Hardwick v. Nurse, et al

Filing 9

MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 10/10/17. (sar)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JAMES HARDWICK,
Plaintiff,
v.

: Civ. No. 17-668-RGA

NURSE #1, et al.,
Defendants.

James Hardwick, James T. Vaughn Correctional Center, Smyrna, Delaware,
Pro Se Plaintiff.

MEMORANDUM OPINION

iO ,

2017
October
Wilmington, Delaware

ANDRE
Plaintiff James Hardwick, an inmate at the James T. Vaughn Correctional
Center, Smyrna, Delaware, filed this action pursuant to 42 U.S.C. § 1983. 1 He appears

prose and has been granted leave to proceed in forma pauperis. (D.I. 6). The Court
proceeds to review and screen the Complaint (D.I. 2) and Amended Complaint (D.I. 8)
pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(a).

BACKGROUND
On June 4, 2015, Plaintiff sustained a muscle injury to his shoulder while
exercising. Plaintiff submitted a sick call slip and wrote "emergency" on the form.
Defendant Nurse #1, whose initials are O.M.R., triaged the sick call slip and scheduled
Plaintiff for a regular sick call. Plaintiff was seen by Defendant Nurse #2 on June 6,
2015, and she provided Plaintiff with Motrin. The area was swollen and black and blue.
Plaintiff complains that Nurse #2 did not provide ice, ice packs, or a sling.
On June 13, 2015, Plaintiff submitted a grievance complaining of the lack of
medical care and stating that when he was seen on June 6, 2015, he was told he would
be seen by a physician on the following Tuesday. As of June 13, 2015, he had not
been seen by a physician, and he was not seen by a medical provider until July 20,
2015. The shoulder was x-rayed on August 4, 2015, and Plaintiff was seen by the
medical provider on August 28, 2015.
Plaintiff began physical therapy on September 3, 2015. He alleges this
exacerbated the injury. Plaintiff again saw the medical provider on October 1, 2015.

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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. See West v. Atkins, 487 U.S. 42, 48 (1988).

On October 2, 2015, Plaintiff's grievance was upheld; "specifically that
contracted provider ensures grievant is seen in a timely fashion by a provider with a
well-documented treatment plan in place," and "medical must have the grievant
evaluated by the next higher level of care." (D.I. 8 at pp.20-22). Plaintiff submitted
another grievance on November 23, 2015 asking to be seen by an outside orthopedic
specialist. He was seen by the medical provider on December 10, 2015, with
complaints of shoulder pain. The medical provider recommended an MRI.
On February 14, 2016 and April 4, 2016, Plaintiff submitted grievances asking to
be seen by an outside orthopedic specialist. Plaintiff was finally seen by an outside
orthopedist who ordered pain medication, a sling and a pillow to aide in isolating the
area. Plaintiff alleges that he has yet to receive these items. Plaintiff ultimately
underwent surgery. He alleges that when he returned to the prison following the
surgery, he was not provided adequate pain medication.
The named defendants appear to be Connections, VCC, Marc Richman, Nurse
#1, Nurse #2, Nurse #3, unnamed supervisor of Nurse #2, unnamed Department of
Correction staff, and unnamed Connections staff. Plaintiff seeks compensatory and
punitive damages.
SCREENING OF COMPLAINT

A federal court may properly dismiss an action sua sponte under the screening
provisions of 28 U.S.C. § 1915(e)(2)(B) 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 a/so 28 U.S.C. § 1915(e)(2) (in forma pauperis actions); 28

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U.S.C. § 1915A (actions in which prisoner seeks redress from a governmental
defendant). 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. Phillips v. County of
Allegheny, 515 F.3d 224, 229 (3d Cir. 2008); 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).
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).
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). 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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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). A plaintiff must plead facts sufficient to show that a claim has substantive
plausibility. See Johnson v. City of Shelby, _U.S._, 135 S.Ct. 346, 347 (2014). A
complaint may not dismissed, however, for imperfect statements of the legal theory
supporting the claim asserted. See id. at 346.
A court reviewing the sufficiency of a complaint must take three steps: (1) take
note of the elements the plaintiff must plead to state a claim; (2) identify allegations
that, because they are no more than conclusions, are not entitled to the assumption of
truth; and (3) when there are well-pleaded factual allegations, assume their veracity and
then determine whether they plausibly give rise to an entitlement to relief. Connelly v.
Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016). 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.
DISCUSSION
Eleventh Amendment

It is not clear, but it appears that Plaintiff names the VCC as a defendant. The
VCC falls under the umbrella of the Delaware Department of Correction, an agency of
the State of Delaware. Claims against the State of Delaware are barred by its Eleventh
Amendment immunity. See MCI Telecom. Corp. v. Bell At/. of Pa., 271 F.3d 491, 503
(3d Cir. 2001 ). The Eleventh Amendment of the United States Constitution protects an

