10:00 a.m. on April 11, Pearson was
seen by Dr. Ghatge, who ordered him sent to Somerset
Hospital for evaluation. Later that day, Pearson was
diagnosed with appendicitis and a surgeon removed Pearson’s
inflamed appendix, as well as a gangrenous part of his
omentum.
Events Prior to Surgery for Urethral Tear
On April 14, 2007, Pearson returned to the prison with
an order from his attending surgeon that he be scheduled for a
follow-up examination in one week. He was examined by a
prison nurse and prescribed Motrin, physical therapy, and a
follow-up with a physician’s assistant before being sent back
to his cell. J.A. 115, 132, 377.
On April 15, Pearson began experiencing sharp pains
and felt liquid running down his leg, which he later identified
as blood flowing from his penis. He requested to be seen by
medical. According to Pearson, the correctional officer called
medical, but Nurse Kline instructed the officer that bleeding
was normal after surgery and that Pearson should just lie
down on his bunk. She did not examine him.
At this point, Pearson claims that he continued to bleed
in constant pain until the block officer witnessed it and sent
him directly to the medical unit. At medical, Pearson
maintains, Nurse Magyar had him undress in case he needed
5
to go to the hospital and called Dr. McGrath, who was angry
at being called at home. During that call, Dr. McGrath
ordered antibiotics as well as an increased intake of fluids.
J.A. 115-16, 377. He also instructed the nurse to place
Pearson in the infirmary for over-night observation.
Dr. McGrath examined Pearson at 6:45 a.m. the
following morning, diagnosed the bleeding as a normal
consequence of the recent surgery, and sent him back to his
cell. During the examination, Dr. McGrath collected lab
work, ordered antibiotics, and scheduled a follow-up
appointment. J.A. 116-17, 377-78. Later that night, Pearson
began bleeding again and collected a quarter of a cup of blood
in a glove to show the extent of it. He then complained about
the bleeding to Sergeant Rittenour. According to Pearson,
Rittenour relayed his complaint to Captain Thomas Papuga,
who ordered Rittenour to discard the blood Pearson collected
in the glove. But Papuga knew that Pearson was receiving
medical care—one of the cell block officers contacted
medical and relayed to Captain Papuga that Pearson was
unsatisfied with their response. J.A. 324, 385.
At 7:00 a.m. on April 17, Pearson began bleeding
again. He returned to medical where Dr. McGrath observed
the bleeding and transferred him to the emergency department
at Somerset Hospital. At the hospital, it was determined that
Pearson was suffering from a urethral tear caused during his
prior surgery. Pearson underwent a second surgery to
cauterize the tear and was returned to SCI-Somerset the same
day.
B
In 2009, Pearson filed suit, pro se, under 42 U.S.C. §
1983, alleging that twenty-eight defendants were deliberately
indifferent to his serious medical needs in violation of the
Eighth Amendment. Shortly thereafter, the District Court
6
dismissed Pearson’s complaint for failure to state a claim,
and, on October 16, 2009, we vacated that dismissal, holding
that several of Pearson’s allegations stated a claim for
deliberate indifference, including his allegations against
Nurse Thomas, Nurse Kline, Nurse Rhodes, and Dr.
McGrath. Pearson v. Prison Health Serv., 348 F. App’x 722,
725-26 (3d Cir. 2009). At the time, we left open whether the
other defendants might be able to raise grounds for dismissal
under Federal Rule of Civil Procedure 12(b)(6). Id. at 725.
And we ordered the District Court to allow Pearson to amend
his complaint before dismissing it. Id. at 726.
On remand, Pearson filed an amended complaint, and
in 2011, the District Court dismissed the claims against all the
defendants except Nurse Kline, Nurse Rhodes, Captain
Papuga, and Dr. McGrath for failure to state a claim. Nine
months later, the District Court entered summary judgment in
favor of Dr. McGrath and dismissed Pearson’s actions against
Nurse Kline, Nurse Rhodes, and Captain Papuga as a sanction
for failure to prosecute. Pearson appealed and this Court
vacated the dismissal against Nurse Thomas, Nurse Kline,
Nurse Rhodes, and Captain Papuga as well as the summary
judgment order in favor of Dr. McGrath. Pearson v. Prison
Health Serv., 519 F. App’x 79, 82-84 (3d Cir. 2013). Once
again, we remanded this case to the District Court.
During the second remand, counsel was appointed for
Pearson, 1 who requested funds for the retention of a qualified
medical expert to develop malpractice and informed-consent
claims against Somerset Hospital and his appendicitis
surgeon, Dr. Pradham. Those requests were denied, and, in
1
Counsel for Pearson is appearing pro bono. We
express our gratitude to counsel for accepting this matter and
for the quality of his representation.
7
2015, the Magistrate Judge issued a report and
recommendation advising that summary judgment be entered
for the five remaining defendants in this case. The District
Court adopted the report and recommendation and granted
summary judgment in favor of the appellees. This timely
appeal followed.
II
The District Court had jurisdiction over this case under
28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. §
1291. We exercise plenary review over a district court’s order
granting summary judgment, applying the same standard as
the district court. Interstate Outdoor Advert., L.P. v. Zoning
Bd. of Twp. of Mt. Laurel, 706 F.3d 527, 529-30 (3d Cir.
2013). To prevail on a motion for summary judgment, the
moving party must demonstrate 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). To assess
whether the moving party has satisfied this standard, we do
not engage in credibility determinations, Simpson v. Kay
Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 643 n.3 (3d Cir.
