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

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Case 1:05-cv-00037-SLR Document 62-2 Filed 03/22/2006 Page 1 oisggp 2 Gia
Slip Copy Page 1
Slip Copy, 2005 WL 1353336 (D.De1.}
(Cite as: Slip Copy)
H Delaware. (D.I. 35 at 1.) Fm On September 26,
Briefs and Other Related Documents 2003, Plaintiff commenced this action by tiling a
Only the Westlaw citation is currently available. Complaint pursuant to the 42 U.S.C. § 1933,
United States District Court,D. Delaware. alleging that the State of Delaware Department of
Kevin D. MILLER, Plaintiff, Corrections ("DDC"}, several prison officials and
V- correctional officers at Gander Hill, and certain
Rafael WlLl,lAl\/IS, Phillip Th0t11ElS, Nurse Jackie, Fil-gt Cgi-lgeetigmil Medical ("FCM"] employees
Stan Taylor, Corporal Brown, John Doe l,John violated Plaintiffs Eighth Amendment right to be
Doe 2, John Doe 3, First Correctional Medical, pp. frum pmal and unusual pim_iallmppi_ FN3 (D_I_
Diane Hernandez,D·¤eierCerki¤.D¤eierSh¤i1. sr at 4-5, 7.) spssrseslly, Plaintiff alleges msi
DUUOY Aiiiii Sii'ii€»iii'id DOUG? R"°iiCii— defendants acted with negligence and deliberate
N'}- Ci"'-A- 03‘9i3‘KAJ· indifference toward "the conditions under which his
injury [to his back] was sustained," "his injuries at
-ii·ii”iE is 2005- the scene of the accident," and his "serious medical
needs” that developed as a result. (D.1. 37 at 7-8.)
Kevin D. Miller, Smyrna, DE, pro se.
Deniei L- Meiienw. M¤C¤iie¤si¤ & Mei Wiimingimis Digs fer Raiiici Wiiiiaii"i$· Pi ai Plaintiff was incarcerated at the Howard R.
iORD·°iN· ·i- Young Correctional Institution ("Gander
Hill") in Wilmington, Delaware. (D.], 35
*1 Before me is a Motion to Dismiss ("Docket item l:N3_ FCM was ilia Cpiiiiapi mcdjcal
["D.I."] 34; the “Motion") filed by defendants pmvii-lp, at DDC_
Raphael Williams, Stan Taylor, and Phillip Thomas
teeiieeiireiyi the "Meri¤s Defe¤d=·¤e·">- Aiee On oslsssr ls, 2002, Plaintiff wss ··ltasassrrsa ssa
before me is a Motion for Appointment of Counsel Sliapklpile ami pidaiad amp a = iiiaci by Piaiiiiiii- K€"'ii”i D- Miiici liipiiiiiiiifiiil- headed for court. (D.I. 2, Attachment ("Attach.") 1
(D.I.l0.) For the reasons that follow, the Motion to at l_l Wliila baaidipp tha van, plaintiff allagadly
Dismiss will be granted and Plaintiffs motion will slipped appl fell ppm ilip upper Sipp pf tha pap amp
be dciiicd ee mimi- the concrete floor of the garage. (Id.) Plaintiff
claims he suffered injuries to his "back, tailbone,
_ neck and arm," (Id.) Plaintiff asserts that he fell
H. BACKGROUND FM because the floor and steps of the van were wet and
he was not given the required "physical escort." (ld.
) After Plaintiff fell, he lay on the ground and
FNI- The f¤ii0Wi¤§ f€H€iiiiDI1 GY informed the transportation officer, defendant
bBCl(gI0l1I'ld lflf-OI`1'1'l£lllOl'l is CBSI ll] [hl? Hghl. Thomas, {hat he gguld not gei up and lleedgd gl
FROST ff·WDf¤bi¢ YD the 1101"i·m0Vi¤g pim? doctor. (Id) Subsequently, t`our or tive officers and
end @065 i‘10i €0¤5iiU·ii€ ii¤€iii‘1gS DIA fac? "a nurse named Jackie" (“Nurse Jackie") arrived at
the scene in response to Plaintiffs request for
Piaifiiiif is P1 PFU Se iiligaiii ii'i€&f•·‘f€F¤i€d iii the medical help. {Id. at 2.) Nurse Jackie asked Plaintiff
Delaware Correctional Center {"DCC") in Smyrna, to ger up, but he informed her that he could not get
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Case 1:05-cv-00037-SLR Document 62-2 Filed 03/22/2006 Page 2 0[)4
age 3 of 5
Slip Copy Page 2
Slip Copy, 2005 VJL l353336 (D.Del.)
