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

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UNITED STATES DISTRICT COURT DISTRICT OF DELAWARE

) ) Plaintiff, ) v. ) ) CARL DANBERG, THOMAS CARROLL, ) CORRECTIONAL MEDICAL SERVICE, ) RICHARD P. DUSHUTTLE, M.D., and ) DEPUTY WARDEN DAVID PIERCE ) ) Defendants. )

DESHAUNE D. DARLING,

Case No. 007-683 GMS JURY TRIAL DEMANDED

DEFENDANT CORRECTIONAL MEDICAL SERVICES, INC.S' MOTION TO DISMISS Defendants Correctional Medical Services, Inc. ("CMS") by and through its undersigned counsel of record, hereby moves for entry of an Order in the form attached hereto dismissing with prejudice any claims for medical negligence and dismissing the remaining medical needs claims for failure to state a claim. In support of this motion, CMS states as follows: Facts and Procedural Posture 1. On October 29, 2007, Plaintiff initiated the above-captioned action by filing his

Complaint against Carl Danberg, Thomas Carroll and CMS, alleging failure adequately to treat an injured hand. (D.I.2) Plaintiff failed to file with his Complaint an affidavit of merit as required by 18 Del. C. § 6853. (Id.) 2. On November 26, 2007, Plaintiff filed his Amended Complaint which added Dr.

Richard DuShuttle and David Pierce as defendants to the same claims. (D.I. 8) Plaintiff did not file with his Amended Complaint an affidavit of merit as required by 18 Del. C.

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§6853. On February 28, 2008, the Court dismissed sua sponte the claims against Dr. DuShuttle and Carl Danberg. 3. On April 7, 2008, defendant CMS filed its Answer to the Complaint denying,

inter alia, any and all allegations of medical negligence and causation, and raising as a defense Plaintiff's failure timely to comply with 18 Del. C. § 6853 by not filing an affidavit of merit. Argument 4. Any claim stated by the Plaintiff sounding in medical negligence pursuant to

Delaware State law must be dismissed for his failure timely to file an affidavit of merit as required by 18 Del. C. §6853, which provides, in relevant part: No healthcare negligence lawsuit shall be filed in the State unless the Complaint is accompanied by: (1) an affidavit of merit as to each defendant signed by an expert witness, as defined in §6854 of this title and accompanied by a current curriculum vitae of the witness stating that there are reasonable grounds to believe that there has been healthcare medical negligence committed by each defendant. If the required affidavit does not accompany the complaint or if a motion to extend the time to file said affidavit as permitted by paragraph (2) of this subsection has not been filed with the court, then the Prothonotary or clerk of the court shall refuse to file the Complaint and it shall not be docketed with the court. The affidavit of merit and curriculum vitae shall be filed with the court in a sealed envelope which envelope shall state on its face . . . Id. 5. Because Plaintiff did not file any affidavit of merit or timely move for an

extension of time to do so, the Plaintiff's claims sounding in medical negligence must be dismissed. See Buchanan v. Gay, 2006 WL 2709401 (Del.Super.) aff'd 2007 WL

1454884 (Del.) (Exhibit "A", "B").

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6.

As the Court well knows, in order to state a claim for constitutional violation

directly against a corporate entity such as CMS, Plaintiff "must provide evidence that there was a relevant policy or custom and that the policy caused the constitutional violation alleged." Natale v. Camden County Correctional Facility, 318 F.3d 575, 584 (3d Cir. 2003) Plaintiff here alleges only that "The administration and CMS delayed in getting the plaintiff to an orthopedic surgeon" and that "The administration and CMS did not follow through with Doctor DuShuttle's treatment plan." (D.I. 8) He alleges that this "delay and neglect" caused harm, and that the defendants "were deliberately indifferent to Plaintiff's serious medical needs, by failing to provide adequate treatment." (Id.) Nowhere does the Plaintiff allege any custom or policy through which CMS could be considered liable. Therefore, the Eighth Amendment medical needs claims against CMS should be dismissed for failure to state a claim upon which relief may be granted. WHEREFORE, for the foregoing reasons, Defendant CMS respectfully requests the Court dismiss with prejudice those portions of Plaintiff's claims which allege medical negligence, and dismiss the Plaintiff's Eighth Amendment claims for failure to state a claim upon which relief may be granted. BALICK & BALICK, LLC

/s/ James E. Drnec James E. Drnec, Esquire (#3789) 711 King Street Wilmington, Delaware 19801 302.658.4265 Attorneys for Defendant CMS Date: April 7, 2008

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UNITED STATES DISTRICT COURT DISTRICT OF DELAWARE

) ) Plaintiff, ) v. ) ) CARL DANBERG, THOMAS CARROLL, ) CORRECTIONAL MEDICAL SERVICE, ) RICHARD P. DUSHUTTLE, M.D., and ) DEPUTY WARDEN DAVID PIERCE ) ) Defendants. ) -----------------------------------------------------ORDER AND NOW, this day of

DESHAUNE D. DARLING,

Case No. 007-683 GMS JURY TRIAL DEMANDED

, 2008, the Court having considered

Defendant Correctional Medical Services, Inc.'s Motion to Dismiss, and all opposition thereto, it is hereby ordered that the Motion is Granted: All claims against CMS for medical negligence pursuant to Delaware State law are dismissed with prejudice for failure to comply with 18 Del. C. § 6853; and All medical needs claims against CMS for constitutional violations are dismissed for failure to state a claim upon which relief can be granted.

J.

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CERTIFICATE OF SERVICE I, James Drnec, hereby certify that on the 7th day of April 2008, the foregoing Defendant Correctional Medical Services, Inc.'s Motion to Dismiss was filed via CM/ECF and served First Class Mail upon the following:

Deshaune Darling SBI# 229896 Delaware Correctional Center 1181 Paddock Road Smyrna, DE 19977

/s/ James E. Drnec James E. Drnec, Esquire (#3789)