Free Case Transferred In - District Transfer - District Court of Delaware - Delaware

Case 1:06-cv-00659-GMS

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Frank J. Marcone, Esq. 2530 N. Providence Rd Upper Providence, PA. 19063

Atty ID # 8967 Telephone 610 595 1441 Fax 610 595 1448

IN THE UNITED STATES DISTRICT COURT FOR TH E EASTERN DIST RICT OF PEN NSYLVANIA : : : vs. : : GANDER HILL PRISON: JOHN/JANE DOE : M.D. MEDICAL DIRECTO R, STATE OF : DELAWARE CORRECT IONAL SYSTEM : PRISON HEALTH SERVICES, INC., WARDEN : GANDER HILL PRISON, COMM ISSIONER, : DEPARTMENT OF CORRECTIONS, STATE OF : DELAWARE, : Defendants : MICHAEL SALIZZONI Plaintiff CIVIL ACTION NO.

jury trial demanded

COM PLAINT

Michael Salizzoni, the Plaintiff herein, by his attorney, Frank J. Marcone, Equire, files this Civil Complaint averring a violation of his Civil Rights under the provisions of 42 U.S.C.A. Section 1983 and others, and in support of his claim for damages resulting therefrom avers the following: 1. Jurisdiction of the Court is based upon a claim being made pursuant to the Civil Rights Act of 1964 and more specifically, Section 1983 and others and has resulted in an injury which may be fatal. 2. Michael Salizzoni, the Plaintiff is an individual currently residing at 661 Whiterock Road, Bear Delaware 19701. 3. The Defendants, the Gander Hill Prison, John/Jane Doe, M.D., Medical Director of the State of Delaware Correctional System, Prison Health Services, Inc., Warden of Gander Hill Prison, Commissioner of the Department of Corrections of the State of Delaware are all entities and individuals who maintain their offices at and may be considered residents of the State of Delaware

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4. On or about the 23 rd of November, 2002 the Plaintiff, Michael Salizzoni was incarcerated in Gander Hill Prison based upon a warrant which had been filed by the State of New Jersey wherein the Plaintiff was incorrectly alleged to have failed to pay a certain support Order which had originated in New Jersey. 5. At the time of his arrest and incarceration, the Plaintiff was under treatment for Hepatitias C and was being treated at the Veteran's Hospital at Wilmington, Delaware and that treatment required a regimen of chemotherapy which was administered on a daily basis and which consisted of certain medications which were delivered to the Gander Hell Prison for the purposes of providing the continuous treatment during his incarceration. 6. Thereafter, he was taken to court where it was admitted the arrest and incarceration were the result of an error in keeping record of funds which had been paid into the support order. 7. The Plaintiff was ordered to be released from Prison. 8. Instead of releasing the Plaintiff, Gander Hill Prison refused to release him until three days thereafter. 9. Du ring his incarceration he was denied access to the chemotherapy and was thereby deprived of the continuity of the treatment. 10. Upon his release from Gander Hill Prison, the Plaintiff visited with his physician and learned the breach of the continuity in his treatment had resulted in the return of the Hepatitis C as though he did not undergo the treatement. 11. Distressed and annoyed over what had occurred, the Plaintiff determined to delay the return to chemotherapy treatment. 12. Within the last two years, the Plaintiff determined to reinstate treatment and learned the involuntary interruption of his chemotherapy treatment between his incarceration and his release in late December, 2002 has resulted in his losing any further effect from chemotherapy for the interruption has caused him to lose the ability to reinstate the same treatment and has deprived him of the treatment which may have cured his condition. 13. The Plaintiff has been informed the chemotherapy treatment he was receiving had

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provided the Plaintiff with an apparent cure and had he been able to complete the treatments the condition, which is fatal, may have been cured. The breach of the treatment resulting in the interruption of treatment has rendered any further treatment ineffective for the chemotherapy treatment was interrupted in such a manner as to render the condition untreatable by further chemotherapy. 14. The Plaintiff was unaware of the serious nature of the condition which resulted from the Gander Hill Prison depriving him of the chemotherapy treatment until he attempted to begin further treatment. 15. The Plaintiff discovered the damage caused by the denial of his chemotherapy treatment within the past two years. 16. The injury cau sed to the Plaintiff resulted from the actions of the above named Defendants in that they conspired to deprive him of his civil right to medical treatment as prescribed by his physician. 17. That deprivation was committed in the conspiratorial acts of the Defendants and were committed under the color of State law. 18. The Plaintiff's physician had contacted the Gander Hill Prison and notified the medical and guard staff that the chemotherapy was critical and had to be provided to the Plaintiff to be effective. 19. The Defendants, acting in concert with each other purposefully, negligently and with an intent to injure the Plaintiff deprived the Plaintiff of his medication after they were notified the continued treatment was necessary and imperative. 20. That the Plaintiff has suffered an injury from the actions of the Defendants and he seeks damages in consideration thereof. WHEREFORE, the Plaintiff respectfully prays the court enter a judgment against all the Defendants in an amount in excess of $100,000 and said judgment to be entered both jointly and severally against all named defendants.

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Respectfully submitted,

_________________________ Frank J. Marcone, Esq. Attorney for the Plaintiff Michael Salizzoni December 24, 2005

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Case 1:06-cv-00659-GMS Document 17-13 Filed 07/25/2006 Page 1 of1 of 23 Filed 10/25/2006 Page 23 Case 2:05-cv-06772-AB Document 8

Frank J. Marcone, Esq. 2530 N. Providence Rd Upper Providence, PA. 19063

Atty ID # 8967 Telephone 484 442 8305 Fax 484 442 8306

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA MICHAEL SALIZZONI Plaintiff : : : vs. : : GANDER HILL PRISON: JOHN/JANE DOE : M.D. MEDICAL DIRECTOR, STATE OF : DELAWARE CORRECTIONAL SYSTEM : PRISON HEALTH SERVICES, INC., WARDEN : GANDER HILL PRISON, COMMISSIONER, : DEPARTMENT OF CORRECTIONS, STATE OF : DELAWARE, : Defendants : CIVIL ACTION NO. 05-6772

jury trial demanded

PLAINTIFF'S MOTION FOR JUDGMENT BY DEFAULT FOR FAILURE TO ANSWER TO THE HONORABLE, ANITA B. BRODY, Judge of the United States District Court for the Eastern District of Pennsylvania: Michael Salizzoni, by his attorney, Frank J. Marcone, Esquire, files this Motion requesting the Court enter Judgment by Default pursuant to the Federal Rules of Civil Procedure, Rule and in support of the said Motion avers the following: 1. Michael Salizzoni is an individual who has filed this 42 U.S.C. Section 1983 action averring that he was incarcerated in the "Gander Hill Prison" as a result of an improper accusation that he had not been paying his child support in the State of New Jersey. Before he was improperly incarcerated, he was suffering from Hepatitis C which is a potentially fatal disease.

