Free Reply to Response to Motion - District Court of Delaware - Delaware

Case 1:05-cv-00037-SLR Document 62-3 Filed 03/22/2006 Page 1 o[¤3gc 2 OI"4
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Not Repeated in F.supp,2a Page 1
Not Reported in F.Supp.2d, 2003 WL 2138372Y (D.Del.)
(Cite as: Not Reported in F.Supp.2d)
C II. BACKGROUND
Only the Westlaw citation is currently available.
United States District Court,D. Delaware. Plaintiff is an inmate at the Sussex Correctional
Terrence L. SMULLEN, Plaintiff] Institution in Georgetown, Delaware. {D.I.6) Upon
v. being incarcerated on July 30, 1999, plaintiff claims
Rick KEARNEY, Warden, Prison Health Services that Dr. Roberta Burns, a physician with Prison
and Roberta Burns,M.D. Defendants. Health Services, told plaintiff that a pre-existing
No. Civ.A.02-082-SLR. hernia he had was nothing to be alarmed about.
(D.l.2) On April 24, 2000, plaintiff complained of
June 13,2003. stomach pains, which Dr. Burns treated with an
enema. (Id.) Plaintiff was then sent back to his
housing unit and instructed to return if his ailments
Terrence L. Smullen, plaintiff, pro se. persisted. (Id.)
Stuart B. Drowos, Department of Justice, State of
Delaware, Robert Karl Beste, Ill, White & After numerous subsequent complaints, plaintiff
Williams, Wilmington, Delaware, for defendants. was sent to the Medical Department in the Max
Building and then taken to Beebe Medical Center (“
MEMORANDUM OPINION Beebe”) in Lewes, Delaware. (ld.) At Beebe,
plaintiff claims to have been diagnosed with a "
ROBINSON, Chief J. strangulated direct hemia." (Id.) Upon discharge
from Beebe on April 30. 2000, plaintiff claims to
I. INTRODUCTION have been diagnosed with “appendicitis and
incarcerated right inguinal hemia." (ld.)
*1 On January 31, 2002, pro se plaintiff Terrence
L. Smullen filed this action against defendants Rick Plaintiff was re-admitted to Beebe on June 29,
Kearney, Warden of Sussex Correctional 2000, complaining of breathing complications. (ld.)
Institution, Prison Health Service and Roberta Upon te-admission, plaintiff was diagnosed with an
Burns, M .D. pursuant to 42 U.S.C. § 1983 alleging "enlarged heart" and toxic blood due to depression
violations of the Eighth Amendment based on medication administered at the Sussex Correctional
inadequate medical cate. This court has jurisdiction Institute. (Id.) On July 3, 2000, plaintiff was
pursuant to 28 U.S.C. § 1331. Presently before the discharged with a diagnosis of "congestive heart
court is plaintiffs motion for appointment of failure." [Id.) Plaintiff now claims to suffer from a
counsel {D.I.20} and defendants motions to dismiss. severe form of heart disease (cardiomyopothy) due
(D.l.l8, 21) On March 23, 2003 this court issued an to defendants' "unprofessional acts and diagnosis." (
order stating that because matters outside the ld.]
pleadings were presented to the court in support of
the motions to dismiss, the court would review On January 31, 2002, this court granted plaintiff
defendants motions as motions for summary leave to proceed in forum pauepris and ordered an
judgment pursuant to Fed.R.Civ.P. 120:] and 56(ln). initial partial filing fee of $2.33 to be paid within
{D.I.24) For the reasons that follow the court shall thirty (30) days to avoid dismissal. (D.l.l} Plaintiff
deny plaintiffs motion for appointment of counsel did not timely pay the fee and his complaint was
and grant defendants' motions for summary dismissed without prejudice. (DJ.4) On March 22,
judgment. 2002, the court received plaintiffs motion for
reconsideration, requesting additional time to pay
2006 Thomson} West. No Claim to Orig. U.S. Govt. Works.
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Case 1:05-cv-00037-SLR Document 62-3 Filed 03/22/2006 Page 2 ogggc 3 OM
Not Reported in F.Supp.2d Page 2
Not Reported in F.Supp.2cl, 2003 WL 21383727 (D.Del,)
(Cite as: Not Reported in F.Supp.2rt)
the filing fee. (D.I.5) On April 3, 2002, the court U.S.3l7,322(l986).
