Free Response to Motion - District Court of Delaware - Delaware

Case 1 :04-cv-01334-KAJ Document 36-4 Filed 04/19/2006 Page 1 of 3P 1
. age
Slip Copy . ‘
Y i (Cite as: 2003 WL 21383727 (D.Del.))
Only the Westlaw citation is currently available. Plaintiff is an inmate at the Sussex Correctional
Institution in Georgetown, Delaware. (D.I.6) Upon
` being incarcerated on July 30, 1999, plaintigtf claims
that Dr. Roberta Burns, a physician with Prison Health
United States District Court, Services, told plaintiif that a pre-existing hernia he
D. Delaware. had was nothing to be alarmed about. (D.I.2) On April
24, 2000, plaintiff complained of stomach pains, which
Terrence L. SMULLEN, Plaintift§ Dr. Burns treated with an enema. (lat) Plaintilf was
v. then sent back to his housing unit and instructed to
Rick KEARNEY, Warden, Prison Health Services return if his ailments persisted. (Id)
and Roberta Burns, M.D.
Defendants. After numerous subsequent complaints, plaintiff was
sent to the Medical Department in the Max Building
N0. Civ.A. 02-082-SLR. and then taken to Beebe Medical Center ("Beebe") in
. - Lewes, Delaware. (Id) At Beebe, plaintii claims to
June 13, 2003. have been diagnosed with a "strangulated direct
hernia." (lat) Upon discharge from Beebe on April 30,
Terrence L. Smullen, plaintili pro se. 2000, plaintiff claims to have been diagnosed with
"appendicitis and incarcerated right inguinal lrernia."
Stuart B. Drowos, Department of Justice, State of (Id)
Delaware, Robert Karl Beste, HI, White & Williams,
Wihnington, Delaware, for defendants. Plaintiff was re-admitted to Beebe on June 29, 2000,
complaining of breathing complications. (Id) Upon
. re—adrnission, plaintiff was diagnosed with an
MEMORANDUM OPINION "enlarged heart" and toxic blood due to depression
medication administered at the Sussex Correctional
ROBINSON, Chief J. Institute. (Id) On July 3, 2000, plaintiff was
discharged with a diagnosis of "congestive heart
I. INTRODUCTION failure" (Id.) Plaintiff now claims to sorter from a
severe form of heart disease (cardiomyopothy) due to
*1 On January 31, 2002, pro se plaintiff Terrence L, defendants' "unprofessional acts and diagnosis." (Id)
Smullen tiled this action against defendants Rick
Kearney, Warden of Sussex Correctional Institution, On January 31, 2002, this court granted plaintilf leave
Prison Health Service and Roberta Burns, M .D. to proceed in forma pauepris and ordered an initial
pursuant to 42 U.S.C. § 1983 alleging violations ofthe partial tiling fee of $2.33 to be paid within thirty (30)
Eighth Amendment based on inadequate medical care. days to avoid dismissal. (D.I. 1) Plaintiff did not timely
This court has jurisdiction pursuant to 28 U.S.C. § pay the fee and his complaint was dismissed without
1331. Presentlybefore the courtis plaintilfs motion for prejudice. (D.I.4) On March 22, 2002, the court
appointment of counsel (D.I.20) and defendants' received plaintiifs motion for reconsideration,
motions to dismiss. (D.I. 18, 21) On March 23, 2003 requesting additional time to pay the filing fee. (D.I.5)
this court issuedan order stating that because matters On April 3, 2002, the court extended plaintiffs
outside the pleadings were presented to the court in deadline to pay the initial partial Hling fee to May 6,
support of the motions to dismiss, the court would 2002. (D.I.6) On April 24, 2002, plaintiff made the
review defendants' motions as motions for srunmary first partial tiling fee payment of $2.33. (D.I.6) On or
judgment pursuant to Fed.R.Civ.P. 12{lg) and QQQQ), around November 1, 2002, plaintiff moved for
s @.1.24) For the reasons that follow the court shall appointment of counsel. (D.I.16) On November 14,
deny plaintiffs motion for appointment of counsel and 2002, defendants moved to dismiss. (D.I. 18)
grant defendants' motions for summary judgment.
III. STANDARD OF REVIEW
H. BACKGROUND »
*2 A court shall grant summary judgment only if "the
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_ Case 1 :04-cv—O1334-KAJ Document 36-4 Filed O4/19/2006 Page 2 of 3Pag€2
pleadings, depositions, answers to interrogatories, and regardless of futility. Booth v. Churner, 532 U.S. 731 rr
I admissions on tile, together with the affidavits, if any, {2001 ); See, e.g. Nvhuis v. Reno 204 F.3d 65. 67 {3d
show that there is no genuine issue as to any material Cir.2000). The Delaware Department of Correction
fact and that the moving party is entitled to judgment administrative procedures provide that
as a matter of law." Fed.R.Civ.P. 56{c). The moving medical grievances be submitted to the [Inmate
party bears the burden of proving that no genuine issue Grievance Chair], who will forward the grievance to
of material fact exists. See Matsushita Elec. Indus. Co. the medical service contractual staif for review. The
v. Zenith Radio Cory., 475 U.S. 574, 586 n. 10 {1986). medical services contractual staff will attempt
"Facts that could alter the outcome are 'material,' and informal resolution of the matter. lfsuch resolution
disputes are 'genuine' if evidence exists from which a fails, a Medical Grievance Committee ("MGC")
rational person could conclude that the position ofthe hearing will be conducted, which hearing will be
person with the burden of proof on the disputed issue attended by the grievant and the [Inmate Grievance
is correct." Horowitz v. Feat Kemper Lite Assurance Chair]. If the matter is resolved at that stage, the
Co., 57 F.3d 300, 302 n. 1 {3d Cir.1995) (internal case is closed; otherwise, the grievant is directed to
citations omitted). lf the moving party has complete the MGC Appeal Statement section of the
demonstrated an absence of material fact, the ~ written grievance and forward it to the [Inmate
nonmoving party then "must come forward with Grievance Chair] [.]