1

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2. Prior to his incarceration, he was involved in a regimen of chemotherapy which is a cure for the condition. That regimen requires once the chemotherapy begins the continuation of the regimen is absolutely necessary and any interruption in the regimen renders further treatment useless. 3. During his incarceration, the physician treating the Plaintiff, Michael Salizzoni had the chemotherapy drugs delivered to the Prison with instructions that the treatment must continue while he was incarcerated. The Prison refused to comply with the instructions of the physician and his physician's instructions were ignored resulting in a cessation of the chemotherapy. 4. After his release, the Plaintiff sought treatment and learned the interruption in his regimen of treatment had probably rendered the disease terminal. 5. Suit was started on December 25, 2005 when the Plaintiff filed a Complaint averring an injury as described above. 6. On February 6, 2006, the Plaintiff's attorney sent Notice of Suit to Gander Hill Prison, (MPCJF) Howard R. Young, Correctional Institution at P.O. Box 9279, Wilmington, Delaware, 19809. A copy of that Notice is attached hereto and is marked "Exhibit A". The actual notice constituted seven pages. The notice was sent by United States Mail, postage prepaid, first class. That Notice enclosed a copy of the following: 1) Complaint 2) Notice of Lawsuit and Request for Waiver of Service of Summons 3) Two copies of the Waiver 4) Duty to Avoid Unnecessary Costs of Service or Summons 5) Notice of Right to Consent to Exercise of Jurisdiction by a United States Magistrate Judge. 7. A second Notice was sent on February 6, 2006 which was a repetitive act however it did constitute a second notice. A copy of the letter of transmittal is enclosed and is marked "Exhibit B".

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8. There was no response to either letter dated February 6 and February 7, 2006 nor were the letters and enclosures returned to Plaintiff's counsel. A third notice was sent on February 9th, 2006 and a copy of that Notice is attached hereto and is marked "Exhibit C". 9. Having received no response, Plaintiff's counsel instructed his paralegal to send a fourth notice which is identical to the first two but which is dated February 15, 2006. A copy of that Notice is attached hereto, made a part hereof and is marked "Exhibit D" Those notices were sent by regular mail, postage prepaid and were never returned to Plaintiff's counsel. 10. On April 20th, 2006, Marie O'Donnell, Civil Deputy/Secretary to the Hon. Anita B. Brody, sent a letter to Plaintiff's counsel informing him that the record revealed service had not been accomplished and it must be made on or before April 28th, 2006. 11. Plaintiff's counsel immediately investigated and learned the Defendants had never responded to the five notices referred to above. 12. Plaintiff's counsel contacted the Office of the Clerk and procured copies of Summon's which for reasons unknown had never been placed in the client's file. Since suit began on Christmas day, it is possible the Summons' were misplaced or lost in the mail. 13. On April 24, 2006, counsel for the Plaintiff prepared and filed a Praecipe for alias summons which was entered on the record on April 25, 2006. 14. On April 25, 2006, Plaintiff's counsel prepared a Motion seeking the Appointment of a Process Server pursuant to Local Rule 4.1. That Motion was accompanied by an Order which was signed by the Clerk appointing Robert Frick as the authorized Process Server. 15. On April 28, 2006, the Clerk o f the Court issued Four (4) Alias Summons directed to the Defendants herein and the same were procured by Mr. Frick for immediate Service. 16. On April 28, 2006, Plaintiff's counsel filed a Motion seeking an extension of time in which to serve the Summons and Complaint. 17. On April 28, 2006, the Plaintiff's Authorized Process Server effected service by 3

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personally delivering copies of the Alias Summons and Complaint together with a notice to respond on or before May 18, 2006. 18. On May 12, 2006, the Plaintiff filed a Return executed by Robert Frick attesting he served the Summons and Complaint upon Gander Hill Prison on April 28, 2006. 19. On May 12, 2006, Plaintiff's counsel sent a letter to the Defendants with a copy to the Plaintiff and the Court. That letter contains the following statement: "Service of a Complaint and Notice that unless a response is received by the Court on or before the 19th day of May, a Judgment by default will be entered against you has been served upon your office on April 28, 2006....Please attend to this as notified". A copy of that letter is attached hereto and is marked "Exhibit E". 20. That letter contained a full caption of the case but the Defendants have failed to respond to the letter and notice. 22. By count, the Plaintiff has served five separate letters containing notice of suit upon the Defendants by regular mail in February, 2006. None of those notices has resulted in any contact by the Defendants nor by counsel. The failure to respond has resulted in the Plaintiff causing personal service of the Complaint, Summons and Notice of Default upon the Defendants on April 28, 2006. No response to that personal service has been received by the Plaintiff nor by the Court. 23. On May 12, 2006 another Notice was served by mail upon the Defendants explaining that failure to respond by May 19th would result in the entry of a judgment by default. There has been no response to that Notice. 24. The Plaintiff's physical condition is becoming critical. He is unable to work and is under the care of physicians who are addressing his medical condition however, his condition is becoming precarious and his ability to participate in discovery and provide information needed to continue on with this case is becoming less and less secure. Plaintiff's counsel detects a possible depression which has greatly affected the Plaintiff's ability to cooperate and assist. Further delay 4

