Parkell v. Danberg et al
Filing
141
MEMORANDUM OPINION. Signed by Judge Sue L. Robinson on 7/3/12. (dzs, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DONALD D. PARKELL,
Plaintiff,
v.
CARL DAN BERG, et aI.,
Defendants.
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) Civ. No. 10-412-SLR
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Donald D. Parkell, Howard R. Young Correctional Institution, Wilmington, Delaware, Pro
Se Plaintiff.
Devera Breeding Scott, Deputy Attorney General, Delaware Department of Justice,
Wilmington, Delaware. Counsel for State Defendants.
Chad J. Toms, Esquire, Whiteford, Taylor & Preston, LLC., Wilmington, Delaware.
Counsel for Correctional Medical Services, Inc., Christina Damron, and Betty Bryant.
Daniel A. Griffith, Esquire, Whiteford, Taylor & Preston, LLC., Wilmington, Delaware.
Counsel for Correct Care Services LLC.
MEMORANDUM OPINION
Dated: July'; ,2012
Wilmington, Delaware
~~JUdge
I. INTRODUCTION
Plaintiff Donald D. Parkell ("plaintiff'), a prisoner incarcerated at the Howard R.
Young Correctional Institution, Wilmington, Delaware, filed his complaint pursuant to 42
U.S.C. § 1983. He proceeds pro se and has been granted leave to proceed without
prepayment of fees. Presently before the court is a motion to dismiss pursuant to Fed.
R. Civ. P.12{b)(6) filed by Correctional Medical Services, Inc., Christina Damron, and
Betty Bryant. (D.1. 131) The court has jurisdiction pursuant to 28 U.S.C. § 1331. For
the reasons discussed, the court will grant in part and deny in part defendants' motion to
dismiss.
II. BACKGROUND
The court screened the original complaint pursuant to 28 U.S.C. § 1915 and
§ 1915A, dismissed some claims and allowed plaintiff to proceed against numerous
defendants including Correctional Medical Services, Inc. ("CMS"), Betty Bryant
("Bryant"), and Chris Damron ("Damron,,).1 (D.1. 8) Plaintiff moved for, and was
granted, leave to amend. (D.I. 37, 64) The court ordered plaintiff to file his amended
complaint on or before June 30, 2011. Plaintiff filed an amended complaint on May 25,
2011. (D.1. 66) The amended complaint added defendants as well as medical needs
and due process claims. (D.1. 66) The amended complaint in the Statement of Facts
states, "[t]he plaintiff fully incorporates his initial complaint and all filed documents as if
1CMS, Bryant and Damron now move for dismissal, despite this court's
determination following the initial screening that allowed plaintiff to proceed with his
claims against them.
stated entirely herein." (Id. at 1118) The case proceeds on the complaint (0.1. 2) and
amended complaint (0.1.66), together, as the operative pleading. 2 (See 0.1. 121)
CMS, Damron, and Bryant (collectively "medical defendants") move to dismiss
the claims against them pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiff opposes the
motion.
III. STANDARD OF REVIEW
In reviewing a motion filed under Federal Rule of Civil Procedure 12(b)(6), the
court must accept all factual allegations in a complaint as true and take them in the light
most favorable to plaintiff. See Erickson v. Pardus, 551 U.S. 89, 94 (2007);
Christopher v. Harbury, 536 U.S. 403, 406 (2002). A court may consider the pleadings,
public record, orders, exhibits attached to the complaint, and documents incorporated
into the complaint by reference. Tel/abs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S.
308,322 (2007); Oshiverv. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384-85
n.2 (3d Cir. 1994). A complaint must contain "a short and plain statement of the claim
showing that the pleader is entitled to relief, in order to give the defendant[s] fair notice
of what the ... claim is and the grounds upon which it rests." Bell Atl. Corp. v.
Twombly. 550 U.S. 544, 545 (2007) (interpreting Fed. R. Civ. P. 8(a» (internal
quotations omitted).
~he amended complaint contains few, if any, allegations against Damron and
Bryant. They argue that, because the amended complaint supersedes the original
complaint, it effectively invalidates the original complaint and, hence, they should be
dismissed as defendants. Defendants' position fails to consider this court's ruling that
the complaint and amended complaint, together, serve as the operative pleading. (See
0.1. 121) The court, therefore, will deny dismissal on this ground.
