Parsons v. Delaware Department of Corrections et al

Filing 17

MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 12/12/2018. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
STEPHEN M. PARSONS,
Plaintiff,
: Civil Action No. 17-1726-RGA

V.

CONNECTIONS CSP, INC., et al.,
Defendants.

Stephen M. Parsons, James T. Vaughn Correctional Center, Smyrna, Delaware.
Pro Se Plaintiff.

MEMORANDUM OPINION

l~

December
2018
Wilmington, Delaware

. J.l,.,.Jt,,~
AN6='1}.;,District Judge:
Plaintiff Stephen M. Parsons, an inmate at the James T. Vaughn Correctional
Center in Smyrna, Delaware, filed this action pursuant to 42 U.S.C. § 1983: 1 (D.I. 3).
He appears prose and has been granted leave to proceed in forma pauperis. (D.I. 5).
The original complaint was dismissed after screening and Plaintiff was given leave to
amend upon reconsideration. (D.I. 13). An Amended Complaint was filed on October
16, 2018. (D.I. 14). The civil cover sheet for the Amended Complaint describes the
action as a § 1983 claim for "[m]edical [m]alpractice by defendants resulting in
insufficient surgery and improperly placed hip." (D.I. 14-1). The Court screens and
reviews the Amended Complaint pursuant to 28 U.S.C. § 1915(e)(2) and§ 1915A(a).
Plaintiff also requests counsel. (D. I. 15).

BACKGROUND
In October 2015, Plaintiff was referred for

a consult with Defendant Richard P.

DuShuttle, an orthopedic surgeon. (D.I. 14). Plaintiff advised medical that he "was not
willing and uncomfortable to seeing Dr. DuShuttle," and Plaintiff was told that he did not
get to choose his doctors. (Id. at 5). Plaintiff alleges that Dr. DuShuttle has a contract
with Defendant Connections CSP and the Delaware Department of Correction and
Defendant Bayhealth Medical Center also has a contract with Connections making them
both "state actors." (Id. at 6, 8).

1

When bringing a § 1983 claim, a plaintiff must allege that some person has deprived
him of a federal right, and the person who caused the deprivation acted under color of
state law. West v. Atkins, 487 U.S. 42, 48 (1988).

1

In November 2015, Plaintiff was seen by Dr. DuShuttle, diagnosed with avascular
necrosis, and advised hip surgery was indicated. (Id. at 5). His right hip was replaced
on November 1, 2016, at Milford Memorial Hospital. (Id.). Plaintiff continued to advise
medical of his distrust of Dr. DuShuttle's surgical abilities. (Id.). Plaintiff was seen by
Dr. DuShuttle at the end of January 2017 and told they would proceed with left hip
replacement surgery. (Id. at 6).
Plaintiff underwent the surgery on June 20, 2017. (Id.). Following surgery,
Plaintiff was placed in .a left knee immobilizer, and he complained of pain during his
hospital stay. (Id.).

He was told that Dr. DuShuttle placed him on the immobilizer and

medical personnel had been advised not to remove it for any reasons. (Id.). When
Plaintiff was examined by Dr. DuShuttle on July 5, 2017, for a follow-up visit, Plaintiff's
staples were removed, and X-rays were performed. (Id. at 7). Dr. DuShuttle advised
Plaintiff the X-rays were normal. (Id.). Plaintiff told Dr. DuShuttle that he continued to
have a lot of pain and he was unable to stand and walk properly. (Id.). Dr. DuShuttle
told Plaintiff that rehabilitation would take a long time and advised Plaintiff to be patient
and work slowly. (Id.).
Plaintiff was seen by VCC physician Dr. Tamar Jackson the end of July 2017.

(Id.). Dr. Jackson ordered X-rays 'and saw a screw out of place. (Id.). Plaintiff was
· seen by Dr. DuShuttle about five days later. (Id.) At that time, he removed the knee
immobilizer. (Id.) Plaintiff told Dr. DuShuttle that he continued with a lot of pain and
had trouble standing and walking. (Id.). Plaintiff told Dr. DuShuttle of Dr. Jackson's
concerns. Dr. DuShuttle responded that he would review the X-rays and told Plaintiff to
continue with physical therapy and pain management. (Id.).
2

When Plaintiff was seen by Dr. Jackson on August 6, 2017, Plaintiff was advised
that Dr. DuShuttle did not seem to address their concerns. (Id.). Dr. Jackson ordered a
second opinion and, on September 8, 2017, Plaintiff was seen by Dr. M. Brady who
discovered some problems following his examination of Plaintiff. (Id.). Dr. Brady
ordered a CT scan, and it revealed that the ball and cup devices were not properly
placed and a screw was going through Plaintiff's pelvic bone. (Id.). Plaintiff underwent
left hip revision surgery on January 26, 2018 at Christiana Care Health Systems. (Id. at
8). Plaintiff continues to follow-up with Dr. Brady. Plaintiff alleges Dr. Brady told him he
could not guarantee a total recovery due to the malpractice performed by Dr. DuShuttle.

