Free MEMORANDUM in Support - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE KENNETH SMITH, Plaintiff, v. STAN TAYLOR, THOMAS CARROLL, FIRST CORRECTIONAL MEDICAL, INC., DAVID WILKERSON, and GAIL ELLER, Defendants. ) ) ) ) ) ) ) ) ) ) ) )

C.A. No. 07-269-SLR JURY TRIAL DEMANDED

DEFENDANT THOMAS CARROLL'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF HIS MOTION FOR SUMMARY JUDGMENT NATURE AND STAGE OF THE PROCEEDINGS COMES NOW, Defendant Thomas Carroll, by and through his undersigned counsel, and hereby moves this Honorable Court to grant summary judgment in his favor pursuant to Federal Rule 56. In support of his Motion, Defendant states as follows: 1. Plaintiff Kenneth Smith ("Smith") initiated this action pursuant to 42 U.S.C. §

1983 by filing a Complaint with leave to proceed in forma pauperis with the Court on May 15, 2007. (D.I. 1, 2). Smith's Complaint was filed pursuant to 42 U.S.C. § 1983 and alleges Eighth Amendment violations of cruel and unusual punishment. Id. Smith named as Defendants: Thomas Carroll, Stan Taylor, First Correctional Medical1 ("FCM") and medical employees David Wilkerson and Gail Eller. The Court granted Smith in forma pauperis status on May 24, 2007. ( D.I. 4). 2.
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On July 17, 2007, the Court ordered service of process issue upon the Defendants.

FCM was the contract medical provider for the DOC from July 1, 2002 until June 30, 2005. Thereafter, Correctional Medical Services ("CMS") has been the contract medical provider.

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(D.I. 6).

Thereafter, service was executed as to all defendants except Defendants Taylor,

Wilkerson and Eller. (D.I. 9). On October 22, 2007, counsel for Defendant Carroll entered an appearance with a request for an enlargement of time of thirty (30) days to file an Answer to the Complaint. (D.I. 12, 13). On October 23, 2007, the request for an enlargement of time was granted. Defendant Carroll answered the Complaint on November 21, 2007 asserting various affirmative defenses, including lack of personal involvement, official and qualified immunities, and failure to state a claim pursuant to § 1983. (D.I. 14). 3. The Court entered a Scheduling Order on March 31, 2008. (D.I. 24). The

Scheduling Order also included a Show Cause Order requiring Smith to show cause on or before April 24, 2008 why Defendants Taylor, Wilkerson and Eller should be not dismissed for failure to timely serve process. Id. The Court held that failure to timely respond to the Show Cause Order shall result in dismissal of said Defendants from this action. Id. On the same date, an Entry of Default in Appearance was entered against Defendant FCM pursuant to Federal Rule of Civil Procedure 55(a) for failure to respond to the Complaint. (D.I. 25). 4. On April 29, 2008, Defendant Carroll propounded Interrogatories and Requests

for Production on Smith. (D.I. 27, 28). On or about May 8, 2008, Defendants Taylor, Wilkerson and Eller were terminated from the case pursuant to the Court's Show Cause Order. (D.I. 24). On the same date, Smith filed a Motion for Default Judgment as to FCM and propounded Interrogatories to Taylor.2 (D.I. 29, 30). On or about June 10, 2008, an Order for Default Judgment was issued as to FCM. (D.I. 34). 5. On or about July 25, 2008, counsel for Defendant Carroll deposed Smith at the

James T. Vaughn Correctional Center ("JTVCC") in Smyrna, Delaware. The requests were responded to by Defendant Carroll as Defendant Taylor was not served in the action and was terminated from the case by Order of the Court. (D.I. 24, 33). 2
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6.

This is Defendant Carroll's Motion for Summary Judgment as to Smith's claims. STATEMENT OF FACTS

7.

Smith alleges that he attempted to secure medical treatment for a small bump on

his scalp around October 1998. (Complaint, passim). He claims that his scalp problems started upon incarceration. (Ex. A ­ Smith Dep. 27:19-24; 28:1-22). However, his medical records suggest that his problem began earlier than incarceration. When Smith arrived at Gander Hill in December 1997, it was noted by medical personnel on his admission data sheet that a rash on the scalp was visually observed. (Ex. B-1). Smith's medical records reflect that the "rash" as described by medical personnel and "bump" as described by Smith, has been an ongoing problem and one that has received continuous medical treatment by the DOC medical providers throughout Smith's incarceration. (Ex. B). 8. For relief, Smith seeks to have his scalp problem finally resolved. However, he

testified that he does not seek or request treatment from medical personnel at the prison for problems with his scalp. He claims that this is because after 10 years, they have provided little to no assistance. (Ex. A ­ Smith Dep. 32:14-24, 33:1-19). Smith admitted in his testimony that he was never told that surgery was required, but he alleges that one of the doctors who treated him informed him that surgery was probably the only option for clearing up the problem with his scalp. (Ex. A ­ Smith Dep.42:9-23). There is, however, no evidence in Smith's medical records to support that opinion. 9. On July 11, 2005, Smith filed a medical slip demanding to see a dermatologist.

