Jones v. Pierce et al

Filing 101

MEMORANDUM OPINION Signed by Judge Colm F. Connolly on 11/25/2019. (nmf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MICHAEL L. JONES,
Plaintiff,

V.
WARDEN DAVID PIERCE, et al.,
Defendants.

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Civil Action No. 15-1007-CFC

Michael L. Jones, State Correctional Institution-Dallas, Dallas, Pennsylvania. Pro Se
Plaintiff.
Ryan Patrick Connell, Deputy Attorney General, Delaware Department of Justice,
Wilmington, Delaware. Counsel for Defendant David Pierce.
Dana Spring Monzo, Esquire, and Lindsey E. Imbrogno, Esquire, White & Williams,
Wilmington, Delaware. Counsel for Defendants Jassa Gant-Major and Jennifer Krafcik.

MEMORANDUM OPINION

November», 2019
Wilmington, Delaware

I.

INTRODUCTION
Plaintiff Michael L. Jones ("Plaintiff"), an inmate at SCI-Dallas, Dallas,

Pennsylvania, filed this lawsuit pursuant to 42 U.S.C. § 1983. (D.I. 3) Plaintiff was
housed at the James T. Vaughn Correctional Center ("JTVCC") in Smyrna, Delaware
during the relevant time-frame. Before the Court are Defendants' motions for summary
judgment, opposed by Plaintiff, Defendants' motions to dismiss for failure to prosecute, 1
and Plaintiff's request for counsel. (D.I. 92, 93, 97) The summary judgment motions
have been fully briefed.

II.

BACKGROUND

A.

The Complaint

The Complaint alleges that when Plaintiff was housed in solitary confinement at
JTVCC, he developed a severe bacterial infection in the mouth/lip area. (D.I. 3 at 6)
Plaintiff alleges that during a two and one-half year time-frame, he requested outside
specialist treatment and that medical personnel insisted on treating his condition with
over-the-counter medications. (Id.)
The Complaint alleges there were multiple treatment plan failures, and that
Plaintiff was seen by an outside allergist with no follow-up and no diagnosis. (/d.)
Plaintiff alleges another treatment plan was ordered but not implemented because
Defendants Jassa Gant-Major ("Gant") and Jennifer Krafcik ("Krafcik"), both R.N.'s,

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The Court does not analyze whether dismissal is appropriate for Plaintiff's failure to
prosecute given that summary judgment is appropriate on behalf of all Defendants.

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would not have Plaintiff brought to the medical room while he was housed in solitary
confinement. (Id.). The Complaint alleges that guards lied and told medical that
Plaintiff refused treatment and that Gant and Krafcik falsified and fabricated medical
records to indicate that Plaintiff refused treatment. (Id. at 7-8) The Complaint alleges
that Gant and Krafcik told Plaintiff he would receive better treatment if he was moved
from solitary confinement. (Id. at 8).
The Complaint also alleges that Defendant David Pierce ("Pierce"), the former
JTVCC warden, classified Plaintiff as a problem inmate and placed him in solitary
confinement where access to medical is hampered by actions of correctional officers.

(Id. at 9) The Complaint alleges that Pierce knew of threats to Plaintiff's health and
safety and there was a substantial risk of harm to Plaintiff. (Id. at 10)
Plaintiff seeks compensatory and punitive damages.

8.

Evidence of Record

Plaintiff was housed at JTVCC until his transfer to a Pennsylvania prison
following the February 2017 prison uprising at JTVCC. While at JTVCC, Plaintiff was
primarily housed in Security Housing Unit ("SHU"). (D.I. 95, Ex. A at 1267-1274, 12911341) Psychiatric progress notes describe Plaintiff as depressed, schizophrenic
(paranoid-type), delusional, and angry. (Id. at 1000-1017) Neither Gant nor Krafcik had
any say in Plaintiff's housing assignment. (D.I. 94 at Ex. C, Ex. D)
Gant provided care to Plaintiff on three specific occasions: June 18, 2015; June
30, 2015; and July 2, 2015. (D.I. 95, Ex. A at 584-585, 620) On each occasion, Plaintiff

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had submitted a sick call slip, and Gant triaged and evaluated Plaintiff to determine the
next steps in care. (0.1. 94, Ex. B; Ex. C)
On June 18, 2019, Plaintiff complained of bumps on his lip with pus coming out
and provided a history that the condition had been present for two years. (0.1. 95 Ex. A
at 585) Upon examination, Gant saw bumps, but not pus. (/d.) Plaintiff indicated the
condition had been present for some time and Gant scheduled Plaintiff to see a medical
provider. (Id.)

