Flamer v. Carr et al
Filing
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MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 1/28/15. (mas, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JOHN FLAMER,
Plaintiff,
v.
: Civ. No. 14-1277-RGA
VINCENT CARR, et al.,
Defendants.
John Flamer, Howard R. Young Correctional Institution, Wilmington, Delaware,
Pro Se Plaintiff.
MEMORANDUM OPINION
2<6,
January
2015
Wilmington, Delaware
AND~'D~
Plaintiff John Flamer, an inmate at the Howard R. Young Correctional Institution,
Wilmington, Delaware, filed this action pursuant to 42 U.S.C. § 1983. He appears pro
se and has been granted leave to proceed in forma pauperis (D.I. 4). The Court
reviewed, screened, and dismissed the original Complaint and gave Flamer leave to
amend. Plaintiff filed an amended complaint (D.I. 16) which the Court will now screen
pursuant to 28 U.S.C. § 1915(e)(2)(B) and§ 191 SA(a).
The original complaint named Racquel D. Hosten and Dr. Lawson as
defendants. They are not named as defendants in the amended complaint.
Accordingly, they will be dismissed as defendants.
In the amended complaint, Flamer alleges that Defendant Vincent Carr falsely
stated that Flamer is being treated with testosterone for a medical condition. Flamer
alleges that he never received the testosterone and when he brought this to the
attention of the medical directors, Carr informed Flamer that his condition would be
addressed in September 2014. Flamer did not receive the treatment and, as of
December 2014, has not received treatment for his condition.
When Flamer was housed at the HRYCI in 2012, he was given a cane by
Defendant nurse practitioner Jon to assist in walking and to limit falls. Following his
recent reincarceration, Flamer submitted several grievances requesting a cane. When
he brought the matter to the attention of Jon, he refused to give one to Flamer, even
though Jon had provided Flamer a cane in the past.
In August 2014, Flamer injured himself while attempting to get up from the floor
(Flamer had previously fallen from the top bunk in May 2014). Physical therapy was
ordered on September 25, 2014. Flamer alleges that defendant nurse practitioner
Carla Cooper refused to perform the physical therapy and this has caused his condition
to worsen. In addition, on September 24, 2014, Flamer showed Jon and Defendants
nurse practitioner Scharff and nurse Ellissa that he was "spitting up blood and blood
was in [his] stool." Flamer was told that a specimen cup would be sent to his cell, but
he never received it. It is unclear from the allegations if Flamer alleges that Scharff or
Ellissa failed to follow-up or refused to obtain a specimen from Flamer.
In December 2014, Flamer again fell from the top bunk and injured himself. Dr.
Lawson ordered x-rays, but Cooper ignored the order and would not perform the x-rays.
Flamer submitted several grievances regarding the issue. Flamer seeks compensatory
and punitive damages as well as injunctive relief.
A federal court may properly dismiss an action sua sponte under the screening
provisions of 28 U.S.C. § 1915(e)(2)(8) and§ 1915A(b) if "the action is frivolous or
malicious, fails to state a claim upon which relief may be granted, or seeks monetary
relief from a defendant who is immune from such relief." Ball v. Famiglio, 726 F.3d 448,
452 (3d Cir. 2013); see also 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 pro se plaintiff. See Phillips v. County of
Allegheny, 515 F.3d 224, 229 (3d Cir. 2008); Erickson v. Pardus, 551 U.S. 89, 93
(2007). Because Flamer 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." Id. at 94 (citations omitted).
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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 U.S. 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).
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. See 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)(8)). 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).
A complaint may be dismissed only if, accepting the well-pleaded allegations in
the complaint as true and viewing them in the light most favorable to the plaintiff, a
court concludes that those allegations "could not raise a claim of entitlement to relief."
Bell At/. Corp. v. Twombly, 550 U.S. 544, 558 (2007). Though "detailed factual
allegations" are not required, a complaint must do more than simply provide "labels and
conclusions" or "a formulaic recitation of the elements of a cause of action." Davis v.
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Abington Mem'I Hosp., 765 F.3d 236, 241 (3d Cir. 2014) (quoting Twombly, 550 U.S. at
555). In addition, a complaint must contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face. See Williams v. BASF Catalysts
LLC, 765 F.3d 306, 315 (3d Cir. 2014).
To determine whether a complaint meets the pleading standard as set forth in
Twombly and Iqbal, the Court must: (1) outline the elements a plaintiff must plead to a
state a claim for relief; (2) peel away those allegations that are no more than
conclusions and thus not entitled to the assumption of truth; and (3) look for well-pied
factual allegations, assume their veracity, and then "determine whether they plausibly
give rise to an entitlement to relief." Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012)
(internal citations omitted). The last step is "a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense." Ashcroff v.
Iqbal, 556 U.S. 662, 679 (2009).
Dennis Russell and Sandra Madigan are named as defendants, but there are no
allegations directed towards them. A civil rights complaint must state the conduct, time,
place, and persons responsible for the alleged civil rights violations. Evancho v. Fisher,
423 F.3d 347, 353 (3d Cir. 2005) (citing Boykins v. Ambridge Area Sch. Dist., 621 F.2d
75, 80 (3d Cir. 1980); Hall v. Pennsylvania State Police, 570 F.2d 86, 89 (3d Cir.
1978)). Flamer was previously advised of this pleading defect and given an opportunity
to cure the defect through amendment. He failed to do so. Therefore, the Court will
dismiss the claims against Russell and Madigan as frivolous and for failure to state a
claim upon which relief may be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(8)(i) and
(ii) and 1915A(b)(1).
4
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, 103-05 (1976). In order to set forth 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. Id. 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 v. Watts, 373 F. App'x 196, 203 (3d
Cir. 2010). 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. at 107. Moreover, allegations of medical malpractice are not
sufficient to establish a constitutional violation. White v. Napoleon, 897 F.2d 103, 10809 (3d Cir. 1990); 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).
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When reading the Amended Complaint in the most favorable light to Flamer, he
fails to state an actionable constitutional claim against Scharff, Jon, and Ellissa.
Rather, the Amended Complaint alleges that Flamer believed he needed a cane and
believed he needed a stool sample, and disagreed when he was not provided either.
These allegations do not rise to the level of constitutional violations. Accordingly, the
Court will dismiss the claims against Scharff, Jon, and Ellissa. Flamer has alleged what
appear to be cognizable medical needs claims against Carr and Cooper.
For the above reasons, Defendants Russell, Scharff, Jon, Hosten, Madigan,
Ellissa, and Dr. Lawson and the claims against them will be dismissed for as frivolous
and for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C.
§§ 1915(e}(2}(B}(i} and (ii} and 1915A(b}(1 ). Flamer will be allowed to proceed with
medical needs claims against Carr and Cooper. In addition, Flamer recently filed a
motion for injunctive relief to obtain physical therapy. The remaining Defendants will be
ordered to respond to the motion.
An appropriate Order will be entered.
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