Cooke v. Phelps, et al
Filing
18
MEMORANDUM OPINION. Signed by Judge Colm F. Connolly on 11/25/2019. (fms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JAMES E. COOKE, JR.,
Plaintiff,
V.
Civil Action No. 17-cv-00781-CFC
PERRY PHELPS, solely in his
official capacity as Commissioner of
the Delaware Department of
Corrections and DANA
1v1ETZGER, solely in his official
capacity as Warden of the J arnes T.
Vaughn Correctional
Center,
Defendant.
Christopher C. Popper, FOX ROTHSCHILD LLP, Exton, Pennsylvania; Jeffrey
M. Pollock, FOX ROTHSCHILD LLP, Lawrenceville, New Jersey; Steven J.
Daroci, FOX ROTHSCHILD LLP, Lawrenceville, New Jersey.
Counsel for Plaintiff
Carla A.K. Jarosz, Deputy Attorney General, DEPARTMENT OF WSTICE,
Wilmington, Delaware
Counsel for Defendants
MEMORANDUM OPINION
November 25, 2019
Wilmington, Delaware
COLMF. CONNOLLY
UNITED STATES DIS
Plaintiff James Cooke Jr. is an inmate at the James T. Vaughn Correctional
Center (JTVCC). Due to injuries he suffered as a toddler, Cooke has chronic
issues with his feet. He has sued Defendants in their official capacities for
violating the Eighth Amendment of the United States Constitution and Article One,
Section Eleven of the Delaware Constitution. Cooke's claim is that Defendants
have denied him medical treatment for his feet. Defendants have moved to dismiss
Cooke's complaint for failure to state a claim upon which relief can be granted.
I.
BACKGROUND 1
Cooke was sentenced to death in 2007 and has been incarcerated at the
JTVCC ever since. D.I. 1 ,r 4. When Cooke was a toddler, he suffered severe
burns to both his feet. D .I. 1 ,r 11. Shortly thereafter he was treated at the
Children's Hospital of Philadelphia with multiple "split-thickness skin graft"
procedures. D.I. 1 ,r 12-14. These procedures were largely successful. D.I. 1 ,r
15. Although he continued to treat his burns with ointment, Cooke was able to
walk without significant issues throughout his childhood and teenage years. D .I. 1
,r 16.
1
In considering Defendants' motion, I accept as true all factual allegations in the
complaint and view those facts in the light most favorable to Cooke. See Umland
v. Planco Fin. Servs., 542 F.3d 59, 64 (3d Cir. 2008).
When Cooke entered the Delaware prison system in 2005, he was provided
with treatment for his feet. D.I. 1 ,r 19. From 2005 until 2014 he found this
treatment satisfactory. D.I. 1 ,r 26. But in 2014 the new healthcare provider for the
JTVCC reduced the frequency with which Cooke received treatment, D.I. 1 ,r 27,
and his orthotic shoes were confiscated without explanation. D.I. 1 ,r 28. Cooke
says he heard rumors "that the decrease in quality of his medical care was
intentional and motivated primarily by the ... rationale that [Cooke's] execution
was imminent and that caring for [his] serious medical condition was therefore
futile." D.I. 1 ,r 29. 2
In February 2016 Cooke was transported to see Dr. Jamie Hopkins of
Delaware Podiatric Medicine at the Bayhealth Wound Care Center. D.I. 1 ,r 32.
He was in a wheelchair when he saw Dr. Hopkins, and his feet had been
deteriorating for about a year. D.I. 1, Ex. 1 ,r 9. Dr. Hopkins examined Cooke and
developed a treatment plan at that appointment. D.I. I ,r,r 34-37. Cooke returned
to see Dr. Hopkins twelve more times between February and the end of October for
issues related to his feet. D.I. 1, Ex. 1 ,r 8. These visits included both treatment
and examination. D.I. 1 ,r 38-47.
2
In August 2016, the Delaware Supreme Court held that Delaware's capital
sentencing statute scheme is unconstitutional. Raufv. State, 145 A.3d 430
(Del. 2016).