(Ex. B-4). He claimed the growth on his head was spreading. Id. Shortly thereafter, on August 2, 2005, Smith was examined and treated by Dr. Xue at the Cape Henlopen and Nanticoke Dermatology Association. (Ex. B-5, 6). The notes from that visit indicate Smith was injected

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with Kenalog, prescribed antibiotics and given topical medication. Id. On August 16, 2005, Smith filed a sick call slip claiming he was waiting for his medication that had been prescribed for him at the consult. (Ex. B-7). On August 17, 2005, CMS's progress notes confirm that the "medications were ordered as recommended." (Ex. B-8). On February 6, 2006, CMS's progress notes indicated that Smith's scalp appears improved with no active infection noted. (Ex. B-9). On May 8, 2006, Smith was seen by another dermatologist, Dr. Thomas J. Burke of Panzer Dermatology & Cosmetic Surgery. (Ex. B-10-12). Dr. Burke also administered Kenalog and prescribed minocycline an antibiotic to be taken daily. On September 12, 2006, tetracycline was prescribed for Smith. (Ex. B-13-14). 9. The DOC contracts with medical providers to provide inmates with medical care.

As documented in Smith's medical records, throughout his incarceration he has been routinely examined and treated by DOC medical providers Prison Health Services ("PHS"), FCM, CMS and outside specialists. He has been under the care of medical professionals who have treated him and prescribed medication for a myriad of ailments including his scalp problem. (Ex. A ­ Smith Dep. 29:1-3). Smith has also been examined and treated by outside dermatologists. (Ex. A ­ Smith Dep. 33:9-22). Defendant Carroll does not take part in diagnosing, treating or prescribing medications for inmates, and Smith has not identified any constitutional basis for including Defendant Carroll in this suit. 10. Smith does not know Defendant Carroll personally and could not clarify why he

was named as a defendant in this lawsuit. (Ex. A ­ Smith Dep. 18:1-24; 24:6-24). The sole allegation against Defendant Carroll contained in Smith's Complaint asserts that he "constantly wrote former commissioner Stan Taylor and Warden Carroll. The aforemention constantly ignored." (D.I. 2, par. 2). Smith confirmed in his deposition that this is the only basis for his

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claims against Defendant Carroll: Q: Okay. So the basis for your allegations against Stan Taylor and Tom Carroll were

letters written on your behalf to them and you didn't receive a response? A: Q: A: Yes. Any other reasons? No, no.

(Ex. "A" Smith Dep. 19: 22-24, 200: 1-4). Smith has failed to produce any of these letters in response to Defendant Carroll's Requests for Production (Ex. C), he does not remember when the letters were written, he failed to retain any copies and he testified that he has no recollection of the contents of the letters. (Ex. A ­ Smith Dep. 19: 5-24, 20: 1-11). ARGUMENT Federal Rule 56(c) permits a Court to grant summary judgment, "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The United States Supreme Court holds that a court must enter summary judgment, "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celetox Corp. v. Carter, 477 U.S. 317, 322-23 (1986). To obtain summary judgment the moving party must demonstrate that he has met the standards of Rule 56(c). Carter v. Exxon Company USA, 177 F.3d 197, 202 (3d Cir. 1999). The summary judgment standard requires that "the mere existence of some alleged factual dispute

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between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (emphasis in original). Thus, only disputes that affect the outcome of a lawsuit will properly preclude the grant of summary judgment. Id. "At the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. at 249. In deciding a motion for summary judgment "the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fairminded jury could return a verdict for the plaintiff on the evidence presented." Id. at 252. I. Smith Cannot Establish an Eighth Amendment Claim Against Defendant Carroll. Smith's Eighth Amendment claim against Defendant Carroll must fail. Defendant

Carroll was not personally involved in any of the allegations contained in the Complaint and he cannot be held liable on the basis of respondeat superior. Smith also cannot establish that Defendant Carroll was deliberately indifferent to his medical needs. A. Smith's claims must fail because Defendant Carroll was not personally involved in the alleged wrongs and his liability cannot be based on respondeat superior.

