McLean v. Federal Bureau of Prisons

Filing 59

MEMORANDUM re MOTION to Dismiss/summary jgmnt 27 (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 2/11/16. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
WILLIAM SAMUEL MCLEAN,
JR.,
Plaintiff
vs.
UNITED STATES OF AMERICA
Defendant

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CIVIL NO. 1:14-CV-02298

(Judge Rambo)

MEMORANDUM
Background
On December 12, 2014, William Samuel McLean,
Jr., an inmate confined at the Federal Correctional
Institution at Schuylkill, Minersville, Pennsylvania
(“FCI-Schuylkill”)1 filed this action against the
Federal Bureau of Prisons (“BOP”) pursuant to the
Federal Tort Claims Act, 28 U.S.C. § 2671.2 Doc. 1,
McLean is presently confined at the Federal
Correctional Institution, Pekin, Illinois (“FCIPekin”).
1.

2. The FTCA provides a remedy in damages for “injury or
loss of property, or personal injury or death caused by
the negligent or wrongful act or omission of any
employee of [the United States] while acting within the
scope of his office or employment, under circumstances
where the United States, if a private person, would be
liable to the claimant in accordance with the law of
the place where the act or omission occurred.” 28
(continued...)

Complaint.

Included in the complaint was a “motion for

time to file an amended complaint.” Id.

On December 4,

2014, the Clerk of Court sent McLean an Administrative
Order directing that within thirty (30) days he pay the
filing fee, or file an application to proceed in forma
pauperis and an authorization form to have funds
deducted from his prison account. Doc. 4.

On December

12, 2014, McLean filed an application to proceed in
forma pauperis and the authorization form. Docs. 5 and
6.

Also, on December 12, 2014, an Administrative Order

was sent to the Warden at FCI-Schuylkill directing him
to commence deducting the filing fee from McLean’s
prison account. Doc. 7. On December 16, 2014, the Court
granted McLean’s application to proceed in forma
pauperis. Doc. 9.
2.

(...continued)

U.S.C. § 1346(b)(1). With respect to negligence or
wrongful acts or omissions the FTCA excludes several
types of claims, including the intentional torts of
assault, battery, false imprisonment, false arrest with
exception of acts or omissions of investigative or law
enforcement officers of the United States. 28 U.S.C. §
2680. “Investigative or law enforcement officer” is
defined as “any officer of the United States who is
empowered by law to execute searches, to seize
evidence, or to make arrests for violations of Federal
law.” 28 U.S.C. § 2680(h).
2

Defendant waived service of the complaint and on
February 12, 2015, filed a motion for extension of time
to file an answer. Docs. 10, 14 and 17.

By order of

February 18, 2015, Defendant was granted an extension of
time until May 20, 2015, to file an answer. Doc. 18.

On

February 26, 2015, McLean filed an amended complaint
substituting the United States as the Defendant along
with a motion to serve the amended complaint. Docs. 20
and 21.

By order of April 10, 2015, the motion to serve

the amended complaint was granted, the Federal Bureau of
Prisons was terminated as a Defendant, and the United
States of America was added as the sole Defendant in
this action. Doc. 25.
The amended complaint and attachments thereto
reveal that McLean alleges that when he arrived at FCISchuylkill on December 5, 2011, that he and the other
newly arrived inmates were informed by Tamara Blaschak,
an emergency medical technician, that they would all
receive a skin test for tuberculosis, i.e., a purified
protein derivative (PPD) test.3
3.

Doc. 20, Amended

The Centers for Disease Control and Prevention
(continued...)
3

Complaint.

McLean claims that he informed EMT Blaschak

that he previously had TB and also had a PPD test in
1994 and that those facts were documented in his medical
records maintained by the BOP.4 Id.

3.

