Ryle v. Fuh et al

Filing 43

MEMORANDUM OPINION. Signed by Judge Maryellen Noreika on 6/20/2019. (nmg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ALEX RYLE,
Plaintiff,
v.
IRENE FUH, et al.,
Defendants.

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C.A. No. 18-733 (MN)

MEMORANDUM OPINION

Alex Ryle, James T. Vaughn Correctional Center, Smyrna, Delaware. Pro Se Plaintiff.
Nicholas Robert Wynn, Esquire, WHITE & WILLIAMS LLP, Wilmington, Delaware. Counsel for
Defendants Irene Fuh, Kathleen M. Gustafson, Katie A. Wheeler, Connections Community
Support Programs, Inc., and Tamar Jackson.

June 20, 2019
Wilmington, Delaware

NOREIKA, U.S. District Judge:
Plaintiff Alex Ryle (“Plaintiff”), who appears pro se and was granted permission to proceed
in forma pauperis, is an inmate at the James T. Vaughn Correctional Center (“JTVCC”) in Smyrna,
Delaware.

He filed this lawsuit pursuant to 42 U.S.C. § 1983. 1

supplemental state claims.
(D.I. 38).

(Id.).

(D.I. 3).

He also raises

On May 17, 2019, Plaintiff filed an Amended Complaint.

Before the Court are Defendants’ unopposed motion to dismiss, Plaintiff’s motion for

leave to file a document under seal, and Defendants’ motion for review of affidavit of merit.
(D.I. 19, 36, 39).
I.

BACKGROUND
The original Complaint raises medical needs claims under the Eighth Amendment and

medical negligence claims under Delaware law.
September 25, 2018.

(D.I. 8).

(D.I. 3).

A service order issued on

On February 19, 2019, Defendants Irene Fuh (“Fuh”), Katie

Wheeler (“Wheeler”), Dr. Tamara Jackson (“Jackson”), Kathleen Gustafson (“Gustafson”), and
Connections Community Support Programs, Inc. (“Connections”) (collectively, “Defendants”)
filed a motion to dismiss.

(D.I. 19).

Plaintiff requested an extension of time (D.I. 25) to file a

response to the motion. On February 28, 2019, the Court granted that request giving Plaintiff
until May 21, 2019 to file a response.
On March 5, 2019, Plaintiff filed an Amended Complaint.

(D.I. 28).

Two days later,

Plaintiff filed a motion to strike or withdraw the Amended Complaint, granted by the Court on
March 20, 2019.

(D.I. 32, 34).

The Order reiterated that Plaintiff’s response to Defendants’

motion to dismiss was due on May 21, 2019.
1

(D.I. 34).

On May 13, 2019, Plaintiff filed a

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

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motion for leave to file a document under seal, and on May 15, 2019, he filed an affidavit of merit.
(D.I. 36, 37).

On May 17, 2019, Plaintiff filed an Amended Complaint without leave of court in

derogation of Fed. R. Civ. P. 15(a)(1). 2
for review of the affidavit of merit. 3

(D.I. 38).

(D.I. 39).

On May 21, 2019, Defendants filed a motion

To date, Plaintiff has not filed a file a response

to Defendants’ motion to dismiss.
The original Complaint 4 alleges that after Plaintiff injured his hand on December 6, 2016,
he was treated at the JTVCC infirmary by Fuh and Defendant Jane Doe (“Doe”).
Plaintiff was given pain medication and a hand splint.
relief and the splint aggravated his pain.

(Id.).

(Id.).

(D.I. 3 ¶ 1).

He alleges the pills provided no

Plaintiff alleges that Fuh “led the exam and was

adamant that [his] hand was not broken, notwithstanding [Plaintiff’s] assertion that [his] hand was
hurting intensely and the prominent protrusion.” (Id.).
call slip so that he could receive treatment.

Fuh instructed Plaintiff to submit a sick-

(Id.).

Plaintiff submitted a sick call slip and was seen in medical on December 10, 2016 by Fuh
and R.N. Wheeler.
broken hand.

(Id. ¶ 2).

Fuh diagnosed Plaintiff with swollen muscles and tendons, not a

(Id.). After Fuh telephoned Gustafson, she informed Plaintiff he would be x-

rayed on December 12, 2016.

(Id. ¶ 2).

Plaintiff was not called for the December 12, 2016 x-

2

“A party may amend its pleading once as a matter of course within: (A) 21 days after
serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days
after service of a responsive pleading or 21 days after service of a motion under Rule 12(b),
(e), or (f), whichever is earlier.” Fed. R. Civ. P. 15(a)(1).