1998), and we view the facts and draw all reasonable
inferences in the light most favorable to the nonmovant. Scott
v. Harris, 550 U.S. 372, 378 (2007). Material facts are those
“that could affect the outcome” of the proceeding, and “a
dispute about a material fact is ‘genuine’ if the evidence is
sufficient to permit a reasonable jury to return a verdict for
the non-moving party.” Lamont v. New Jersey, 637 F.3d 177,
181 (3d Cir. 2011).
III
The Eighth Amendment, through its prohibition on
cruel and unusual punishment, prohibits the imposition of
“unnecessary and wanton infliction of pain contrary to
contemporary standards of decency.” Helling v. McKinney,
8
509 U.S. 25, 32 (1993). Accordingly, in Estelle v. Gamble,
429 U.S. 97 (1976), the Supreme Court held that prison
officials violate the Eighth Amendment when they act
deliberately indifferent to a prisoner’s serious medical needs
by “intentionally denying or delaying access to medical care
or interfering with the treatment once prescribed.” Id. at 104-
05. In order to sustain this constitutional claim under 42
U.S.C. § 1983, 2 a plaintiff must make (1) a subjective
showing that “the defendants were deliberately indifferent to
[his or her] medical needs” and (2) an objective showing that
“those needs were serious.” Rouse v. Plantier, 182 F.3d 192,
197 (3d Cir. 1999); see also Montgomery v. Pinchak, 294
F.3d 492, 499 (3d Cir. 2002).
In this case, the parties agree that Pearson’s
appendicitis and urethral tear both constitute serious medical
needs, and, as we noted the first time this case was appealed,
we think it beyond question that both medical issues were
serious. See Pearson, 348 F. App’x at 724; see also Atkinson
v. Taylor, 316 F.3d 257, 266 (3d Cir. 2003) (“[T]his Court
has defined a medical need as serious if it has been diagnosed
by a physician as requiring treatment”); Sherrod v.
Lingle, 223 F.3d 605, 610 (7th Cir. 2000) (affirming that “an
appendix on the verge of rupturing” is a serious medical
need). Thus, the only question on appeal is whether Pearson
2
While Pearson brings this case under 42 U.S.C. §
1983, the substantive right at issue nonetheless derives from
the Eighth Amendment. As the Supreme Court has remarked,
Section 1983 “is not itself a source of substantive rights, but a
method for vindicating federal rights elsewhere conferred by
those parts of the United States Constitution . . . that it
describes.” Baker v. McCollan, 443 U.S. 137, 144 n.3
(1979).
9
has presented sufficient evidence from which a reasonable
jury could find that the defendants were deliberately
indifferent.
In its decision below, the District Court granted
summary judgment on all of Pearson’s Eighth Amendment
claims. It found that expert testimony was “necessary” for a
reasonable jury to find that the defendants acted with
deliberate indifference because Pearson’s “entire claim rests
on the assertions that his care was inadequate.” J.A. 11. On
appeal, Pearson argues that the record is sufficient without
expert testimony to create a genuine issue of material fact as
to whether Nurse Thomas, Nurse Rhodes, Nurse Kline,
Captain Papuga, and Dr. McGrath were deliberately
indifferent. For the reasons stated below, we disagree with the
District Court’s conclusion that expert testimony was
necessary in this case. And, because the record is sufficient
for a reasonable jury to find that Nurse Rhodes acted with
deliberate indifference to Pearson’s serious medical needs, we
will reverse the District Court’s order, in part, insofar as it
grants summary judgment in favor of Nurse Rhodes.
A
To assess whether summary judgment was appropriate,
we must first consider whether the District Court properly
held that expert testimony was necessary in this case. If that
legal conclusion is correct, we can affirm the District Court’s
decision without further analysis. If not, we must also
consider whether Pearson has offered sufficient evidence for
a reasonable jury to find in his favor.
At the outset, we note that in our most recent opinion
in this case, we observed that it is “not clear that an expert
opinion is necessary.” Pearson, 519 F. App’x at 82. We also
note that our prior consideration of when expert testimony is
required in a deliberate indifference case has only addressed
10
when expert testimony is necessary to create a genuine
dispute that the prisoner’s medical needs are serious. In
Boring v. Kozakiewicz, 833 F.2d 468 (3d Cir. 1987), we held
that a district court may properly require expert medical
opinions when, “[a]s laymen, the jury would not be in a
position to decide whether any of the conditions described by
plaintiffs could be classified as ‘serious.’” Id. at 473. In
Brighthwell v. Lehman, 637 F.3d 187 (3d Cir. 2011), we
reiterated our holding in Boring, clarifying that expert
testimony “is not necessarily required to establish the
existence of a serious medical need” and that “[o]ther forms
of extrinsic proof . . . may suffice in some cases.” Id. at 194
n.8.
Because the parties agree that Pearson’s medical need
was serious, this appeal requires us to resolve an issue of first
impression in this Circuit. We must decide for the first time
whether and when medical expert testimony may be
necessary to create a triable issue on the subjective prong of a
deliberate indifference case. In answering this question, three
principles guide our analysis. The first is that deliberate
indifference is a subjective state of mind that can, like any
other form of scienter, be proven through circumstantial
evidence and witness testimony. See, e.g., Durmer v.
