Free Motion to Dismiss for Failure to State a Claim - District Court of Delaware - Delaware


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— I Case 1 :05-cv—00067-SLR Document 25-2 Filed 09/1 1/2006 Page 1 of 3
Not Reported in F.Supp.2d -
` (Cite as: 2003 WL 292085 (D.Del.))
Only the Westlaw citation is currently available. treatment of his injury and to be reassigned to a
bottom bunk. Plaintiff alleges that the Delaware
United States District Court, Correctional Center has retaliated against him for this
D. Delaware. litigation by assigning him a top brmk. Due to his leg
injury, plaintiff experiences pain and suffering from
Michael T. HYSON, Plaintiff, having to climb to the top bunk.
v.
CORRECTIONAL MEDICAL SERVICES, INC., "[T]he grant of injunctive relief is an 'extraordinary
Robert Hampton, Dr. Canciho and Dr. remedy, which should be granted only in limited
Rizwan, Defendants. circumstances} ‘ Instant Air Freight Co. v. C.F. Air
Freight, Inc., 882 F.2d 797, 800 (3d Cir.1989)
No. Civ.A. 02-318. (quoting Frank 's GMC Truck Center, Inc. v. General
Motors Corp., 847 F.2d 100, 102 (3d Cir.1988)). In
Feb. 6, 2003. ruling on a a preliminary injunction, this court must
consider: 1) the likelihood of success on the merits; 2)
_ MEMORANDUM ORDER 4 the extent to which the plaintiff is being irreparably
harmed by the conduct complained of; 3) the extent to
ROBINSON, J. which the defendant will suffer irreparable harm if the
requested relief is granted; and 4) the public interest.
I. INTRODUCTION See Clear Ocean Action v. York, 57 F.3d 328, 331
(3d Cir.1995). An injunction should only issue if all
*1 On April 30, 2002, plaintiff tiled this action under four factors favor injunctive relief. See S & R Corp.
42 U.S.C. § 1983 against Correctional Medical v. Jyjy Lube Intern., Inc., 968 F.2d 371, 374 (3d
Services, Inc. ("CMS"), Robert Hampton, Dr. Cir.l992).
Canciho and Dr. Rizwan. (D.l.2) Plaintiff alleges that
he was "denied proper and adequate medical Plaintiffs claim is that he was denied treatment for a
treatment. " (Id.) serious medical need.
Failure to give adequate medical treatment to
Currently before the court is plaintnfs motion for pnsoners is a comtitutional violation when it results
injunctive relief, motion to compel and motion for from "deliberate indifference to aprisoner's serious
summary judgment. (D.I. 12, 29, 36) Also before the illness or injury." Estelle v. Gamble, 429 U.S. 97,
court is CMS's motion to dismiss for failure to 105 (1976). This standard "requires (1) deliberate
exhaust administrative remedies and for failure to indifference on the part of prison officials and (2)
state a claim. (D.I.35) For the following reasons, the the prisoner's medical needs to be serious." West v.
court shall deny each motion. Keve, 571 F.2d 158, 161 (3d Cir.1978).
H. BACKGROUND * * *
[The Third Circuit] cases describe acts or omissions
Plaintiff is currently incarcerated in the Delaware that fail to display a serious use of medical
Correctional Center. Plaintiff alleges that sometime in judgment. An incidence of negligence or malpractice
February 2001 he slipped in the stairwell of his unit does not violate the Eighth Amendment. Estelle, 429
and injured his leg. (D.I.2) He was treated at that time U.S. at 106. Similarly, a difference of medical
and was informed that x-rays showed no visible opinion between the prison's medical staff and the
injury. Plaintiff alleges continuing pain and visible inmate as to the latter’s course of treatment does not
injury to his leg. (Id.) Plaintiff states he was examined support a claim of cruel and unusual punishment.
several times and each time told that there was no See Waldrop v. Evans, 871 F.2d 1030, 1033 (11th
visible injury on the x- rays. Cir.l989).
*2 Miller v. Correctional Medical Services, Inc.,
HI. DISCUSSION 802 F.Supp. 1126, 1130-31 (D.Del.1992).
