Antonio Pearson v. Prison Health Service

DLD-008 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-2766
___________
ANTONIO PEARSON,
Appellant
v.
PRISON HEALTH SERVICE; SOMERSET COUNTY HOSPITAL; MED.
DIR. MCGRATH; CHCA AT SOMERSET VISINSKY; CHCA AT
ALBION OWENS; DEPT. SUPT. GIBSON; SUPT. ROZUM; CAPT. PAPUGA.;
LT. DOYKA; SGT. RITTENOUR; P. A. ROBERT SOLARZIK; P.A.
NANCY ZIEGLER; P.A. SHILOBAD; P.A.COLLINS; P.A. MCMULLEN;
RN. JANE DOE-1; RN. JANE DOE-2; RN. JANE DOE-3; RN. JANE DOE-4;
RN. JOHN DOE-1; RN. JOHN DOE-2; P.A. JOHN DOE-1; P.A. JOHN
DOE-2; P.A. JANE DOE-1; P.A. JANE DOE-2; DR. JOHN
DOE-1; DR. JOHN DOE-2; JOHN DOE-1, C.O.
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civ. No. 09-cv-00097)
District Judge: Honorable Kim R. Gibson
____________________________________
Submitted for Possible Dismissal Under 28 U.S.C.
§ 1915(e)(2)(B) and Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
October 9, 2009
Before: FUENTES, JORDAN and HARDIMAN, Circuit Judges
(Opinion filed October 16, 2009)
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OPINION
_________
PER CURIAM
Antonio Pearson appeals pro se from the District Court’s order dismissing his
complaint. For the following reasons, we will vacate and remand for further proceedings.
See 3d Cir. LAR 27.4 (2008); 3d Cir. I.O.P. 10.6.
I.
Pearson is a Pennsylvania state prisoner. He filed suit pro se under 42 U.S.C. §
1983 against various correctional and medical personnel and entities, alleging that they
have been deliberately indifferent to his serious medical needs in violation of the Eighth
Amendment. (He also asserts violations of the First and Fourteenth Amendments, but we
discern no basis for these claims in his complaint.) We take the following allegations in
Pearson’s complaint as true for present purposes.
Pearson has been incarcerated at SCI-Somerset since 2005. He has made
numerous complaints since then about pain in his abdominal and pelvic areas. On April
10, 2007, he began experiencing “constant sharp pains” in his abdomen. (Compl. ¶ 2.) A
nurse (“Jane Doe-1 Nurse”) saw him at approximately 1:00 p.m. and, without referring
the matter to a physician or physician’s assistant, told Pearson that she believed he had
pulled a muscle and placed him on sick-call for the following day. (Id.) Pearson returned
to the medical unit at around 5:00 p.m. and complained that the pain had become

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“excruciating.” (Id. ¶ 3.) Another nurse (“Jane Doe-2 Nurse”) saw him and told him that
she believed his gall bladder was failing, that there was nothing else she could do for him,
and that he should wait for sick call the following day. (Id.)
By approximately 11:00 p.m. that night, Pearson told his block officer that he was
“in severe pain in his entire abdominal area” and asked him to call the medical unit. (Id. ¶
4.) The block officer did so and told Pearson that another nurse (“John Doe-1 Nurse”)
said that “he was not coming to the unit” because two nurses already had seen him and he
was on sick-call for the following day. (Id.) After that, “[t]he pain was so excruciating
that [Pearson] screamed until 2:30 a.m. on April 11, 2007,” when a correctional officer
called the medical unit again and the same nurse finally came to the unit to see him. (Id.)
According to Pearson, the nurse was “mad” at him and “forced [him] to crawl to the
wheel chair” from his bed. (Id. ¶ 5.) The nurse “stated that if [Pearson] could not make it
to the wheel chair, then he will not be taken to the hospital.” (Id.) Pearson made it to the
wheel chair, and the nurse took him to the infirmary and “placed him in an infirmary cell
all night in excruciating pain.” (Id.) Finally, and apparently the next morning, two
physicians authorized Pearson to be taken to an outside hospital. (Id.) A physician at the
hospital performed emergency surgery to remove Pearson’s appendix, which had failed
because a “tumor/mass” in plaintiff’s stomach had attached itself to it. (Id.)
After Pearson returned to prison, he felt a sharp pain and felt liquid running down
his leg, which he later identified as blood flowing from his penis. (Id. ¶ 6.) At his

