DeVary v. Derosiers et al
MEMORANDUM - Signed by Judge Gregory M. Sleet on 9/8/14. (rwc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
) Civ. Action No. 12-150-GMS
DR. DESROSIERS, et al.,
The plaintiff, Stephen DeVary ("DeVary"), a prisoner housed at the James T. Vaughn
Correctional Center, Smyrna, Delaware filed this lawsuit pursuant to 42 U.S.C. § 1983. He
proceeds pro se and was granted leave to proceed in forma pauperis. (0.1.9.)
Before the court are several motions filed by DeVary and motions for summary judgment
filed by the defendants. (0.1. 125, 127, 129, l38, 144, 147, 160.)
II. FACTUAL AND PROCEDURAL BACKGROUND
The case proceeds on the second amended complaint (0.1. 113) raising medical needs
claims pursuant to 42 U.S.C. § 1983 against the defendants Dr. Derosiers ("Dr. Derosiers"),
Correct Care Solutions ("CCS"), and Sean Moore ("Moore").l
Medical records indicate that on November 27,2012, DeVary presented for a follow-up
after undergoing an October 10,2012 surgical repair of a right shoulder dislocation. (0.1. 76, ex.
A.) History indicated that a problem had developed two months prior to the visit and that
DeVary has had a right shoulder problem for several years. (0.1. 76, ex. B.) DeVary underwent
lThe court dismissed medical negligence claims on September 3, 2013. (0.1. 112),
an arthroscopic repair in 2003 and, at that time, the surgeon noted a right shoulder anterior
dislocation from a bike accident and that the shoulder had dislocated about ten times since then.
(Id.) De Vary also stated that his shoulder had dislocated many times over the years. (Id.)
Once incarcerated, DeVary's shoulder dislocated on August 24,2011. (D.L 97, ~ 3.) He
was seen by medical, and Dr. Desrosiers ordered a nurse to send DeVary to the emergency room
at Kent General Hospital. (Id. at ~ 4.) However, before the hospital was called, DeVary was able
to reset the shoulder himselt~ and he was given a sling, muscle rub, and pain medication. (Id.)
The shoulder dislocated again that day, and DeVary was seen by medical staff and given ice
every twelve hours as well as pain medication. (D.I. 22; D.L 97,
9.) The treatment continued
for five days, but provided little relief. (D.!. 97, ~ lO.c.) Approximately five days later, DeVary
relocated his shoulder, and his shoulder was x-rayed. (Id. at ~~ 14-15.) In September 2011,
DeVary was seen for an orthopaedic consultation by Dr. Gabriel Lewullis ("Dr. Lewullis") who
recommended physical therapy prior to surgical intervention. (D.L 97,
17; D.1. 148, ex. A.)
DeVary received physical therapy on the right shoulder on October 20,2011 and October
27, 2011; but he refused to attend physical therapy on November 22, 2011 and December 6,
2011. (D.1. 148, ex. A.) DeVary was again evaluated by Dr. Lewullis on February 21, 2012,
who again recommended physical therapy prior to surgery. (Id.) DeVary returned to physical
therapy on March 22,2012, refused to attend physical therapy on April 5,2012, asked to resume
physical therapy on April 17, 2012, and refused further physical therapy on April 19, 2012. (Id.)
DeVary was prescribed pain medication which helped to a certain extent. (D.L 97, ~~ 26-32.) As
discussed above, surgery was performed in October 2012.
III. LEGAL STANDARD
"The court shall grant 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 oflaw." Fed. R.
Civ. P. 56(a). The moving party has the initial burden of proving the absence of a genuinely
disputed material fact relative to the clams in question. See Celotex Corp. v. Catrett, 477 U.S.
317 (1986). Material facts are those "that could affect the outcome" of the proceeding, and "a
dispute about a material fact is 'genuine' if the evidence is sufficient to permit a reasonable jury
to return a verdict for the nonmoving party." Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir.
2011) (quoting Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986)).
The burden then shifts to the non-movant to demonstrate the existence of a genuine issue
for trial. See j\1atsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986); Williams
v. Borough o/West Chester. Pa., 891 F.2d 458, 460-461 (3d Cir. 1989). Pursuant to Rule
56( c)( 1), a non-moving party asserting that a fact is genuinely disputed must support such an
assertion by: "(A) citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations ...,
admissions, interrogatory answers, or other materials; or (B) showing that the materials cited [by
the opposing party] do not establish the absence ... of a genuine dispute ..." Fed. R. Civ. P.
When determining whether a genuine issue of material fact exists, the court must view
the evidence in the light most favorable to the nonmoving party and draw all reasonable
inferences in that party's favor. See Scott v. Harris, 550 U.S. 372, 380 (2007); Wishkin v. Potter,
476 F.3d 180,184 (3d Cir. 2007). A dispute is "genuine" only if the evidence is such that a
reasonable jury could return a verdict for the non-moving party. See Anderson, 477 U.S. at 247
249. See Matsushita Elec. Indus. Co., 475 U.S. at 586-587 ("Where the record taken as a whole
could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue
for trial. "'). 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 oflaw. See Celotex Corp. v. Catrett, 477 U.S. at 322.