A. Plaintiffs Motion for Injunctive Relief Under the requisites for injunctive relief, plaintiff has
failed to demonstrate a likelihood to succeed on the
Plaintiff requests injunctive relief for outside merits. Plaintiff concedes in his complaint that he has
Copr. © West 2003 No Claim to Orig. U.S. Govt. Works

V- Case 1 :05-cv—00067-SLR Document 25-2 Filed 09/1 1/2006 Page 2 of 3
Not Reported in F.Supp.2d -
" (Cite as: 2003 WL 292085, *2 (D.Del.)) 5 i
had at least two sets of x-rays and been seen by at F.3d 478, 483 (3d Cir.1998). "A complaint should be
least two different doctors for his injury. Both doctors dismissed only if, after accepting as true all of the
reported no injury based on the x-rays. Plaintiff, on facts alleged in the complaint, and drawing all
the other hand, believes he is injured. On the face of reasonable inferences in the plaintiffs favor, no relief
the complaint, plaintiff has not shown a deliberate could be granted under any set of facts consistent with
indifference on the part of defendants to serious the allegations of the complaint. " Id. Claims may be
medical needs. [FN1] dismissed pursuant to a Rule 12(b)(6) motion only if
the plaintiff cannot demonstrate any set of facts that
FN1. Plaintiff claims that his bunk placement is in would entitle him to relief. See Conley v. Gibson, 355
retaliation for this lawsuit. (D.I. 12 at 1) Courts have U_S_ 41, 45-46 (195"/)_ Where the plaintiff jg g ppg sg
"recognized that retaliation claims by prisoners are Hdgant, me com-{ has an Obligation to const!-uc me
¤Sv}=¤lellr 'nfem lll el¤S=·' Due l0 'llle me Wllll eempreiet liberally. see Haines V. eeeeer, an os.
Wlllcll “’“”?“°“ °"*“”i my "?".“‘b“°“*f“· .[“‘°Y 519, 520-521 (1972); Gibbs v. Rormzrz, 116 F.3d aa,
should be] vrewed[ed] with skepticism and partrcular _ , _
carelvr v Wogds V. Goord, NO. 01 Civ- 3255, 2002 H. 6 Urrlltlfl V. Hélrrlsbllrg COHHW
WL 31296325, at *7 (g_D_N _Y_ Oc]; 1()_ 2002) Police Dep 't., 91 F.3d 451, 456 (3d Cir.1996). The
(quoting rrabeny V. cbegbrbe, 713 me ro, rs as moving PNY inn mn burden nf pnrnnnsinn- Sen Keir
Cir.1983); Colon v. Coughlin, 58 F.3d 865, 873 (2d Packages, Irzc. v. Fidelcor, Inc ., 926 F.2d 1406,
Cir-.1995)). 1409 (3d Cir.1991).
There being no evidence presented regarding either 1. Exhaustion of Administrative Remedies
the extent to which defendants will suffer irreparable
harm if injunctive relief is granted, or the public Defendant Correction Medical Services argues that
interest, the cotut cannot address those issues. plaintiff did not exhaust his administrative remedies
However, it is not necessary to do so, as failure to prior to filing this action pursuant to the Prison
meet any one of the factors is sufficient to deny relief. Litigation Reform Act ("PLRA"), 42 U.S.C. §
Thus, the court denies plaintiffs motion for injtmctive 1997e(a). [FN4] Before filing a civil action on a