Following Gant's examination, Plaintiff was seen by a physician's

assistant and dentist on June 23, 2015. (/d.) Plaintiff again saw the physician's
assistant on June 25, 2015 with the same complaints. (Id.) Gant was not involved in
the subsequent two visits. (0.1. 94, at Ex. B)
Gant next saw Plaintiff on June 30, 2014, following his submission of a sick call
slip. (Id.) Plaintiff presented Gant with a piece of paper and told her it was a specimen
from his lip. (Id.) Gant offered to examine Plaintiff's lip and collect a specimen in a
medically appropriate manner, but Plaintiff became angry and refused treatment. (Id.)
Gant last provided Plaintiff medical care on July 2, 2015. (Id. at Ex. A, Ex. B)
Plaintiff presented with lips that appeared thick and chapped, with no pus. (Id.) Plaintiff
refused Gant's offer to treat Plaintiff's chapped lips. (Id.)
Krafcik's affidavit states that she did not participate in Plaintiff's medical
treatment. (Id. at Ex. D) Krafcik's contacts with Plaintiff's resulted from her position as
a grievance nurse. (Id.) As a grievance nurse, Krafcik did not render medical care to
inmates. (Id.) Her duties consisted of reviewing and handling inmates' medical
grievances, and included reviewing medical grievance forms and medical records,

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interviewing staff and the inmate, and determining an informal resolution. (/d.) Krafcik's
name appears twice on Plaintiffs medical records; October 30, 2014 when Krafcik was
performing system maintenance in the electronic medical record, and December 11,
2014, when she served as a grievance nurse regarding Plaintiffs care. (/d.) Krafcik
states that she did not render any medical treatment to Plaintiff. (/d.)
Medical records and the affidavit of Dr. Vincent Carr ("Dr. Carr") indicate that
from 2005 until 2018, medical staff treated Plaintiff's chronic lip problems both in-house
and in consultation with outside specialists. (D.I. 94, Ex. E; D.I. 95, Ex. A at 380, 751804) In 2013, Plaintiff saw an outside allergist who prescribed medication for Plaintiffs
lip problems. (D.I. 95, Ex. A at 755-759) Plaintiff continued with lip inflammation and in
2014 was seen by an outside oral-maxillofacial surgeon who recommended a lip biopsy.

(Id. at 751-52, 803, 982) Following the biopsy results, the oral-maxillofacial surgeon
concluded that Plaintiffs chronic lip problems were probably due to his large metallic
dental prosthesis that was irritating his lip. (/d. at 804) No other medical explanation
was found for the condition (D.I. 94, Ex. E; D.I. 95, Ex. A at 804)
Following the oral-maxillofacial surgeon's biopsy and conclusion, Plaintiff was
seen by numerous specialists including an allergist, immunologist, dermatologist,
dentist, and infectious diseases physician; he was underwent additional testing
including biopsies and cultures; a number of prescription medications were ordered; and
he was placed on a restricted diet to rule out a gluten allergy. (D.I. 94, Ex. E; D.I. 95,
Ex. A at 380, 751-804) Outside specialists could find no explanation for chronic lip
inflammation other than the dental prosthesis and recommended its removal, but

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Plaintiff did not believe the device was causing the problem and refused to have it
removed. (D.I. 94, Ex. E; D.I. 95, Ex. A at 543-44)

Ill.

LEGAL STANDARDS
Under Rule 56(a) of the Federal Rules of Civil Procedure, "[t]he 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 of law." The moving
party bears the burden of demonstrating the absence of a genuine issue of material
fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86
(1986). An assertion that a fact cannot be -- or, alternatively, is -- genuinely disputed
must be supported either by "citing to particular parts of materials in the record,
including depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials," or by "showing that the materials
cited do not establish the absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact." Fed. R. Civ. P.
56(c)(1 )(A) & (8). If the moving party has carried its burden, the nonmovant must then
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come forward with specific facts showing that there is a genuine issue for trial."