O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993) (noting that, when
“intent becomes critical,” it is “important that the trier of fact
hear” the defendant’s “testimony in order to assess his
credibility”); Campbell v. Sikes, 169 F.3d 1353, 1372 (11th
Cir. 1999) (“[P]laintiffs necessarily must use circumstantial
evidence to establish subjective mental intent.”); In re
Kauffman, 675 F.2d 127, 128 (7th Cir. 1981) (“Intent . . .
must be gleaned from inferences drawn from a course of
conduct.” (internal quotation marks omitted)).
11
The second principle is that there is a critical
distinction “between cases where the complaint alleges a
complete denial of medical care and those alleging inadequate
medical treatment.” United States ex. rel. Walker v. Fayette
Cty., 599 F.2d 573, 575 n.2 (3d Cir. 1979). Because “mere
disagreement as to the proper medical treatment” does not
“support a claim of an eighth amendment violation,”
Monmouth Cty. Corr. Inst. v. Lanzaro, 834 F.2d 326, 346 (3d.
Cir. 1987), when medical care is provided, we presume that
the treatment of a prisoner is proper absent evidence that it
violates professional standards of care. See Brown v. Borough
of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990) (“[I]t is
well established that as long as a physician exercises
professional judgment his behavior will not violate a
prisoner’s constitutional rights”).
The third and final principle is that the mere receipt of
inadequate medical care does not itself amount to deliberate
indifference—the defendant must also act with the requisite
state of mind when providing that inadequate care. Durmer,
991 F.2d at 69 n.13 (noting a plaintiff can only proceed to
trial when there is a genuine issue of fact regarding both the
adequacy of medical care and the defendant’s intent). This
observation is critical because it makes clear that there are
two very distinct subcomponents to the deliberate
indifference prong of an adequacy of care claim. The first is
the adequacy of the medical care—an objective inquiry where
expert testimony could be helpful to the jury. The second is
the individual defendant’s state of mind—a subjective inquiry
that can be proven circumstantially without expert testimony.
Based upon these observations, we think that medical
expert testimony may be necessary to establish deliberate
indifference in an adequacy of care claim where, as laymen,
the jury would not be in a position to determine that the
12
particular treatment or diagnosis fell below a professional
standard of care. As is the case with evaluating whether the
prisoner is suffering from a serious medical need, evaluating
whether medical treatment is adequate presents an objective
question typically beyond the competence of a non-medical
professional. Likewise, it makes sense to require a prisoner to
offer extrinsic proof regarding the quality of medical care in
adequacy of care cases when, to defeat our presumption that
the medical care provided to him or her was adequate, the
prisoner must show that the medical official did not exercise
professional judgment. See, e.g., Celotex Corp. v. Catrett, 477
U.S. 317, 331 (1986) (holding that when the burden of
persuasion at trial would be on the nonmoving party,
“the party moving for summary judgment may satisfy Rule
56” by demonstrating that “the nonmoving party’s evidence is
insufficient to establish an essential element of [its] claim”);
Durmer, 991 F.2d at 67 (“[P]rison authorities are accorded
considerable latitude in the diagnosis and treatment of
prisoners.”); Brown, 903 F.2d at 278 (“[A]s long as a
physician exercises professional judgment his behavior will
not violate a prisoner’s constitutional rights.”).
Nonetheless, for two reasons, we disagree with the
District Court’s conclusion that medical expert testimony was
necessary in this case. First, we believe that conclusion
ignores our decision in Brightwell, where we noted that
expert testimony “is not necessarily required” where other
forms of extrinsic proof may suffice. 637 F.3d at 194 n.8. In
this case, Pearson has not offered any extrinsic proof
regarding the quality of his medical care, and, it may well be
possible that other forms of extrinsic proof (e.g., a training
manual, photograph, or medical records) could have
permitted a reasonable jury to find that his medical care was
inadequate. Accordingly, to the extent we agree with the
13
District Court that a reasonable jury could not find in
Pearson’s favor on this record, we believe that it is additional
extrinsic proof, rather than an expert witness specifically, that
was required for him to survive summary judgment.
Second, we disagree with the District Court’s
conclusion that additional proof was needed to create a triable
issue on all, rather than just some, of Pearson’s deliberate
indifference claims. Certainly, for the reasons just stated,
extrinsic evidence is needed to create a triable issue on
Pearson’s adequacy of treatment claims where it would not be
obvious to a layperson that the defendant breached a
professional standard of care. However, Pearson also raises
two claims that he was delayed or denied treatment outright
for a non-medical reason and one adequacy of treatment
claim where it would be apparent to a layperson that his
medical treatment violated a professional standard of care.
For these claims, additional extrinsic proof was not necessary
to survive summary judgment, and we hold that the District
Court erred in concluding otherwise.
For Pearson’s claim that Nurse Rhodes forced him to
crawl to a wheelchair, we believe that Pearson’s sworn
testimony is sufficient to create a genuine issue of fact that
Nurse Rhodes acted with deliberate disregard to his medical
needs. See Bushman v. Halm, 798 F.2d 651, 661 (3d Cir.
1986) (noting that in “the absence of any contrary medical
evidence, plaintiff’s sworn testimony must be taken as true
for purposes of creating a fact issue.”). As noted above, our
precedent provides that a plaintiff can proceed to trial on an
adequacy of care claim when there is a genuine issue of fact
regarding both the adequacy of care and the defendant’s
intent. Durmer, 991 F.2d at 69 n.13. And we do not think
additional extrinsic proof is necessary for Pearson to create a
genuine dispute of fact on either issue for this claim. A
14
layperson is capable of concluding that forcing a screaming
patient to crawl to a wheelchair violates professional
standards of care. 3 And a reasonable jury could find that
Nurse Rhodes knew Pearson could not walk and deliberately
failed to assist him for non-medical reasons.
