Wood v. Department of Corrections et al

Filing 22

MEMORANDUM. Signed by Judge Sue L. Robinson on 5/11/15. (mas, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
KENNETH E. WOOD, JR.,
Plaintiff,

v.
WARDEN JIM HUTCHINS, et al.,
Defendants.

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) Civ. No. 14-476-SLR
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MEMORANDUM
1. Introduction. Plaintiff Kenneth E. Wood ("plaintiff"), an inmate at the James
T. Vaughn Correctional Center ("VCC"), Smyrna, Delaware, proceeds prose and has
been granted in forma pauperis status. He filed this action pursuant to 42 U.S.C.

§ 1983 claiming violations of his constitutional rights 1 and he also raises supplemental
State claims. (D.I. 19) An amended complaint was filed on March 2, 2015.
2. Standard of Review. This court must dismiss, at the earliest practicable
time, certain in forma pauperis and prisoner actions that are frivolous, malicious, fail to
state a claim, or seek monetary relief from a defendant who is immune from such relief.
See 28 U.S.C. § 1915(e)(2) (in forma pauperis actions); 28 U.S.C. § 1915A (actions in
which prisoner seeks redress from a governmental defendant); 42 U.S.C. § 1997e
(prisoner actions brought with respect to prison conditions). The court must accept all
factual allegations in a complaint as true and take them in the light most favorable to a
prose plaintiff. Phillips v. County of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008);

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When bringing a § 1983 claim, a plaintiff must allege that some person has
deprived him of a federal right, and that the person who caused the deprivation acted
under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

Erickson v. Pardus, 551 U.S. 89, 93 (2007). Because plaintiff proceeds prose, his
pleading is liberally construed and his complaint, "however inartfully pleaded, must be
held to less stringent standards than formal pleadings drafted by lawyers." Erickson v.
Pardus, 551 U.S. at 94 (citations omitted).
3. An action is frivolous if it "lacks an arguable basis either in law or in fact."
Neitzke v. Williams, 490 U.S. 319, 325 (1989). Under 28 U.S.C. § 1915(e)(2)(B)(i) and
§ 1915A(b)(1 ), a court may dismiss a complaint as frivolous if it is "based on an
indisputably meritless legal theory" or a "clearly baseless" or "fantastic or delusional"
factual scenario. Neitzke, 490 at 327-28; Wilson v. Rackmill, 878 F.2d 772, 774 (3d Cir.
1989); see, e.g., Deutsch v. United States, 67 F.3d 1080, 1091-92 (3d Cir. 1995)
(holding frivolous a suit alleging that prison officials took an inmate's pen and refused to
give it back).
4. The legal standard for dismissing a complaint for failure to state a claim
pursuant to§ 1915(e)(2)(B)(ii) and§ 1915A(b)(1) is identical to the legal standard used
when ruling on Rule 12(b)(6) motions. Tourscher v. McCullough, 184 F.3d 236, 240 (3d
Cir. 1999) (applying Fed. R. Civ. P. 12(b)(6) standard to dismissal for failure to state a
claim under§ 1915(e)(2)(B)). However, before dismissing a complaint or claims for
failure to state a claim upon which relief may be granted pursuant to the screening
provisions of 28 U.S.C. §§ 1915 and 1915A, the court must grant plaintiff leave to
amend his complaint unless amendment would be inequitable or futile. See Grayson v.
Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).

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5. A well-pleaded complaint must contain more than mere labels and
conclusions. See Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell At/. Corp. v. Twombly,
550 U.S. 544 (2007). The assumption of truth is inapplicable to legal conclusions or to
"[t]hreadbare recitals of the elements of a cause of action supported by mere
conclusory statements." Iqbal, 556 U.S. at 678. When determining whether dismissal
is appropriate, the court must take three steps: "(1) identify[] the elements of the claim,
(2) review[] the complaint to strike conclusory allegations, and then (3) look[] at the
well-pleaded components of the complaint and evaluat[e] whether all of the elements
identified in part one of the inquiry are sufficiently alleged." Malleus v. George, 641
F.3d 560, 563 (3d Cir. 2011 ). Elements are sufficiently alleged when the facts in the
complaint "show" that the plaintiff is entitled to relief. Iqbal, 556 U.S. at 679 (quoting
Fed. R. Civ. P. 8(a)(2)). Deciding whether a claim is plausible will be a "context-specific
task that requires the reviewing court to draw on its judicial experience and common
sense." Id.
6. Discussion. On March 19, 2008, plaintiff was arrested and later pied guilty
to two counts of rape in the third degree. As a condition of his sentence, he is to have
no contact with the victim or the victim's family and no contact with anyone under the
age of 18. Plaintiff began a level four work-release sentence on May 24, 2012 at the
Morris Community Correction Center ("MCCC") in Dover, Delaware. During the latter
part of June 2012, the uncle of plaintiff's victim was moved onto the C-tier where
plaintiff was housed. Plaintiff immediately notified defendant Shift Sergeant Russell
("Russell") that a "no contact" order prohibited him from having any contact with his