. 'speciiic facts showing that there is a genuine issue for *3 DOC Policy 4.4 (revised May 15, 1998).
trial." ' Matsushita, 475 U.S. at 587 (quoting
Fed.R.Civ.P. 56{e)). The court will "view the Based on the record, the court finds that plaintiff has
underlying facts and all reasonable inferences not pursued all administrative remedies available to
therefrom in the light most favorable to the party him, such as a MGC hearing followed by a written
opposing the motion." Pa. Coal Ass’n v. Babbitt, 63 MGC Appeal Statement. Thus, 42 U.S.C. § 1997e, on
F.3d 231, 236 {3d Cir.1995). The mere existence of its face, bars plaintiff from bringing suit since plaintiff
some evidence in support of the nonmoving party, did not pursue the grievance process to its finality.
however, will not be suiiicient for denial of a motion
for summary judgment; there must be enough evidence B. Pursuant to 42 U.S.C. § 1983, plaintiff does not
to enable a jury reasonably to iind for the nonmoving state a claim under the Eighth Amendment
party on that issue. See Anderson v. Liberty Lobby,
Inc., 477 U. S. 242, 249 { 1986 . Ifthe nonmoving party Even if the court were to review the merits ofthe case,
fails to make a sufficient showing on an essential plaintiff has not stated a claim under the Eighth
element of its case with respect to which it has the Arnendrnent. Defendants accept as true the facts as
burden of proof] the moving party is entitled to ofered by plaintiff for purposes ofthe present motion.
judgment as a matter of law. See Celotex Corp. v. The State has the duty under the Eighth Amendment
Catrett, 477 U.S. 317, 322 {1986). to provide "adequate medical care to those it is
punishing" through incarceration. West v. Keve, 571
IV. DISCUSSION F.2d 158, 161 {3d Cir.1978). The Supreme Court has
held that in order to state a cognizable claim under the
A. Plaintiff has not exhausted the administrative Eighth Amendment, a prisoner must show deliberate
remedies available to him within the Sussex indifference to serious medical needs. For there to be
Correctional Institute, thus requiring dismissal under deliberate indifference, the prison physician's acts must
42 U.S.C. § 1997e constitute "an unnecessary and wanton infliction of
pain, " be "repugnant to the conscience of mankind" or
The Prison Litigation Reform Act of 1996, codiiied at oft`end the "evolving standards of decency." Estelle v.
42 U.S.C. § 1997e, provides: Gamble, 429 U.S. 97, 106 {1976). A medical need is
(a) No action shall be brought with respect to prison serious if it is "one that has been diagnosed by a
conditions under |42 U.S.C. § l983| or any other physician as requiring treatment or one that is so
Federal Law, by a prisoner confined in any jail, obvious that a lay person would easily recognize the
prison or other correctional facility until such necessity for a doctor's attention." Monmouth County
administrative remedies as are available to him are Corr. Institutional Inmates v. Lanzaro, 834 F.3d 326,
exhausted. 347 (3d Cir, 1987). Furthermore, " ‘where the plaintiff
has received some care, inadequacy or impropriety of
Courts have consistently held that imnates must first the care that was given will not support an Eighth
exhaust all administrative remedies available prior to Amendment claim" 'Norris v. Frame, 585 F.2d 1183 .
tiling a 8 1983 action based upon prison conditions,
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Case 1:04-cv—01334-KAJ Document 36-4 Filed O4/19/2006 Page 3 of 3
Page 3
__ 1186 {3d Cir.l978). See also Inmates at Allegheny _
Y W Countgjail v. Pierce, 612 F.2d 754, 762 g3d Cir. 1979)
("[C]ourts will 'disavow any attempts to second-guess
the propriety or adequacy of a particular course of
treatment [which] remains a question of sound
professional judgment. " ’). Therefore, a mere
difference of opinion concerning the treatment
received by an inmate is not actionable under the
Eighth Amendment and § 1983.
The facts alleged in plaintiffs complaint do not
support the conclusion that defendants acted with
deliberate indifference to plaintiffs medical needs.
Plaintiff was examined and treated on numerous
occasions for his ailments, including two
hospitalizations with an outside medical provider.
Therefore, plaintiff has failed to show defendants
I exhibited a "reckless disregard" or "actual intent" to
disregard his medical condition. Viewing all
underlying facts and reasonable inferences in a light
most favorable to plaintiff does not support a finding
thatdefendantsviolatedhisEightlrA1nendmentrights.
V. CONCLUSION
For the reasons stated above, the court shall grant %
defendants' motion for summary judgment. |ljN 1| An
appropriate order shall issue.
FNl. Plaintiffs motion for appointment of
counsel is denied as moot.
ORDER
*4 At Wilmington this 13th day of June, 2003,
consistent with the memorandum opinion issued this
same day;
IT IS ORDERED that:
1. Plaintiifs motion for appointment of counsel
(D.I.20) is denied as moot.
2. Defendants' motions for sumtuary judgment
(D.l.l8, 21) are granted.
3, The clerk is directed to enter judgment in favor of ‘
defendants and against plaintili I
2003 WL 21383727 (D.Del.)
END OF DOCUMENT
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