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will only serve to enhance this prejudice to the Plaintiff. 25. It does not appear the Defendants have a litigable defense in that the Plaintiff was a prisoner incarcerated in the Defendant's institution while he was undergoing chemotherapy for Hepatitis C. The Plaintiff's physician caused the chemotherapy regimen to be delivered to the Prison but the Defendants denied the Plaintiff access to the chemotherapy thereby causing him to become critically ill. There does not appear to be a defense to the claim. 26. The Defendant's delay in responding is not explainable. Five separate notices were went to the Defendants in February notifying them of suit. Those notices were served by regular mail three times and were never returned. A presumption arises that the Notices were received and intentionally ignored. 27. Thereafter, personal service was accomplished on April 28th 2006 and that personal notice has once again been ignored. 28. By separate letter dated May 12, 2006 another notice that unless a response was filed by the 19th of May, the Plaintiff would seek a judgment by default. 29. The Plaintiff has done all that is reasonably possible to cause the Defendants to respond and has provided more than required notices to the Defendants seeking a response. 30. A copy of this Motion will be hand delivered to the Defendants at the "Gander Hill Prison" on July 24, 2006 31. The "cavalier" attitude exhibited by the Defendants together with the prejudice resulting from further delay and the fact there is no defense to the claim, virtually compels the Court to enter a Judgment by Default upon request. The Plaintiff suggests the attitude expressed by the complete failure to respond to notices and service is an example of the reason for the injury to the Plaintiff whose physician was "ignored" when she had chemotherapy drugs delivered to the Prison to be administered as directed. The Wilmington News Paper has published articles which list a series of similar incidents wherein the Defendants have ignored the medical condition of prisoners to the extent that multiple deaths have occurred.

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This pattern is being repeated in the contemptuous and egregious actions or lack of concern expressed by the Defendants. WHEREFORE, the Plaintiff respectfully prays the Court enter a Judgment by Default against the Defendants with Prejudice. Respectfully submitted,

________________________ Frank J. Marcone, Esquire Attorney for the Plaintiff Michael Salizzoni July 24, 2006

6

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Frank J. Marcone, Esq. 2530 N. Providence Rd Upper Providence, PA. 19063

Atty ID # 8967 Telephone 484 442 8305 Fax 484 442 8306

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA MICHAEL SALIZZONI Plaintiff : : : vs. : : GANDER HILL PRISON: JOHN/JANE DOE : M.D. MEDICAL DIRECTOR, STATE OF : DELAWARE CORRECTIONAL SYSTEM : PRISON HEALTH SERVICES, INC., WARDEN : GANDER HILL PRISON, COMMISSIONER, : DEPARTMENT OF CORRECTIONS, STATE OF : DELAWARE, : Defendants : CIVIL ACTION NO. 05-6772

jury trial demanded

PLAINTIFF'S MEMORANDUM OF LAW IN SUPPORT OF THE MOTION FOR JUDGMENT BY DEFAULT FOR FAILURE TO ANSWER FACTS: The Plaintiff has shown suit began on December 25, 2005 and service of notice of suit was sent to the Defendants at their place of business on February 6 th, February 7th, February 9th and February 15th, 2006. None of those notices which were sent by regular mail were returned to Plaintiff's counsel nor was there any response to the notices. Thereafter, on April 28th, 2006, personal service was accomplished and on May 12, 2006, an additional letter Notice was forwarded to the Defendants but even this has been ignored. That letter explained that unless the Defendants took steps to defend their position, judgment by default would be entered against them. 7

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ISSUE: WHETHER THE DEFENDANTS' FAILURE TO RESPOND ENTITLES THE PLAINTIFF TO JUDGMENT BY DEFAULT. DISCUSSION: Federal Rules of Civil Procedure, Rule 55(b)(2) provide for a Plaintiff to procure a judgment by default if it appears the Defendants, having been properly served with notice of suit, ignore that notice and do not file a responsive pleading nor acknowledge notice of suit. The Third Circuit has set the parameters in which a judgment by default may be entered and the Plaintiff suggests all the parameters have been met in this case, requiring the entry of the judgment. In Chamberlain v. Giampapa, 210 F.3d 154, 164 (3 rd Cir. 2000) the court applied a three factor default rule which must be met by the Plaintiff before a judgment by default may be entered or conversely before a default judgment may be opened. Those factors are: 1.) Is the Plaintiff able to show prejudice as a result of delay in proceeding? 2.) Whether the defendant appears to have a litigable defense? 3.) Whether the defendant's delay is due to culpable conduct? The Plaintiff asserts all three factors are present in the instant case and that the law provides judgment by default must be granted upon proper application. Suit began in this case in late December, 2005 with five separate mailings provided to the Defendants in February, 2006 informing them of the Plaintiff's claim. Each of those mailings sought the cooperation of the Defendants requesting a voluntary response thereby eliminating the need to have personal service of the Summons and Complaint. Each of those notices also notified the Defendants that if they chose to ignore the notices thereby requiring personal service, they would be responsible for the expenses and costs involved in personal service. Each of the Defendants ignored those five notices. 8

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Thereupon, the Plaintiff had a process server authorized by the Clerk and on April 28, 2006, personal service was accomplished by handing a copy of both the Summons and Complaint for each of the Defendants to a person claiming to be authorized to accept service of lawsuits. That personal service explained a response must be filed on or before twenty days passed and spelled out that unless a response was filed, the Plaintiff would be seeking a judgment by default on or after May 19th, 2006. A separate Notice was sent to the Defendants on May 12, 2006, reminding them of the deadline and that Default Judgment would be requested. The Plaintiff suggests this evidences more than "culpable conduct" as is described in the case law. Further, the claim by the Plaintiff is that while he was incarcerated at the "Gander Hill" Prison on a mistaken belief that he had not paid child support in New Jersey, ( He had made an improper driving turn and when he was stopped by the Police a computer search showed he had an outstanding warrant from New Jersey resulting from a notice to appear sent to the wrong address.) Prior to his unexpected incarceration, the Plaintiff had been undergoing an intense regimen of chemotherapy by the Veterans' Administration for Hepatitis C. That disease is curable by use of chemotherapy but once chemotherapy begins, it must be completed for any delayed break results in the body developing an immunity to the treatment, thereby preventing an effective subsequent therapy. The doctor treating the Plaintiff was informed of his imprisonment and she caused the required drugs to be delivered to the Prison with instructions to the Medical personnel on the administration of the therapy. That instruction was simply ignored and the Prison staff "could not be bothered" with the treatment. They ignored the instructions just as they are ignoring the notices of suit. The Plaintiff believes there is no defense to the failure to provide him with the chemotherapy. Lastly, the Plaintiff is now suffering from the symptoms of his disease and since the only hope he had to save his life was denied him by the Defendants, he suggests further delay will 9