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victim or the victim's family. Plaintiff alleges that Russell knew there was a high chance
of conflict and told plaintiff, "don't worry about it, it'll be alright." Russell did nothing and
left both parties on C-tier. On July 8, 2012, plaintiff was jumped by two inmates. One
inmate called plaintiff a child molester and the other stated, "this is from Brad." 2 The
inmates hit plaintiff in the face with a lock and stomped on his ankle and left foot.
Plaintiff alleges that had Russell followed well-known policies of moving inmates when
notified of a potential danger or had defendant shift commander Lt. Flint ("Flint")
followed those policies, he would not have been injured.
7. Plaintiff received treatment at the prison infirmary and was transferred to
defendant Kent General Hospital ("Kent General Hospital") for x-rays. Plaintiff alleges
that he was returned to the MCCC because defendant Correct Care Solutions ("CCS")
would not approve immediate medical attention and treatment even though it was
obvious it was needed. Plaintiff was placed in isolation without proper medical care or
equipment to keep his foot and ankle elevated and stable. He alleges that defendant
MCCC warden Jim Hutchins ("Hutchins") is responsible for the welfare of inmates at the
MCCC, was notified of the incident, but chose to allow plaintiff to remain in the isolation
cell for the five days it took to get approval for treatment instead of transferring him to
the VCC infirmary. In addition, plaintiff alleges that defendant MCCC medical director
Doe #1 ("Doe #1 ") failed to order his transfer to the infirmary. Plaintiff alleges that
defendant Carl Danberg ("Danberg"), former Commissioner of the Delaware

2

The original complaint identifies Brad as the uncle of plaintiff's victim. (D.I. 3)

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Department of Correction ("DOC"), and Doe #1 failed to have in place a working policy
for quick and proper medical treatment.
8. On July 13, 2012, plaintiff was taken to Delsurgical for surgery. Defendant
Dr. DuShuttle ("DuShuttle") performed a closed reduction of the second, third, and
fourth metatarsals of the left foot. Plaintiff was taken to the VCC infirmary following
surgery with post-operative instructions from Dr. DuShuttle that plaintiff alleges CCS
staff did not follow. On July 20, 2012, plaintiff was transferred from the VCC to
defendant Sussex Work Release Center ("SWR") 3 in Georgetown, Delaware. Plaintiff
arrived on crutches and was housed on the first floor. Plaintiff was seen by Dr.
DuShuttle on July 26, 2012, with orders to remain off his foot. Plaintiff requested that
he be cleared by medical so that he could go job seeking, because if he could not, he
would be returned to Level 5 custody. CCS staff cleared plaintiff. Plaintiff alleges that
defendant Sussex Correctional Institution ("SCI") medical director John/Jane Doe #2
("Doe #2") violated his constitutional rights when plaintiff was medically cleared
because it was contraindicated by Dr. DuShuttle's orders.
9. On August 20, 2012, plaintiff underwent a second surgery to have pins
removed from his left foot. Plaintiff alleges that Dr. DuShuttle performed the surgery in
such a manner that plaintiff has "bad pain" when he walks because it feels like his skin
is tearing. Dr. DuShuttle informed plaintiff that his foot will never be the same and will
worsen with time. Dr. DuShuttle ordered physical therapy for the foot. Plaintiff returned
to the SCI infirmary and, 24 hours later, was transferred to the work release unit.

3

The SWR is a component of the Sussex Community Corrections Center. See
http://www.doc.delaware.gov/BOCC/BOCC_CCC_sussex.shtml (Aug. 14, 2014).

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Plaintiff alleges that Doe #2 and CCS staff did not provide the physical therapy ordered
by Dr. DuShuttle because CCS did not feel that plaintiff needed it. Plaintiff found
employment doing light work.
10. Respondeat Superior. Plaintiff sues Danberg and Hutchins based upon
their supervisory positions. The Third Circuit has reiterated that a § 1983 claim cannot
be premised upon a theory of respondeat superior and that, in order to establish liability
for deprivation of a constitutional right, a party must show personal involvement by each
defendant. Brito v. United States Dep't of Justice, 392 F. App'x 11, 14 (3d Cir. 2010)
(unpublished) (citing Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009); Rode v. Dellarciprete,
845 F.2d 1195, 1207 (3d Cir. 1998)). Personal involvement is an essential element of a
civil rights action. Sutton v. Rasheed, 323 F.3d 236, 249-250 (3d Cir. 2003). Individual
liability can only be imposed if the state actor played an "affirmative part" in the conduct
complained of. Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir. 1986). "Personal
involvement can be shown through allegations of personal direction or of actual
knowledge and acquiescence" in the challenged practice. Argueta v. United States
Immigration and Customs Enforcement, 643 F.3d 60, 72 (3d Cir. 2011) (quoting Rode,
845 F.2d at 1207). "In a§ 1983 suit ... masters do not answer for the torts of their
servants." Iqbal, 556 U.S. at 676-77. The mere assertion "that the constitutionally
cognizable injury would not have occurred if the superior had done more than he or she
did" is insufficient to establish liability. Sample v. Diecks, 885 F.2d 1099, 1118 (3d cir.
1989).
11. Prison administrators cannot be deliberately indifferent "simply because they
failed to respond directly to the medical complaints of a prisoner who was already being

