Manuel v. Atkins et al

Filing 112

MEMORANDUM OPINION. Signed by Judge Sue L. Robinson on 6/5/2013. (nmfn)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

KARL B. MANUEL,
Plaintiff,
v.

SERGEANT ATKINS, WARDEN
WILLIAM GETTEL, and STATE OF
DELAWARE DEPARTMENT OF
TRANSPORTATION (DeiDOT),
Defendants.

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Civ. No. 10-962-SLR

Karl B. Manuel, Wilmington Delaware. Prose.
Marc P. Niedzielski, Deputy Attorney General, State of Delaware Department of Justice,
Wilmington, Delaware. Counsel for Defendants Adkins, Gettel, and Delaware
Department of Transportation

MEMORANDUM OPINION

Dated: June S , 2013
Wilmington, Delaware

I. INTRODUCTION
Plaintiff Karl B. Manuel is a Delaware prison inmate housed at the Sussex
Violation of Probation ("SVOP") center in Georgetown, Delaware at all times relevant to
his claim. On November 9, 2010, plaintiff filed a complaint and motion to proceed in
forma pauperis pursuant to 42 U.S.C. § 1983 against Sergeant Adkins ("Adkins"), 1 State
of Delaware Department of Transportation ("Del DOT") employee John Doe, and
Correctional Medical Services, Inc. ("CMS") employee Jane Doe, alleging Eighth
Amendment violations. (D.I. 1, 2) On March 14, 2011, the court dismissed the case
without prejudice for failure to return an authorization form. (D.I. 9) On April 8, 2011,
attorney Stephan Price Norman entered his appearance for the plaintiff and moved to
reopen the case. (D.I. 10, 11) On April 25, 2011, plaintiff filed a first amended
complaint, adding a First Amendment violation by Warden William Gettel ("Gettel"), a
gross negligence claim against Adkins, and seeking to hold Del DOT vicariously liable
for John Doe's actions. 2 (D. I. 13) On May 7, 2012, plaintiff's counsel moved to
withdraw; the motion was granted on May 31, 2012. (D.I. 51, 52) The court has subject
matter jurisdiction over the claims asserted pursuant to 42 U.S.C. §1983, 42 U.S.C.
§1988, 28 U.S.C. §1331, and supplemental jurisdiction pursuant to 28 U.S.C. §1367.
Currently before the court is defendants Gettel, Adkins, and DeiDOT's
(collectively, "defendants") motion for summary judgment on all claims pursuant to

1

From the written deposition questions, the correct spelling of defendant's name
appears to be Adkins.
2

On October 20, 2011, CMS and Jane Doe were dismissed. (D. I. 31)
Therefore, the court will not address arguments as to these defendants.

Federal Rule of Civil Procedure 56(a) 3 (D.I. 94), plaintiff's motion for summary judgment
(D.I. 101 ), and plaintiff's motion for expert witness. (D.I. 109)

II. BACKGROUND
On February 17, 2010, plaintiff was assigned to a road crew with approximately
eleven other people detained at SVOP awaiting sentencing. (D. I. 13 at 5) The road
crew was cutting down trees and branches overhanging power lines after a recent
blizzard. (/d.) The road crews were provided with chain saws, pole saws, safety
helmets with face shields, orange chaps, and headphones. (D.I. 95, ex 1, Manuel Dep.
31:14-15, Sept. 25, 2012) Adkins provided security to ensure none of the road crew
attempted to escape. (Manuel Dep. 47:8-11) Plaintiff was assigned to cut tree
branches with a pole saw, standing in the back of a Del DOT dump truck that also
contained salt and sand. (D.I. 13 at 6) While refueling his pole saw in the back of the
dump truck, he overheard John Doe telling some of the road crew to cut down a tree.
(/d.) Soon after, the tree came crashing down towards the plaintiff in the back of the
dump truck. (/d.) While plaintiff attempted to get out of the way, he slipped on the sand,
and ended up pinned underneath the tree. (/d.) The dump truck absorbed most of the
force of the falling tree, but there was still sufficient force to knock him unconscious for
approximately five minutes. (/d.) While unconscious, all individuals in the area
attempted to move the tree off plaintiff. (/d.) After waking, plaintiff clearly stated he was
in pain, not to touch him, and to call 911. (Manuel Dep. 54:7-1 0) Disregarding his
wishes, Adkins and John Doe removed his work chaps, moved him from the dump truck
3