2
After a series of unsuccessful attempts to resolve Cooke's foot wounds,
Dr. Hopkins recommended in September 2016 that Cooke see a plastic surgeon for
a split-thickness skin graft. D.I. 1, Ex. 1 ,I 16. He again made this
recommendation in October 2016. D.I. 1 ,I 51.
In November 2016 Cooke saw a plastic surgeon, Dr. Zabel. D.I. 1 ,I 52.
After meeting with Cooke, Dr. Zabel rejected Dr. Hopkins's recommendation that
split-thickness grafting would be effective. D.I. 1 ,I 53. Dr. Zabel thought
orthotics would be a more appropriate course of treatment. D.I. 1 ,I 54. He also
mentioned amputation as a treatment option. D.I. 1 ,I 55. In January 2017, Cooke
saw Dr. Zabel for a follow-up appointment. D.I. 1 156. Dr. Zabel reviewed
Cooke's medical history and again concluded that split-thickness grafting would
not benefit Cooke. Dr. Zabel instead prescribed orthotic shoes and topical
treatment with protective bandages. D.I. 1158.
Cooke alleges that the treatments prescribed by Dr. Zabel "provided no
relief whatsoever" between the January 2017 appointment with Dr. Zabel and
when Cooke filed his complaint in June 2017. D.I. 1159. Cooke, thus, asserts that
Department of Corrections employees and officials at the JTVCC "have denied
and/or delayed necessary medical treatment, including, but not limited to, the
denial of Dr. Hopkins' [sic] recommendation that [Cooke] be treated with splitthickness skin grafts." D.I. 1164. The results of this alleged denial of care,
3
according to Cooke, are that he "remains confined to a wheelchair, his chronic foot
wounds continue to deteriorate, and he continues to remain in constant pain
throughout this [sic] lower body." D.I. 1166.
II.
LEGAL STANDARDS FOR MOTION TO DISMISS
To state a claim upon which relief can be granted a complaint must contain
"a short and plain statement of the claim showing that the pleader is entitled to
relief." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but
the complaint must set forth enough factual matter, accepted as true, to "state a
claim to relief that is plausible on its face." Bell At/. Corp. v. Twombly, 550 U.S.
544, 570 (2007). A claim is facially plausible when the factual content allows the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "Threadbare
recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice." Id.
When considering Rule 12(b)(6) motions to dismiss, the Court must accept
as true all factual allegations in the complaint and view them in the light most
favorable to plaintiffs. Umland v. Planco Fin. Servs., 542 F.3d 59, 64 (3d Cir.
2008). The Court, however, is "not bound to accept as true a legal conclusion
couched as a factual allegation." Papasan v. Allain, 478 U.S. 265,286 (1986)
(citations omitted).
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III.
ANALYSIS
A.
Eighth Amendment Claim
The Eighth Amendment states that "[e]xcessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual punishment inflicted." U.S.
Const. amend. VIII. The Eighth Amendment's prohibition of cruel and unusual
punishment applies to the states through the Fourteenth Amendment. Robinson v.
California, 370 U.S. 660, 666-67 (1962). The Supreme Court in Estelle v.
Gamble, 429 U.S. 97 (1976) "conclude[d] that deliberate indifference to serious
medical needs of prisoners" is a kind of cruel and unusual punishment "proscribed
by the Eighth Amendment." 429 U.S. 97, 104. That conclusion, however, does
not dictate that "every claim by a prisoner that he has not received adequate
medical treatment states a violation of the Eighth Amendment." Id. at 105.
To be deliberately indifferent, a prison official must "know[] of and disregard[] an
excessive risk to inmate health or safety[.]" Farmer v. Brennan, 511 U.S. 825, 837
(1994).
Cooke alleges that Defendants violated the Eighth Amendment when they
"delayed providing [Cooke] with necessary medical treatment" and "denied, and
continue to deny, [him] necessary medical care[.]" D.I. 1 ,r 72. These conclusory
statements are simply not supported by the facts alleged.
5
In February 2016 Cooke was transported to see Dr. Jamie Hopkins of
Delaware Podiatric Medicine at the Bayhealth Wound Care Center. D.I. 1132.
