Parsons v. Delaware Department of Corrections et al

Filing 8

MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 3/14/2018. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
STEPHEN M. PARSONS,
Plaintiff,

v.

: Civil Action No. 17-1726-RGA

DELAWARE DEPARTMENT OF
CORRECTION, et al.,
Defendants.

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

MEMORANDUM OPINION

March/~. 2018

Wilmingtbn, Delaware

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 Court screens and reviews the complaint pursuant to 28 U.S.C. § 1915(e)(2) and

§ 1915A(a).

BACKGROUND
Plaintiff's civil cover sheet indicates that this is an action brought pursuant to 42
U.S.C. § 1983 for "medical malpractice resulting in Plaintiff's hip to be improperly
place[d]). (D.I. 3-1 ). In November 2015, Plaintiff was seen by Defendant Richard P.
DuShuttle, M.D., diagnosed with avascular necrosis, and advised hip surgery was
indicated. (D.I. 3 at p.5). When Plaintiff was seen by Dr. DuShuttle at the end of
January 2017, he was told that he would bet left hip replacement surgery. Plaintiff
underwent the surgery on June 20, 2017. Following surgery, Plaintiff was placed in a
left knee immobilizer. (Id.) When he complained of severe pain following the surgery,
Plaintiff was told it was normal. (Id.). He continued with complaints of pain during his
hospital stay. (Id.).

Following his discharge, Plaintiff returned to the VCC. (Id.).

When Plaintiff was examined by Dr. DuShuttle on July 5, 2017, Plaintiff's staples
were removed and X-rays were performed. (Id. at 6). Dr. DuShuttle advised Plaintiff
the X-rays were normal. (Id.). Plaintiff told Dr. DuShuttle that he continued to have a lot

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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).

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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. at p.6). Dr. Jackson ordered X-rays "after a physical exam felt abnormal to her."
(Id.). The radiologist indicated "placement was normal" but "a screw looked 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 trouble standing and walking. (Id. at p. 7). 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.).
When Plaintiff was seen by Dr. Jackson on August 6, 2017, Plaintiff was told that
Dr. DuShuttle's office notes 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.). Hip
surgery is scheduled in January 2018 to correct the abnormalities.
Plaintiff alleges that, although Defendants Delaware Department of Correction
and Connections CSP, Inc. were advised Plaintiff was uncomfortable seeing Dr.
DuShuttle, he was forced to see him. (Id. at pp.7-8). Plaintiff states that all surgeries
were performed at Bayhealth Medical Center by Dr. DuShuttle. (Id. at p.8).

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Plaintiff seeks injunctive relief in the form of proper after-care treatment and
compensatory damages. Plaintiff recently filed a request for counsel. (D.I. 6).

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 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. Rackmill, 878 F.2d 772, 774
(3d Cir. 1989).

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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).
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

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see also Daniels v. Williams, 474 U.S. 327, 332-34 (1986) (negligence is not
compensable as a constitutional deprivation).
Even when reading the complaint in the most favorable light to Plaintiff, he fails to
state an actionable constitutional claim against Defendants for deliberate indifference to
a serious medical need. Rather, the complaint alleges that Plaintiff received treatment
for his hip condition. Ultimately, it was determined that a second surgery is necessary
due to what appear to be complications. 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.
In addition, in Delaware, medical malpractice is governed by the Delaware Health
Care Negligence Insurance and Litigation Act. See 18 Del. C. §§ 6801-65. When a
party alleges medical negligence, Delaware law requires the party 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. Because Plaintiff alleges medical
negligence, at the time he filed the complaint he was required to submit an affidavit of

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"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,
"so long as the treatment provided is reasonable." 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 v. Napoleon, 897 F.2d 103, 108-09 (3d Cir. 1990);

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merit as to each defendant signed by an expert witness. 18 Del. C. § 6853(a)(1 ).
Plaintiff failed to accompany the complaint with an affidavit of merit as required by 18
Del. C. § 6853(a)(1 ).

CONCLUSION
For the above reasons, the Court will: (1) dismiss as moot Plaintiffs request for
counsel (D.I. 6); and (2) dismiss the complaint as frivolous pursuant to U.S.C.
§ 1915(e)(2)(B)(i) and§ 1915A(b)(1 ). 2 Amendment is futile.
An appropriate Order will be entered.

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Dismissal of Defendants DOC, Dr. Shuttle, and Bayhealth Medical Center is also
appropriate because the DOC is immune from suit under the Eleventh Amendment of
the United States Constitution and Dr. DuShuttle and Bayhealth Medical Center are not
State Actors as is required to state a claim under § 1983.

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