McNeill v. Snow et al.

Filing 69

MEMORANDUM OPINION Signed by Judge Colm F. Connolly on 12/5/2019. (nmf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DALE KEVIN MCNEILL,
Plaintiff,

V.
DONALD SNOW, et al.,
Defendants.

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Civil Action No. 16-757-CFC

Dale Kevin McNeil!, Howard R. Young Correctional Institution. Pro Se Plaintiff.
Ryan Patrick Connell, Deputy-Attorney General, Delaware Department of Justice,
Wilmington, Delaware. Counsel for Defendant Steven Wesley.
Dana Spring Monzo, Esquire, and Karine Sarkisian, Esquire, White & Williams,
Wilmington, Delaware. Counsel for Defendant Connections CSP Inc.

MEMORANDUM OPINION

December~19
Wilmington, Delaware

C~LiS~dge
I.

INTRODUCTION
Plaintiff Dale Kevin McNeil! ("Plaintiff"), an inmate at Howard R. Young

Correctional Institution ("HRYCI") in Wilmington, Delaware, filed this lawsuit pursuant to
42 U.S.C. § 1983. (D.I. 2) Before the Court are Defendants' motions for summary
judgment, opposed by Plaintiff in his combined motion to continue and motion for
summary judgment and combined motion for summary judgment and motion to dismiss,
and Defendant Steven Wesley's motion to dismiss for failure to prosecute. 1 (D.I. 51, 52,
55, 56) The motions have been fully briefed.

II.

BACKGROUND

A.

The Complaint

The Complaint alleges that on May 17, 2015, 2 Plaintiff was attacked by
Defendant inmate Donald Snow ("Snow"). 3 (D.I. 2 at 5) Plaintiff alleges that the assault
was videotaped and replayed by HRYCI staff. (Id.) Plaintiff also alleges that Defendant
Steven Wesley ("Wesley"), the former HRYCI warden, and security staff stood by and
watched the assault and did nothing to help Plaintiff. (Id. at 6) Plaintiff alleges that
Wesley housed three inmates in a two-person cell, and he did not supervise mentally-ill
inmates. (Id.)

1

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.
"'
2 Medical records indicate' that Plaintiff was assaulted on May 18, 2015.
3

Snow has been served, but has not answered or otherwise appeared. He is not
considered a state actor for purposes of 42 U.S.C. § 1983.

1

Following the assault, Plaintiff was taken to Christiana Hospital, treated, and
released the next day. (Id. at 5, 7) Plaintiff alleges that HRYCI medical staff did not
follow Christiana Hospital's follow-up care instructions for follow-up care and, as a
result, he submitted a medical grievance to obtain the appropriate medical follow-up
care. (Id. at 7) Plaintiff also submitted a grievance for medical problems that resulted
from the assault. (Id.)
Plaintiff seeks compensatory damages
B.

Evidence of Record

On May 18, 2015, Plaintiff was assaulted by a fellow inmate. (0.1. 54, Ex. C at
41; 0.1. 57 at 1) Plaintiff was taken by ambulance to the Christiana Hospital Emergency
Room and diagnosed with a left ear laceration and concussion. (Id.) While there, he
underwent a head CT scan that revealed no acute intracranial abnormality. 4 (0.1. 54,
Ex. D; 0.1. 57 at 2) Discharge instructions provided for follow-up with oral and facial
surgery if the HRYCI infirmary was not able to manage Plaintiff's condition. (0.1. 54, Ex.
C at 41; 0.1. 57 at 3) Other discharge instructions were to keep Plaintiff's ear laceration
clean and apply antibiotic ointment twice daily. (Id.)
On May 19, 2015, Plaintiff was admitted to the HRYCI infirmary for medical
observation and supportive care, including neurological checks due to concussion. (D.I.
54, Ex.Cat 41, Ex. E; 0.1. 57 at 1) On May 20, 2015, while under medical observation,

4

The first page of the report provides the results of a CT scan of the chest, abdomen,
and pelvis. (0.1. 60) The report states, ''sarcoidosis is suggested. If there are no old CT
examinations for comparison, consider the need for followup study in 3-6 months." (0.1.
57 at 2; 0.1. 60)
2

Plaintiff asked when his ear laceration would be cleaned, the nurse checked his chart,
saw the order to clean the laceration, and cleaned the wound. (D.I. 54, Ex.Cat 39; D.I.
57 at 5) On May 20, 2015, Plaintiff submitted a grievance seeking care for his ear
laceration, and the grievance was resolved the same day. (D.I. 54, Ex. F, May 20,
2015 grievance #307191; D.I. 57 at 6)
On May 21, 2015, Plaintiff was discharged from the infirmary with no
complications and all symptoms of headache, unsteady gait, and dizziness resolved.