McLean alleges that

(...continued)

describes how the test is administered as follows: “The
[tuberculin skin test] is performed by injecting 0.1 ml
of tuberculin purified protein derivative (PPD) into
the inner surface of the forearm. The injection should
be made with a tuberculin syringe, with the needle
bevel facing upward. The TST is an intradermal
injection. When placed correctly, the injection should
produce a pale elevation of the skin (a wheal) 6 to 10
mm in diameter.” Fact Sheets, Tuberculin Skin Testing,
Centers for Disease Control and Prevention,
http://www.cdc.gov/tb/publications/factsheets/testing/s
skintesting.htm (Last accessed February 5, 2016). The
test is assessed within 48 to 72 hours by measuring in
millimeters “the induration (palpable, raised, hardened
area of swelling).” Id. The interpretation of the test
depends on the measurement in millimeters of the
induration and the person’s risk of being infected. Id.
With respect to “residents and employees of high risk
congregate settings” such as penal institutions “an
induration of 10 or more millimeters is considered
positive[.]” Id.
4. McLean contends that he received the 1994 TB skin
test while confined at the United States Penitentiary,
Leavenworth, Kansas. Doc. 23, Exhibits to Amended
Complaint, at 5. At that time McLean alleges that he
informed the BOP that he had a history of TB but they
still performed the test and that he had a bad reaction
to the test but it did not leave a scar on his left
forearm. Id. Up until his transfer to FCI-Schuylkill
on December 5,2011, he contends that the BOP monitored
him for TB by way of chest x-rays. Id.
4

he objected to the administration of the PPD test and
that EMT Blaschak informed him and the other inmates
that the test was mandatory and that if he refused he
would be taken immediately to a special housing unit
cell, strapped down and given the PPD test.5 Id. at 2223.

In light of those threats, McLean claims he

submitted to the test which resulted in an allergic
reaction within a short period of time and left a
permanent scar on his left forearm. Id. at 11.

McLean

also alleges that he suffered damage to the muscle of
the left forearm and still suffers pain from the
administration of the test. Id.

McLean contends that

EMT Blaschak knew that his medical records showed that
administering the test to him was “contraindicated.” Id.
at 4 and 11.

McLean contends that EMT Blaschak was

negligent by administering the test and committed an

28 C.F.R. § 549.12(b)(4) states that “[a]n inmate
who refuses TB screening may be subject to an incident
report for refusing to obey an order. If an inmate
refuses skin testing, and there is no contraindication
to tuberculin skin testing, then, institution medical
staff will test the inmate involuntarily.”
5.

5

assault and battery on his person.6 Id. 1-6. He also
contends that the clinical director, Ellen Mace-Leibson,
D.O., and Health Services Administrator McKinney were
negligent for issuing standing orders that all newly
arrived inmates receive a PPD test. Id.

As relief,

McLean requests an award of damages in the amount of
$10,000.00. Id. at 6.
On June 9, 2015, the United States filed a
motion to dismiss the amended complaint pursuant to
Federal Rule of Civil Procedure 12(b), or in the
alternative for summary judgment pursuant to Federal
Rule of Civil Procedure 56. Doc. 27. A statement of
material facts and a brief in support of the motion were
filed on June 23, 2015. Docs. 29 and 30.

The United

States argues that McLean’s amended complaint should be
dismissed because he does not have a medical expert and
failed to timely file a certificate of merit as required
by Pennsylvania law, or in the alternative, summary
judgment should be granted because the undisputed record
6. To the extent that McLean alleges that he was
subjected to an assault and battery those claims,
intentional torts, are barred by 28 U.S.C. § 2680(h)
and will be dismissed.
6

demonstrates the United States was not negligent in
treating McLean.

After being granted several extensions

of time, on January 22, 2016, McLean filed a brief in
opposition, a response to the statement of material
facts filed by the United States and evidentiary
materials. Docs. 55, 56, 57 and 58.

The United States’

motion became ripe for disposition on February 8, 2016,
when it elected not to file a reply brief.

For the

reasons set forth below, the motion to dismiss and/or
for summary judgment will be denied.
Motion to Dismiss
Fed.R.Civ.P. 12(b)(6) authorizes dismissal of a
complaint for “failure to state a claim upon which
relief can be granted.”