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result in prejudice for he is losing his ability to act in his own behalf on a daily basis. His ability to assist counsel in the presentation of evidence and to properly present his case is in severe jeopardy. His condition has deteriorated to the point he is not able to work and he is seeking continuous medical attention. Further delay will be prejudicial to his suit. In two recent 2003 decisions in the Third Circuit, the issues above were examined in the context of whether a judgment by default should be granted and then, once granted, should the judgment be opened. In Hill v. Williamsport Police Dept., 69 Fed. Appx.49 (C.A.3 (Pa)), the court examined a scenario where Hill had sought a default judgment against the police based upon their failure to file an answer to his 1983 complaint. The Third Circuit affirmed the denial of his relief on the basis that Hill did not even assert he was being prejudiced by the delay. Further the court noted that Hill was unable to provide any evidence that the police had acted willfully or recklessly in failing to respond to his complaint. Following the precedent in Chamberlain (supra), the court concluded Hill had not even asserted "prejudice" nor had he been able to show "culpable" acts by the defendant police which supported granting his motion for judgment. The court looked at the accepted definition of "culpable" conduct and stated "culpable conduct `is conduct that is taken willfully or in bad faith'" (citing Chamberlain (supra). Before the court examined the case, the police had filed their answer and had asserted the failure to do so was a result of an "administrative" error. From reading the Opinion, it appears the police had entered an appearance but had not filed an Answer. In this case the Defendants have ignored five separate mailed notices of suit, a personal service of the notice and a subsequent Notice on May 12th reminding them that unless they respond by the 19th of May, they will be in default. It is now the 25th day of May and no response whatsoever has been received to the seven separate notices of suit. The Plaintiff suggests this is conduct that is willful or in bad faith.

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The Plaintiff also avers this is a pattern of ignoring the responsibilities imposed upon jailers and may evidence an "arrogant" disregard for the courts due to a misplaced belief that the institution is above the law. This simply may not be tolerated and if necessary, the Plaintiff will be able to produce copies of news articles in the Delaware papers evidencing this ignoring of what is the responsibility of the institution and its administrators and medical stain ff is a pattern which has even resulted in legislative hearings to inquire why. The more recent decision by the Third Circuit is the case of Kelly v. Luzerne Intermediate Unit, 71 Fed. Appx. 116 (C.A. 3(Pa)) wherein the issue was not should a default have been granted but conversely, should one which was granted be opened. The test however is identical. In Kelly (supra), a default had been granted against a teacher who had been allegedly to have sexually harassed one of his students. (Kelly). The district court had denied the motion and the Third Circuit reviewed to determine if the district court had abused its' discretion. The facts in that case almost mirror this one. The Kelly's lawyer had mailed a summons and complaint on May 8, 2000. (In Salazzoni, five mailings preceded personal service. giving the instant case even stronger reasons to grant default judgment.) The defendant, Jerrytone, did not accept informal service and on August 8, 2000 Kelly served Jerrytone formally. On October 26, 2000, counsel for Kelly sent a letter to Jerrytone's residence informing him of counsel's intention to enter a default judgment. Thereafter, on November 10, 2000 Kelly's lawyer sent a copy of the motion for entry of judgment. On December 5, 2000, the clerk entered a default against Jerrytone. In this case, on May 12, 2006, the Plaintiff mailed a Notice that unless a response was filed by May 19th, a default would be sought. A copy of this Motion and Memorandum will be hand delivered to the office of the Defendant by Plaintiff's counsel onJuly 24, 2006 Judge Rosenn, writing for the Court said while the courts generally disfavor default judgments if the record reveals lifting the default would prejudice the plaintiff; whether the defendant has a prima facie meritorious defense; whether the defaulting defendant's conduct is excusable or culpable and whether alternative sanctions would be effective. 11

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In that case, the judgment was not opened. It is respectfully suggested that as in Kelly (supra) the defendants were culpable for their failure to respond. In this case, that culpability and the prejudice to the Plaintiff compels the entry of the judgment requested. Respectfully submitted,

_____________________ Frank J. Marcone, Esquire Attorney for the Plaintiff, Michael Salizzoni July 24, 2006

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Frank J. Marcone, Esq. 2530 North Providence Road Upper Providence, Pennsylvania 19063

610 595 1441 fax 610 505 1448 Atty ID# 08967

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA MICHAEL SALIZZONI Plaintiff vs. GANDER HILL PRISON: JOHN/JANE DOE M.D.MEDICAL DIRECTOR, STATE OF DELAWARE CORRECTIONAL SYSTEM PRISON HEALTH SERVICES, INC., WARDEN GAMDER HILL PRISON. COMMISSIONER, DEPARTMENT OF CORRECTIONSK, STATE OF DELAWARE Defendants : : : : : : : : : : : : NO. 05-CV-6772

Jury Trial Demanded

NOTICE OF LAWSUIT AND REQUEST FOR WAIVER OF SERVICE OF SUMMONS TO: Gander Hill Prison (MPCJF) Howard R. Young Correctional Institution 1301 East 12th Street Wilmington, DE 19801

A lawsuit has been commenced against you (or the entity on whose behalf you are addressed). A copy of the complaint is attached to this notice. It has been filed in the United States District Court for the Eastern District of Pennsylvania and has been docketed number 05cv6772. This in not a formal summons or notification from the court, but rather my request that you sign and return the enclosed waiver of service in order to save the cost of serving you with a judicial summons and an additional copy of the complaint. The costs will be avoided it I receive a signed copy of the waiver within 30 days after the date designated below as the date on which this Notice and Request is sent. I enclose a stamped and addressed envelope (or other means of cost-free return) for your use. An extra copy of the waiver is also attached for your records.

13

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If you comply with this request and return the signed waiver, it will be filed with the court and no summons will be served on you. The action will then proceed as if you have been served on the date the waiver is filed, except that you will not be obligated to answer the complaint before 60 days from the date designated below as the date on which this notice is sent (90 days from the date if your address is not in any judicial district of the United States.) Page 2 If you do not return the signed waiver within the time indicated, I will take appropriate steps to effect formal service in a manner authorized by the Federal Rules of Civil Procedure and will then, to the extent authorized by those Rules, ask the court to require you (or the party on whose behalf you are addressed) to pay the full costs of such service. In that connection, please read the statement concerning the duty of parties to waive the service of the summons, which is set forth on the next page (or at the foot) of the waiver form. I affirm that this request is being sent to you on behalf of plaintiff, this 24th day of April, 2006.