To support a claim for a civil rights violation pursuant to section 1983, a plaintiff must show that the defendant had personal involvement in the alleged wrongs. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (emphasis added). A plaintiff must prove that the accused official "played an affirmative role in the deprivation of the plaintiff's rights, i.e., there must be a causal link between the actions of the responsible officials named and the challenged misconduct." Pennsylvania v. Porter, 659 F.2d 306, 336 (3d Cir. 1981). It is also well

established that section 1983 will not support a claim based on the theory of respondeat superior

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or vicarious liability. Polk County v. Dodson, 454 U.S. 312, 325 (1981). In addition, this Court has held that, "[g]rievances are not enough to impute knowledge to [a] defendant." Brookins v. Williams, 402 F.Supp.2d 508, 512 (D. Del. 2005) (quoting Rode, 845 F.2d at 1208)). There is no allegation or evidence that Defendant Carroll was personally involved in any wrongdoing alleged in the Complaint and thus he cannot be held liable under Section 1983. During discovery, Smith was unable to provide any evidence or information indicating that Defendant Carroll was aware of his medical requests or medical condition. Smith testified that he has not met Defendant Carroll and does not know what he looks like. Smith has been unable to articulate, or provide evidence to support, a causal link between any action of Defendant Carroll and any wrongdoing against Smith. See Murphy v. Kearney, 2004 WL 878467 (D. Del. April 19, 2004) (Ex. "D") (prison warden entitled to summary judgment where there were no allegations of personal involvement); Gregory v. PHS Inc., 2001 WL 1182779 (D. Del. Sept. 21, 2001) (Ex. "E") (Department of Correction Commissioner and prison warden entitled to summary judgment where there were no specific allegations of misconduct). To the extent that Smith seeks to hold the Defendant liable based on his "higher" or supervisory positions, such liability is not permitted under § 1983. Rode, 845 F.2d at 1207. And absent any evidence that Defendant Carroll personally participated in the alleged wrongful conduct, he is entitled to judgment as a matter of law. B. Defendant Carroll was not deliberately indifferent to Smith's medical needs.

Although not clearly stated, Smith's Section 1983 claim against Defendant Carroll appears to be based upon the Eighth Amendment, under which states have a duty to provide "adequate medical care to those it is punishing by incarceration. West v. Keve, 571 F.2d 158, 161 (3d Cir. 1978). The Eighth Amendment protects from cruel and unusual punishment and

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requires that prison officials provide inmates with adequate medical care. Estelle v. Gamble, 429 U.S. 97, 103-105 (1976). The Third Circuit has found "deliberate indifference" to a serious medical need in circumstances where the prison official "(1) knows of a prisoner's need for medical treatment but intentionally refuses to provide it; (2) delays necessary medical treatment based on a non-medical reason; (3) prevents a prisoner from receiving needed or recommended medical treatment; or (4) "persists in a particular course of treatment in the face of resultant pain and risk of permanent injury." Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999) citing Monmouth County Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 346-47 (3d Cir. 1987); White v. Napoleon, 897 F.2d 103, 109-11 (3d Cir. 1990). See also Spruill v. Gillis, 372 F.3d 218, 235-36 (3d Cir. 2004) (concluding that "absent a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner, a non-medical prison official . . . will not be chargeable with the Eighth Amendment scienter requirements of deliberate indifference."), citing Durmer v. Carroll, 991 F. 2d 64 (3d Cir. 1993). The Third Circuit expressed the important policy reasons for placing legal responsibility for medical decisions on trained medical personnel. Spruill, 372 F.3d at 326-27. Defendant Carroll was not deliberately indifferent to Smith's serious medical needs. The Supreme Court requires Smith to demonstrate that Defendant Carroll acted recklessly by consciously disregarding a substantial risk of harm to establish "deliberate indifference" on the part of that official. See Farmer v. Brennan, 511 U.S. 825, 837-40 (1994) (adopting subjective recklessness standard from criminal law as the test for deliberate indifference under the Eighth Amendment). Smith's sole basis for naming Defendant Carroll as a defendant is Defendant Carroll's purported failure to respond to Smith's letters. (Ex. A ­ Smith Dep. 18:1-24, 19:1-4). As discussed, Smith has failed to produce any copies of the correspondence or any other