Under Rule 12(b)(6), we must

“accept all factual allegations as true, construe the
complaint in the light most favorable to the plaintiff,
and determine whether, under any reasonable reading of
the complaint, the plaintiff may be entitled to relief.”
Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d
Cir.2009) (quoting Phillips v. County of Allegheny, 515
F.3d 224, 231 (3d Cir.2008)).

While a complaint need

only contain “a short and plain statement of the claim,”
7

Fed.R.Civ.P. 8(a)(2), and detailed factual allegations
are not required, Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929
(2007), a complaint must plead “enough facts to state a
claim to relief that is plausible on its face.”

Id. at

570, 550 U.S. 544, 127 S.Ct. 1955 at 1974, 167 L.Ed.2d
929.

“The plausibility standard is not akin to a

‘probability requirement,’ but it asks for more than a
sheer possibility that a defendant has acted
unlawfully.”

Ashcroft v. Iqbal,___U.S.___, 129 S.Ct.

1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550
U.S. at 556, 127 S.Ct. at 1965.) “[L]abels and
conclusions” are not enough, Twombly, 550 U.S. at 555,
127 S.Ct. at 1964-65, and a court

“‘is not bound to

accept as true a legal conclusion couched as a factual
allegation.’” Id., 127 S.Ct. at 1965 (quoted case
omitted).
In resolving the motion to dismiss, we thus
“conduct a two-part analysis.” Fowler, supra, 578 F.3d
at 210. First, we separate the factual elements from the
legal elements and disregard the legal conclusions. Id.
at 210-11.

Second, we “determine whether the facts
8

alleged in the complaint are sufficient to show that the
plaintiff has a “‘plausible claim for relief.’” Id. at
211 (quoted case omitted).
In addition, because McLean complains about
“prison conditions,” the screening provisions,

28

U.S.C. § 1915(e), of the PLRA apply,7 given that McLean
was granted in forma pauperis status to pursue this
suit.

The court's obligation to dismiss a complaint

under the PLRA screening provisions for complaints that
fail to state a claim is not excused even after
defendants have filed a motion to dismiss. See, e.g.,
Lopez v. Smith, 203 F.3d 1122, 1126 n. 6 (9th Cir.
2000). Hence, if there is a ground for dismissal which
was not relied upon by a defendant in a motion to
dismiss, the court may nonetheless sua sponte rest its

Section 1915(e)(2), which was created by § 804(a)(5)
of the PLRA, provides:
7.

(2) Notwithstanding any filing fee, or any
portion thereof, that may have been paid, the
court shall dismiss the case at anytime if the
court determines that (A) the allegation of
poverty is untrue; or (B) the action or appeal
(I) is frivolous or malicious; (ii) fails to
state a claim on which relief may be granted;
or (iii) seeks monetary relief against a
defendant who is immune from such relief.
9

dismissal upon such ground pursuant to the screening
provisions of the PLRA. See Lopez; Dare v. U.S., Civil
No. 06-115E, 2007 WL 1811198, at *4 (W.D.Pa. June 21,
2007), aff'd, 264 Fed. Appx. 183 (3d Cir.2008).
Summary Judgment
Federal Rule of Civil Procedure 56(a) requires
the court to render summary judgment "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).

"[T]his standard

provides that the mere existence of some alleged factual
dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the
requirement is that there be no genuine issue of
material fact."

Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 247-48 (1986) (emphasis in original).
A disputed fact is "material" if proof of its
existence or nonexistence would affect the outcome of
the case under applicable substantive law.

Anderson,

477 U.S. at 248; Gray v. York Newspapers, Inc., 957 F.2d
1070, 1078 (3d Cir. 1992).

An issue of material fact is

"genuine" if the evidence is such that a reasonable jury
10

could return a verdict for the nonmoving party.
Anderson, 477 U.S. at 257; Brenner v. Local 514, United
Brotherhood of Carpenters and Joiners of America, 927
F.2d 1283, 1287-88 (3d Cir. 1991).
When determining whether there is a genuine
issue of material fact, the court must view the facts
and all reasonable inferences in favor of the nonmoving
party. Moore v. Tartler, 986 F.2d 682 (3d Cir. 1993);
Clement v. Consolidated Rail Corporation, 963 F.2d 599,
600 (3d Cir. 1992); White v. Westinghouse Electric
Company, 862 F.2d 56, 59 (3d Cir. 1988).