__________________________ Frank J. Marcone, Esquire 2530 North Providence Road Upper Providence, PA 19063 610-595-1441 610-595-1448 (fax) Attorney for Plaintiff, Michael Salizzoni

Date: February 6, 2006

EXHIBIT A

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Frank J. Marcone, Esquire
Attorney at Law (610)595 1441 Fax(610)595 1448

2530 North Providence Road, Upper Providence, Pennsylvania 19063 federal practice only
February 6, 2006 Gander Hill Prison (MPCJF) Howard R. Young Correctional Institution 1301 East 12th Street Wilmington, DE 19801 Re: Michael Salizzoni vs. Gander Hill Prison, John/Jane Doe M.D. Medical Director, State of Delaw are Correctional System Prison Health Services, Inc., Warden Gander H ill Prison, Commissioner, Department of Corrections, State of Delaware United States District Court for the Eastern District of Pennsylvania No. 05-cv-6772

Dear Sir or Madam: Please be advised a civil action has been brought against you in the United States District Court for the Eastern District of Pennsylvania, being Joan Randazzo and David Hatchigian vs. Hartford Insurance Company, a/k/a AARP Insurance Company. The number assigned to the case is 06-cv-1589. I am enclosing the following pursuant to the Rules of Civil Procedure: 1) 2) 3) 4) 5) 6) Complaint; Notice of Lawsuit and Request for Waiver of Service of Summons; Two (2) copies of the Waiver; Duty to Avoid Unnecessary Costs of Service of Summons; Notice of Right to Consent to Exercise of Jurisdiction by a United States Magistrate Judge; Self Addressed Stamped Envelope.

Please note the information contained in the Notice of Lawsuit and Request for 15

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Waiver of Service of Summons and the Waiver of Summons regarding the time in which an answer must be filed. Gander Hill Prison (MPCJF) RE: Michael Salizzoni vs. Gander Hill Prison, et al. February 6, 2006 Page -2______________________________________

I trust you will comply with these requirements and I strongly suggest that the enclosed are immediately forwarded to your solicitor and to the insurance carrier for response. Very truly yours,

Frank J. Marcone FJM:sm enclosures cc: Michael Salizzoni w/enclosure

EXHIBIT B
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Frank J. Marcone, Esq. 2530 North Providence Road Upper Providence, Pennsylvania 19063

610 595 1441 fax 610 505 1448 Atty ID# 08967

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA MICHAEL SALIZZONI Plaintiff vs. GANDER HILL PRISON: JOHN/JANE DOE M.D.MEDICAL DIRECTOR, STATE OF DELAWARE CORRECTIONAL SYSTEM PRISON HEALTH SERVICES, INC., WARDEN GAMDER HILL PRISON. COMMISSIONER, DEPARTMENT OF CORRECTIONSK, STATE OF DELAWARE Defendants : : : : : : : : : : : : NO. 05-CV-6772

Jury Trial Demanded

NOTICE OF LAWSUIT AND REQUEST FOR WAIVER OF SERVICE OF SUMMONS TO: Gander Hill Prison (MPCJF) Howard R. Young Correctional Institution 1301 East 12th Street Wilmington, DE 19801

A lawsuit has been commenced against you (or the entity on whose behalf you are addressed). A copy of the complaint is attached to this notice. It has been filed in the United States District Court for the Eastern District of Pennsylvania and has been docketed number 05cv6772. This in not a formal summons or notification from the court, but rather my request that you sign and return the enclosed waiver of service in order to save the cost of serving you with a judicial summons and an additional copy of the complaint. The costs will be avoided it I receive a signed copy of the waiver within 30 days after the date designated below as the date on which this Notice and Request is sent. I enclose a stamped and addressed envelope (or other means of cost-free return) for your use. An extra copy of the waiver is also attached for your records. If you comply with this request and return the signed waiver, it will be filed with the court 17

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and no summons will be served on you. The action will then proceed as if you have been served on the date the waiver is filed, except that you will not be obligated to answer the complaint before 60 days from the date designated below as the date on which this notice is sent (90 days from the date if your address is not in any judicial district of the United States.) Page 2 If you do not return the signed waiver within the time indicated, I will take appropriate steps to effect formal service in a manner authorized by the Federal Rules of Civil Procedure and will then, to the extent authorized by those Rules, ask the court to require you (or the party on whose behalf you are addressed) to pay the full costs of such service. In that connection, please read the statement concerning the duty of parties to waive the service of the summons, which is set forth on the next page (or at the foot) of the waiver form. I affirm that this request is being sent to you on behalf of plaintiff, this 9TH day of February, 2006.

________________________________ Frank J. Marcone, Esquire 2530 N. Providence Road Upper Providence, PA 19063 610 595 1441 610 595 1448 (fax) Attorney for the Plaintiff Michael Salizzoni.

Date: February 9, 2006

EXHIBIT C
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Frank J. Marcone, Esq. 2530 North Providence Road Upper Providence, Pennsylvania 19063

610 595 1441 fax 610 505 1448 Atty ID# 08967

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA MICHAEL SALIZZONI Plaintiff vs. GANDER HILL PRISON: JOHN/JANE DOE M.D.MEDICAL DIRECTOR, STATE OF DELAWARE CORRECTIONAL SYSTEM PRISON HEALTH SERVICES, INC., WARDEN GAMDER HILL PRISON. COMMISSIONER, DEPARTMENT OF CORRECTIONSK, STATE OF DELAWARE Defendants : : : : : : : : : : : : NO. 05-CV-6772

Jury Trial Demanded

NOTICE OF LAWSUIT AND REQUEST FOR WAIVER OF SERVICE OF SUMMONS TO: Gander Hill Prison (MPCJF) Howard R. Young Correctional Institution 1301 East 12th Street Wilmington, DE 19801

A lawsuit has been commenced against you (or the entity on whose behalf you are addressed). A copy of the complaint is attached to this notice. It has been filed in the United States District Court for the Eastern District of Pennsylvania and has been docketed number 05cv6772. This in not a formal summons or notification from the court, but rather my request that you sign and return the enclosed waiver of service in order to save the cost of serving you with a judicial summons and an additional copy of the complaint. The costs will be avoided it I receive a signed copy of the waiver within 30 days after the date designated below as the date on which this Notice and Request is sent. I enclose a stamped and addressed envelope (or other means of cost-free return) for your use. An extra copy of the waiver is also attached for your records. If you comply with this request and return the signed waiver, it will be filed with the court 19

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and no summons will be served on you. The action will then proceed as if you have been served on the date the waiver is filed, except that you will not be obligated to answer the complaint before 60 days from the date designated below as the date on which this notice is sent (90 days from the date if your address is not in any judicial district of the United States.) Page 2 If you do not return the signed waiver within the time indicated, I will take appropriate steps to effect formal service in a manner authorized by the Federal Rules of Civil Procedure and will then, to the extent authorized by those Rules, ask the court to require you (or the party on whose behalf you are addressed) to pay the full costs of such service. In that connection, please read the statement concerning the duty of parties to waive the service of the summons, which is set forth on the next page (or at the foot) of the waiver form. I affirm that this request is being sent to you on behalf of plaintiff, this 15TH day of February, 2006.