Matsushita, 475 U.S. at 587 (internal quotation marks omitted). The Court will "draw all
reasonable inferences in favor of the nonmoving party, and it may not make credibility
determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 150 (2000).

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To defeat a motion for summary judgment, the nonmoving party must "do more
than simply show that there is some metaphysical doubt as to the material facts."

Matsushita, 475 U.S. at 586; see also Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594
(3d Cir. 2005) (stating party opposing summary judgment 11 must present more than just
bare assertions, conclusory allegations or suspicions to show the existence of a
genuine issue") (internal quotation marks omitted). The "mere existence of some
alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment;" a factual dispute is genuine only where "the
evidence is such that a reasonable jury could return a verdict for the nonmoving party."

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). "If the evidence is merely
colorable, or is not significantly probative, summary judgment may be granted." Id. at
249-50 (internal citations omitted); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986) (stating entry of summary judgment is mandated "against a party who fails to
make a showing sufficient to establish the existence of an element essential to that
party's case, and on which that party will bear the burden of proof at trial"). Thus, the
"mere existence of a scintilla of evidence" in support of the nonmoving party's position is
insufficient to defeat a motion for summary judgment; there must be "evidence on which
the jury could reasonably find" for the nonmoving party. Anderson, 477 U.S. at 252.
Plaintiff opposes Defendants' motions for summary judgment. (D.I. 98) His
opposition consists solely of argument and is not accompanied by a sworn affidavit or
signed under penalty of perjury. The opposition does not cite to the record or applicable
law and does not provide any supporting evidence for consideration by the Court.

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Plaintiff, as the nonmoving party, cannot simply assert factually unsupported allegations
to meet his burden at the summary judgment stage. See Williams v. Borough of West
Chester, 891 F.2d 458, 460 (3d Cir. 1989).

IV.

DISCUSSION
A.

Personal Involvement

The Complaint alleges that Pierce directed Plaintiff's in solitary confinement
housing assignment, failed to take "reasonable measures,,, and was aware of alleged
misconduct when Plaintiff complained to nurses who dispensed medication about
correctional officers' misconduct. (D.I. 3 at 9) Plaintiff also alleges that Pierce and
correctional officers disliked him. Pierce seeks summary judgment on the grounds that
there is no evidence to support a claim of deliberate indifference against him.
"[A] non-medical prison official" cannot "be charge[d] with the Eighth Amendment
scienter requirement of deliberate indifference" when the "prisoner is under the care of
medical experts" and the official does not have "a reason to believe (or actual
knowledge) that prison doctors or their assistants are mistreating (or not treating) a
prisoner." Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004); see also Durrner v.
O'Carro//, 991 F.2d 64, 69 (3d Cir. 1993) (holding that non-physicians cannot "be
considered deliberately indifferent simply because they failed to respond directly to the
medical complaints of a prisoner who was already being treated by the prison doctor").
There is no evidence of record that Pierce knew or believed prison guards were
interfering with Plaintiff's medical care or that Plaintiff was not receiving medical care.
Nor is there evidence of record showing Pierce's personal involvement or deliberate

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indifference towards Plaintiff. No reasonable jury could find for Plaintiff on the claims he
raises against Pierce. Summary judgment is appropriate in favor of Pierce.

B.

Medical Needs

The claims against Gant and Krafcik seem to be that they would not bring
Plaintiff into the "medical roomu while he was housed in solitary confinement, that they
falsified or fabricated medical reports that Plaintiff refused treatment, and that they told
Plaintiff better medical care would be provided were he not housed in solitary
confinement. (D.I. 3 at 7-8) Gant and Krafcik move for summary on the grounds that
they were not involved in Plaintiff's treatment decisions, they did not impede Plaintiff's
medical care, statements made by them do not rise to the level of an Eighth
Amendment violation, Plaintiff is not entitled to choose his care so long as it is
adequate, and Plaintiff's medical record indicates that he has received adequate
treatment for his condition.
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). 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; see also 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. See Farmer v. Brennan, 511 U.S. 825, 837 (1994).

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"[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.
Apr. 2010) (quoting Harrison v. Barkley, 219 F.3d 132, 138-140 (2d Cir. 2000)). Also,
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mere disagreement as to the proper medical treatment" is insufficient to state a

constitutional violation. Spruill v. Gillis, 372 F.3d at 235 (citations omitted). 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. See Estelle, 429 U.S. at 107.
A prison official may, however, manifest deliberate indifference by "intentionally
denying or delaying access to medical care.