In order to

avoid summary judgment, however, the nonmoving party may
not rest on the unsubstantiated allegations of his or
her pleadings.

When the party seeking summary judgment

satisfies its burden under Rule 56 of identifying
evidence which demonstrates the absence of a genuine
issue of material fact, the nonmoving party is required
by Rule 56 to go beyond the pleadings with affidavits,
depositions, answers to interrogatories or the like in
order to demonstrate specific material facts which give
11

rise to a genuine issue.

Celotex Corporation v.

Catrett, 477 U.S. 317, 324 (1986).

The party opposing

the motion "must do more than simply show that there is
some metaphysical doubt as to the material facts."
Matsushita Electric Industrial Co. v. Zenith Radio, 475
U.S. 574, 586 (1986).

When Rule 56 shifts the burden of

production to the nonmoving party, that party must
produce evidence to show the existence of every element
essential to its case which it bears the burden of
proving at trial, for "a complete failure of proof
concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial."
Celotex, 477 U.S. at 323.

See Harter v. G.A.F. Corp.,

967 F.2d 846, 851 (3d Cir. 1992).
Discussion
The FTCA provides a remedy in damages for the
simple negligence of employees of the United States to
protect federal inmates.
U.S. 150, 150 (1963).

United States v. Muniz, 374

In presenting such a claim, a

plaintiff must show: (1) that a duty was owed to him by
12

a defendant; (2) a negligent breach of said duty; and
(3) that the negligent breach was the proximate cause of
the plaintiff's injury/loss.

Mahler v. United States,

196 F. Supp. 362, 364 (W.D. Pa. 1961), aff'd 306 F.2d
713 (3d Cir. 1962), cert. denied, 371 U.S. 923 (1962).
It is well-settled that a federal district court
in considering a FTCA action must apply the law of the
state, in this case Pennsylvania, in which the alleged
tortious conduct occurred.

28 U.S.C. § 1346(b) (1996);

Toole v. United States, 588 F.2d 403, 406 (3d Cir.
1978); O'Neal v. Department of Army, 852 F. Supp. 327,
334-35 (M.D. Pa. 1994); Turner v. Miller, 679 F. Supp.
441, 443 (M.D. Pa. 1987).

However, in cases involving

federal prisoners, this court has recognized that the
government's duty of care is one of ordinary diligence.
See 18 U.S.C. § 4042; Turner, 679 F. Supp. at 443.

The

applicable law with respect to the burden and quantum of
proof under the FTCA remains that of the state in which
the alleged tortious conduct occurred.

Hosic v. United

States, 682 F. Supp. 23, 25 (M.D. Pa. 1987).
13

Under Pennsylvania law a plaintiff is required
to show that the defendant's negligence was the
proximate cause of his injury by a preponderance of the
evidence.

Baum v. United States, 541 F. Supp. 1349,

1351 (M.D. Pa. 1982).

Furthermore, Pennsylvania law

defines proximate cause as causation which was a
substantial factor in bringing about the injury.

Hamil

v. Bashline, 481 Pa. 256, 265, 392 A.2d 1280, 1284
(1978).
The court is satisfied that McLean has
sufficiently stated a claim of negligent administration
of a PPD test. The administration of a PPD test by BOP
medical personnel is governed by BOP Clinical Practice
Guidelines and Program Statement, Number 6190.04,
Infectious Disease Management.

The guidelines in effect

in December 2011 provided that a skin test should
generally be performed where an inmate is a new BOP
inmate and the inmate only self-reports a prior positive
PPD test.

However, those inmates who have documentation

of prior positive skin tests while the inmates were
14

incarcerated within the BOP or a severe reaction to a
skin test should not be retested.