The defendants move for summary judgment on the grounds that: (l) DeVary failed to
present evidence of an Eighth Amendment violation; (2) De Vary failed to present an expert
opinion to support his constitutional claim; and (3) DeVary presented no evidence that CCS
maintained a policy or custom to deprive him of his constitutional rights. De Vary opposes the
motions on the grounds that: (1) the defendants employed the wrong standard of law given that
he was a pretrial detainee at the time of the alleged constitutional violations and not a sentenced
inmate; (2) there was unnecessary delay in treating a serious injury; and (3) CCS refused to
comply with discovery regarding its policies or customs. 2
20n September 3,2013, the court entered a scheduling order that provided for all
discovery to be initiated so that it was completed on or before February 28, 2014. (D.1. 112.) In
his sur-reply, dated July 22, 2014, DeVary seeks additional time to complete discovery. The
request is untimely, given the deadline previously entered by the court. The court also notes that
on December 27, 2013, De Vary filed a motion for sanctions claiming the defendants fail ed to
respond to his interrogatories. (D.I. 127.) DeVary did not provide the court with the complete
response by the defendants. Hence, the court is unable to act on his motion. Regardless, as will
be discussed, no reasonable jury could find that the defendants violated DeVary's constitutional
A. Medical Needs
The court first addresses the issue of whether the defendants utilized the appropriate
standard oflaw in moving for summary judgment. The Due Process Clause of the Fourteenth
Amendment affords a pretrial detainee protection for medical needs claims. Ingraham v. Wright,
430 U.S. 651, 671-72 nAO (1977); see also Bell v. Wolfish, 441 U.S. 520, 535 n.l6 (1979).
When evaluating whether a claim for inadequate medical care by a pretrial detainee is sufficient
under the Fourteenth Amendment, the Third Circuit has found no reason to apply a different
standard than that set forth in Estelle v. Gamble, 429 U.S. 97 (1976). See Natale v. Camden
Cnty. Corr. Facility, 318 F.3d 575,581 (3d Cir. 2003). To evaluate a medical needs claim, the
court determines if there is evidence of a serious medical need and acts or omissions by prison
officials indicating deliberate indifference to those needs. Id. at 582.
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.
However, "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 CiT. 2000).
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) (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).
Although the defendants employed the medical needs standard for convicted inmates as
opposed to a pretrial detainee, there is no difference in the analysis of the two. Hence, their
analysis does not serve to defeat the pending motions for summary judgment.
The record reflects that DeVary has a serious medical need given his longstanding right
shoulder issues. The record further demonstrates that De Vary was provided with ongoing care.
When DeVary's shoulder dislocated on August 24,2011, he received treatment in the form of ice
packs and pain medication. The treatment continued for five days before DeVary relocated the
shoulder, followed by a shoulder x-ray. DeVary's condition continued to be monitored and
treated, culminating in shoulder surgery on October 10,2012.
DeVary argues that the defendants violated his constitutional rights due to delay in
treatment and the type oftreatment rendered. He bases this on the fact that Dr. Derosiers ordered
a transfer to the emergcncy room when DeVary first dislocated his shoulder on August 24,2011,
but Dr. Derosiers did not order the transfer again when the shoulder dislocated a second time on
the same day. Instead, De Vary was treated with ice and pain medication. The record does not
reflect that DeVary's condition was ignored for five days. Instead, it reflects that DeVary
received treatment, albeit not to his liking. If anything, at most, perhaps medical staff were
negligent in not transporting De Vary to the hospital. They were not, however, deliberately
indifferent to his condition given that the treatment was provided.
In addition, the record is replete with documentation showing that DeVary was provided
with medical care at the prison, referrals to outside specialists, treatment by outside specialists,
diagnostic testing, and surgery. The record further reflects that DeVary was offered and received
physical therapy, yet he refused it on several occasions.
The record does not support a finding that defendants were deliberately indifferent to
De Vary' s medical needs or that they violated DeVary's constitutional rights. Instead, the record
indicates that steps were taken to see that DeVary received constitutionally adequate medical
care. Therefore, the court will grant the defendants' motions for summary judgment.
B. Policies and/or Customs
With regard to CCS, in order to establish that it is directly liable for any alleged
constitutional violations, DeVary "must provide evidence that there was a relevant  policy or
custom, and that the policy caused the constitutional violation[ s] [plaintiff] allege [s]." Natale,
318 F.3d at 584 (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).
Because the court has concluded that there was no violation of De Vary's constitutional
rights under the Eighth Amendment, CCS cannot be liable based on the theory that it established
or maintained an unconstitutional policy or custom responsible for violating DeVary's's rights.
See Goodrich v. Clinton Cnty. Prison, 214 F. App'x 105, 113 (3d Cir. 2007) (unpublished)
(policy makers not liable in prison medical staffs alleged deliberate indifference to prisoner's
serious medical needs where, given that there was no underlying violation of prisoner's rights,
policy makers did not establish or maintain an unconstitutional policy or custom responsible for
violating prisoner's rights). In light of the foregoing, the court will grant the motion for summary
judgment as to the claims raised against CCS.
For the above reasons, the court will: (1) deny as moot DeVary's pending motions (D.I.
125, 127, 129, 138, 160); and (2) grant the defendants' motions for summary judgment (D.I. 144,
An appropriate order will be issued.
Wilmingt n, Delaware
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