relief. denial of medical services claim, a plaintiff-inmate
must exhaust his administrative remedies. See Booth
B. Plaintiffs Motion to Compel v. Churner, 206 F.3d 289, 295 (3d Cir.2000), cert.
granted, 531 U.S. 956 (2000), a]j"d, 121 S.Ct. 1819
Plaintiff has filed a motion to compel CMS to provide (2001). 9
the addresses of Robert Hampton, Dr. Canciho and
Dr. RlZWHI1. Although u0t stated, the C0u1’t assumes FN4. The PLRA provides, inpertinent part:
plaintiff desires the addresses to effectuate service of No action shall be brought with respect to prison
p]·()c535_ [FN2] P]gj]][jff'g mgtiqu is grgmcd fg; (hg cclldltiulls under section 1983 of this title, Or any
purpose of obtaining addresses to serve process. To 9*99l Fedlilal la“’· 9Y 9P9F9¤9l 9999999 lll llllYl9l1·
the extent CMS is able to provide an address to serve PHSYHJ °r_ Other °°‘T°°"°ml faclmy Plum ml
. administrative remedies as are available are
the named defendants, [FN3] rt must do so. exhausted.
42 U.S.C. § 1997e(a).
FN2. The court notes that return of service
ag;/ccuted bfll med le DIS` Cmcm md *3 In the case at bar, the record indicates that
Em' (D` `“ ’2 ) plaintiff tiled grievance forms on December 12, 2001
_ _ and February 24, 2002. (D.I.2) The record does not
FN3‘ 96 f°°°rd d°°S mt mdmtc Wh°th°r the reflect a resolution of these grievances of the current
named defendants are currently employed by CMS. Status- Plaintiff also alleges to have exhausted his
_ _ _ administrative remedies. (D.I. 36 at 1) Thus, the court
C- l><>l<¢¤ remedies. Defendant's motion to dismiss for failure to
I9 9¤91YZl9g 9 m999ll *9 dlmllss P9Y$999t *9 Rule exhaust administrative remedies is denied.
12(b)(6), the court must accept as true all material
allegations of the complaint and it must construe the 2_ Liability gf CMS
complaint in favor of the plaintiff. See Trump Hotels
& Casino Resorts, Inc. v. Mirage Resorts, Inc., 140 As to the liability of CMS, it is an established .
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—— ` Case 1 :05-cv—00067-SLR Document 25-2 Filed 09/1 1/2006 Page 3 of 3
A Not Reported in F.Supp.2d · K
V (Cite as: 2003 WL 292085, *3 (D.Del.)) i
principle that, as a basis for liability rmder 42 U.S.C. summary judgment is denied as moot.
§ 1983, the doctrine of respondeat superior is not (
acceptable. See Monell v. Dep 't. of Social Servs., 436 V. CONCLUSION
U.S. 658 (1978); see also Rodev. Dellarczprete, 845
F.2d 1195, 1207 (3d Cir.l988); Swan v. Daniels, 923 Therefore, at Wilmington, this 6th day of February,
F.Supp. 626, 633 (D.Del.1995) (applying principle to 2003;
liability of private corporations that provide medical
services for State). Personal involvement by a IT IS ORDERED that:
defendant is essential in a civil rights action. See
Rode, 845 F.2d at 1207. "Allegations of personal l. Plaintiffs motion for injunctive relief (D.I.12) is
direction or of actual knowledge and acquiescence" denied.
are adequate to demonstrate personal involvement. Id.
Such allegations are required to be "made with 2. Plaintiffs motion to compel (1).1.29) is granted.
appropriate particularity." Id. Plaintiffs complaint On or before March 5, 2003, defendant Correction
states "the defendants knew of and were aware of his Medical Services shall provide plaintiff with the
, foot problem, yet ignored administering the adequate service address for defendants Hampton, Canciho and
and proper treatment[.]" The court finds that, on a Rizwan or aver that it does not have such information.
motion to dismiss, the complaint is sufficient to allege
actual knowledge with the appropriate particularity. 3. Defendant Correctional Medical Seryice's motion
Thus, defendant's motion to dismiss is denied. to dismiss (D.I.35) is denied.
D. Plaintiffs Motion for Summary Judgment 4. Plaintiffs motion for summary judgment (D.l.36)
is denied as moot.
Plaintiffs motion, although styled as a motion for
summary judgment, is an answer to defendant's 2003 WL 292085 (D.Del.)
motion to dismiss. The court has denied defendanfs
motion to dismiss. As such, plaintiffs motion for END OF DOCUMENT
Copr. © West 2003 No Claim to Orig. U.S. Govt. Works