See Management of

Tuberculosis, Federal Bureau of Prisons, Clinical
Practice Guidelines, January 2010, http://citeseerx.
ist.psu.edu/viewdoc/summary?doi=10.1.1.170.8087;http://c
iteseerx.ist.psu.edu/viewdoc/download;jsessionid=0A60F7D
96535DC8A43F29C7E1F3B2049?doi=10.1.1.170.8087&rep=rep1&t
ype=pdf (Last accessed February 8, 2016).8

Program

8. Appendix 2 to the 2010 guidelines succinctly
summarizes when skin tests should be performed. First,
with respect to tuberculosis skin test negative inmates
they should be tested (1) upon incarceration with the
BOP, (2) annually thereafter, (3) when suspected of
having TB, and (4) as part of a tuberculosis contact
investigation. With respect to inmates who had a prior
positive skin test, a new skin test should be performed
on all new intakes to the BOP regardless of an inmate’s
reported history of prior positive tuberculosis skin
tests “with the following exceptions: prior
documentation of a positive TST while the inmate was
incarcerated within the BOP; history of a severe
reaction to a TST, e.g., swollen, blistering,
(vesiculated) reaction; credible history for latent TB
infection.” The guidelines reissued in October 2015,
reiterate the 2011 guidelines and state that “[t]he TST
is an approved method for diagnosing [tuberculosis]
infection in persons who do not have TB disease.” In
addition the 2015 guidelines state that “[t]uberculin
skin testing should be performed annually unless there
is documentation of a prior TST or history of active TB
(continued...)
15

Statement Number 6190.04 states in relevant part that
“Tuberculin skin test screening with the PPD (purified
protein derivative) skin test must be initiated within
two calendar days of initial incarceration to screen for
both latent TB infection and TB disease unless a
previously positive tuberculosis skin test has been
adequately documented.

It is recommended that the TB

skin test be placed during intake screening. Inmates
with a documented previously positive tuberculosis skin
test, should not be retested, but should be screened for
active TB by chest radiograph.”

Doc. 57, Plaintiff’s

Exhibits, at 13. In light of the Clinical Practice
Guidelines and Program Statement 6190.04 which McLean
raised in his brief in opposition to the motion to
dismiss and the other allegations relating to a
temporally close allergic reaction to the PPD test and
subsequent scarring, McLean has sufficiently alleged a
8.

(...continued)

disease.” Management of Tuberculosis, Federal Bureau of
Prisons Clinical Practice Guidelines, October 2015,at
3-4, http://www.bop.gov/resources/pdfs/TB_CPG.pdf
(Last accessed February 8, 2016).
16

duty of care, a breach of the duty of care and proximate
causation.
The first argument raised by the United States
is more of a procedural challenge to McLean’s amended
complaint.

The United States contends in order for

McLean to proceed with this action he was required
pursuant to Pennsylvania Rule of Civil Procedure 1042.3
to filed a certificate of merit within 60 days of the
filing of the complaint.

Under Rule 1042.3(a) a party

filing an action based upon an allegation of
professional negligence is required to file a
certificate of merit stating that
(1) an appropriate licensed professional has
has supplied a written statement that there
exists a reasonable probability that the care,
skill or knowledge exercised or exhibited in the
treatment, practice or work that is the subject
of the complaint, fell outside acceptable
professional standards and that such conduct
was the cause in bringing about harm, or
*

*

*

*

*

*

*

*

*

*

*

(3) expert testimony of an appropriate licensed
professional is unnecessary for prosecution of
the claim.

17

The United States contends that this requirement was not
satisfied by McLean. Although McLean failed to file a
certificate of merit within the 60 days, the court is
satisfied that McLean’s failure is not fatal to his
action.

McLean has pointed out that under Rule

1042.3(d) his failure can be justified by a “reasonable
excuse.”
First, in opposing the motion to dismiss, McLean
has argued that his failure should be excused because,
as a federal prisoner, he did not have access to
Pennsylvania legal materials and did not have sufficient
information regarding the requirement.