extended plaintiffs deadline to pay the initial partial
filing fee to May 6, 2002. (D.l.6} On April 24,
2002, plaintiff made the first partial filing fee IV. DISCUSSION
payment of $2.33. (D.I.6) On or around November
1, 2002, plaintiff moved for appointment of A. Plaintiff has not exhausted the administrative
counsel. (D.I.l6) On November 14, 2002, remedies available to him within the Sussex
defendants moved to dismiss. (D.I. 18) Correctional Institute, thus requiring dismissal
under 42 U.S.C. § 1997e
lll. STANDARD OF REVIEW
The Prison Litigation Reform Act of 1996, codified
*2 A court shall grant summary judgment only if “ at 42 U.S.C. § 1997e, provides:
the pleadings, depositions, answers to (a) No action shall be brought with respect to prison
interrogatories, and admissions on file, together conditions under [42 U.S.C. § 1983] or any other
with the affidavits, if any, show that there is no Federal Law, by a prisoner confined in any jail,
genuine issue as to any material fact and that the prison or other correctional facility until such
moving party is entitled to judgment as a matter of administrative remedies as are available to him are
law." Fed.R.Civ.P. 56(c). The moving party bears exhausted.
the burden of proving that no genuine issue of
material fact exists. See Matsushita Elec. Indus. Co.
v. Zerzirh Roriio Corp., 475 U.S. 574, 586 n. 10 Courts have consistently held that inmates must first
(1986). "Facts that could alter the outcome are ‘ exhaust all administrative remedies available prior
material,’ and disputes are “genuine’ if evidence to filing a § 1983 action based upon prison
exists from which a rational person could conclude conditions, regardless of futility. Booth v. Churrier,
that the position of the person with t]1e burden of 532 U.S. 731 (2001); See, eg. Nyhuis v. Reno 204
proof on the disputed issue is correct." Horowitz v. F .3d 65, 67 (3d Cir.2000). The Delaware
Fed. Kemper Li: Assurance Co., 57 F.3d 300, 302 Department of Correction administrative procedures
n. 1 (3d Cir.I995) (internal citations omitted). If the provide that
moving party has demonstrated an absence of medical grievances be submitted to the [Inmate
material fact, the norunoving party then "must come Grievance Chair], who will forward the grievance to
forward with ‘specific facts showing that there is a the medical service contractual staff for review. The
genuine issue for trial." ` Matsushita, 475 U.S. at medical services contractual staff will attempt
587 (quoting Fed.R.Civ.P. 56(e)). The coun wi]1 " infonnal resolution of the matter. If such resolution
view the underlying facts and all reasonable fails, a Medical Grievance Committee ("MGC")
inferences therefrom in the light most favorable to hearing will be conducted, which hearing will be
the party opposing the motion.“ Po. Cool Assiu v. attended by the grievant and the [Inmate Grievance
Babbitt, 63 F.3d 231, 236 (3d Cir,l995). The mere Chair]. lf the matter is resolved at that stage, the
existence of some evidence in support of the case is closed, otherwise, the grievant is directed to
nonmoving party, however, will not be sufficient for complete the MGC Appeal Statement section of the
denial of a motion for summary judgment; there written grievance and forward it to the [Inmate
must be enough evidence to enable a jury Grievance Chair] [.]
reasonably to find for the nonmoving party on that
issue. See Amierson v. Liiaenry Lobby, Inc., 477 U.S. *3 DOC Policy 4.4 {revised May 15, 1998).