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A complaint does not need detailed factual allegations; however, "a plaintiff's
obligation to provide the 'grounds' of his entitle[ment] to relief requires more than labels
and conclusions, and a formulaic recitation of the elements of a cause of action will not
do." Id. at 545 (alteration in original) (citation omitted). The "[fJactual allegations must
be enough to raise a right to relief above the speculative level on the assumption that all
of the complaint's allegations are true." Id. Furthermore, "[w]hen there are well-ple[d]
factual allegations, a court should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief." Ashcroft v. Iqbal, 556 U.S. 662,664
(2009). Such a determination is a context-specific task requiring the court "to draw on
its judicial experience and common sense." Id.
IV. DISCUSSION
A. Plaintiff's Claims
Plaintiff raises issues regarding delay and denial of medical care, as well as
unlawful conditions of confinement claims. This memorandum opinion discusses only
the claims as alleged against the moving defendants. Plaintiff was housed at the James
T. Vaughn Correctional Center and on January 1,2009, slipped in running water and
fell. Medical was called and carried plaintiff on a stretcher to the nurse's station. He
was taken to the Kent General Hospital where he received medical care. Upon his
discharge, plaintiff returned to the prison infirmary where he remained for approximately
one week. His cell there had little, to no, heat and, because his Security Housing Unit
("SHU") status forbade anyone from entering his cell to treat him, he was required to
crawl to the door and "stick his arm out of a small opening to receive treatment, vital
sign checks and medication." Plaintiff alleges that he was refused medication and ice to
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reduce the swelling. While in the infirmary, plaintiff was prescribed range-of-motion
exercises. He alleges that Damron, who was assigned to provide him physical therapy,
manhandled his injured extremity. (OJ. 2,1142) Plaintiff alleges that Bryant would not
provide medical care even after plaintiff complained of an arm infection. (/d. at 11 45) A
few days later officers observed plaintiff's swollen and infected arm and notified the
physician on duty who scheduled an emergency procedure and ordered medication.
On January 19, 2009, plaintiff underwent a medical procedure at the nurse's
station, a culture was obtained, and it revealed a staphylococcus infection. Plaintiff was
treated in February and, in March, underwent testing on his forearm nerves. In August
2009, he was ordered to begin physical therapy. On November 4,2009, plaintiff
returned to isolation to complete "back-up time" for disciplinary misconduct that had
occurred in June 2009. Plaintiff sought medical care while in isolation when his arm
again became infected. He was told by nurses and correctional officers that, while
housed in isolation, he was not allowed medical treatment for any reason but, upon
release from isolation, he could submit a sick-call request. After a few days in isolation,
he was seen by a mental health worker and they discussed his infected arm. The
mental health worker placed a telephone call and, later that evening, plaintiff was taken
to the infirmary where he was treated and received medication. Plaintiff underwent a
second medical procedure on December 4,2009. As of March 2010, he had received
physical therapy only three times. Plaintiff was informed by the physical therapist that
the delay in starting physical therapy caused the injury to heal incorrectly and that
plaintiff required an MRI. (D.1. 2)
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Count one alleges that plaintiffs rights under the Eighth Amendment to the
United States Constitution were violated when: (1) Bryant refused to examine his
infected arm and to provide needed treatment (Id. at 1166); (2) Damron maliciously
twisted and yanked his arm through the door slot causing immense pain and
contributing to his preexisting condition (/d. at 1167); and (3) CMS enacted policies,
customs, or practices that violated his constitutional rights including: (a) the denial of
medical treatment while plaintiff was housed in isolation; (b) forbidding medical
personnel to enter his cell to provide medical care regardless of the extent of his injury;
(c) refusing to provide ice for swelling and pain, even though it was readily available;
(d) housing plaintiff in a cell in the infirmary with no heat, no extra clothing or linens;
(e) delaying needed medical testing; (f) encouraging its employees to disregard
complaints from inmates with higher security levels who were housed in the infirmary;
(g) allowing nurses to deny and delay medical care to inmates with higher security
levels; and (f) only providing care after plaintiff submitted numerous complaints and
grievances. (0.1. 2,1176; 0.1. 66,1111 68-72). Count two alleges that CMS violated
plaintiffs rights under the Fourteenth Amendment to the United States Constitution by
refusing to treat him while he was housed in isolation and in housing him in atypical
conditions in the infirmary.