In his brief

McLean specifically states that he did not have access
to Pennsylvania law and that he “ask[ed] Defendant for
the law and was denied the access to Pa. State law.”9
Doc. 55, Plaintiff’s Brief, at 4.

Second,

McLean has

argued that he has a medical opinion indicating that
retesting was inappropriate.

McLean at one point

9. The docket reveals that McLean was transferred to
FCI-Pekin in Illinois on January 23, 2015. Doc. 15.
18

appears to have been incarcerated in Wise County Jail,
located in Texas. Doc. 55, at 7.

The Jail Administrator

notified McLean that he would have to undergo a TB skin
test. Id.

In response to that notice McLean submitted a

letter from Thomas E. Steffen, M.D., dated November 23,
1993, which states in toto as follows: “I saw William
McLean in my office on November 22, 1993. He stated that
he has had Tuberculosis. Mr. McLean does not need a TB
line test but should have a chest x-ray as a follow up
procedure.” Id.

Third, even though McLean has the

medical opinion from Dr. Steffen, McLean further argues
that expert testimony is not necessary for the
prosecution of the claim. In essence McLean contends
that the Clinical Practice Guidelines and the Program
Statement adopted by the BOP set the standard of care
and the allergic reaction shortly after the skin test
establishes causation.
Also, in opposing the motion for summary
judgment, McLean refers to unsworn declarations under
penalty of perjury from other inmates, who state that
19

they observed a lesion on McLean’s forearm shortly after
the PPD test was performed. Doc. 23, Exhibits, at 2325.10

McLean further provides two BOP medical records -

orders for chest x-rays - dated January 15, 1998, and
March 2, 2001, indicating that he had a positive PPD
test, which is the reason the chest x-rays were ordered.
Id.
With respect to the failure to file the
certificate of merit, the court is satisfied that McLean
has provided a reasonable excuse which the United States
has not contested. Walsh v. Console. Design & Eng’g,
Inc., No. Civ. A. 05-2001, 2007 WL 2844829, at *5
(E.D.Pa. Sept. 28, 2007)(“Rule 1042.3 is subject to
equitable considerations and a party who fails to timely
file a certificate of merit may be relieved from the
requirement where the defaulting party provides a
reasonable excuse or legitimate excuse.”). Furthermore,
in responding to the motion to dismiss and/or for

These exhibits accompanied McLean’s amended
complaint.

10.

20

summary judgment McLean in essence has attempted to file
a certificate under subsections 1 and 3 of the rule. See
Scaramuzza v. Sciolla, 345 F.Supp.2d 508 (E.D. Pa.
2004)(plaintiff’s noncompliance excused because a valid
certificate was provided in response to the motion).11
Although in a medical malpractice case, expert
testimony is generally required, this case appears to be
one of the rare cases where expert testimony may not be
necessary because of the promulgation by the BOP of the
Clinical Practice Guidelines and Program Statement
6190.04 as well as the evidence of a temporally close
allergic reaction. Cf. Simpson v. Bureau of Prisons, No.
3:CV-02-2313, 2005 WL 2387631, *5 (M.D.Pa. Sept. 28,
2005)(“Because absence of due care and causation are not
so obvious as to allow a fact finder to decide this case
without expert opinions, Defendant is entitled to
summary judgment.”).

The court is satisfied that McLean

The court is mindful of the principle that pro se
pleadings must be liberally construed. See Haines v.
Kerner, 404 U.S. 519 (1972).
11.

21

has sufficiently complied with Rule 1042.3 and will deny
the United States’ motion to dismiss and construe
McLean’s response to the motion to dismiss and/or for
summary judgment as his certificate of merit.
The United States next argues that summary
judgment should be entered in its favor as the
undisputed record demonstrates the United States was not
negligent in treating McLean.
in this argument.

The court finds no merit

First, the issue actually is the

administration of a test and not treatment for a medical
condition.