For Pearson’s claims that he was delayed or denied
medical treatment for a non-medical reason, we also believe
that requiring additional extrinsic proof would be
inappropriate given the subjective nature of scienter and our
case law on deliberate indifference. Again, a delay or denial
of medical treatment claim must be approached differently
than an adequacy of care claim. Fayette Cty., 599 F.2d at 575
n.2. Unlike the deliberate indifference prong of an adequacy
of care claim (which involves both an objective and
subjective inquiry), the deliberate indifference prong of a
delay or denial of medical treatment claim involves only one
subjective inquiry—since there is no presumption that the
defendant acted properly, it lacks the objective, propriety of
medical treatment, prong of an adequacy of care claim.
3
Indeed, expert testimony is not admissible, let alone
required to create a genuine issue of fact as to whether the
care the prisoner received was adequate, if it was obvious to
the jury that the care violated professional standards. See,
e.g., Calhoun v. Yamaha Motor Corp. U.S.A., 350 F.3d 316,
320-21 (3d Cir. 2003) (noting that Rule 702 requires expert
testimony to “assist the trier of fact” (internal quotation marks
omitted)); Fed. R. Evid. 702 advisory committee’s note to
1972 proposed rules (noting that expert testimony is not
helpful “when the untrained layman would be qualified to
determine . . . the particular issue without enlightenment from
those having a specialized understanding of the subject
involved in the dispute”).
15
Absent that objective inquiry, extrinsic proof is not necessary
for the jury to find deliberate indifference in a delay or denial
of medical treatment claim. All that is needed is for the
surrounding circumstances to be sufficient to permit a
reasonable jury to find that the delay or denial was motivated
by non-medical factors. See, e.g., Durmer, 991 F.2d at 68-69;
United States v. Michener, 152 F.2d 880, 885 (3d Cir. 1945)
(“[I]t is for the jury to determine the weight to be given to
each piece of evidence . . . particularly where the question
at issue is the credibility of the witness.”). The District Court
erred in holding otherwise.
In sum, because it is just as difficult for a layperson to
assess the adequacy of medical care as it is for them to assess
the seriousness of a medical condition, we hold that medical
expert testimony may be necessary in some adequacy of care
cases when the propriety of a particular diagnosis or course of
treatment would not be apparent to a layperson. Nonetheless,
we disagree with the District Court’s conclusion that expert
testimony was necessary in this case because we are not
satisfied that medical expert testimony would be necessary
for all of Pearson’s claims, nor are we satisfied that other
forms of extrinsic proof would not have sufficed.
B
Because the District Court incorrectly held that expert
testimony was necessary for Pearson to survive summary
judgment, we must now consider whether the record in this
case was sufficient to create a genuine issue of material fact
as to whether Nurse Thomas, Nurse Rhodes, Nurse Kline,
Captain Papuga, and Dr. McGrath were deliberately
indifferent to Pearson’s serious medical needs. As the
Supreme Court has explained, “deliberate indifference entails
something more than mere negligence” and is a subjective
standard that requires the official to both “be aware of facts
16
from which the inference could be drawn that a substantial
risk of serious harm exists” and to “also draw the inference.”
Farmer v. Brennan, 511 U.S. 825, 835-37 (1994). In prior
cases, we have found deliberate indifference in a variety of
contexts including where (1) prison authorities deny
reasonable requests for medical treatment, (2) knowledge of
the need for medical care is accompanied by the intentional
refusal to provide it, (3) necessary medical treatment is
delayed for non-medical reasons, and (4) prison authorities
prevent an inmate from receiving recommended treatment for
serious medical needs. Lanzaro, 834 F.2d at 347. Because
each defendant played a different role in regard to Pearson’s
treatment at SCI Somerset, we will address Pearson’s claims
against each of them in turn.
1. Claims Against Nurse Thomas
Pearson first claims that the District Court erred when
granting summary judgment to Nurse Thomas. He argues that
a reasonably jury could find that she acted with deliberate
indifference because she did not raise his abdominal pain with
other staff and offered no medical assistance other than to
place him on sick call.
We disagree. First, even if a reasonable jury could find
that Nurse Thomas was negligent in diagnosing or treating his
pain, that would not be enough for the jury to find that Nurse
Thomas acted with deliberate indifference in violation of the
Eighth Amendment. As the Supreme Court has held, “a
complaint that a physician has been negligent in diagnosing
or treating a medical condition does not state a valid claim of
medical mistreatment under the Eighth Amendment.” Estelle,
429 U.S. at 106; see also Spruill v. Gillis, 372 F.3d 218, 235
(3d Cir. 2004) (“Allegations of medical malpractice are not
sufficient to establish a Constitutional violation.”).
17
Second, while Pearson claims that Nurse Thomas
delayed or denied him medical care, it is undisputed that she
examined him, diagnosed him with a pulled muscle, and
decided not to elevate his condition based on her opinion that
it was not severe. Thus, his claim against her is one that she
inadequately diagnosed and treated his medical condition. As
we remarked earlier, that distinction is critical—because the
deliberate indifference standard “affords considerable latitude
to prison medical authorities in the diagnosis and treatment of
the medical problems of inmate patients,” we must “disavow
any attempt to second-guess the propriety or adequacy of
[their] particular course of treatment” so long as it “remains a
question of sound professional judgment.” Inmates of
Allegheny Cty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir.