(Id. at Ex. C at 39) When Plaintiff was seen for a follow-up on May 28, 2015, he stated
he continued with an equilibrium issue, although it was resolving. (Id. at 38) On May
29, 2015, Plaintiff submitted a sick call slip and asked for removal of the left ear
sutures. 5 (Id. at Ex. G, May 29, 2015 Sick Call) In response to the sick call slip,
Medical staff saw Plaintiff on June 4, 2015. (Id. at Ex. C at 38) Plaintiff was examined
and medical records indicate the laceration was completely healed with no sutures
seen. (/d.)
Over the next few months, Plaintiff continued with treatment for lower back, right
ankle, and neck pain as well as lower extremity swelling. (Id. at 34-38) At Plaintiff's
November 9, 2015 chronic care visit, he complained of tinnitus and provided a history
that the symptoms began about a week after the May 18, 2015 assault. 6 (Id. at 34-35)

5
6

Medical records indicate the suture were "absorbable." (D.I. 57 at 3)

Plaintiff had submitted a medical grievance on September 21, 2015, seeking follow-up
for pain, balance issues, and tinnitus as well as a brain damage assessment. (D.I. 54,
Ex. F. at 4, grievance #316993) On November 12, 2015, the grievance was denied and
the decision noted that, when Plaintiff was seen by medical on November 9, 2015, he
only mentioned symptoms of tinnitus and swelling in the right ankle which was x-rayed.
.
3

Plaintiff next saw medical on November 18, 2015, and complained of continuous tinnitus
and equilibrium issues since approximately a week following the May 2015 assault. (Id.
at Ex. C at 34) Nurse practitioner Kathryn Stillman ("Stillman") evaluated Plaintiff's xray and CT scans that were taken on May 18, 2015 and noted the chest x-ray showed
no active disease, the cervical spine CT showed no acute cervical vertebral fracture,
and the head CT showed the ventricular system was within normal limits in size, no
midline shift was observed, and there was no acute intracranial abnormality. (Id. at Ex.
Cat 34) Stillman advised Plaintiff to continue his medication as prescribed, wear
compression stockings, not stand too quickly, and provide time to adjust positions. (Id.)
Stillman submitted a physical therapy referral for evaluation and possible treatment of
Plaintiff's gait issues, ambulatory dysfunction, and right ankle pain. (Id.) Medical
records indicate that on November 30, 2015, Plaintiff refused physical therapy without
reason despite being asked multiple times and being advised of the risks involved in
refusing treatment. (Id. at Ex.Cat 33, Ex. Hat Nov. 30, 2015 refusal of treatment)
Plaintiff had chronic care appointments on February 1, 2016 and May 28, 2016.
(Id. at Ex.Cat 32-33) Medical addressed his complaints and other symptoms related to
the May 2015 assault. (Id.) At his August 16, 2016 chronic care appointment, Plaintiff
reported experiencing intermittent dizziness since the May 2015 assault, he was
diagnosed with peripheral vertigo, and prescribed medication. (Id. at 30)

(Id. at 5 Grievance #316993 M.G.C. Decision). Plaintiff appealed the denial on
November 13, 2015. (Id. at p. 6 grievance #316993 appeal form)