{Cite as: Slip Copy)
up and again requested to see a doctor, (ln'.) Despite slips but was never called to the infirmary until it
his requests not to be moved, the officers allegedly was time for his physical on January 4, 2003. (Id at
picked Plaintiff up by his arms, placed him on his 6.) During his physical, Hernandez prescribed
feet, and "forced [him] to limp to the inftrmary." (ld. medication for Plaintiffs pain and scheduled an
) At the infirmary, Diane Hernandez (“Hernandez“), appointment for him to see a doctor on February 25.
a physician's assistant, diagnosed Plaintiff with a " (ld.) On February 25, Plaintiff saw Dr. Shah, who
conrusion" and "muscle sprain to the back areas and infonned him that there was nothing more that
arm [,]" and she "prescribed muscle relaxers ‘ could be done for him because his X-ray was
Robaxin' and Motrin, for the pain." {Id. at 2-3.) negative. {Id.) The next day, Plaintiff had his
medical grievance hearing before a board which,
More than a week later, Plaintiff was taken to the according to Plaintiff, consisted of members from
Medical Department because he was still the "Delaware Department of Justice" and "Health
experiencing pain in his neck and back. (M. at 3.) Service Administrators? (Id.) The board held that
He was examined by a nurse who was unable to the most appropriate course of treatment for
prescribe medication for his pain but scheduled an Plaintiffs injury was "Tylenol or Motrin and
appointment for him to see a doctor on October 30. ( exercise." (Id.) Plaintiff appealed the decision, but
Id.) Plaintiff was not taken to the infirmary until his appeal was denied. (Id.)
November 4, when he again saw Hemandez, who
prescribed "Naproxen" for the "pain and spasms." ( Plaintiff says he continued to experience pain, and,
ld.] Plaintiff was again scheduled for a follow-up on April 28, he was taken to the infirmary and seen
appointment on November 8, but was not taken to by a nurse who referred him to either a doctor or a
the iniirrnary until November 18. (fd.) On that date, physician's assistant. (ld.) On May 6, Plaintiff again
Plaintiff was again examined by Hernandez, who saw Hernandez, who informed Plaintiff that there
informed him that there was nothing more she could was nothing more that could be done for hint, unless
do for his pain but that she would schedule an he was "unable to move.” (fd.) Plaintiff informed
appointment for him to see a doctor. (Id.) Two days her that he was "unab|e to move when [his] hips
later Plaintiff saw Dr. Roach, who prescribed [had] sharp shooting pains." (fd.) ln response to
muscle relaxers and ordered an X-ray of Plaintiffs Plaintiffs claim that he was unable to move,
back. (ld. at 4.) Plaintiff requested an MR], but Dr. Hemandez scheduled another appointment for him
Roach allegedly denied his request because it " to seeadoctor. (Id.)
would cost too much money." (ld.) Two days after
his appointment with Dr. Roach, on November 22, On June 5, Plaintiff saw Dr. Sattie who examined
Plaintiff had an X—ray of his lower back. (In'. at 4-5.) him and informed him that there was nothing more
that could be done for him. (id. at 7.) "That same
*2 On November 30, Plaintiff filed a "sick cell slip" night," Plaintiff filed a sick cell slip because he felt
because he was still experiencing back pain and was sharp pains and "could not move or breathe
now having headaches as well. {Id. at 5.) On con1fortably."(Irf.) On June ll, Plaintiff met with
December 8, Plaintiff filed a medical grievance the medical administrator. who explained to him
because his sick cell slip had not been answered, that there was nothing more anyone could do for
and he had not been called for his 10 day check-up him except continue to give him "Motrin or Tylenol.
with Dr. Roach. (ld.) On December 18, Plaintiff " (fd.) On July 9, Plaintiff was examined by Dr.