1979) (internal quotation marks omitted); see also Brown,
903 F.2d at 278 (“[I]t is well established that as long as a
physician exercises professional judgment his behavior will
not violate a prisoner’s constitutional rights.”); Fayette
Cty., 599 F.2d at 575 n.2 (“[F]ederal courts are generally
reluctant to second guess medical judgments and to
constitutionalize claims which sound in state tort law.”
(internal quotation marks omitted)).
Here, Pearson has offered no circumstantial evidence
suggesting that Nurse Thomas subjectively appreciated the
true seriousness of the risk of harm. Nor did he produce
extrinsic evidence suggesting that Nurse Thomas’s treatment
decision regarding the symptoms of which she had awareness
was “a substantial departure from accepted professional
judgment, practice, or standards” such that a reasonable jury
could conclude that she “actually did not base [her] decision
on such judgment.” Youngberg v. Romeo, 457 U.S. 307, 323
(1982). Accordingly, no reasonable jury could find that she
acted with the “obduracy and wantonness” that violates the
18
Eighth Amendment, and we agree with the District Court that
Nurse Thomas is entitled to summary judgment. Whitley v.
Albers, 475 U.S. 312, 319 (1986) (“It is obduracy and
wantonness, not inadvertence or error in good faith, that
characterize the conduct prohibited by the Cruel and Unusual
Punishments Clause . . . .”).
2. Claims Against Nurse Kline
For similar reasons, we also agree with the District
Court that Nurse Kline is entitled to summary judgment.
Although Pearson argues that a reasonable jury could find
that she was deliberately indifferent to his appendicitis when
she told him that his gallbladder was failing but merely
offered him Tylenol and Maalox, we disagree. Without
extrinsic evidence showing that a failing gall bladder is
emergent or necessitates some other response, no layperson
would be able to find that Nurse Kline’s determination that
Pearson should rest until his examination in the morning was
“a substantial departure from accepted professional judgment,
practice, or standards.” Youngberg, 457 U.S. at 323. Hence no
reasonable jury could find that this response violated the
Eighth Amendment. See, e.g., Brown, 903 F.2d at 278 (“[I]t is
well established that as long as a physician exercises
professional judgment his behavior will not violate a
prisoner’s constitutional rights.”).
Likewise, while Pearson maintains that a reasonable
jury could find that Nurse Kline acted with deliberate
indifference to his urethral tear when she initially declined to
examine his bleeding on April 15 and then noted a “copious”
amount of blood, J.A. 126, in his underwear without
escalating his situation, we believe that the record fails to
create a triable issue as to whether Nurse Kline acted with
deliberate indifference. Whether or not Nurse Kline escalated
Pearson’s condition, it is clear that his condition was elevated
19
to Dr. McGrath once Pearson was taken to the infirmary.
Nurse Kline cannot be held liable for allowing a different
nurse to escalate Pearson’s condition, nor can she be held
liable for following Dr. McGrath’s orders that Pearson remain
in the infirmary overnight. See Durmer, 991 F.2d at 69(noting non-physicians cannot “be considered deliberately
indifferent simply because they failed to respond directly to
the medical complaints of a prisoner who was already being
treated by the prison doctor”).
Finally, even if Nurse Kline refused to examine
Pearson when the correctional officer first called about his
bleeding, the circumstances surrounding this refusal are not
sufficient to create a triable issue as to whether she violated
the Eighth Amendment. While Pearson points to evidence
that Nurse Kline delayed her examination because she
believed that his bleeding was normal after surgery, this
serves only to reinforce that she failed to immediately
appreciate the severity of his medical needs. Absent evidence
that the seriousness of his bleeding was communicated to her
at that time, a reasonable jury could not conclude she was
“aware of facts from which the inference could be drawn that
a substantial risk of serious harm existe[d]” and that she “also
dr[ew] the inference. See Farmer, 511 U.S. at 837. And that
is only particularly so here—given this lack of
communication regarding the seriousness of the bleeding, and
given that Pearson was under the care of Dr. McGrath, who
had prescribed medicine and physical therapy upon Pearson’s
return from his appendectomy, Nurse Kline was justified in
believing that Pearson was not in danger absent instructions
20
from Dr. McGrath or Pearson’s surgeon that bleeding should
be treated as more than a normal consequence of his surgery. 4
3. Claims Against Nurse Rhodes
Pearson next argues that a reasonable jury could find
that Nurse Rhodes acted with deliberate indifference to his
medical needs because Nurse Rhodes (1) refused to examine
him in his cell when the block officer first called medical, (2)
forced him to crawl to the wheelchair to obtain medical
treatment, and (3) did nothing but order him placed in the
infirmary overnight despite recognizing signs of appendicitis.
We agree with Pearson that these claims create a triable issue
as to whether Nurse Rhodes acted with deliberate indifference
to his needs. We will therefore reverse the order of the
District Court, in part, insofar as it grants summary judgment
in favor of Nurse Rhodes.
4
In Spruill, we specifically indicated that a non-
medical prison official will not be chargeable with deliberate
indifference, “absent a reason to believe (or actual
knowledge) that prison doctors or their assistants are
mistreating (or not treating) a prisoner.” 372 F.3d at 236.