________________________________ Frank J. Marcone, Esquire 2530 N. Providence Road Upper Providence, PA 19063 610 595 1441 610 595 1448 (fax) Attorney for the Plaintiff Michael Salizzoni.

Date: February 15, 2006

EXHIBIT D
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Frank J. Marcone, Esquire
(610)595 1441 Attorney at Law 2530 North Providence Road, Upper Providence, Pennsylvania 19063 Fax(610)595 1448 federal practice only May 12, 2006

Gander Hill Prison State of Delaware Correctional System Prison Health Services, Inc. Warden, Gander Hill Prison Commissioner, Department of Corrections State of Delaware (Howard R. Young Correctional Inst.) 1301 East 12th Street P.O. Box 9279 Wilmington, Delaware, 19809 Gentlemen: Service of a Complaint and Notice that unless a response is received by the Court on or before the 19 th of May, a Judgment by default will be entered against you has been served upon your office on April 28, 2006. The Complaint which has been served upon your office is captioned as follows: IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA MICHAEL SALIZZONI Plaintiff : : : vs. : : GANDER HILL PRISON: JOHN/JANE DOE : M.D. MEDICAL DIRECTOR, STATE OF : DELAWARE CORRECTIONAL SYSTEM : PRISON HEALTH SERVICES, INC., WARDEN : GANDER HILL PRISON, COMMISSIONER, : DEPARTMENT OF CORRECTIONS, STATE OF : 21 CIVIL ACTION NO. 05-6772

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DELAWARE, Defendants

: :

jury trial demanded

Defendants May 12, 2006 page 2 ____________________ Please attend to this as Notified. Very truly yours,

Frank J. Marcone FJM/sm cc: Hon. Anita B. Brody Michael Salizzoni

EXHIBIT E
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CERTIFICATION OF SERVICE

Frank J. Marcone, Esquire, attorney for the Plaintiff, Michael Salizzoni does hereby Certify that on July 24th , 2006, at approximately 3:45 P.M., he hand delivered a true and correct copy of the attached Motion for Default Judgment to the Gander Hill Prison, also known as the Howard R. Young, Correctional Institution located at 1301 E. 12th Street, Wilmington, Delaware 19801 and presented said copy to Cpl. B. Fote and Cpl. J. Edwards who summoned Lieut. P. Sheets. Lieut Sheets was told the document was seeking a judgment since no one at the Correctional Institution had responded including the medical staff. He hand carried the document into an office off the lobby and it appeared he was delivering the document to someone in control. ___________________________ Frank J. Marcone, Esquire Attorney for Michael Salizzoni, Plaintiff.

July 25, 2006

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA Michael Salizzoni, Plaintiff, ) ) ) v. ) ) Gander Hill Prison; John/Jane Does; M.D. ) Medical Director; State of Delaware ) Correctional System, Prison Health Services, ) Inc.; Warden Gander Hill Prison; Commissioner) Department of Corrections, State of Delaware, ) Defendants. )

Civil Action No. 05-6772

LIMITED ENTRY OF APPEARANCE TO THE CLERK OF THE COURT: PLEASE ENTER THE APPEARANCE of Ophelia M. Waters, Deputy Attorney General, on behalf of defendants, State of Delaware, Department of Correction, Gander Hill Prison (properly known as Howard R. Young Correctional Institution); Warden of Gander Hill Prison and Commissioner of the Delaware Department of Correction. This limited Entry of Appearance shall not be considered to be a waiver of any jurisdictional defects or defects in service upon the defendants. The defendants specifically reserve all rights to raise jurisdictional, service or statute of limitations defenses which may be available. STATE OF DELAWARE DEPARTMENT OF JUSTICE /s/ Ophelia M. Waters, pro hac vice Ophelia M. Waters, I.D. #3879 Deputy Attorney General 820 North French Street, 6th Floor Wilmington, Delaware 19801 (302)577-8400 [email protected] Counsel for State Defendants

Dated: August 18, 2006

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CERTIFICATE OF SERVICE I hereby certify that on August 18, 2006, I electronically filed Entry of Appearance with the Clerk of Court using CM/ECF. I hereby certify that on August 18, 2006, I have mailed by United States Postal Service, the document to the following non-registered participant: Frank J. Marcone, Esquire, 2530 N. Providence Rd, Upper Providence, Pennsylvania 19063, Amy Zapp, Esq., Office of Attorney General, Walnut Street and Market Street, 16th Floor, Strawberry Square, Harrisburg, PA 17120.

STATE OF DELAWARE DEPARTMENT OF JUSTICE /s/ Ophelia M. Waters, pro hac vice Ophelia M. Waters, I.D. #3879 Deputy Attorney General 820 North French Street, 6th Floor Wilmington, Delaware 19801 (302)577-8400 [email protected]

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA Michael Salizzoni, Plaintiff, ) ) ) v. ) ) Gander Hill Prison; John/Jane Doe; M.D. ) Medical Director; State of Delaware ) Correctional System, Prison Health Services, ) Inc.; Warden Gander Hill Prison; Commissioner) Department of Corrections, State of Delaware, ) Defendants. )

Civil Action No. 05-6772

STATE DEFENDANTS' MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT State of Delaware, Department of Correction, and its Commissioner and Warden, prison officials ("State defendants"), by and through undersigned counsel, hereby oppose the entry of default judgment pursuant to Federal Rules of Civil Procedure Rule 55 (c). In support of the opposition, defendants offer the following to demonstrate good cause why default should not be entered against them. FACTS 1. On or about December 25, 2005, plaintiff1 filed the instant lawsuit within

the Eastern District Court of Pennsylvania pursuant to 42 U.S.C. §1983 alleging a deprivation of plaintiff's rights to adequate medical treatment against the above captioned defendants.2 2.
1

This action is based on plaintiff's allegation that his civil liberties were

According to the Complaint, Michael Salizzoni is a Delaware resident of 661 Whiterock Road, Bear, Delaware 19701. At all relevant times, plaintiff resided in the State of Delaware. Defendants are the State of Delaware, and its agents and state officials. By entering a limited appearance, State Defendants do not intend to avail themselves of the general jurisdiction of Pennsylvania and do not intend to waive any jurisdictional defenses available to this action.