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treated by the prison doctor." Durmer v. O'Carrol/, 991 F.2d 64, 69 (3d Cir. 1993). The
Third Circuit has clarified that "[i]f a prisoner is under the care of medical experts ... a
non-medical prison official will generally be justified in believing that the prisoner is in
capable hands." Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004) (discussing Durmer,
991 F.2d at 69). "[A]bsent a reason to believe (or actual knowledge) that prison doctors
or their assistants are mistreating (or not treating) a prisoner, a non-medical prison
official ... will not be chargeable with the Eighth Amendment scienter requirement of
deliberate indifference." Id. at 236. For the above reasons, the court finds that the
claims against the Danberg and Hutchins are legally frivolous. The court will dismiss
the claims against them pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and § 1915A(b)(1 ).
12. State actors. Plaintiff names as defendants Kent General Hospital and Dr.
DuShuttle. 4 To state a claim under 42 U.S.C. §1983, a plaintiff must allege "the
violation of a right secured by the Constitution or laws of the United States and must
show that the alleged deprivation was committed by a person acting under color of state
law." West v. Atkins, 487 U.S. 42, 48 (1988) (citing Parratt v. Taylor, 451 U.S. 527, 535
(1981), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327, 330-31
(1986)). To act under "color of state law" a defendant must be "clothed with the
authority of state law." West, 487 U.S. at 49. Kent General Hospital is a not-for-profit
corporation and Dr. DuShuttle is a private physician who provided medical care to
plaintiff. These two defendants are not "clothed with the authority of state law." See

4

Kent General Hospital falls under the umbrella of Bayhealth, a not-for-profit
healthcare system. See http://www.bayhealth.org/about-us/about-us-home.

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Reichley v. Pennsylvania Dep't of Agric., 427 F.3d 236, 244-45 (3d Cir. 2005); Biener v.
Calio, 361 F.3d 206, 216-17 (3d Cir. 2004). Accordingly, the court will dismiss the

§ 1983 claims as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and§ 1915A(b)(1).
13. Medical negligence. Plaintiff alleges that Dr. DuShuttle committed medical
negligence when he performed the second surgery. 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. Because plaintiff alleges medical negligence, at the time he filed the complaint
he was required to submit an affidavit of merit as to each defendant signed by an expert
witness. 18 Del. C. § 6853(a)(1). The court has reviewed the record and finds that
plaintiff failed to accompany the complaint with an affidavit of merit as required by 18
Del. C. § 6853(a)(1 ). Therefore, the court will dismiss the medical negligence claim
raised against Dr. DuShuttle.
14. Request for counsel. Plaintiff seeks counsel on the grounds that he is
unable to afford counsel, his imprisonment greatly limits his ability to litigate, the issues
are complex and will require significant research and investigation, he has limited law
library access, limited knowledge of the law, limited education, and counsel would
assist in discovery. (See D.I. 20)

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15. A pro se litigant proceeding in forma pauperis has no constitutional or
statutory right to representation by counsel. 5 See Brightwell v. Lehman, 637 F.3d 187,
192 (3d Cir. 2011); Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993). However,
representation by counsel may be appropriate under certain circumstances, after a
finding that a plaintiff's claim has arguable merit in fact and law. Tabron, 6 F.3d at 155.
After passing this threshold inquiry, the court should consider a number of factors when
assessing a request for counsel, including:
(1) the plaintiff's ability to present his or her own case;
(2) the difficulty of the particular legal issues; (3) the degree
to which factual investigation will be necessary and the ability
of the plaintiff to pursue investigation; (4) the plaintiff's capacity
to retain counsel on his own behalf; (5) the extent to which a
case is likely to turn on credibility determinations; and
(6) whether the case will require testimony from expert witnesses.
Tabron, 6 F.3d at 155-57; accord Parham v. Johnson, 126 F.3d 454, 457 (3d Cir.
1997); Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002).
16. At present, plaintiff's filings indicate that he possesses the ability to
adequately pursue his claims. Upon consideration of the record, the court is not
persuaded that representation by an attorney is warranted at this time. The court can
address the issue at a later date should counsel become necessary. Therefore, the
court will deny the request without prejudice to renew.
17. Conclusion. For the above reasons, the court will deny without prejudice to
renew plaintiff's request for counsel. (D.I. 20) The court will dismiss the claims against

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See Mallard v. United States Dist. Court for the S. Dist. of Iowa, 490 U.S. 296
(1989) (§ 1915(d) (now§ 1915(e)(1 )) does not authorize a federal court to require an
unwilling attorney to represent an indigent civil litigant, the operative word in the statute
being "request.".

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Jim Hutchins, Carl Danberg, Kent General Hospital, and Dr. DuShuttle as frivolous
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and§ 1915A(b)(1). Plaintiff will be allowed to
proceed against the remaining defendants. Separate orders shall issue.

UNITED STAESDISTRICT JUDGE
Date: May _l_l_, 2015

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