Free MEMORANDUM in Support - District Court of Delaware - Delaware

Case 1:06-cv-0O001—Gl\/IS Document 31-4 Filed 08/25/2006 Page 1 0}*.,;*26 2 Ot-4
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Not Reported in A.2d Piigti l
Not Reported in A.2d, 2004 WL 440381 (Del.Super.)
{Cite as: Not Reported in A.2d)
C Court.
Only the Westlaw citation is currently available.
UNPUBLISHED OPINION. CHECK COURT
RULES BEFORE CITING. Background
Superior Court of Delaware.
Liunard SLADE, Plaintiff, Plaintiff Linnard Slade has been an inmate at DCC
v. since 1999. Five or six months after he was
'Ihomas CARROLL, Warden, Delaware incarcerated, Plaintiff sought medical treatment for
Correctional Center; Dr. lvans, M .D.; Correctional inflammation on his pelvis. The doctor at DCC
Medical Services; and Dr. Kastre, M.D., First informed the Plaintiff that the swelling was a boil,
Correctional Medical Services, Defendants. but that it did not require additional medical
N0.Civ.A.03C02033WLW. treatment. The boil became infected, which the
Plaintiff claims a "new doctor" attributed to the lack
Submitted Feb. 20, 2004. of treatment initially. Plaintiff tiled a complaint
Decided Feb. 25, 2004. pursuant to 42 U .S.C. § 1983 alleging that the
Defendants violated the Eighth Amendment to the
Constitution of the United States by failing to
Upon Defendants Motions to Dismiss. Granted. provide adequate medical care. In addition, Plaintiff
alleges negligence against Mr. Carroll and
Linnard Slade, Smyrna, Delaware, pro se. negligence and medical malpractice against Dr.
Steven F. Mones, of McCullough & Mclienty, P.A., Kastre and FCM for the allegedly inadequate
Wilmington, Delaware, for Defendants First medical treatment he received.
Correctional Medical and Tammy Kastre, M.D.
Richard W. Hubbard, Department of Justice,
Wilrnington, Delaware, for Defendant Thomas Discussion
Carroll.
When considering a motion to dismiss based upon
ORDER the Plaintiffs alleged failure to state a claim
pursuant to Superior Court Civil Rule 12(b)(6), the
WITHAM, J. Court must accept all allegations in the Complaint
as true and view the complaint in the light most
Introduction favorable to the Plaintiff. The Court should dismiss
the complaint only if the Plaintiff would not be able
*1 Before this Court are Defendants separate to recover under any reasonably conceivable set of
motions to dismiss pursuant to Superior Court Civil gimimjgtgnggg susceptible gfp;-ggf`_FNl
Rule l2(b)(6). The Defendants in the case are First
Correctional Medical (FCl\·l), the current provider
since July 2002 of medical care to inmates at FNL Baggggga v_ Chwsjgy Cm-pw 454 Ag.;}
Delaware Correctional Center; Tammy Kastre, 286 (]§)c1_$up,<;;_C{,]932)_
M.D. (Dr. Kastre}, the president of FCM; and
Thomas Carroll, the Warden at Delaware Cyp;] 353},;;,- Cgajms
Correctional Center {DCC). Plaintiff has not tiled
W1'llIBIl 0ppDSllil0I] to 'lhti IHDITOIIS. HDWCVEI, ll? d0ES The Amgndljjgut pyghibjtg [hg ggvgmmgut
OPPOSE thc m0Yi¤¤$ and has d¤¤¤ $0 before the from inflicting "cruel and Luiusual punishment? 'I'he
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Case 1:06-cv-0O001—Gl\/IS Document 31-4 Filed 08/25/2006 Page 2 qvfage 3 054
Not Reported in A.2d Page 2
Not Reported in A.2d, 2004 WL 440381 (Del.Super.)
(Cite as: Not Reported in A.2d)
State has a duty to provide adequate medical care to well established that under 42 U.S.C. § 1983, the
inmate-S_FN2 A failujjg te piyeidde such mediee] een-e doctrine of respondeat superior is not acceptable as
can constitute cruel and unusual punishment under a basis for liability,FN° Therefore, Plaintiffs claims
the Eighth Amendment. of civil rights violations by FCM and Dr. Kastre are
dismissed regardless of whether he has exhausted
administrative remedies.