2

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violated when he was a prisoner at the Howard R. Young Correctional Institution ("HRYCI"), in Wilmington, Delaware a/k/a Gander Hill, on or about November 23, 20023. (D.I.1). Plaintiff alleges that he suffered the disease Hepatitis C for which he treated with chemotherapy. Id. He further alleges that during his brief incarceration in the custody of the Delaware Department of Correction ("DDOC") he was prevented from continuing his course of therapy. Id. As a result, he alleges, "interruption in his regimen of treatment had probably rendered the disease terminal." Id. 3. Service of the summons and complaint had not been accomplished upon

any defendant within 120 days after filing of the complaint as required by Federal Rules of Civil Procedure 4 (m). Neither the State Defendants nor the Attorney General were served with copies of Plaintiff's complaint or in accordance with 10 Del. C. § 3103(c).4 Plaintiff sought leave to extend service to no later than May 10, 2006. (D.I. 4). The Court granted plaintiff's motion to extend the time for service. (D.I. 5). A review of the court docket entries reveals " summons returned executed filed by Michael Salizzoni re: Robert Frick served Summons and Complaint upon Gander Hill prison by personal service." (D.I. 6). 4. On or about July 25, 2006, Plaintiff filed a motion for default judgment

against all of the above-captioned defendants with the District Court. (D.I. 8). However, on July 28, 2006, the Delaware Department of Justice received a letter dated July 24,

3

Plaintiff's last known period of incarceration was during a three week period commencing November 13, 2002 through December 6, 2002. 10 Del. C. § 3103 reads, in pertinent part, (c) "No service of summons upon the State, or upon any administrative office, agency, department, board or commission of the state government, or upon any officer of the state government concerning any matter arising in connection with the exercise of his or her official official powers or duties, shall be complete until such service is made upon the person of the Attorney General or upon the person of the State Solicitor or upon the person of the Chief Deputy Attorney General."

4

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2004 advising that Plaintiff had filed a motion for a default judgment against the defendants. (D.I. 9). This is Defendants' opposition to Plaintiff's Motion for Default Judgment.

ARGUMENT

5.

Federal Rules of Civil Procedure Rule 55 (b) provides: "when a party has

failed to appear, plead or otherwise defend, as provided by these Rules, and that fact is made to appear, judgment by default may be entered . . . ." [emphasis added]. Whether a default judgment shall issue is in the Court's discretion. 6. The Third Circuit has adopted a policy of disfavoring default judgments

and encouraging decisions on the merits. See Harad v. Aetna Casualty & Surety Company, 839 F.2d 979, 982 (3d Cir. 1988); Jones v. Kearney, 2000 WL 1876433 (D. Del.); Ore, Inc. v. Hawkins, 1995 WL 133637 (E.D. Pa.).

The District Court Should Deny Plaintiff's Motion for Default Judgment
7.

The Defendants respectfully submit that it is inappropriate to enter default

judgment under the circumstances present in the instant case. While the Court has not yet granted Plaintiff's motion for default, cases which set aside default judgments are instructive. Factors a court must consider to decide whether to set aside a default are: (1) whether vacating the default would prejudice the plaintiff; (2) whether the defendant has a prima facie meritorious defense; and (3) whether the defaulting defendant's conduct is excusable or culpable. Emcasco Ins., Co., v. Sambrick, 834 F.2d 71, 73 (3d Cir. 1987); 55,518.05 in U.S. Currency, 728 F.2d 192 (3d Cir.1984); Feliciano v. Reliant Tooling

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Co., 691 F.2d 653, 656 (3d Cir.1982); Spurio v. Choice Sec. Sys., Inc., 880 F. Supp. 402, 404 (E.D.Pa.1995). All three factors must favor the party seeking a default judgment. Delay, by itself, is rarely sufficient to establish the required degree of prejudice necessary to support a default judgment. Feliciano, 691 F.2d at 656. 8. Default is not favored and doubt should be resolved in favor of setting

aside a default and reaching a decision on the merits. 99 Stores, Inc. v. Dynamic Distributors, C.A. No. 97-3869, 1998 WL 24338, at *4 (E.D.Pa. 1998) (Exhibit A) (setting aside default judgment based on lack of prejudice, assertion of meritorious defense, and lack of culpable conduct by the Defendants) (citing Gross v. Stereo Component Systems, Inc., 700 F.2d 120, 122 (3d Cir.1983) and Farnese v. Bagnasco, 687 F.2d 761, 764 (3d Cir.1982)). The Third Circuit has noted that "a standard of `liberality,' rather than `strictness' should be applied in acting on a motion to set aside a default judgment, and that `(a)ny doubt should be resolved in favor of the petition to set aside the judgment so that cases may be decided on their merits.'" Medunic v. Lederer, 533 F.2d 891, 893-94 (3d Cir. 1976) (quoting Tozer v. Charles A. Krause Milling Co., 189 F.2d 242, 245-46 (3d Cir. 1951)). 9. Default is a disfavored manner in which to resolve litigation and Plaintiff

has failed to demonstrate any prejudice which would result from allowing this case to proceed on the merits. Additionally, the Defendants respectfully argue that they will plead meritorious defenses and that the delay in responding to the complaint occurred through no fault of the individual defendants. According to the standards for setting aside default judgments, the Defendants would be entitled to have any default judgment set aside.

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A. 10.