Plaintiff responded to this motion on February 6, 2013, and February 13, 2013.
(D .I. 101, 1 04)

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bed to the front seat of the Department of Correction work van, and drove him back to
the SVOP center. (D. I. 13 at 7)
Once back at SVOP, plaintiff was placed into a wheelchair and taken to Jane
Doe at a nursing station run by CMS. (!d.) Jane Doe confirmed there was no bowel or
bladder problems, then called a doctor. (Manuel Dep. 56:20-24) She stated the plaintiff
was to receive two vicodin and could not work for two weeks; she also provided a bag of
ice. (/d. at 57:21-22) Despite plaintiff's complaints of pain, he was told "you're not hurt"
and was sent back to his tier without assistance. (D.I. 13 at 8) Approximately six hours
passed with no medical personnel checking on his status, at which point plaintiff was
unable to move and asked a tiermate to summon medical help. (/d.) A different nurse
arrived, noted his pain, and had plaintiff taken to Beebe Medical Center. (/d.) At Beebe
Medical Center, he was diagnosed with several herniated discs. (/d.) Once back at
SVOP, the pain persisted; plaintiff attempted to get medical help but, aside from a single
X-ray taken on February 18, 2010, never received medical help. (/d. at 9) On or around
February 19, 2010, plaintiff was placed on a list to see the primary care doctor at SVOP,
but was never seen by the doctor, despite repeated attempts by plaintiff. (/d.) On
February 24, 2010, plaintiff was transferred from SVOP to Sussex Correctional Institute.
(/d. at 9)

Ill. STANDARD OF REVIEW
A court shall grant summary judgment only if "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party is

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entitled to judgment as a matter of law." Fed. R. Civ. P. 56( c). The moving party bears
the burden of proving that no genuine issue of material fact exists. See Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.10 (1986). "Facts that
could alter the outcome are 'material,' and disputes are 'genuine' if evidence exists from
which a rational person could conclude that the position of the person with the burden of
proof on the disputed issue is correct." Horowitz v. Fed. Kemper Life Assurance Co., 57
F.3d 300, 302 n.1 (3d Cir. 1995) (internal citations omitted). If the moving party has
demonstrated an absence of material fact, the nonmoving party then "must come
forward with 'specific facts showing that there is a genuine issue for trial."' Matsushita,
475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e)). The court will "view the underlying facts
and all reasonable inferences therefrom in the light most favorable to the party opposing
the motion." Pa. Coal Ass'n v. Babbitt, 63 F.3d 231, 236 (3d Cir. 1995). The mere
existence of some evidence in support of the nonmoving party, however, will not be
sufficient for denial of a motion for summary judgment; there must be enough evidence
to enable a jury reasonably to find for the nonmoving party on that issue. See Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). If the nonmoving party fails to make a
sufficient showing on an essential element of its case with respect to which it has the
burden of proof, the moving party is entitled to judgment as a matter of law. See

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

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IV. DISCUSSION
A. Eighth Amendment Violations
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 (1976). In order to set forth a cognizable claim, plaintiff must
allege (i) a serious medical need and (ii) acts or omissions by prison officials that
indicate deliberate indifference to that need. Estelle, 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, 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.

Harrison v. Barkley, 219 F.3d 132, 138-140 (2d Cir.2000).
The record does not demonstrate that Adkins knew of a substantial risk of
serious harm. While it may not have been the most appropriate course of action,
transporting plaintiff to a nurse who routinely handles inmate medical care is not
unreasonable for a person in Adkins' situation. Nor did Adkins deny or delay access to
medical care, as plaintiff was taken directly from the site of the injury to the nurse at
SVOP. At that point, plaintiff was taken from Adkins and assessed by the medical staff.
The court concludes that the record does not support deliberate indifference to plaintiff's
medical needs by defendant Adkins.