3

Plaintiff subsequently filed two additional Affidavits of Merit. (D.I. 40, 41). On June 10,
2019, Defendants filed a letter asking “the Court to consider their May 21, 2019, motion
as a request to review all affidavits of merit filed by Plaintiff.” (D.I. 42).

4

On October 12, 2018 Plaintiff identified the First On-Call Provider as Defendant Nurse
Practitioner Kathleen M. Gustafson and Jane Doe 2 as Defendant Certified Nursing
Assistant Bryce Viall-Green (“Green”). (D.I. 9). Both have been served. (D.I. 12, 35).
The allegations in the Amended Complaint are very similar to those in the original
Complaint. (Compare D.I. 3 to D.I. 38).
4

ray, medical was contacted, and Plaintiff was advised that the x-ray would take place on
December 16, 2016.

(Id. ¶ 3).

General Hospital that day.

Plaintiff was x-rayed and taken to the emergency room at Kent

(Id. ¶ 4).

At Kent General, Plaintiff was seen by an emergency room

physician and an orthopedic specialist.
various injuries.”

(Id.).

(Id.).

Plaintiff alleges that both failed to “fix [his]

Plaintiff alleges that the healthcare providers told him that due to the

lapse of time between his injury and emergency room visit, their resetting attempts were no longer
viable.

(Id.).
Plaintiff alleges the delay in treatment by Fuh, Doe, Wheeler, and Gustafson demonstrates

deliberate indifference to a serious medical need in violation of the Eighth Amendment and
medical negligence under Delaware law.

(Id. ¶ 6).

In addition, he alleges that Connections’

policy that requires inmates to submit sick-call slips prior to receiving medical care, exacerbated
his hand injury and demonstrates deliberate indifference to a serious medical need and medical
negligence.

(Id. ¶ 7).

During the last week of December 2016, Plaintiff was evaluated by a surgeon and advised
that surgery was necessary.
to get an appointment.

(Id. ¶ 9).

(Id.).

The surgeon asked why it had taken so long for Plaintiff

Surgery was performed on January 5, 2017. (Id. ¶ 10). The

surgeon advised Plaintiff that the anesthesia would wear off in a few hours and he prescribed
Plaintiff pain medication.

(Id.).

When Plaintiff returned to the JTVCC he began having

extreme pain and notified nurse Green.

(Id.).

Green offered Plaintiff Ibuprofen or to call

Defendant Second On-Call Provider (“Second On-Call Provider”) for something stronger.
Plaintiff asked Green to call the On-Call Provider.
Provider would not issue anything else.

(Id.).

than ten hours to get adequate pain relief.

(Id.).

(Id.) Green told Plaintiff that the On-Call

Plaintiff alleges he was compelled to wait more

(Id.).

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Plaintiff alleges that Green and the On-Call

Provider failed to get him proper pain relief following surgery and Dr. Jackson failed to create an
appropriate post-surgery pain management plan in violation of the Eighth Amendment and
Delaware’s medical negligence law.

(Id. ¶ 11).

Plaintiff spent five days in the infirmary following surgery.

(Id. ¶ 13).

Plaintiff alleges

his transfer was in contravention of Dr. Jackson’s declaration that it was policy for Plaintiff to
remain housed in the infirmary for months to convalesce according to medical and security
policies.

(Id.).

Plaintiff seeks compensatory and punitive damages, declaratory relief, and an injunction
for Connections to reform its policy/common practice of denying inmates medical care without
filing a sick-call slip.

(Id. Section VII.).

Defendants’ unopposed motion to dismiss seeks dismissal for failure to state a claim upon
which relief may be granted pursuant to Fed. R. Civ. P. 12(b)(6) on the grounds that:

(1) Plaintiff

did not allege any personal action or inaction by Defendants that amounts to claims of deliberate
indifference; (2) Plaintiff did not submit an affidavit of merit when he filed the original complaint;
and (3) the claim against Connections fails because the sick call system is the responsibility of the
Delaware Department of Correction (“DOC”) and not Connections.
II.

(D.I. 19).

LEGAL STANDARD
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. 89, 94 (2007).

When presented with a motion to

dismiss for failure to state a claim pursuant to Rule 12(b)(6), district courts conduct a two-part
analysis.

Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).

First, the Court

separates the factual and legal elements of a claim, accepting “all of the complaint’s well-pleaded

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facts as true, but [disregarding] any legal conclusions.”

Id. at 210-11.

Second, the Court

determines “whether the facts alleged in the complaint are sufficient to show . . . a ‘plausible claim
for relief.’”

Id. at 211 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).