Lack of Prejudice. The Plaintiff, incarcerated at the time of the filing of the complaint, no

longer continues to be incarcerated within the State of Delaware Department of Correction. Plaintiff has failed to identify how he would suffer any prejudice by denying his motion for default judgment. The effect of denial of his motion would be to allow the case to proceed and permit Plaintiff the opportunity to litigate his claim. The delay in this matter is attributable to the Plaintiff. According to the docket, Plaintiff waited more than 120 days to effect proper service of the complaint on the defendants. (See D.I. 6). To the extent Plaintiff claims any prejudice, Plaintiff failed to pursue available remedies for a period of nearly three years. It would be disingenuous for Plaintiff to now claim that this delay caused him prejudice. 11. Furthermore, Plaintiff's claim is based on rights which are not legally

cognizable. Plaintiff's alleges that his civil liberties were violated when he was incarcerated for a period of approximately three weeks without adequate medical treatment. (D.I. 1). In order to state a claim for a violation of the Eighth Amendment in a case alleging inadequate medical treatment, " a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend `evolving standards of decency.'" Estelle v. Gamble, 429 U.S. 97, 106 (1976) (citing Trop v.Dulles, 356 U.S. 86, 101 (1958)). 12. The Estelle test has two components, the first of which requires that the

plaintiff shows a serious medical need. Boring v. Kozakiewicz, 833 F.2d 468, 473 (3d Cir. 1987) (quotations and citations omitted), cert. denied, 486 U.S. 1006 (1988). To satisfy the "deliberate indifference" portion of the Estelle test, a plaintiff must allege that a

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defendant either acted with reckless disregard for, or with actual intent to disregard, his medical condition. Benson v. Cady, 761 F.2d 335, 339 (7th Cir. 1985). In Farmer v. Brennan, the Supreme Court set forth a subjective standard for the purpose of determining deliberate indifference: We hold . . . that a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health and safety; the official must be aware of facts from which there could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. 511 U.S. 825, 834 (1994). "Thus, under this prong, a prisoner must show not only that the official knew of the serious medical need, but also that he or she consciously disregarded it." Waller v. O'Day, Civ. A. No. 96-45 RRM, McKelvie, J., slip op. at 9 (D. Del. 1996)(citation omitted). Plaintiff fails to identify an act or omission with deliberate indifference performed by any individual state official or employee from the Howard R. Young Correctional Institution that would state a claim under the Eighth Amendment. As Estelle explains, "mere difference of opinion between the prison's medical staff and the inmate as to the diagnosis or treatment which the inmate receives does not support a claim of cruel and unusual punishment." Estelle, supra, n. 21. See also, Fitzgerald v. Septer, 1998 U.S. Dist. LEXIS 23397, C.A. No. 97-663-JJF at 2 (D. Del. July 27, 1998) (holding that claim alleging mere dissatisfaction with medical care administered to prisoner is insufficient to support cognizable claim under § 1983); Johnstone v. United States, 980 F. Supp 148, 153 (E.D. Pa. 1997). 13. Plaintiff's claim is non-meritorious ab initio. He cannot possibly establish

that the delay in responding to his complaint has prejudiced his ability to litigate or

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recover. 5 B. 14. Defendants have demonstrated a prima facie meritorious defense. To determine whether a defense is meritorious, the court considers the

plaintiff's allegations. See 55,518.05 in U.S. Currency, 782 F.2d at 195. The Defendants assert that reading the allegations of the complaint as true Plaintiff fails to state a claim upon which relief can be granted. At best, Plaintiff alleges solely negligent treatment of a medical condition. Even assuming Plaintiff's complaint could survive the pleading stage the Defendants will raise lack of jurisdiction, the Eleventh Amendment, statute of limitations, qualified immunity, and the Prison Litigation Reform Act (PLRA) as defenses to Plaintiff's claims. The Defendants will raise meritorious defenses to Plaintiff's claims and Plaintiff has suffered no prejudice by this delay. Plaintiff's motion for default judgment should be denied. C. 15. The Defendants' individual conduct is not culpable. In evaluating whether defendants' conduct is culpable, the court must Therefore,

decide if defendants' actions were caused by mistake or excusable neglect. See, Feliciano, 691 F.2d at 656. The individual defendants did not intentionally, knowingly, or recklessly attempt to delay the proceedings in this matter. The Delaware Department of Justice routinely (and almost exclusively) represents the State, state officials and employees in relation to suits arising from their employment. See, 10 Del. C. § 3925. 16. Federal Rules of Civil Procedure Rule 55 (b) provides:

[W]hen a party against whom a judgment for affirmative relief is sought, has failed to appear, plead, or otherwise defend as provided by these Rules, and that fact is made to appear, judgment by default may be
5

This argument is not intended to suggest that the Defendants simply ignored the complaint because they believed it was frivolous. If permitted, the Defendants will submit their arguments for dismissal to the Court for its determination.

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entered. This rule must be read in conjunction with 10 Del. C. §3103(c) concerning service of process upon the State, its officers and employees. The Defendants in this action are officers of the state government and the claim against them arose in connection with the exercise of their official powers and duties. To this date, the Plaintiff has failed to serve any member in the Attorney General's office. Therefore, no service of summons upon the Defendants in this matter is complete and a response is not required. Until a return showing proper service upon the defendant is before the court, judgment by default should not be granted. See, Gold Kist, Inc., v. Laurinburg Oil Company, 756 F.2d 14, 1819 (3d Cir. 1985) ("A default judgment entered when there has been no proper service of the complaint is a fortiori, void, and should be set aside."). 17. Moreover, the court lacks in personam jurisdiction to enter a default

because the defendants were never properly served with the complaint. Plaintiff's failure to appropriately serve the Defendants excuses their neglect to respond to the complaint and default is inappropriate. Gold Kist, 756 F.2d at 19. CONCLUSION

Plaintiff fails to demonstrate that he will suffer substantial prejudice if the default judgment is not entered and he is required to proceed to trial. Absent a showing of substantial prejudice, no harm exists in permitting the Defendants to respond to the complaint and Plaintiff's motion for default judgment is properly denied. 99 Stores, Inc. v. Dynamic Distributors, supra at *4 (E.D.Pa. 1998). Wherefore, for the hereinabove reasons, State defendants respectfully request that the Court deny Plaintiff's requests for default or entry of a default judgment

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in this matter and further request that the Court permit State defendants twenty (20) days to answer or otherwise defend against the complaint.

STATE OF DELAWARE DEPARTMENT OF JUSTICE

/s/ Ophelia M. Waters, pro hac vice Ophelia M. Waters, ID#3879 Deputy Attorney General Department of Justice 820 N. French Street, 6th Floor Wilmington, Delaware 19801 Attorney for State Defendants Dated: August 18, 2006

Case 1:06-cv-00659-GMS Case 2:05-cv-06772-AB

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA Michael Salizzoni, Plaintiff, ) ) ) v. ) ) Gander Hill Prison; John/Jane Does; M.D. ) Medical Director; State of Delaware ) Correctional Syst