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B. Gross Negligence

The proper standard for "gross negligence or arbitrariness that shocks the
conscience" requires proof that the defendant consciously disregarded a great risk that
serious harm would result from his or her conduct. See Ziccardi v. City of Phi/a., 288
F.3d 57, 66 n.6 (3d Cir. 2002). Actual knowledge of the risk may not be necessary
where the risk is obvious. See Sanford v. Stiles, 456 F.3d 298, 310 (3d Cir. 2006)
(discussing intent requirement of state-created danger for substantive due process
claim).
Here, there is no evidence that Adkins consciously disregarded a great risk of
harm that would result from supervising a road crew cutting branches and trees after a
blizzard. Nor is the risk obvious; plaintiff admits road crews had been operating under
the direction of a DeiDOT employee all morning with no issues. (Manuel Dep. 45:6-16,
47:24-47:14).
C. Retaliation

"Retaliation for the exercise of constitutionally protected rights is itself a violation
of rights secured by the Constitution actionable under§ 1983." White v. Napoleon, 897
F.2d 103, 111-12 (3d Cir. 1990). It has long been established that the First
Amendment bars retaliation for protected speech. See Crawford-EI v. Britton, 523 U.S.
574,592, (1998); Milhouse v. Carlson, 652 F.2d 371,373-74 (3d Cir. 1981). Proof of a
retaliation claim requires that plaintiff demonstrate: (1) he engaged in protected activity;
(2) he was subjected to adverse actions by a state actor; and (3) the protected activity
was a substantial motivating factor in the state actor's decision to take adverse action.

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Rauserv. Hom, 241 F.3d 330, 333 (3d Cir. 2001) (quoting Mt. Healthy Bd. ofEduc. v.
Doyle, 429 U.S. 274, 287 (1977)); see also Allah v. Seiverling, 229 F.3d 220 (3d Cir.
2000) (a fact finder could conclude that retaliatory placement in administrative
confinement would "deter a person of ordinary firmness from exercising his First
Amendment rights" (citations omitted)).
The court first considers whether plaintiff engaged in constitutionally protected
activity. Under the First and Fourteenth Amendments, prisoners have the right to
petition the government for redress of grievances and to freely access the courts.

Milhouse, 652 F.2d at 373-374.
Plaintiff filed a grievance, but there is no evidence of whether or when plaintiff
communicated to Gettel that he was seeking medical assistance or legal counsel. With
regard to transfer to a different institution, the Delaware Supreme Court has recognized
that prison officials have discretion to house inmates at the facilities they choose. Walls

v. Taylor, 856 A.2d 1067, 2004 WL 906550 (Del. 2004) (table) (citing Brathwaite v.
State, No. 169, 2003 (Del. Dec. 29, 2003). Furthermore, the United States Supreme
Court has held that an inmate has no due process right to be incarcerated in a particular
institution whether it be inside the state of conviction, or outside that state. Glim v.

Wakinekona, 461 U.S. 238, 251 (1983). In response to a written deposition question
regarding the reason for plaintiffs transfer, Gettel stated "unknown." (D.I. 92 at 10, 12)
The record does not support a finding that plaintiff's transfer was anything but routine.

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E. Time Barred
Federal Rules of Civil Procedure Rule 4(m) requires that defendants be served
within 120 days after the complaint is filed. Plaintiff asserts claims against unknown
person designated John Doe. Service was not made nor even attempted on an
individual to substitute for John Doe at any time since the amended complaint was filed
on April 25, 2011, 4 and clearly not during the required 120 day service period.
Therefore, the court dismisses all claims against John Doe.
F. Eleventh Amendment Immunity
The Delaware Department of Transportation is an agency of the State of
Delaware. The Eleventh Amendment protects states and their agencies and
departments from suit in federal court regardless of the kind of relief sought. Pennhurst
State School & Hasp. v. Halderman, 465 U.S. 89, 100 (1984); Kardon v. Hall, 406 F.
Supp. 4, 7-8 (D. Del1975). "Absent a state's consent, the Eleventh Amendment bars a
civil rights suit in federal court that names the state as a defendant." Laskaris v.
Thornburgh, 661 F.2d 23, 25 (3d Cir.1981) (citing Alabama v. Pugh, 438 U.S. 781
(1978)). As the state has not consented, DeiDOT is entitled to immunity under the
Eleventh Amendment. The court dismisses all claims against DeiDOT pursuant to 28
U.S.C. §§ 1915(e)(2)(B)(iii) and 1915A(b)(2).

4

Plaintiff was afforded the opportunity to discover the identity of John Doe. (D.I.

92)

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V. CONCLUSION
For the foregoing reasons, the court grants defendants' motion for summary
judgment5 (0.1. 94), and denies plaintiff's motions for summary judgment 6 (0.1. 101) and
for expert witness (0.1. 109). An appropriate order shall issue.

5

The court will not address the issue of qualified immunity for Gettel and Adkins
inasmuch as there has been no violation of plaintiff's consitutional rights.
6
It appears plaintiff moved for summary judgment on each claim of his complaint.
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