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request, his block officer called the medical unit, but “they” refused to allow him to come
to the unit and told the officer to have Pearson lie on his back. (Id.) Pearson “continued
to be in constant pain and blood continued to run down [his] leg,” so the block sergeant
called the medical unit again and they authorized a visit. (Id.) A physician’s assistant
(“John Doe P.A.”), alarmed by the amount and brightness of the blood (which indicated
that it might be arterial), told Pearson that he might be going to an outside hospital and
called defendant Robert McGrath, a Medical Director, at home. (Id.) The assistant then
told Pearson that Dr. McGrath was “mad” at him for calling at home and told him to “just
place [Pearson] in a room overnight.” (Id.) Dr. McGrath saw Pearson the next day and,
without seeing the amount of the blood, told him his condition was “normal” and sent him
back to his cell. (Id.)
Once back in his cell, however, Pearson “continued to have blood gush out of his
penis, had to use a bag to keep it from messing up his clothes and bedding and was in
constant pain[.]” (Id.) Pearson complained to a Sergeant Rittenour, who relayed his
complaint to Captain Thomas Papuga, who “told him to give [Pearson] a direct order to
get rid of the blood,” which “was done to hide [Pearson’s] serious medical need.” (Id.)
But “[b]lood started to run down [Pearson’s] leg again,” and Pearson returned to the
medical unit. Finally, he was taken back to the outside hospital for additional surgery,
and later learned that he had suffered a cut on the inside of his penis during the removal
of his appendix. (Id. ¶ 7) Pearson seeks, in relevant part, monetary damages and a

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The District Court dismissed the complaint “without prejudice” to Pearson’s right to1
file suit in state court, but its order clearly contemplates no further proceedings in federal
court. Accordingly, we have jurisdiction under 28 U.S.C. § 1291. The District Court did
not specify the statute or rule under which it dismissed Pearson’s complaint. The District
Court concluded that Pearson’s complaint fails to state a federal claim, so it could have
dismissed it under 28 U.S.C. § 1915(e)(2)(B)(ii) or Rule 12(b)(6). Our review is plenary
in either case, see Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000), but we construe
the dismissal as one under § 1915(e)(2)(B)(ii). See Oatess v. Sobolevitch, 914 F.2d 428,
431 (3d Cir. 1990) (holding that district courts may not dismiss a complaint under Rule
12(b)(6) sua sponte before service of process). The procedure that the District Court
employed was somewhat unorthodox and potentially problematic but, under the
circumstances, we need do no more than review its ultimate ruling. In doing so, we
“‘accept all allegations as true, construe the complaint in the light most favorable to the
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declaration that defendants violated his constitutional rights.
Pearson submitted his complaint along with an application for leave to proceed in
forma pauperis (“IFP”). On April 22, 2009, a Magistrate Judge issued a Report and
Recommendation recommending that the District Court dismiss the complaint for failure
to state a federal claim. The Report and Recommendation also granted Pearson’s IFP
motion, but “only so that the Clerk may file the complaint.” (R&R at 1.) It further
conditioned Pearson’s right to file objections on his return of an authorization to collect
payments toward the filing fee from his prison account. Pearson returned the
authorization and filed objections. In both his objections and the complaint itself,
Pearson alleged that he has been unable to obtain a copy of his medical records and
requested leave to amend his complaint. By order entered May 21, 2009, the District
Court adopted the Report and Recommendation and dismissed Pearson’s complaint. It
did not address his requests for leave to amend. Pearson appeals.1