The United States contends that Dr. Mace-

Leibson’s declaration (Doc. 30-1, at 3-6) and McLean’s
medical records demonstrate that McLean was
appropriately provided a TB test when he arrived at FCISchuylkill on December 5, 2011.

However, a review of

Dr. Mace-Leibson’s declaration and McLean’s medical
records begs the question.12 The declaration does not
Dr. Mace-Leibson states that “there was nothing in
[McLean’s] medical record noting that he had any recent
TB clearance testing, including a purified protein
derivative (PPD) skin test for TB. An ‘Inmate Intra-

12.

(continued...)
22

address the Clinical Practice Guidelines and Program
Statement 6190.04 adopted by the BOP as well as 28
C.F.R. § 28 C.F.R. § 549.12(b)(4) relating to when an
involuntary test can be performed. Furthermore, the
absence of a recorded injury in McLean’s medical records
is contravened by the declarations from the other
inmates who observed a lesion on McLean’s left forearm
and corroborate McLean’s allegations about being told
that if he refused he would be immediately involuntarily
tested.

Most significantly, even the record that Dr.

Mace-Leibson concedes that EMT Blaschak had available on

12.

(...continued)

System Transfer’ form was completed by FCI Phoenix
medical staff on November 29, 2011, prior to
Plaintiff’s transfer to FCI Schuylkill. That form
indicated Plaintiff’s last PPD skin test was January 1,
1994 . . . Therefore, since the last time Plaintiff had
any TB screening was almost 6 years (sic) prior, the
EMT conducting the health screening of the inmates
arriving at FCI Schuylkill on December 5, 2011,
provided him with the PPD skin test to his left
forearm.” Doc. 30-1, at 4. The medical record referred
to by Dr. Mace-Leibson indicates that McLean had a
positive PPD test on January 1, 1994. The result was 22
mm of induration. 10 mm or above is considered a
positive test. See Clinical Practice Guidelines
adopted by the BOP.
23

December 5, 2011, reveals that McLean had a prior
positive PPD test. Doc. 30-1, at 23.13

Furthermore, the

results of the December 5, 2011, test turned out to be
positive.12 Id. at 26.
Dr. Mace-Leibson’s affidavit is troubling in one
other respect.

She indicates that she evaluated and

examined McLean on December 12, 2011, and during that
encounter McLean never complained about the
administration of the PPD test.

However, McLean has

submitted a grievance form dated December 10 2011, which
he allegedly delivered to Dr. Mace-Leibson.

In that

form McLean states: “I talked to Mr. McKinney. He told
me that you and he were well aware I ‘acted-up’ on the
EMT (T. Blaschak) over the T.B.test.

My arm is already

as big as a Galuff-Ball (sic) cracking bleeding puss,
red lines, etc. (sic) She should of (sic) called you
McLean’s medical record states that he had a PPD
test on January 1, 1994. The induration was 25mm which
is indicative of a positive test. McLean’s last chest
x-ray was on December 18, 2005. Furthermore, the
record states that TB follow-up was not recommended.

13.

12.

The induration was 20 mm.
24

like I asked, no mater the ‘standing order’ she had from
you & Mr. Mckinney to give everyone a TB Test.

She hurt

and assaulted me on your & McKinneys (sic) order so say
Mr. McKinney. The EMT should of (sic) called you! . . .
I want hur (sic) fired before she kills another.”13
20, Amended Complaint, attachments, at 27.

Doc.

Dr. Mace-

Leibson responded to this grievance on December 12, 2011
by merely stating as follows: “This is not something I
have any control over.”

Id.

McLean in the grievance

form clearly was complaining about the TB skin test.
However, Dr. Mace-Leibson fails to mention that fact.

There is an allegation in the amended complaint
that EMT Blaschak was responsible for the death of an
inmate and that her employment was terminated.

13.

25

Under the circumstances presented the court
finds that there are triable issues of material facts,
including issues of credibility, and the United States
is not entitled to summary judgment.
An appropriate order will be entered.

s/Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge
Dated: February 11, 2016

26