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evidence that would support this claim. Regardless, a simple act of writing a letter to the Defendant does not establish deliberate indifference. Defendant Carroll is not a physician, and cannot be considered deliberately indifferent merely because he may have failed to respond directly to the medical complaints of a prisoner who was already being treated by prison doctors. See Durmer, 991 F.2d at 69. Smith's real complaint is about the course and/or quality of the medical treatment provided to him. (Complaint, passim). Smith and medical personnel clearly disagree on the course of his treatment. Smith believes he needs surgery and medical personnel continue to monitor Smith's scalp and prescribe medication. While Smith has his own opinions regarding the course of treatment, the Constitution does not guarantee a prisoner the treatment of his choice. Tillery v. Owens, 719 F .Supp. 1256, 1305 (W.D.Pa. 1989), citing Jackson v. Fair, 846 F.2d 811, 817 (1st Cir. 1988). Defendant Carroll relies on the professional judgment and expertise of medical personnel with whom the DOC has contracted. Smith has an obligation to set forth specific facts through evidence to establish a genuine issue for trial. Celotex, 477 U.S. at 322. To date, Smith has not come forth with any evidence to support that Defendant Carroll was deliberately indifferent to his medical needs. Defendant Carroll is entitled to judgment as a matter of law. II. Defendant is Immune from Liability for Smith's Claims. To the extent Smith seeks to hold Defendant Carroll liable in his official, as well as his individual capacity, Defendant Carroll is immune from such claims. A. Defendant Carroll is immune from liability in his official capacities pursuant to the Doctrine of Sovereign Immunity and the Eleventh Amendment. Thus

Defendant Carroll is immune from liability under the Eleventh Amendment in his official capacity. The Eleventh Amendment stands "for the constitutional principle that State sovereign 9

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immunity limit[s] the federal courts' jurisdiction under Article III." Seminole Tribe of Florida v. Florida, 517 U.S. 44, 64 (1996). The United States Congress can waive the state's sovereign immunity, and therefore, its Eleventh Amendment immunity through the Fourteenth Amendment, however, only a clear indication of Congress's intent to waive the state's immunity will produce this result. Id. No such clear intent can be found in 42 U.S.C. § 1983. In fact, Congress's intent appears to be to the contrary as the statute facially allows suits only to be brought against persons. 42 U.S.C. § 1983. A suit against state officials in their official capacities is treated as a suit against the State. Hafer v. Melo, 502 U.S. 21 (1991). Under federal law, the Defendant in his official capacity is not a "person" for the purposes of § 1983. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). Consequently, this Court lacks jurisdiction over the Defendant in his official

capacity, and the Defendant is outside the class of persons subject to liability under 42 U.S.C. § 1983. Summary judgment is therefore appropriate. B. Defendant Carroll is immune from liability in his individual capacity pursuant to the doctrine of qualified immunity.

Defendant Carroll is entitled to qualified immunity for any claims against him in his individual capacity. Government officials performing discretionary functions are immune from liability for damages, provided that their conduct does not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A right is clearly established when, "[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987). Furthermore, Defendant is entitled to qualified immunity where he acted in good faith, without gross or wanton negligence, in the performance of his discretionary duties. Vick v. Haller, 512 A.2d 249 (1986).

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Because there is no evidence to establish a causal link between any action by the Defendant and a deprivation of Smith's constitutional right, it can not be said that he violated a clearly established right. Based on the available facts in the record, Defendant is entitled to qualified immunity as he had no involvement with the alleged wrongdoings that form the basis of Smith's Complaint. Defendant is immune from liability in his official and individual capacities. Smith cannot maintain this action against Defendant Carroll. Summary judgment should be awarded in favor of Defendant Carroll. CONCLUSION For the herein stated reasons, Defendant Thomas Carroll respectfully requests that this Honorable Court grant his Motion for Summary Judgment and dismiss Smith's claims against him with prejudice.

DEPARTMENT OF JUSTICE STATE OF DELAWARE /s/ Stacey X. Stewart Stacey X. Stewart ID.: 4667 Deputy Attorney General Department of Justice 820 N. French Street, 6th Floor Wilmington, DE 19801 (302) 577-8400 [email protected] Attorney for Defendant Dated: September 2, 2008

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CERTIFICATE OF SERVICE I hereby certify that on September 2, 2008, I electronically filed Defendant Thomas Carroll's Memorandum of Points and Authorities in Support of his Motion for Summary Judgment with the Clerk of Court using CM/ECF. I hereby certify that on September 2, 2008, I have sent notification of such filing by U.S. First Class Mail to: Kenneth Smith, Inmate SBI#193906 James T. Vaughn Correctional Center 1181 Paddock Road Smyrna, DE 19977

/s/ Stacey X. Stewart Stacey X. Stewart ID.: 4667 Deputy Attorney General Department of Justice Carvel State Bldg., 6th Fl., 820 N. French Street Wilmington, DE 19801 [email protected]

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