4

Plaintiff reported the same symptoms at his November 8, 2016 appointment and
was diagnosed with sensory ataxia. (Id. at 29) Physician assistant Mitchell White
("White") instructed Plaintiff to continue his medication and ordered blood tests. (Id. at
29) On November 30, 2016, Plaintiff submitted a sick call slip, indicated that he was
being treated with new medication, complained of balance issues, and demanded an
MRI to assess brain damage. (Id. at Ex. G at 3) Plaintiff was seen by medical on
December 6, 2016, and it was noted that Plaintiff's prior multiple CT scans were
negative. (Id. at Ex. C at 29)
On February 1, 2017, during Plaintiff's chronic care appointment, he reported
diminished symptoms of tinnitus and ataxia and asked to discontinue Elavil. (Id. at 26)
On March 24, 2017, Plaintiff was seen by medical with complaints of worsening
headaches and ataxia, intermittent nausea and dizziness, and equilibrium problems,
among other medical issues. (Id. at 24) Plaintiff was diagnosed with post concussive
syndrome. (Id.) White submitted a request for a brain MRI and a mental health
evaluation for questionable depressive disorder or PTSD from the May 2015 assault,
and concluded that psychological trauma associated with the attack could be affecting
Plaintiff's symptoms. (/d.) The brain MRI was denied as medically unnecessary due to
the findings of the May 18, 2015 head CT that presented "no cause for concern.,, (Id. at
Ex. I at 117)
On March 29, 2017, Plaintiff presented for his referred mental health evaluation
and stated that he was confused about the visit because he was not depressed. (Id. at
23) Plaintiff stopped reporting symptoms of post concussive syndrome around June

5

2017, and did not raise the issue again until May 3, 2018, when he submitted a
grievance and again demanded a brain MRI. (Id. at Ex. C at 1-92; Ex. F at 13
Grievance #403993)
Dr. Christopher Moen ("Dr. Moen"), the chief medical officer of Defendant
Connections Community Services Program, Inc. ("Connections") states that Plaintiff was
appropriately treated for all symptoms and issues he reported. (Id. at Ex. I) Dr. Moen
states that Plaintiff's symptoms of post concussive syndrome have been actively and
appropriately treated through use of medication, routine evaluations, and other
treatment as needed. (Id. at 118) Dr. Moen states that there is no known treatment for
the underlying condition of post concussive syndrome. (Id. at 116)

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

6

party cannot produce admissible evidence to support the fact." Fed. R. Civ. P.
56(c)(1 )(A) & (B). If the moving party has carried its burden, the nonmovant must then
"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 11 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).
· 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 "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

7

"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.
The same standards and burdens apply on cross-motions for summary judgment. See
Appe/mans v. City of Philadelphia, 826 F.2d 214, 216 (3d Cir. 1987).

IV.

DISCUSSION
A.

Failure to Protect/Personal Involvement

Wesley moves for summary judgment on the grounds that Plaintiff provides no
evidence to support his claim of deliberate indifference.7 (D.I. 51) Wesley argues there
is no evidence of record that suggests he was present during the events at issue, and it
appears Plaintiff seeks to hold him liable under an impermissible vicarious liability
theory.
Plaintiff's opposition to Wesley's motion for summary judgment 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. Plaintiff, 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). ·

7

The motion states that it incorporates and adopts Wesley's previously filed opposition
to Plaintiff's motion for injunctive relief and affidavit of Dr. Maduka and references D.I.
16 17. (See D.I. 51 at 2) Counsel is admonished to discontinue this practice. The
Court disfavors piecemeal litigation and, when seeking summary judgment, all
arguments should be contained in the supporting memorandum along with the
supporting exhibits. The Court further notes that neither D.I. 16 nor D.I. 17 contain the
affidavit of Dr. Maduka.
8

"A[n individual government] defendant in a civil rights action must have personal
involvement in the alleged wrongdoing; liability cannot be predicated solely on the
operation of respondeat superior. Personal involvement can be shown through
allegations of personal direction or of actual knowledge and acquiescence." Rode v.