B. Medical Needs
Medical defendants argue that, rather than stating an actionable claim for
deliberate indifference to a medical need, plaintiff alleges his medical providers failed to
provide his desired level of medical care. They further argue that plaintiff has not
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established a serious medical need and that, at no time, was plaintiff denied medically
necessary treatment.
The Eighth Amendment proscription against cruel and unusual punishment
requires that prison officials provide inmates with adequate medical care. Estelle
v.
Gamble, 429 U.S. 97,103-105 (1976). However, in order to setforth a cognizable
claim, an inmate must allege (i) a serious medical need and (ii) acts or omissions by
prison officials that indicate deliberate indifference to that need. Estelle
v. Gamble, 429
U.S. at 104; Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). A prison official is
deliberately indifferent if he knows that a prisoner faces a substantial risk of serious
harm and fails to take reasonable steps to avoid the harm. Farmer v. Brennan. 511
U.S. 825, 837 (1994). A prison official may manifest deliberate indifference by
"intentionally denying or delaying access to medical care." Estelle
v. Gamble, 429 U.S.
at 104-05.
"[A] prisoner has no right to choose a specific form of medical treatment," so long
as the treatment provided is reasonable. Lasko
2010) (not published) (quoting Harrison
V.
v. Watts, 373 F. App'x 196, 203 (3d Cir.
Barkley, 219 F.3d 132, 138-140 (2d Cir.
2000» .An inmate's claims against members of a prison medical department are not
viable under § 1983 where the inmate receives continuing care, but believes that more
should be done by way of diagnosis and treatment and maintains that options available
to medical personnel were not pursued on the inmate's behalf. Estelle v. Gamble, 429
U.S. 97, 107 (1976). Moreover, allegations of medical malpractice are not sufficient to
establish a Constitutional violation. White v. Napoleon, 897 F.2d 103, 108-09 (3d Cir.
1990) (citations omitted); see also Daniels
V.
Williams. 474 U.S. 327, 332-34 (1986)
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(negligence is not compensable as a Constitutional deprivation). Finally, "mere
disagreement as to the proper medical treatment" is insufficient to state a constitutional
violation. See Spruill v. Gillis, 372 F.3d 218,235 (3d Cir. 2004) (citations omitted).
In addition, when a plaintiff relies upon a theory of respondeat superior to hold a
corporation such as CMS liable, he must allege a policy or custom that demonstrates
such deliberate indifference. Sample v. Diecks, 885 F.2d 1099, 1110 (3d Cir. 1989);
Millerv. Correctional Med. Sys., Inc., 802 F. Supp. 1126, 1132 (D. Del. 1992). In order
to establish that CMS is directly liable for the alleged constitutional violations, plaintiff
"must provide evidence that there was a relevant [CMS] policy or custom, and that the
policy caused the constitutional violation[s] [plaintiff] allege[s]." Natale v. Camden Cnty.
Corr. Facility, 318 F.3d 575,584 (3d Cir. 2003) (because respondeat superior or
vicarious liability cannot be a basis for liability under 42 U.S.C. § 1983, a corporation
under contract with the state cannot be held liable for the acts of its employees and
agents under those theories).
The allegations against Bryant refer to an obvious medical condition, assert that
Bryant refused to examine plaintiff, ignored plaintiffs complaints of an infected arm, and
refused to administer even an aspirin. Over the next few days, the condition worsened,
and correctional officers notified the on-duty physician regarding plaintiffs condition.
Approximately one week following his visit with Bryant, a physician performed a medical
procedure on plaintiffs infected elbow.
With regard to the allegations against CMS, plaintiff has alleged that it had
numerous policies, customs, or practices of refusing to treat plaintiff, particularly when
housed in isolation. Other notable alleged policies include that CMS encouraged its
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employees to disregard medical complaints of inmates with higher security classification
and delayed medical treatment by forcing plaintiff to file grievances and follow through
with the grievance process before providing medically ordered treatment. Liberally
construing plaintiff's allegations, as the court must, the court concludes that plaintiff has
adequately alleged § 1983 claims against Bryant and CMS sufficient to survive a motion
to dismiss.