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Id. at 104-05. A delay or denial of

medical treatment claim is approached differently than an adequacy of care claim. See
U.S. ex rel. Walker v. Fayette Cty., 599 F.2d 573, 575 n.2 (3d Cir. 1979).
Unlike the deliberate indifference prong of an adequacy of care claim
(which involves both an objective and subjective inquiry), the deliberate
indifference prong of a delay or denial of medical treatment claim involves
only one subjective inquiry - since there is no presumption that the
defendant acted properly, it lacks the objective, propriety of medical
treatment, prong of an adequacy of care claim. Absent that objective
inquiry, extrinsic proof is not necessary for the jury to find deliberate
indifference in a delay or denial of medical treatment claim. All that is
needed is for the surrounding circumstances to be sufficient to permit a
reasonable jury to find that the delay or denial was motivated by nonmedical factors. See, e.g., Durmer v. O'Carro/1, 991 F.2d 64, 68-9 (3d Cir.
1993); United States v. Michener, 152 F.2d 880, 885 (3d Cir. 1945) ("[l]t is
for the jury to determine the weight to be given to each piece of evidence
... particularly where the question at issue is the credibility of the
witness.").
Pearson v. Prison Health Serv., 850 F.3d 526, 537 (3d Cir. 2017).

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Finally, 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).
There is no record evidence that Gant and Krafcik falsified or fabricated Plaintiff's
medical records. In addition, Plaintiff's allegations that Gant and Krafcik stated that he
would receive better treatment were he not housed in solitary confinement do not rise to
the level of a constitutional violation. In addition, there is no record evidence that
Krafcik provided medical care or treatment to Plaintiff. Krafcik held the position of a
grievance nurse, and her contact with Plaintiff concerned one medical grievance he
submitted. Krafcik's conduct took place during the informal grievance resolution
process. Her actions as a grievance nurse do not establish deliberate indifference.
Similarly, the three times that Gant saw or treated Plaintiff as part of her triage duties do
not rise to the level of deliberate indifference. The medical records indicate that in each
instance she triaged Plaintiff and provided him care, albeit not always to his liking.
Finally, Plaintiff's seven inch high, 1,600 page medical record is replete with
consistent treatment provided for Plaintiff's medical conditions. There is no evidence of
record that any individual medical service provider violated Plaintiff's constitutional
rights or were deliberately indifferent to Plaintiff's serious medical needs. To the
contrary, the record shows just the opposite. Medical providers made decisions to treat
Plaintiff's condition and recommended removal of the dental prosthesis, but Plaintiff
refused. While Plaintiff may have disagreed with the medical care provided, he had no

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right to choose a specific form of medical treatment, so long as he was provided
reasonable treatment. Notably, both affidavits of Dr. Moen and Dr. Carr opine that
Plaintiff was provided reasonable and appropriate medical care. (D.I. 94, Ex. C, Ex. D)
Other than argument, Plaintiff produced nothing to refute either physician's opinion. Nor
did Plaintiff reference or discuss his voluminous medical record.
Given the treatment provided Plaintiff, the lack of evidence that prison medical
staff were deliberately indifferent to Plaintiff's serious medical needs, and Drs. Moen
and Carr's unrefuted opinions, summary judgment is appropriate on behalf of Gant and
Krafcik.

C.

Grievances

Summary judgment is also appropriate to the extent Plaintiff sought to raise a
claim against Krafcik based upon her actions as a grievance nurse. An inmate does not
have a "free-standing constitutionally right to an effective grievance process." Woods v.

First Corr. Med., Inc., 446 F. App'x 400,403 (3d Cir. 2011) (citing Flick v. Alba, 932 F.2d
728, 729 (8th Cir. 1991 )). The denial of grievance appeals does not in itself give rise to
a constitutional claim as Plaintiff is free to bring a civil rights claim in District Court, just
as he has. Winn v. Department of Corr., 340 F. App'x 757, 759 (3d Cir. 2009) (citing

Flick v. Alba, 932 F.2d at 729).
Here, Krafcik acted in her capacity as a grievance nurse in reviewing Plaintiff's
grievance at the informal resolution stage. Summary judgment is appropriate on her
behalf, to the extent Plaintiff intended to raise a "grievance" claim against her.