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plaintiff, and determine whether, under any reasonable reading of the complaint, the
plaintiff may be entitled to relief.’” Phillips v. County of Allegheny, 515 F.3d 224, 230
(3d Cir. 2008). Although the “‘factual allegations must be enough to raise a right to relief
above the speculative level,’” id. at 234 (citation omitted), complaints filed pro se must be
liberally construed, see Erickson v. Pardus, 551 U.S. 89, 94 (2007).
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II.
In order to state an Eighth Amendment claim for deliberate indifference to medical
needs, a plaintiff must plead “(i) a serious medical need, and (ii) acts or omissions by
prison officials that indicate deliberate indifference to that need.” Natale v. Camden Cty.
Corr. Fac., 318 F.3d 575, 582 (3d Cir. 2003). The District Court did not determine
whether Pearson alleged a serious medical need, but we think it beyond question that he
has. See Atkinson v. Taylor, 316 F.3d 257, 266 (3d Cir. 2003) (medical need is serious
“if it has been diagnosed by a physician as requiring treatment”); Sherrod v. Lingle, 223
F.3d 605, 610 (7th Cir. 2000) (“[A]n appendix on the verge of rupturing easily meets this
standard.”). Instead, the District Court dismissed Pearson’s complaint on the sole basis
that he did not “allege any facts that support an inference of deliberate indifference as that
term is defined by the Supreme Court.” (R&R at 4.) We disagree.
Deliberate indifference requires a showing that “the official ‘knows of and
disregards an excessive risk to inmate health or safety.’” Natale, 318 F.3d at 582 (quoting
Farmer v. Brennan, 511 U.S. 825, 837 (1994)). The official must be “aware of facts from
which the inference could be drawn that a substantial risk of serious harm exists” and
must also “draw the inference.” Id. We have explained that this standard is “clearly met”

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in a number of scenarios, including “when a doctor is intentionally inflicting pain on [a]
prisoner,” and where the denial of “reasonable requests for medical treatment . . . exposes
the inmate to undue suffering[.]” Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004)
(citations and internal quotation marks omitted). We also have found this standard
satisfied when “a prison official . . . knows of a prisoner’s need for medical treatment but
intentionally refuses to provide it” or “delays necessary medical treatment based on a non-
medical reason.” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999).
In this case, the District Court believed that Pearson alleges “at most” that medical
personnel were “discourteous and uncaring.” (R&R at 2.) Pearson, however, has alleged
facts raising an inference that defendants were deliberately indifferent to his suffering and
delayed medical care for non-medical reasons. He alleges, for example, that he
complained of constant and excruciating pain to two nurses but that they provided no
examination or treatment and merely put him on the sick-call list for the following day.
Then, after he continued to suffer excruciating pain, he was denied a third request to go to
the medical unit because he already had been seen and was on the next day’s sick call list.
Finally, after Pearson screamed in pain for over three hours in his cell, a nurse—who
Pearson describes as “mad” at him—finally visited him, but “forced him to crawl” to a
wheelchair, told him he would not be taken to a hospital if he could not make it, then had
him taken without further treatment to a holding cell where he was left in excruciating
pain for the rest of the night. These allegations state a claim for deliberate indifference.

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Pearson raises allegations in addition to those discussed herein. He alleges, for2
example, that the physician who removed his appendix never called him back for a
promised check up to determine whether the “tumor/mass” had damaged his liver, and
that Dr. McGrath refused to authorize a check-up to determine whether the “tumor/mass”
has grown back. Pearson’s existing allegations in this regard do not state a claim for
deliberate indifference, but we cannot say that amendment of his complaint would prove
futile. Thus, as with the other allegations discussed herein, the District Court should not
have dismissed them without leave to amend. See Phillips, 515 F.3d at 236.
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Pearson also alleges that, after he began bleeding from his penis following the
removal of his appendix, Dr. McGrath was “mad” at his concerned assistant for having
called him at home about Pearson’s condition and told him to “just place [Pearson] in a
room overnight.” He further alleges that, after Dr. McGrath told him his condition was
“normal” and sent him back to his cell, correctional personnel ordered him to dispose of
the blood he continued “gushing” in order to “hide” his condition. These allegations state
a claim for deliberate indifference as well.2
Accordingly, we will vacate the District Court’s judgment and remand for further
proceedings. We neither express any opinion on the merits of Pearson’s claims nor rule
out the possibility that some or all defendants may be able to raise grounds for dismissal
under Rule 12(b)(6) or otherwise. Instead, we hold only that the allegations discussed
above state the elements of a deliberate indifference claim and that the District Court
erred in concluding otherwise. On remand, the District Court should allow Pearson to
amend his complaint before dismissing it on the basis of any future Rule 12(b)(6) motion
unless amendment would be inequitable or futile. See Phillips, 515 F.3d at 236.

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