Now confronted with a set of defendants who are not
physicians but have some amount of medical training, we
clarify that the same division of labor concerns that underlie
that rule apply when a nurse knows that a prisoner is under a
physician’s care and has no reason to believe that the doctor
is mistreating the prisoner. Given that it is the physician with
the ultimate authority to diagnose and prescribe treatment for
the prisoner, a nurse who knows that the prisoner is under a
physician’s care is certainly “justified in believing that the
prisoner is in capable hands,” id., so long as the nurse has no
discernable basis to question the physician’s medical
judgment.
21
Pearson’s claim that Nurse Rhodes failed to examine
him when he initially requested medical assistance creates a
triable issue as to whether Nurse Rhodes was deliberately
indifferent because it raises a claim that Pearson was either
denied reasonable requests for medical treatment, or
necessary medical treatment was delayed for non-medical
reasons. Unlike Nurse Kline, Nurse Rhodes cannot claim that
Pearson was already being treated by a physician. In addition,
when Rhodes initially denied medical care, he was confronted
with a report from a corrections officer that an inmate was
suffering from excruciating pain—an inmate who had twice
sought medical assistance earlier in the day, reporting the
same complaint but with increasing severity.
As Farmer noted, an official may not escape liability by
“merely refus[ing] to verify underlying facts that he strongly
suspect[s] to be true, or declin[ing] to confirm strong
inferences of risk that he strongly suspect[s] to
exist.” Farmer, 511 U.S. at 843 n.8. Neither is he immunized
from liability merely because he delays care for an emergent
condition in reliance on a sick call policy. See Natale v.
Camden Cty. Corr. Facility, 318 F.3d 575, 583 (3d Cir.
2003). Because these circumstances may suggest that Nurse
Rhodes engaged in a pattern of deliberately indifferent
conduct in spite of evidence that he was aware that Pearson
faced a substantial risk of harm, there is a genuine issue of
fact as to why Nurse Rhodes refused to examine Pearson and
“we cannot conclude as a matter of law [his] conduct did not
run afoul of the [Eighth Amendment].” Durmer, 991 F.2d at
68.
Likewise, Pearson’s claim that he was forced to crawl
to the wheelchair creates a genuine dispute as to whether
Nurse Rhodes acted with deliberate indifference. Viewing the
record in Pearson’s favor, as we must, Nurse Rhodes forced a
22
patient, who had been screaming in pain for several hours, to
crawl to a wheelchair despite indicating that he was unable to
walk. We do not believe that additional evidence is required
for a reasonable jury to conclude that this conduct violates a
professional standard of care or that such conduct entails the
obduracy and wantonness that is proscribed by the Eighth
Amendment. See, e.g., Cummings v. Roberts, 628 F.2d 1065,
1068 (8th Cir. 1980) (reversing grant of summary judgment
where the plaintiff claimed that defendants refused to give
him a wheelchair, forcing him to crawl on the floor). 5
Finally, Pearson’s claim that Nurse Rhodes merely
ordered observation despite recognizing signs of appendicitis
creates a triable issue as to whether Nurse Rhodes acted with
deliberate indifference. On its own, this claim might not be
sufficient to survive summary judgment—because Nurse
Rhodes examined and diagnosed Pearson in the infirmary, we
would be confronted with an adequacy of treatment claim that
lacks extrinsic evidence showing that Nurse Rhodes’ response
“so deviated from professional standards of care that it
5
Rhodes correctly points out that Pearson’s only
evidence of this event is his own testimony. However,
counsel for Rhodes conceded at argument that we would be
compelled to reverse and remand this issue for trial if it did,
in fact, occur as Pearson describes. See Oral Argument at
42:38–44:47. We, of course, must credit Pearson’s testimony.
While we require more than conclusory affidavits to create a
genuine issue of material fact, MD Mall Assocs., LLC v. CSX
Transp., Inc., 715 F.3d 479, 485 n.6 (3d Cir. 2013), when
deciding a motion for summary judgment, “the evidence of
the non-movant is to be believed,” and credibility
determinations must be left to the jury. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986).
23
amounted to deliberate indifference.” Allard v. Baldwin, 779
F.3d 768, 772 (8th Cir. 2015) (internal quotation marks
omitted). But that examination did not occur until after Nurse
Rhodes refused to treat Pearson and allegedly forced him
crawl to a wheelchair. This pattern of disinterested conduct
“separates this complaint from ordinary allegations of
medical malpractice.” White v. Napoleon, 897 F.2d 103, 109
(3d Cir. 1990). Indeed, while “one reasonable reading of the
record in this case” is that Nurse Rhodes ordered observation
in the infirmary based on his informed medical judgment,
“we cannot conclude that it is the only one” because, insofar
as the record suggests that Nurse Rhodes repeatedly ignored
Pearson’s requests for treatment based on non-medical
reasons, a reasonable jury could find that Nurse Rhodes also
had a non-medical motive for leaving Pearson in the
infirmary overnight. Durmer, 991 F.2d at 67. Accordingly,
because Nurse Rhodes suspected appendicitis, a condition
that would have put him on notice that a “substantial risk of
serious harm exists,” we cannot conclude as a matter of law
that this observation order did not violate the Eighth
Amendment. Farmer, 511 U.S. at 837. 6
6
Nurse Rhodes argued that he was entitled to qualified
immunity because it was not clearly established at the time of
these events that an official would be liable for a delay in care
without expert medical evidence that the inmate suffered
harm as a result. This fundamentally misunderstands the
qualified immunity inquiry. Qualified immunity requires us to
ask whether a reasonable official would have understood, at
the time of the challenged conduct, that what he or she was
doing violated an established right. Ashcroft v. al-Kidd, 563
U.S. 731, 741 (2011).That analysis cannot turn on facts that
could not be known to an official at the time, like whether the
24
4. Claims Against Dr. McGrath
Next, Pearson maintains that Dr. McGrath
demonstrated a pattern of deliberate indifference to his
medical needs through three incidents after he returned to the
prison following his appendix surgery. The first is that Dr.