At that visit, Dr. Hopkins examined Cooke and developed a treatment plan. D.I. 1
1134-37. In total, Dr. Hopkins saw Cooke thirteen times in nine months for issues
related to his feet-an average of more than 1.5 visits to the podiatrist per month.
D.I. 1, Ex. 118. These visits included treatment in addition to examination. D.I. 1
,r,r 38-47. Prison officials then took Cooke to see a plastic surgeon, Dr. Zabel, not
once but twice. D.I. 1 ,r,r 52, 56. In total, between February 2016 and January
2017 Cooke saw a doctor about his feet 15 times. Defendants have neither delayed
nor denied Cooke care for his feet.
Cooke also alleges that Dr. Zabel' s "rejection of the split-thickness skin
grafts advocated by Dr. Hopkins" constitutes an Eighth Amendment violation.
D.I. 1 ,r66. As a matter of law this cannot be true: "[M]ere disagreement as to the
proper medical treatment does not support a claim of an eighth amendment
violation[.]" Pearson v. Prison Health Serv., 850 F.3d 526, 535 (2017) (internal
quotation marks and citation omitted); see also White v. Napoleon, 897 F.2d 103,
110 ( 1990) (It is a "well-established rule that mere disagreements over medical
judgment do not state Eighth Amendment claims."). Dr. Zabel has prescribed for
Cooke a variety of treatments, including orthotic shoes that replaced those
confiscated in 2014. The treatments prescribed by Dr. Zabel are clearly not the
6
treatments Cooke desires. The prescribed treatments might be frustrating to
Cooke. They might even be malpractice. But they are not an Eighth Amendment
violation. See Durmer v. O'Carroll, 991 F.2d 64, 67 (3d Cir. 1993) ("[T]he law is
clear that simple medical malpractice is insufficient to present a constitutional
violation.").
B.
Article I, Section 11 of the Delaware Constitution Claim
Article I, Section 11 of the Delaware Constitution provides that "[e]xcessive
bail shall not be required, nor excessive fines imposed, nor cruel punishments
inflicted; and in the construction of jails a proper regard shall be had to the health
of prisoners." Del. Const. art. I, § 11. Defendants claim they cannot be liable
under the Delaware Constitution for two reasons: There is no private right of
action against state officials for violations of the Delaware Constitution and they
are protected from liability by sovereign immunity.
Defendants argument that there is no private right of action against state
officials for violations of the Delaware Constitution is articulated in a single
paragraph in their opening brief. See D .I. 13 at 10. Although Cooke counters this
argument in his brief in opposition, see D.I. 15 at 19, Defendants do not address
the issue at all in their reply brief, see D.I. 17. "[A]rguments raised in passing
(such as, in a footnote), but not squarely argued, are considered waived." John
Wyeth & Bro. Ltd. v. CIGNA Intern. Corp., 119 F.3d 1070, 1076 n.6 (3d Cir.
7
1997). Because Defendants have not given the Court the information it needs to
resolve this issue, I will not grant their motion to dismiss on these grounds.
Nor will I grant their motion to dismiss based on their sovereign immunity
defense. Defendants claim they are protected by sovereign immunity. Cooke
argues that the state has waived sovereign immunity by enacting 18 Delaware
Code § 6511, which provides that "[t]he defense of sovereignty is waived and
cannot and will not be asserted as to any risk or loss covered by the state insurance
coverage program ..." 18 Del. C. § 6511. Defendants have responded that "[t]he
state is not insured and, therefore there has been no waiver of sovereign
immunity[.]" D .I. 17 at 5. Defendants have also submitted an affidavit from
Debra Lawhead to support this claim. D.117, Attachment.
Whether the state is insured is a factual dispute. When ruling on a motion to
dismiss, the Court only looks to the facts alleged in a complaint. Umland, 542
F.3d at 64. Ms. Lawhead's affidavit is not a part of the complaint. Therefore, I
ignore the affidavit's contents, conclude I cannot resolve this factual dispute based
on the facts alleged in the complaint, and deny Defendants' motion to dismiss
Count II.
IV.
CONCLUSION
For the reasons stated above, I will grant Defendants' motion to dismiss
Count I and deny its motion to dismiss Count II.
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The Court will enter an Order consistent with this Memorandum Opinion.
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