again saw Dr. Roach, who reported that the X~ray Corking, who offered to prescribe him more
revealed no broken bones but that he would medication for the pain, but warned him that
continue his medication for the pain. (Id.) Five days extended use of such medicines could cause liver
later, Plaintiff filed another sick cell slip because he damage. (ld.) Dr. Corking allegedly warned
felt a "strong, sharp, pain" in his "lower hack, Plaintiff that his back pains may get worse in the
hips [and] buttocks area" when he walked and at fiiture and he would request an MRI, but doubted it
night when he slept. (Id. at 5-6.) According to would be approved since Plaintiffs X-rays were
Plaintiff, he continued to file numerous sick cell ncgative.{!d.)
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Case 1:05-cv-00037-SLR Document 62-2 Filed 03/22/2006 Page 3 0],,4
age 4 of 5
Slip Copy Page 3
Slip Copy, 2005 WL 1353336 (D.DeI.)
(Cite as: Slip Copy)
*3 Less than a week later, Plaintiff returned to the for summary judgment. In making my
iniimtary and was examined by Dr. Shah. (fd.) decision, however, I have not considered
According to Plaintiff, Dr. Shah acted “ matters outside the pleading and have thus
unprofessionally," so he tiled a medical grievance. ( chosen to treat the Motion as one to
Id. at 7.) Plaintiff informed the medical dismiss.
administrator that Dr. Shah's conduct was
unprofessional, (Id. at 7-8.) The medical IV. DISCUSSION
administrator told Plaintiff that she would speak
with Dr. Shah. (Id. at S.) The medical administrator Plaintiff alleges that the defendants acted
prescribed him medication for his pain and negligently and with deliberate indifference to his
recommended that he stretch and do exercises. (id.) safety in violation of his Eighth Amendment rights
when he was "fully handcuffed and shackled and
On July 9, when Plaintift‘s request for an MRI was forced to step up-on the transportation van steps"
denied, he tiled another medical grievance. (Id. at without the help of a physical escort. (D.I. 37 at
8.) By August 13, neither "the Warden [nor] 2-5.) A practice that limits or restricts prison
medical personnel” had responded to Plaintiffs last inmates' constitutional rights may be necessary "to
two grievances, so he resubmitted them along with a ensure the safety of inmates and corrections
letter to the Warden "pertaining to [his] medical personnel and to prevent escape or unauthorized
grievances going unanswered." (Id.) A week later, entry" Bel'! v. Woljish, 441 U.S. 520, 545-47, 99
Plaintiff received a response from the grievance S.Ct. 1361, 60 L.Ed.2d 447 (I979). A policy or
chair that "both medical grievances [were] practice that “impinges on inrnates' constitutional
non-grievable and therefore denied." (id.) Plaintiff rights is valid if it is reasonably related to
subsequently filed this suit against Defendants. legitimate penological interests." Turner v. Sajley,
(D.l.2,) 482 U.S. 78, 89, 107 S.Ct, 2254, 96 L.Ed.2d 64
(1987). If the regulation is valid, the reviewing
coun should defer to the expertise of prison
III. STANDARD OF REVIEW officials when deciding whether a particular policy
or practice is necessary to "preserve internal order
In deciding a motion to dismiss pursuant to Federal and discipline and to maintain institutional security."
Rule of Civil Procedure l2(b)(6), the factual BeH,44l 547.
allegations contained in the complaint must be
accepted as true. Cruz v. Hero, 405 U.S. 3I9, 322, The Moving Defendants contend that, "given the
92 S.Ct. 1079, 31 L.Ed.2d 263 (1972) (per curiam). severity of the charges against these inmates, [i.e.]
A pro se complaint can only be dismissed for failure murder rape and escape," the transportation
to state a claim if it appears "beyond doubt that a procedures are necessary to ensure the safety of “‘
plaintiff can prove no set of facts in support of his the officers, inmates and [the] general public."
claim which would entitle him to relief." Conley v. (D.l. 35 at 3.} Other than to help "elderly and
Gibson. 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d medically iniirmed imnates," prison officials are
80 (195?]_ Fm required to keep a reasonably safe distance between
themselves and the inmates. (ld.) This is to reduce "
the risk of serious han·n and/or death in the event an
FN4_ The Moving Dgfggdantg mgm; thm inmate attempts to seize one of the of’ficer's
because Plaintiffs Response to the Motion weapons,"FN5 (Id.)