McGrath ordered Pearson sent directly back to the general
population without any observation period in the prison
infirmary, and without ordering the follow-up prescribed by
Pearson’s surgeon. The second is that Dr. McGrath was angry
and simply ordered Pearson to be placed in the infirmary
overnight when Nurse Magyar called him about Pearson’s
bleeding on April 15. The third is that Dr. McGrath told
Pearson his bleeding was normal and discharged him back to
his cell after an examination on April 16.
We agree with the District Court that Dr. McGrath is
entitled to summary judgment. Whether or not Dr. McGrath
was angry at being called at home on April 15, Pearson does
not dispute that Dr. McGrath prescribed treatment over the
phone, ordering observation in the infirmary, antibiotics, and
plaintiff would ultimately be able to produce expert testimony
that the delay resulted in harm. It was sufficiently clear at the
time of these events that exposing an inmate to the kind of
severe and protracted pain and mental anxiety alleged in this
case could expose an official to Eighth Amendment
liability. See Lanzaro, 834 F.2d at 346; White, 897 F.2d at
111.
25
increased intake of fluids. J.A. 115-16, 377. 7 Pearson also
concedes that he was not in immediate danger at the time, and
that Dr. McGrath examined him at 6:45 a.m. the following
morning, diagnosing his bleeding as a normal consequence of
the surgery in addition to collecting lab work and scheduling
a follow-up appointment. J.A. 116-17, 377-78. Because
medical treatment was provided on both occasions and
Pearson has provided no extrinsic evidence that would permit
a layperson to conclude that Dr. McGrath’s actions
constituted “a substantial departure from accepted
professional judgment, practice, or standards,” a reasonable
jury could not find that he was deliberately indifferent either
occasion. Youngberg, 457 U.S. at 323; see also Pierce, 612
F.2d at 754 (“Courts will disavow any attempt to second-
guess the propriety or adequacy of a particular course of
treatment” so long as it “remains a question of sound
professional judgment.” (internal quotation marks omitted)).
Taking those claims away, the sole assertion that
Pearson has against Dr. McGrath is that McGrath was
deliberately indifferent for sending him back to the general
prison population without any observation period in the
prison infirmary and without ordering the lifting restrictions
or follow-up appointment prescribed by Pearson’s surgeon.
As with Pearson’s other claims against Dr. McGrath, the
record is not sufficient for a reasonable jury to conclude that
7
Pearson points to this call as circumstantial evidence
of Dr. McGrath’s state of mind that reflects, in combination
with evidence of the totality of his interactions with Dr.
McGrath, deliberate indifference. While such circumstantial
evidence may be relevant to the subjective inquiry, the
evidence here is still not sufficient for a reasonable jury to
conclude that he had a sufficiently culpable state of mind.
26
Dr. McGrath was deliberately indifferent to his medical
needs. Since Dr. McGrath ordered pain medication, exercise
to help with breathing, and a follow-up medical appointment
upon Pearson’s return to the prison, any complaint that he
should have ordered additional observation is no more than a
“mere disagreement as to the proper medical treatment” that
does not “support a claim of an eighth amendment violation.”
Lanzaro, 834 F.2d at 346; see J.A. 132. At the same time,
while prison authorities may be held liable under the Eighth
Amendment when they “prevent an inmate from receiving
recommended treatment for serious medical needs,” we
cannot find that this is such a case. Pierce, 612 F.2d at 762.
Unlike in our prior interference-with-prescribed treatment
cases, there is nothing in the record indicating that Dr.
McGrath refused to allow Pearson to receive the prescribed
treatment, let alone that Dr. McGrath knew that the lifting
restriction or the follow-up appointment had been prescribed. 8
Absent such evidence, this claim is merely that Dr. McGrath
negligently failed to order the prescribed treatment, and,
because deliberate indifference “entails something more than
mere negligence,” no reasonable jury could find him liable
for this conduct under the Eighth Amendment. Farmer, 511
U.S. at 835.
5. Claims Against Captain Papuga
Finally, we agree with the District Court that Captain
Papuga is entitled to summary judgment. As our precedent
makes clear, “a non-medical prison official” cannot “be
charge[d] with the Eighth Amendment scienter requirement
of deliberate indifference” when the “prisoner is under the
8
In fact, as the follow-up appointment was scheduled
to take place after the second surgery, it is not the case that
the prison ever violated the surgeon’s orders.
27
care of medical experts” and the official does not have “a
reason to believe (or actual knowledge) that prison doctors or
their assistants are mistreating (or not treating) a prisoner.”
