Melendez v. Dimico et al
Filing
17
MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 12/28/18. (sar)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ANIBAL MELENDEZ,
Plaintiff,
: Civil Action No. 18-674-RGA
V.
DR. DIMICO, SR., et al.,
Defendants.
Anibal Melendez, James T. Vaughn Correctional Center, Smyrna, Delaware.
Pro Se Plaintiff.
MEMORANDUM OPINION
J,f,
2018
December
Wilmington, Delaware
A ~ , istrict Judge:
Plaintiff Anibal Melendez, 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. 1). Plaintiff
appears pro se and has been granted leave to proceed in forma pauperis. (D. I. 5).
The Court screened and reviewed the amended complaint, dismissed it, and gave
Plaintiff leave to amend. (D.I. 14, 15). Plaintiff filed a Second Amended Complaint on
October 2, 2018. (0.1. 16). The Court screens and reviews the Second Amended
Complaint pursuant to 28 U.S.C. § 1915(e)(2) and§ 1915A(a).
BACKGROUND
The allegations in the Second Amended Complaint are similar to those
previously raised by Plaintiff. He alleges that on May 31, 2016, Defendant Dr. Dimico,
Jr., who is employed at Christiana Hospital, performed surgery to repair a broken eye
socket and to correct Plaintiff's double vision. (D.I. 16 at 2). The surgery was
performed at Christiana Care. Two weeks later, Defendant Dr. Dimico, Sr. provided
Plaintiff follow-up care at Christiana Hospital. (Id.). Dr. Dimico, Sr. is also employed by
Christiana Hospital. Plaintiff was x-rayed, and the x-ray revealed the "bottom eye lid
was pinched with the hardware." (Id.).
Dr. Dimico, Sr. scheduled Plaintiff to see a specialist, Defendant Dr. Harper, to
see if he would perform surgery. (Id. at 3). Plaintiff also alleges that Dr. Harper is the
medical administrator at the VCC. (Id. at 2). Dr. Harper scheduled Plaintiff to see
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).
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Defendant Dr. Abel, a specialist employed at the Limestone Facility, to provide
appropriate medical care. (Id.). In turn, Dr. Abel scheduled Plaintiff to see Dr. Moore,
who is also employed at the Limestone Facility, to provide appropriate medical care.
(Id.)
Plaintiff alleges that since then he has submitted repeated sick call requests ad
filed grievances to see a physician to correct the surgery because he continues to suffer
from double vision and that his right eye hurts because his eyelashes are growing into
it. (Id.). He alleges that Defendant Nurse Practitioner Monica is responsible for
arranging for specialized care outside of the prison and Dr. Harper is responsible for
specialized care outside the prison. (Id. at 4). Plaintiff alleges that two years have
passed without a response from the medical department. (Id.). Plaintiff is in great pain
and believes that he will suffer permanent eye damage if does not undergo the surgery.
(Id.).
He alleges that the failure of Defendants to provide adequate care, and/or
corrective surgery, and/or follow-up treatment constitutes deliberate indifference in
violation of Plaintiff's Eighth Amendment rights to the United States Constitution. (Id. at
4-5). Plaintiff seeks compensatory damages and injunctive relief.
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§ 191 SA(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). The Court must accept all factual allegations in a complaint as true
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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.
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).
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
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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
"context-specific task that requires the reviewing court to draw on its judicial experience
and common sense." Id.
DISCUSSION
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, 103-05 (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.
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However, "[a] prisoner does not have the 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, 138-40 (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); see also
Daniels v. Williams, 474 U.S. 327, 332-34 (1986).
The claims against Dr. Dimico, Sr., Dr. Dimico, Jr., Dr. Moore, and Dr. Able will
be dismissed. The Second Amended Complaint fails to state an actionable
constitutional claim against them. First, there are no non-conclusory allegations these
Defendants are State actors. 2 Second, at most the claims lie in negligence. Therefore,
the§ 1983 claims will be dismissed for failure to state claims upon which relief may be
granted pursuant to pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and§ 1915A(b)(1) and the
foregoing Defendants will be dismissed.
Plaintiff has alleged what appear to be cognizable § 1983 claims against Dr.
Harper and Nurse Practitioner Monica for delay or denial in providing medical care to
Plaintiff's serious medical needs. Plaintiff will be allowed to proceed against these
Defendants.
2
A private medical professional does not become a state actor simply by providing
medical care to an incarcerated individual.
5
CONCLUSION
For the above reasons, the Court will: (1) dismiss Defendants Dr. Dimico, Sr.,
Dr. Dimico, Jr., Dr. Moore, and Dr. Able pursuant to U.S.C. §§ 1915(e)(2)(B)(i) and
1915A(b)(1) as the claim are frivolous; and (2) allow Plaintiff to proceed against Dr.
Harper and Nurse Practitioner Monica.
An appropriate Order will be entered.
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