(Id.).
Plaintiff alleges that he was the third patient in 2017 who underwent revision
surgery following a mistake by Dr. DuShuttle. (Id.). Plaintiff alleges that Metzger and
Scarborough should have known from his letters and grievances there was a problem
with Dr. DuShuttle, but inmates were still sent to Dr. DuShuttle for consultation and
surgery and nothing was done to protect inmates. Plaintiff alleges that Connections
forced him to see Dr. DuShuttle after he expressed his dislike and prior malpractice, and
this violated his right to be free from cruel and unusual punishment under the Eighth
Amendment of the United States Constitution. (Id. at 8). Finally, Plaintiff alleges that
the Connections staff lied in 2015 when Plaintiff was told that Dr. DuShuttle was the
only orthopedic provider on contract, but he learned that Connections also had a
contract with First State Orthopedics. Plaintiff alleges that Scarborough is the deputy
warden in charge of the medical department at the VCC. (Id.).

3

Plaintiff seeks injunctive relief in the form of proper medical care and
compensatory damages. (Id. at 14). He requests for counsel. (D.I. 15).
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)(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. 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 pro se, 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. Rackmi/1, 878 F.2d 772, 774
(3d Cir. 1989).

4

The legal standard for dismissing a complaint for failure to state a claim pursuant
to§ 1915(e)(2)(8)(ii) and§ 1915A(b)(1) is identical to the legal standard used when
ruling on Rule 12(b)(6) motions. Tourscherv. 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).
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

Constr. 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

5

"context-specific task that requires the reviewing court to draw on its judicial experience
and common sense." Id.

DISCUSSION
Plaintiff brings this action as a § 1983 claim alleging medical malpractice. 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.
However, "a prisoner has no right to choose a specific form of medical
treatment." Lasko v. Watts, 373 F. App'x 196,203 (3d Cir. 2010) (quoting Harrison v.
Barkley, 219 F.3d 132, 138-140 (2d Cir. 2000)). 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. In addition, allegations of
medical malpractice are not sufficient to establish a constitutional violation. See White

6

v. Napoleon, 897 F.2d 103, 108-09 (3d Cir. 1990); see also Daniels v. Williams, 474
U.S. 327, 332-34 (1986).
Even when reading the Amended Complaint in the light most favorable to
Plaintiff, he fails to state an actionable constitutional claim against Defendants for
deliberate indifference to a serious medical need. It is clear from the allegations that
Plaintiff alleges malpractice by Dr. DuShuttle when he performed hip surgery and
complications requiring a second surgery by Dr. Brady. Regardless, the allegations are
that Plaintiff received medical care, but because the allegations amount to inadequate
or inappropriate medical treatment, they are insufficient to state a plausible
constitutional violation. See Norris v. Frame, 585 F.2d 1183, 1186 (3d Cir. 1978)
("Where the plaintiff has received some care, inadequacy or impropriety of the care that
was given will not support an Eighth Amendment claim."). Clearly, the allegations fall
under the aegis of a medical malpractice/negligence claim, rather than deliberate
indifference to a serious medical need.
Moreover, the § 1983 claims against the Scarborough and Metzger are raised
against them based upon their supervisory positions. There is no respondeat superior
liability under§ 1983. See Parke/Iv. Danberg, 833 F.3d 313, 330 (3d Cir. 2016).
A defendant in a civil rights action "cannot be held responsible for a constitutional
violation which he [] neither participated in nor approved." Baraka v. McGreevey, 481
F.3d 187, 210 (3d Cir. 2007); see also Polk Cty. v. Dodson, 454 U.S. 312, 325 (1981).
Personal involvement in the alleged wrong is required. Such involvement may be
"shown through allegations of personal direction or of actual knowledge and
acquiescence." Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005). In addition, a

7

non-medical prison official must either actually know, or have reason to believe, that
prison doctors are mistre~ting or not treating the prisoner to be liable for deliberate
indifference. Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004).
Finally, a § 1983 claim may not lie against Bayhealth Medical Center because to
state a viable § 1983 claim, a plaintiff must allege facts showing a deprivation of a
constitutional right, privilege or immunity by a person acting under color of state law.
See Daniels v. Williams, 474 U.S. 327,330 (1986). Bayhealth Medical Center is not a

person within the meaning of§ 1983. See Will v. Michigan Dep't of State Police, 491
U.S. 58, 69 (1989).
Accordingly, for the above reasons, the Court will dismiss the § 1983 claim for
failure to state a claim and finds further amendment of the § 1983 claim futile. Plaintiff's
claim is a malpractice claim.
Plaintiff recently filed a motion to clarify asking that he be excused from the
requisites of the Delaware Health Care Negligence Insurance and Litigation Act, 18 Del.
C. §§ 6801-6865. (D.I. 16). The motion will be denied. As discussed, the Amended
Complaint does not state a claim under federal law. Nor are the parties diverse. (See
D.I. 14 at 2-4). Because the Amended Complaint fails to state a federal claim, the court
declines to exercise jurisdiction over Plaintiff's negligence claim, which arises under
state law. See 28 U.S.C. § 1367; De Asencio v. Tyson Foods, Inc., 342 F.3d 301, 309
(3d Cir. 2003). To the extent Plaintiff raises negligence claims they will be dismissed
without prejudice to filing them in Delaware Superior Court.

8

CONCLUSION
For the above reasons, the Court will: (1) dismiss the §1983 claims in the
Amended Complaint pursuant to U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1); (2)
dismiss without prejudice to refiling in State Court the medical negligence claim; (3)
decline to exercise supplemental jurisdiction; (4) dismiss as moot the request for
counsel (D.I. 15); and (5) deny the motion to clarify (D.I. 16). Amendment of the§ 1983
claim is futile.
An appropriate Order will be entered.

9