December 7, 2016
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
J. Ridge Brandon J. Verdream, Clark Hill, Counsel for
A. Mericli, Office of Attorney General of Pennsylvania,
Counsel for Department of Corrections Appellees.
Kathryn M. Kenyon, Meyer Unkovic & Scott, Counsel for
Appellee Medical Director McGrath.
Before: FISHER [*] , KRAUSE and GREENBERG, Circuit Judges.
FISHER, Circuit Judge.
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
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
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.
Leading to Surgery for Appendicitis
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.
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.
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.
Rhodes took Pearson to the infirmary and examined him. He
checked his vitals and recognized that Pearson had possible
signs of appendicitis. Because 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.
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.
Prior to Surgery for Urethral Tear
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.
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.
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 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.
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.
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.
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 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.
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.
the second remand, counsel was appointed for Pearson,
 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 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