242, 249 (l986). If the nonrnoving party fails to
make a sufficient showing on an essential element Based on the record, the court finds that plaintiff
of its case with respect to which it has the burden of has DOI pursued all administrative remedies
proof, the moving party is entitled to judgment as a available to him, such as a MGC hearing followed
matter of law. See Celorex Corp. v. Corrett, 477 by a written MGC Appeal Statement. Thus, 42
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Case 1:05-cv-00037-SLR Document 62-3 Filed 03/22/2006 Page 3 @@6 4 Of.4
Not Reported in F.Supp.2d Page 3
Not Reported in F.Supp.2d, 2003 WL 21383727 (D.Del.)
(Cite as: Not Reported in F.Supp.2d}
U.S.C. § 1997e, on its face, bars plaintiff from Plaintiff was examined and treated on numerous
bringing suit since plaintiff did not pursue the occasions for his ailments, including two
grievance process to its tinality. hospitalizations with an outside medical provider.
Therefore, plaintiff has failed to show defendants
exhibited a "reckless disregard" or "actnal intent"
B. Pursuantto 42 USC. § 1983,p1aintiffdoes not to disregard his medical condition, Viewing all
state a claim under the Eighth Amendment underlying facts and reasonable inferences in a light
most favorable to plaintiff does not support a
Even if the court were to review the merits of tlre finding that defendants violated his Eighth
case, plaintiff has not stated a claim under the Amendment rights.
Eighth Amendment. Defendants accept as true the
facts as offered by plaintiff for purposes of the
present motion. The State has the duty under the V. CONCLUSION
Eighth Amendment to provide "adequate medical
care to those it is punishing" through incarceration. For the reasons stated above, the court shall grant
West v. Kava, 571 F.2d 158, lol (3d Cir‘.l97S). The defendants motion for summary judgment. FN] An
Supreme Court has held that in order to state a gpprgpriatg Order g,ha]]jsg,u,_=;_
cognizable claim under the Eighth Amendment, a
prisoner must show deliberate indifference to
serious medical needs. For there to be deliberate PNL Plaintiff; minion fm- appgmimmr gf
indifference, the prison physician's acts must counsel is denied as moot.
constitute "an unnecessary and wanton infliction of
pain," be "repugnant to the conscience of mankind" ORDER
or offend the "evolving standards of decency."
Esreffe v. Gambia, 4-29 U.S. 97, 106 (1976). A *4 At Wilmingtorr this 13th day of June, 2003,
medical need is serious if it is "one that has been consistent with the memorandum opinion issued this
diagnosed by a physician as requiring treatment or same day;
one that is so obvious that a lay person would easily
recognize the necessity for a doctor's attention." [T [3 Q[{|]]5R]§,[)tha·;;
Monmouth County Corr. institutional Inmates in
Loirzoro, 834 F.3d 326, 347 (3d Cir.1987). 1. Plaintiffs motion for appointment of counsel
Furthermore, " `where the plaintiff has received ([)_[_2())j_S ;j_g]]jgdagiq]gg1_
some care, inadequacy or impropriety of the care
that was given will not support an Eighth 2. Dei`endants’ motions for summary judgment
Amendmerrt clainr." ‘ Norris v. Frome, 585 F.2d (D.l.18,2l)are granted.
1183, 1186 (3d Cir.l978). See also Inmates of
Affegheny Cormty Jai! v. Pierce, 612 F.2d 754, 762 3. The clerk is directed to enter judgment in favor
{3d Cir.1979) ("l_C]ourts will ‘disavow any ofdefendants and against plaintiff.
attempts to second-guess the propriety or adequacy
of a particular course of treatment [which] D.Del.,2003.
remains a question of sound professional judgment? Smullen v. Kearney
’). Therefore, a mere difference of opinion Not Reported in F.Supp.2d, 2003 WL 21383727
concerning the treatment received by an inmate is (D.Del.)
not actionable under the Eighth Amendment and §
1983. END OF DOCUMENT
The facts alleged in plaintiffs complaint do not
support the conclusion that defendants acted with
deliberate indifference to plaintiffs medical needs.
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