Del/arciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). In addition, "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 Durrnerv. O'Carro/1, 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'').
A corrections officer's failure to intervene in a beating can be the basis of liability
under § 1983 if the corrections officer had a reasonable opportunity to intervene and
simply refused to do so. Smith v. Mensinger. 293 F .3d 641, 650 (3d Cir. 2002). No
reasonable jury could find for Plaintiff on the issue of whether Wesley failed to intervene
in the assault by Snow, given there is no record evidence that Wesley was present at
that time. Nor could a reasonable jury find for Plaintiff on the issue of whether Wesley
failed to protect Plaintiff from Snow since, again, there is no record evidence that
Wesley was aware of a threat by Snow or that Snow could have been considered a
threat to Plaintiff. See Farmer v. Brennan, 511 U.S. 825, 833-34 (1994) (to prevail on

9

an Eighth Amendment failure to protect claim, a plaintiff is required to show that (1) he
is incarcerated under conditions posing a substantial risk of serious harm (the objective
element); and (2) prison officials acted with deliberate indifference, i.e., that prison
officials knew of and disregarded an excessive risk to inmate health or safety (the
subjective element); see also Griffin v. DeRosa, 153 F. App'x 851 (3d Cir. 2005).
Finally, there is no evidence of record that Wesley knew or believed medical personnel
were not properly treating Plaintiff or that Plaintiff was not receiving medical care.
There is simply no record evidence of Wesley's personal involvement or
deliberate indifference towards Plaintiff. Summary judgment is appropriate in favor of
Wesley and against Plaintiff.

B.

Medical Needs

Connections moves for summary judgment on the grounds that Plaintiff has
received ongoing and continuous care for his medical complaints, has not identified a
constitutionally defective policy by Connections that caused his purported injuries, and
has not established any past instances of similar harm to any other inmate to show an
unreasonable risk of harm posed by alleged deficiencies and Connections' awareness
and deliberate indifference to it.
Plaintiff responds that Connections is not providing him proper medical treatment
in violation of the Eighth Amendment and that Connections' policy "is to do nothing [it
feels] is to [sic] costly." (D.I. 56 at 5) In addition, Plaintiff contends that summary
judgment is appropriate on his behalf because he was not provided adequate follow-up
care and did not receive treatment for narcolepsy.

10

The Court does not address the issue of narcolepsy. 8 The Complaint does not
contain any allegations that speak to the condition of narcolepsy, treatment or lack of
treatment of the condition. Because Plaintiff failed to plead this claim in his Complaint,
the Court will not consider it here. See McLaud v. Indus. Res., Inc., 715 F. App'x 115,
121 n.5 (3d Cir. 2017) (noting that trial court properly refused to consider a claim that a
party did not raise in an amended complaint but introduced for the first time in response
to motion for summary judgment); Bey v. Daimler Chrysler Servs. of N. Am., 2006 WL
361385, at *11 (D.N.J. Feb. 15, 2006) ("claims [that] were not alleged in the complaint []
cannot be raised for the first time in opposition to a motion for summary judgment").
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

8

Plaintiff attempted to improperly amend the Complaint when filed a response to
Connections' answer with attached medical records that referred to narcolepsy and
medication for the condition. (D.I. 49) The response was stricken and Plaintiff was
advised that should he opt to file an amended complaint, he was to abide by the Local
Rules of this Court. (D.I. 61) Plaintiff did not seek leave to amend following entry of
that order. The Court notes that Plaintiff's answer to interrogatory No. 9 states that
when was first admitted to HRYCI, he was not allowed to have his narcolepsy
medication. (D.I. 54, Ex. A and 1J 8) Dr. Shilpa Kauta ("Kauta") indicated that
narcolepsy medication would not be considered until Plaintiff had consistent adequate
compliance with CPAP treatment for his sleep apnea, as his symptoms could be a result
of untreated obstructive sleep apnea. (D.I. 54, Ex. 0 at 3-4) Dr. Moen states that
narcolepsy is not a condition that requires active treatment. (Id. at Ex. I at ,r 12)
Narcolepsy is akin to anxiety where treatment is dependent upon the symptoms the
patient reports and how it impacts the patient's daily functions and livelihood. (Id.) Dr.
Moen states that Plaintiff has not reported symptoms of narcolepsy that require medical
intervention and active medical treatment has not been necessary. (Id. at Ex. I at ,r 13)
11

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. at 837.
11

[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,
"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." 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 non12

medical factors. See, e.g., Durmer v. O'Carroll, 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).

When a plaintiff relies on the theory of respondeat superior to hold a corporation
liable, he must allege a policy or custom that demonstrates such deliberate indifference.
Sample

v.