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D.

Medical Negligence

Gant and Krafcik also move for summary judgment to the extent Plaintiff seeks to
raise supplemental State claims for medical negligence. As discussed in the Court's
July 26, 2008 Memorandum (see 0.1. 80), Plaintiff failed to comply with the Delaware
Health Care Negligence Insurance and Litigation Act in raising a medical negligence
claim. The Act requires a party alleging medical negligence 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. To the extent 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 ). He
did not. The Court will grant the summary judgment motion on this issue.

V.

Request for Counsel
Plaintiff requests counsel on the grounds that: (1) he is unable to litigate the

case due to his transfer from JTVCC to a Pennsylvania correctional facility;
(2) Defendants have submitted false claims to the Court; (3) much of his personal
property, including legal materials, was discarded when he was transferred; and
(4) counsel would assist him in prosecuting the case. (0.1. 97) A prose litigant
proceeding in forrna pauperis has no constitutional or statutory right to representation by

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counsel. 2 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. Factors to be considered by a court in
deciding whether to request a lawyer to represent an indigent plaintiff include: (1) the
merits of the plaintiff's claim; (2) the plaintiff's ability to present his or her case
considering his or her education, literacy, experience, and the restraints placed upon
him or her by incarceration; (3) the complexity of the legal issues; (4) the degree to
which factual investigation is required and the plaintiff's ability to pursue such
investigation; (5) the plaintiff's capacity to retain counsel on his or her own behalf; and
(6) the degree to which the case turns on credibility determinations or expert testimony.
See Montgomery v. Pinchak, 294 F.3d 492, 498-99 (3d Cir. 2002); Tabron, 6 F.3d at
155-56. The list is not exhaustive, nor is any one factor determinative. Tabron, 6 F.3d
at 157.
Plaintiff filed this motion after the expiration of the discovery deadline and after
Defendants' filed their dispositive motions. Two days after Plaintiff filed the request for
counsel, he filed his opposition to Defendants' motions for summary judgment. (D.I. 98)

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.").
2

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The Court first observes that Plaintiffs voluminous medical record leads to the
conclusion that his claims do not have merit in fact. In addition, other factors do not
support Plaintiff's request. Plaintiff asserts that he cannot litigate this matter because
~is legal documents were thrown away when he was transferred. Plaintiff sought
counsel for this same reason in June 2018. (See D.I. 77) After Plaintiff complained
that his legal documents were not transferred with him, the Court entered an order for
the Clerk of Court to provide Plaintiff with copies of certain docket items and told Plaintiff
to advise it, on or before August 21, 2018, if there were other documents he believed he
needed to litigate the case. (See D.I. 80; D.I. 81) The Court docket reflects that Plaintiff
made no request for further documents. Instead, he filed another request for counsel
on the grounds that the case required expert testimony to state a negligence claim
under Delaware law and an expert was required for his constitutional claims. (D.I. 83)
The Order denying the request explained that medical negligence claims were timebarred and that no discovery had taken place to determine if an expert was necessary
for Plaintiff's constitutional claims. (D.I. 86)
Discovery commenced on November 5, 2018, to be concluded by March 4, 2019.
(D.I. 87) There is no indication on the docket that prior to expiration of the discovery
deadline, Plaintiff sought any discovery to determine if a medical expert was necessary.
The record further reflects that when Gant and Krafcik filed their motion for summary
judgment, the motion included medical records of over 1,600 pages that were provided
to Plaintiff via United States mail on April 4, 2019. (D.I. 95, Ex. A; D.I. 95-4 certificate of
service) Plaintiff did not seek an extension of time to review the voluminous records,

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and filed his opposition to the motions for summary judgment. A review of the
Complaint indicates that while Plaintiff raises medical issues, the issues are not
complex. Rather, they rather concern whether he was provided adequate medical
treatment. Finally, the filings demonstrate Plaintiff's ability to articulate his claims and
represent himself. For these reasons, the Court will deny Plaintiff's request for counsel.

VI.

CONCLUSION
For the above reasons, the Court will: (1) grant Defendants' motions for

summary judgment (D.I. 92, 93); (2) deny Defendants' motion to dismiss for failure to
prosecute (0.1. 92, 96); and (3) deny Plaintiff's request for counsel (0.1. 97).
An appropriate Order follows.

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