“To survive a motion to dismiss, a civil plaintiff must allege facts that ‘raise a right to relief
above the speculative level on the assumption that the allegations in the complaint are true (even
if doubtful in fact).’” Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

Dismissal under Rule 12(b)(6) is appropriate

if a complaint does not contain “sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’”

Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570); see

also Fowler, 578 F.3d at 210.

A claim is facially plausible “when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678. The Court is not obligated to accept as true “bald
assertions” or “unsupported conclusions and unwarranted inferences.” Morse v. Lower Merion
Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997); Schuylkill Energy Res., Inc. v. Pennsylvania Power
& Light Co., 113 F.3d 405, 417 (3d Cir. 1997).

Instead, “[t]he complaint must state enough facts

to raise a reasonable expectation that discovery will reveal evidence of [each] necessary element”
of a plaintiff’s claim.

Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315, 321

(3d Cir. 2008) (internal quotation marks omitted).

In addition, a court may consider the

pleadings, public record, orders, exhibits attached to the complaint, and documents incorporated
into the complaint by reference. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322
(2007).

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III.

DISCUSSION
The Court will strike Plaintiff’s Amended Complaint given that it was filed without leave

of Court and in derogation of Fed. R. Civ. P. 15.

(See D.I. 38).

Having said that, the Amended

Complaint is so similar to the original Complaint, that the Court’s analysis on dismissal would be
the same even were the Amended Complaint the operative pleading.
A.

Medical Needs

Defendants seeks dismissal of the Eighth Amendment claims against Wheeler and
Gustafson for their lack of personal involvement, and against Fuh and Dr. Jackson for Plaintiff’s
failure to allege deliberate indifference to a serious medical need.
The Eighth Amendment proscription against cruel and unusual punishment requires that
prison officials provide inmates with adequate medical care.
103-105 (1976).

Estelle v. Gamble, 429 U.S. 97,

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, 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.
825, 837 (1994).

Farmer v. Brennan, 511 U.S.

A prison official may manifest deliberate indifference by “intentionally denying

or delaying access to medical care.” Estelle, 429 U.S. at 104-05.
“[P]rison authorities are accorded considerable latitude in the diagnosis and treatment of
prisoners.” Durmer v. O’Carroll, 991 F.2d 64, 67 (3d Cir. 1993). Although “[a]cts or omissions
sufficiently harmful to evidence deliberate indifference to serious medical needs” constitute cruel
and unusual punishment under the Constitution, Estelle, 429 U.S. at 106, merely negligent
treatment does not give rise to a constitutional violation, Spruill v. Gillis, 372 F.3d 218, 235 (3d

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Cir. 2004).

Indeed, “[a]llegations 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.
With regard to Wheeler and Gustafson, the allegations do not demonstrate their personal
involvement in any alleged constitutional violations. “A defendant in a civil rights action must
have personal involvement in the alleged wrongs to be liable and cannot be held responsible for a
constitutional violation which he or she neither participated in nor approved.”

Baraka v.

McGreevey, 481 F.3d 187, 210 (3d Cir. 2007). “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).
Here, the Complaint alleges simply that Wheeler was present when Plaintiff was examined
by Fuh in the infirmary on December 6, 2016. The allegations do not rise to the level of deliberate
indifference to a serious medical need. As to Gustafson, the Complaint alleges that Gustafson
told Fuh that Plaintiff’s x-ray was scheduled for December 12, 2016. Similar to the claims against
Wheeler, the allegations do not rise to the level of deliberate indifference to a serious medical need.
The allegations against Fuh are that she provided treatment to Plaintiff on
December 6, 2016, the day he was injured, but she did not properly diagnose Plaintiff’s injury and
the treatment she provided was inadequate. The Complaint alleges that when Plaintiff was seen
by Fuh on December 10, 2016, again she did not properly diagnose Plaintiff’s injury.

At the

December 10, 2016 visit with Fuh, an x-ray was scheduled for Plaintiff to take place two days
later, on December 12, 2016.

It did not take place until December 16, 2016; however, there are

no allegations that Fuh had anything to do with the delay.

The allegations against Fuh do not rise

to the level of deliberate indifference to a serious medical need.

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Rather, they indicate that she

provided Plaintiff treatment on two separate occasions.

While Plaintiff may not agree with the

treatment provided, the adequacy of the treatment, or the diagnosis rendered it cannot be said those
concerns implicate violations of the Eighth Amendment.