to Dismiss includes matters outside the
pleading, including "letters requesting
assistance at the highest levels of Young FNS. Plaintiff contends that officers "
Correctional Institute" and " routinely assist ‘tiilly handcuffed and
Iettersfaftidavits from other inmates," their shackled` inmates in and out of the van"
Motion to dimiss should be treated as one (D.I. 37 at 4.) He also asserts that the
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Case 1:05-cv-00037-SLR Document 62-2 Filed 03/22/2006 Page 4 0fP4
age 5 of 5
Slip Copy Page 4
Slip Copy, 2005 WL 1353336 (D.Del.)
(Cite as: Slip Copy)
officers "are not routinely armed with diagnosed him with “back spasms" and treated him
weapons at their side" because "more often with pain medication, muscle relaxers, and
than not" the officers weapons are "stored suggested exercise. (fd.; D.I. 37 at 7.) Plaintiff
in the front compartment of the contends that different measures should have been
transportation van." (Id.) taken both at the scene of the accident and during
his course of treatment. (D.l. 37 at 5.} Plaintiff
*4 Because the safety of inmates and officers is a suggests that "proper procedure at the scene of the
legitimate penological interest, the transportation injury would have been to provide a stretcher,
procedures ere valid. mi Therefore, I defer ro the giicmcy [Sic]. and immobilization brace fcr thc
expertise of the prison officials. Thus, the Moving head and necl<." (/of at 8.) He also contends that an
Defendants' Motion to Dismiss will be granted with MRI of his back was necessary to lead to a proper
respect to Plaintiffs claims that the failure to diagnosis of his condition. [Id. at 6.)
physically escort handcuffed and shackled inmates
while boarding a van constitutes cruel and unusual The Supreme Court has held that complaints based
punishment under the Eighth Amendment. on the negligent diagnosis or treatment of a medical
condition, such as "a decision not to order an X-ray,
or like measures," are “matter[s] for medical
FN6. In addressing the relationship of the jt1dgmcut,“ and thus do not amount to cruel and
transportation issues to penologieal unusual punishment under the Eighth Amendment.
interests, I do not imply that any of the Este!/e, 429 U.S. at 106-07. These claims rest on
Plaintiffs constitutional rights were decisions with respect to his medical care, but
impinged. Plaintiff has failed to plead facts which would
support allegations that defendants were
Plaintiff also alleges that he received "improper and deliberately indifferent to his medical needs.
inadequate medical care" for his back injury
because defendants were deliberately indifferent to
his medical needs, in violation of his Eighth IV. CONCLUSION
Amendment right to be free from cruel and unusual
pooasirmerrr. (or. sr at 5-7.) In order to establish e Acccrciirialy. llic Mcticii rc Dismiss (D-l-34) will bc
eteam under § was based oo teek of adequate eiarircd arid Plaintiffs mcricii for cppciiitmciil cf
medical care, a prisoner must allege facts or counsel (D.1,l0) will be denied as moot.
omissions sufficiently harmful to evidence
deliberate indifference to serious medical needs. D.De1.,2005.
Estelle v. Gorrrbte, 429 U.S. 97, IO6, 9? S.Ct. 285, Miller v. Williams
50 L.Ed.2d 251 (1976). Allegations of medical Slip Copy, 2005 WL 1353336 (D.Del.)
malpractice do not state a claim rmder § 1983,
because mere negligence does not amount to a Briefs and Other Related Documents (Back to top)
violation of the Constitution, and a constitutional
violation is required to establish a § 1983 claim. Id. • l:03cv009l3 {Docket) (Sep. 29, 2003)
at 106.
After Plaintiffs accident on October 16, 2002, a
member of the medical staff arrived on the scene to
assist with his getting to the infirrnary. (DJ. 2,
Attach. l at 2.) Over the following several months,
Plaintiff was seen by medical personnel on
numerous occasions to receive treatment for his
injuries. [Id. at 2-8.) After taking and examining an
X-ray on Plaintiffs lower back, doctors eventually
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