Spruill, 372 F.3d at 236; see also Durmer, 991 F.2d at 69(holding that non-physicians cannot “be considered
deliberately indifferent simply because they failed to respond
directly to the medical complaints of a prisoner who was
already being treated by the prison doctor”). Whether or not
Captain Papuga ordered Sergeant Rittenour to discard
Pearson’s blood, Pearson was being treated by medical, and
Captain Papuga was only made aware of Pearson’s bleeding
after the cell block officers contacted medical regarding his
condition. J.A. 324, 385. Accordingly, since Pearson has
identified no reason for Captain Papuga to believe that he was
being mistreated, no reasonable jury could conclude that
Captain Papuga was deliberately indifferent for failing to
second-guess the medical staff’s appraisal of the situation.
IV
Regretfully, we must comment on one final issue that
has percolated over the course of this litigation. During his
prior appeal in 2013, Pearson argued that the Magistrate
Judge and District Judge should recuse themselves because
they were biased against him. At the time, we were satisfied
that neither judge would harbor bias on remand, but we did
express concern with their editorializing on prisoner litigation
when dismissing Pearson’s complaint. Specifically, the
Magistrate Judge’s report and recommendation “criticized
inmate medical claims in general” and made general
observations regarding frivolous litigation filed by prisoners
that had “no apparent bearing on the merits of Pearson’s
claims.” Pearson, 519 F. App’x at 84. 9
9
The precise language we admonished was:
28
When we remanded this case, we were hopeful that the
Magistrate Judge and District Judge would cease making
these kinds of irrelevant, categorical statements for several
reasons, including that they are unnecessary and might cast
our judicial system in a bad light by leading an observer to
question the impartiality of these proceedings. In addition, it
is antithetical to the fair administration of justice to pre-judge
an entire class of litigants, and we expect courts to conduct, at
a minimum, a careful assessment of the claims of each party.
By failing to exhibit such an individualized inquiry, these
statements disserved the important principle that “justice must
satisfy the appearance of justice.” Offutt v. United States, 348
U.S. 11, 13 (1954).
Despite our optimism, and despite our admonishment
of these sorts of categorical statements, this commentary
Inmate complaints often result in the naming of
as many defendants as the inmate can remember
. . . even though there is no legal claim against
them in the complaint, no viable legal claim
within any likely amendment to the complaint,
and no interest on the part of the inmate in
following through. They generate large
litigation expenses which divert resources even
from the medical care provided to inmates not
to mention other uses the Commonwealth of
Pennsylvania and its taxpayers might have for
the money. This case is a textbook example.
Pearson, 519 F. App’x at 84 (alteration in original) (quoting
Pearson v. Prison Health Service, No. 09-97, 2011 WL
4473462, at *3 (W.D. Pa. Aug. 18, 2011)).
29
continued since we last remanded this case to the District
Court. While Pearson has not renewed his motion for recusal
either in the District Court or on appeal, we note that in one
prior opinion, the District Court adopted a report and
recommendation in which the Magistrate Judge stated: “To
repeat what I have said before, what is even more perverse is
that [appointing an expert in prisoner litigation] would be a
benefit only available to the class of litigants that has
uniquely demonstrated to Congress that it files an undue
amount of frivolous and meritless lawsuits.” Pearson v.
Prison Health Serv., No. 09-97, 2014 WL 2860660, at *4
(W.D. Pa. June 23, 2014). Likewise, in the report and
recommendation adopted by the District Court in granting
summary judgment to the appellees, the Magistrate Judge
made several statements regarding prisoners such as noting
that “anyone reading the news is familiar with inmates using
bodily fluids, especially blood, as weapons.” J.A. 459. 10
10
“Although a magistrate is not an Article III judge, …
a district court may refer dispositive motions to a magistrate
for a recommendation so long as ‘the entire process takes
place under the district court's total control and jurisdiction,’
and the judge ‘exercise[s] the ultimate authority to issue an
appropriate order.’” Thomas v. Arn, 474 U.S. 140, 153 (1985)
(citation omitted); see also 28 U.S.C. § 636(b)(1). The
District Court is thus ultimately responsible for the decision,
including for the Magistrate’s report and recommendation if it
is adopted in its entirety, but magistrate judges play an
important role in the operation of the federal courts and must
take care to word their published recommendations
accordingly. Indeed, it is equally applicable to District Judges
and Magistrates that “[w]henever a judge’s impartiality
‘might reasonably be questioned’ in a proceeding, 28 U.S.C.
30
As we noted in Pearson’s prior appeal and will
reiterate now, Pearson suffered from two serious medical
conditions, and “it does not appear . . . that he filed this
lawsuit for recreational purposes or to harass prison
personnel.” Pearson, 519 F. App’x at 84. It appears he filed
this suit because he genuinely believes that the prison
officials acted deliberately indifferent to his medical needs in
violation of his constitutional rights. Whether or not he
ultimately prevails, equality before the law is one of the
founding principles of our government and Pearson deserves
to have his case treated as carefully and thoughtfully as any
other litigant’s.
While we remain convinced that the Magistrate Judge
and District Judge are capable of handling Pearson’s trial
without any bias, we trust that our message will be heard on
this third remand and that this editorializing will cease going
forward.
V
For the reasons set forth above, we will affirm the
judgment of the District Court as to Nurse Thomas, Nurse
Kline, Captain Papuga, and Dr. McGrath, reverse as to Nurse
Rhodes, and remand for further proceedings consistent with
this opinion.
§ 455(a) commands the judge to disqualify himself sua sponte
in that proceeding.” Alexander v. Primerica Holdings, Inc.,
10 F.3d 155, 162 (3d Cir. 1993).
31