In addition, the allegations do not

support a claim that Fuh delayed treatment who saw him a second time after he submitted a sickcall clip. Nor is there any indication that the four days between visits was motivated by nonmedical factors. See, e.g., Pearson v. Prison Health Serv., 850 F.3d 526, 537 (3d Cir. 2017).
Finally, the Complaint alleges that Dr. Jackson failed to create an appropriate post-surgery
pain management plan and transferred Plaintiff from the infirmary after five days in contravention
of the policy that Plaintiff was to remain housed in the infirmary for months to convalesce
according to medical and security policies.

It is clear from these allegations that Plaintiff

disagreed with Dr. Jackson’s post-surgery management plan and disagreed with the decision to
discharge Plaintiff from the infirmary.

These claims, based upon Plaintiff’s disagreement with

the medical decisions of Dr. Jackson, do not rise to the level of constitutional violations.
Accordingly, the Court will grant Defendants’ motion to dismiss the § 1983 claims raised
against Fuh, Wheeler, Dr. Jackson, and Gustafson. 5

5

Plaintiff alleges that Green failed to give him proper pain relief following surgery. The
allegations do not speak to a constitutional claim given the allegations that Green offered
Plaintiff Ibuprofen and also unsuccessfully sought different medication from the On-Call
Provider. The allegations against Green do not support a claim for deliberate indifference
to a serious medical need. Nor do the allegations against Jane Doe rise to the level of a
constitutional claim. As alleged, she and Fuh treated Plaintiff on the day he was injured.
Finally, the claim against the Second On-Call Provider does not state a constitutional.
Rather, the allegations are that Plaintiff disagreed with the decision to only give him
Ibuprofen for pain. For these reasons, the Court will sua sponte dismiss the claims against
Green, Jane Doe, and the Second On-Call Provider.
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B.

Policy or Custom

Plaintiff alleges that Connections’ policy requiring that inmates submit sick-call slips prior
to receiving medical care exacerbated his hand injury and demonstrated deliberate indifference to
a serious medical need. Defendants move for dismissal on the grounds that the sick-call system
was established by the DOC pursuant to DOC Policy Number A-01 Access to Care. Defendants
ask the Court to take judicial notice of the policy.
When a plaintiff relies upon a theory of respondeat superior to hold a corporation liable,
he must allege a policy or custom that demonstrates such deliberate indifference. Sample v.
Diecks, 885 F.2d 1099, 1110 (3d Cir. 1989); Miller v. Correctional Med. Sys., Inc., 802 F. Supp.
1126, 1132 (D. Del. 1992). In order to establish that Connections is directly liable for the alleged
constitutional violations, Plaintiff “must provide evidence that there was a relevant [Connections]
policy or custom, and that the policy caused the constitutional violation[s] [plaintiff] allege[s].”
Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 584 (3d Cir. 2003) (because respondeat
superior or vicarious liability cannot be a basis for liability under 42 U.S.C. § 1983, a corporation
under contract with the state cannot be held liable for the acts of its employees and agents under
those theories).
The Court has concluded that the allegations against the individual medical defendants did
not violate Plaintiff’s constitutional rights under the Eighth Amendment. Connections, therefore,
cannot be liable based on the theory that it established or maintained an unconstitutional policy or
custom responsible for violating Plaintiff’s rights. See Goodrich v. Clinton Cty. Prison, 214 F.
App’x 105, 113 (3d Cir. 2007) (policy makers not liable in prison medical staff=s alleged deliberate
indifference to prisoner’s serious medical needs, where, given that there was no underlying
violation of prisoner’s rights, policy makers did not establish or maintain an unconstitutional

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policy or custom responsible for violating prisoner=s rights). Notably, the policy in question is
one established by the DOC and not Connections.
Accordingly, the Court will grant the motion to dismiss the claims raised against
Connections.
C.

Medical Negligence

Because the Complaint fails to state a federal claim, the Court declines to exercise
jurisdiction over Plaintiff’s supplemental state law claims. See 28 U.S.C. § 1367; De Asencio v.
Tyson Foods, Inc., 342 F.3d 301, 309 (3d Cir. 2003); Sarpolis v. Tereshko, 625 F. App’x 594, 59899 (3d Cir. 2016).
IV.

CONCLUSION
For the above reasons, the Court will:

(1) strike Plaintiff’s amended complaint (D.I. 38);

(2) grant Defendants’ motion to dismiss the claims raised pursuant to 42 U.S.C. § 1983 (D.I. 19);
(3) dismiss sua sponte the 42 U.S.C.§ 1983 claims raised against Nurse Green, Jane Doe, and
Second On-Call Provider; (4) decline to exercise jurisdiction over Plaintiff’s supplemental state
claims; and (5) deny as moot all other pending motions (D.I. 36, 39).
the 42 U.S.C. § 1983 claims.
An appropriate order will be entered.

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Amendment is futile as to