Diecks, 885 F.2d 1099, 1110 (3d Cir. 1989); Miller v. Correctional Med. Sys.,

Inc., 802 F. Supp. 1126, 1132 (D. Del. 1992). In order to establish that Connections is

directly liable for the alleged constitutional violations, Plaintiff "must provide evidence
that there was a relevant [Connections] policy or custom, and that the policy caused the
constitutional violation[s] [plaintiff] allege[s]." Natale v. Camden Cty. Corr. Facility, 318
F.3d 575, 584 (3d Cir. 2003) (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). Assuming the acts of Connections' employees have violated Plaintiff's
constitutional rights, those acts may be deemed the result of a policy or custom of the
entity for whom the employee works, thereby rendering the entity liable under § 1983,
where the inadequacy of existing practice is so likely to result in the violation of
constitutional rights that the policymaker can reasonably be said to have been
deliberately indifferent to the need. See Natale, 318 F.3d at 584 (citations omitted). A
"[p]olicy is made when a decision maker possess[ing] final authority to establish ...
policy with respect to the action issues an official proclamation, policy or edict." Miller v.
13

Corr. Med. Sys., Inc., 802 F. Supp. at 1132 (alteration in original) (quoting Andrews v.
City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990)). "Custom, on the other hand,
can be proven by showing that a given course of conduct, although not specifically
endorsed or authorized by law, is so well-settled and permanent as virtually to constitute
law." Id. (citing Andrews, 895 F.2d at 1480; Fletcher v. O'Donnell, 867 F.2d 791, 793-94
(3d Cir. 1989)).
Plaintiff rests his claim of failure to provide follow-up care on, what appear to be,
n:,isinterpretations of medical records. For example, Plaintiff contends that he did not
receive appropriate medical care because he did not receive a follow-up brain/head CT
scan as suggested in the May 18, 2015 CT report. The report, however, refers to a CT
scan of chest, abdomen, and pelvis, not the head. In addition, the report did not order a
repeat CT scan, but merely suggested one might be considered.
Plaintiff also contends that follow-up requested an appointment with the oral and
facial office. However, the discharge notes are to call for an appointment only if the
HRYCI infirmary was unable to care for Plaintiff. Plaintiff's medical records indicate that
he has received continuing medical care.
Plaintiff argues that he has teeth that need to be replaced. The evidence he
submitted does not support his claim. Indeed, the medical records he provided make
no reference to dental issues. Moreover, the Court reviewed the sick call slips and they
seek medical or mental health care. (D.I. 54, Ex. G) None seek dental care. (Id.)
Finally, Plaintiff argues that Connections has a policy that it does not provide
treatment it feels is too costly. The evidence Plaintiff submitted does not support his

14

claim. Plaintiff submitted medical records that indicate he received treatment and
follow-up care for _his injuries after the assault. There is no evidence that Plaintiff was
denied treatment because it was too costly. Rather, the record reflects that Plaintiff has
received, and continues to receive, adequate medical care.
No reasonable jury could find for Plaintiff on the claims raised against
Connections. Therefore, the Court will grant Connections' motion for summary
judgment and will deny Plaintiff's motion for summary judgment.

C.

State Actor

Plaintiff raises claims under § 1983 and has named inmate Snow as a defendant.
There is no indication that he intended to raise a supplemental State claim against
Snow. To state a claim under 42 U.S.C. § 1983, a plaintiff must allege 11the 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 11 color of state law" a defendant must be 11 clothed with the authority of state
law." West, 487 U.S. at 49.
11

Snow, is a fellow inmate, who assaulted Plaintiff. Clearly, Snow is not clothed
with the authority of state law." See 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). The
claim fails as a matter of law and Snow will be dismissed as a defendant.

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V.

CONCLUSION
For the above reasons, the Court will: (1) deny Wesley's motion to dismiss for

failure to prosecute (0.1. 51); (2) grant Defendants' motions for summary judgment (D.I.
51; D.I. 52); (3) deny Plaintiff's cross-motions for summary judgment {D.I. 55; D.I. 56)
and (4) sua sponte dismiss the§ 1983 claim against Snow as it fails as a matter of law.
An appropriate Order follows.

16