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unconsenting state or state agency from a suit brought in federal court by one of its own
citizens, regardless of the relief sought. See Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89 (1984); Edelman v. Jordan, 415 U.S. 651 (1974).
The State has not waived its immunity from suit in federal court and, although
Congress can abrogate a state's sovereign immunity, it did not do so through the
enactment of 42 U.S.C. § 1983. Brooks-McCol/um v. Delaware, 213 F. App'x 92, 94
(3d Cir. 2007). Plaintiff's claim against VCC has no arguable basis in law or in fact and,
therefore, will be dismissed as VCC is immune from suit pursuant to 28 U.S.C. §§
1915(e )(2)(8)(iii) and 1915A(b)(2).
Personal lnvolvement/Respondeat Superior
Plaintiff names as defendants an unnamed supervisor of Nurse #2, unnamed
DOC staff, and unnamed Connections staff. "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. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.
1988).
Under the liberal notice pleading standard of Rule 8(a), Plaintiff's claims fails to
allege facts that, if proven, would show personal involvement by the unnamed
supervisor of Nurse #2, unnamed DOC staff, and unnamed Connections staff. A civil
rights complaint is adequately pied where it states the conduct, time, place, and
persons responsible. See Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005). The
complaint fails to include these elements with regard to claims raised against the

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unnamed supervisor of Nurse #2, unnamed DOC staff, and unnamed Connections
staff. As a result, the claims against the foregoing defendants lack an arguable basis in
law or in fact and will be dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)
and§ 1915A(b)(1).

Grievances
Bureau Chief Marc Richman is named as a defendant. Plaintiff's exhibits
indicate that Richman upheld Plaintiff's grievances. That is to say, he found in
Plaintiff's favor. The filing of prison grievances is a constitutionally protected activity.

Robinson v. Taylor, 204 F. App'x 155, 157 (3d Cir. 2006). To the extent that Plaintiff
bases his claims upon his dissatisfaction with the grievance procedure or denial of his
grievances, the claims fail because 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. Aug. 18, 2011) (citing Flick v. Alba, 932 F .2d 728, 729
(8th Cir. 1991 )). To the extent Plaintiff names Richman as a defendant under a medical
needs theory, the claim also fails. The allegations and exhibits do not indicate that
Richman's actions rise to the level of a constitutional violation. Instead, they indicate
that Richman responded to Plaintiff's complaints and directed that medical provide
Plaintiff necessary treatment. Therefore, the claims against Richman will be dismissed
as frivolous pursuant to 28U.S.C.§1915(e)(2)(B)(i) and§ 1915A(b)(1).

Medical
Plaintiff attempts to raise medical needs claims against Nurse #1, Nurse #2, and
Nurse #3. He alleges that Nurse #1 triaged his medical request and scheduled him as

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a regular sick call instead of as an emergency. He alleges that Nurse #2 provided him
with medication, but not ice or ice packs. He alleges that Nurse #3 saw him later.
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. Estelle v. Gamble, 429 U.S.
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.
"[P]rison authorities are accorded considerable latitude in the diagnosis and
treatment of prisoners." Parke// v. Danberg, 833 F.3d 313, 337 (3d Cir. 2016) (quoting
Durmer v. O'Carrol/, 991 F.2d 64, 67 (3d Cir. 1993). A prisoner bringing a

medical-needs claim "must show more than negligence; he must show 'deliberate
indifference' to a serious medical need." Id. "Allegations of medical malpractice are not
sufficient to establish a Constitutional violation," nor is "[m]ere disagreement as to the
proper medical treatment." Spruill, 372 F.3d at 235. A "failure to provide adequate care
... [that] was deliberate, and motivated by non-medical factors" is actionable under the
Eighth Amendment, but "inadequate care [that] was a result of an error in medical
judgment" is not. Durmer, 991 F.2d at 69.

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The allegations against the nurse defendants do not rise to the level of deliberate
indifference. At most, the claims against Nurse #1 could be described as negligence;
the claims against Nurse #2 could be described as a disagreement about proper care;
and the claims against Nurse #3 do not describe any type of claim. Therefore, the
claims against Nurses #1, #2, and #3 will be dismissed as frivolous pursuant to 28
U.S.C. § 1915(e)(2)(B)(i) and§ 1915A(b)(1).
Plaintiff has alleged what appears to be a cognizable claim for delay in medical
care against Connections.

CONCLUSION
For the above reasons, the Court will dismiss the claims against VCC, Marc
Richman, Nurse #1, Nurse #2, Nurse #3, unnamed supervisor of Nurse #2, unnamed
DOC staff, and unnamed Connections staff pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i)
and (iii) and 1915A(b)(1) and (2). Plaintiff will be allowed to proceed with the medical
needs claim against Connection.
An appropriate order will be entered.

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