In his response, plaintiff indicates that he asserts not a medical needs claim, but
an assault and battery claim against Damron. (See D.1. 137 at 4) Therefore, the court
will deny the motion to dismiss the medical needs claims raised against Bryant and
CMS and will grant the motion to dismiss as to any potential medical needs claim
asserted against Damron. 3
c.
Medical Negligence
Medical defendants move to dismiss any asserted state law medical negligence
claims to the extent they are asserted by plaintiff. In Delaware, medical malpractice is
governed by the Delaware Health Care Negligence Insurance and Litigation Act. 18
Del. C. §§ 6801-6865. When a party alleges medical negligence, Delaware law requires
the party to produce an affidavit of merit with expert medical testimony detailing: (1) the
applicable standard of care, (2) the alleged deviation from that standard, and (3) the
causal link between the deviation and the alleged injury. Bonesmo v. Nemours Found.,
253 F. Supp. 2d 801,804 (D. Del. 2003) (quoting Green v. Weiner, 766 A.2d 492, 494
95 (Del. 2001» (internal quotations omitted); 18 Del. C. § 6853.
3At this juncture, the supplemental assault and battery claim against Damron
remains viable.
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To the extent plaintiff alleges medical negligence, he was required to submit an
affidavit of merit as to each defendant Signed by an expert witness; yet he has failed to
do so. 18 Del. C. § 6853(a)(1). Therefore, the court will grant the motion to dismiss
medical negligence claims.
D. Due Process
Plaintiff raises a due process claim against CMS, alleging he was subjected to
conditions significantly worse than other inmates under similar circumstances. More
particularly, he alleges that, because of his security classification, CMS refused to treat
him while housed in isolation, and refused to enter his cell to provide treatment while he
was housed in the infirmary. Medical defendants move for dismissal on the grounds
that plaintiff has failed to allege the deprivation of a liberty interest sufficient to warrant
due process protection.
In deciding whether a protected liberty interest exists, a federal court must
consider the duration of the disciplinary confinement and the conditions of that
confinement in relation to other prison conditions. See Mitchell v. Horn, 318 F.3d 523,
532 (3d Cir. 2003) (citing Shoats v. Horn, 213 F.3d 140, 144 (3d Cir. 2000)). Absent a
protected interest, substantive due process is not implicated. A constitutionally
protected interest may arise either from the Due Process Clause itself, or from a statute,
rule, or regulation. Hewitt v. Helms, 459 U.S. 460, 466 (1983). In Sandin
V.
Conner,
515 U.S. 472 (1995), the Supreme Court recognized that, under certain circumstances,
states may create liberty interests protected by the Fourteenth Amendment due process
clause. In the prison context presented by this case, "these interests will be generally
limited to freedom from restraint which ... while not exceeding the sentence in such an
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unexpected manner as to give rise to protection by the Due Process Clause of its own
force, nonetheless imposes atypical and significant hardship on the inmate in relation to
the ordinary incidents of prison life." Id. at 484.
The court liberally construes plaintiff's claims as alleging that CMS deprived him
of a liberty interest in his health and safety. As to the facts alleged in the instant case,
the court considers the alleged denial of necessary medical treatment, based upon a
housing assignment or security classification, an atypical and significant hardship in
relation to the ordinary incidents of prison life. See e.g., Cooleen v. Lamanna, 248 F.
App'x 357 (Sept. 14, 2007) (not published) (finding that an inmate cannot show the
violation of a constitutionally protected liberty interest when he received medical
treatment) (court's italics); see a/so Leamer v. Fauver, 288 F.3d 532, 545 (3d Cir. 2002)
(denial of the right to participate in a sex offender treatment program that was
"mandated and promised" by New Jersey law implicated a protected liberty interest).
Therefore, the court will deny the motion to dismiss the due process claims against
CMS.
V. CONCLUSION
For the reasons discussed above, the court will grant in part and deny in part
defendants' motion to dismiss. (0.1. 131)
An appropriate order will be entered.
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