FN2. West ti. Keve, 571 F.2d 158,161 (3rd
Cir.1978).
FN6. Hyson v. Correctional Medical
In order to state a cognizable claim {under the $€l‘Vf€€5. 2003 U-S· Dial- LEXIS 1879 *8-
Eighth Amendment}, a prisoner must allege acts or
Omiggjgns gumgigndy he]-mnt] te evidenee To support E1 civil rights claim based on lack of
deliberate indifference to serious medical needs. lt adequate medical sate, Plaintiff must establish mere
is only such indifference that can offend ‘evolving than just inadequacy of the medical care; FN? he
standards of decency’ in violation of the Eighth must establish that the acts or omissions of the
Amendment, FN} parties were sufficiently harmful to show deliberate
indifference to his medical needs.
FN3, Estelle v. Gamble, 429 U.S. 97, 106
[1976). FN'?. Norris v. Frame, 585 F.2d 1183 (3"il
Cir.l978}.
Title 42, section I997e(a) of the United States Code
requires that a prisoner exhaust all administrative Plaintiff alleges that Mr, Carroll, as the prison
remedies available before bringing an action under warden, delayed his access to medical care.
federal lew_FN4 Nothing in Plaintiffs Complaint However, this is not supported by the Complaint.
indieeteg, that he hug eghuugted uh ef the Plaintiff has not established any personal
setrrrirristrstive remedies available, in fact, it rises iiivelvsmeut by Mr- Csrtsll- Sis-k sail request terms
set irraieste wireurer he tres teiteweri tirresgtr with were submitted by the Plaintiff, but he has not
any of the administrative remedies available to him. €5l¤l¤ll5l1€d llldf MF- C¤1T0ll d61‘DOI1S¤'HT¢d delibefdte
Theiet‘e;e_ P]einti_t`t‘S ellegetitine gf eivi] tight; indifference to Plaintiffs medical needs. Thus,
vieletieng, pursuant te 42 [_]_3_C_ § 1933 are nothing has been alleged establishing that Mr.
digmiggtgd as tg all parting, tmlggg he cm] cgtgbligh C&lI'1`0ll Sl'lOW€d Cl€lib€1'Bli€ lIlCllffCI'CI1C¢ to Pl&lI`ll.“lH`S
thet he hee exhausted ttl] ef the edminietnitive medical problem. Because Plaintiff has failed to
rcmcdies nVnilnbl€_FN5 establish personal involvement by Mr. Carroll and
deliberate indifference on his part, Plaintiffs civil
rights claim with respect to Mr. Carroll are
1:N4_ 42 U,g_C_,§ lggjaetn} (2()g3)_ dismissed, regardless of whether Plaintiff has
exhausted all of his administrative remedies.
FN5. Plaintiff stated in open court that he
has exhausted all of his administrative
ren·ledjes_ but Defendants dispute thiS_ Negligence and Medical Maioraetiee Claims
*2 nesrever, even ir Plaintiff has tsiiettes through Dstsedaets FCM sud Dr- Kssds seetsud that
nn the ndminnnmnvn remedies, FCM nnd Dn because Plaintiffs Complaint failed to assert the
Kssrre argue that they cannot be liable for civil sllssauses uf esslissass with specificity ss is
rieirrs violations because pisisiirrs sisirrr alleges required by Sepstisr Csurt Rule 9(b>, Plaiiuiffs
vicarious tisiritiry. There is no allegation test or. usslissiiss slsims sbsuid be dismissed- fu erdsr ts
Kastre personally treated Plaintiff and his claim Sallsfll this Ruhr the Plsiuulff mlm mmm] the
against FCM is based upon vicarious liability. It is dsfsudsat ef (1) what dullli if {mlb was bmilchgdi
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Case 1:06-cv-0O001—Gl\/IS Document 31-4 Filed 08/25/2006 Page 3 pflggri 01:4
Not Reported in A.2d Page 3
Not Reported in A.2d, 2004 WL 440381 (Del.Super.)
(Cite as: Not Reported in A.2d}
(2) who breached it; (3) what act or failure to act negligence on the part of the public official.
breached the duty; and (4) the party upon whom the Plaintiff has not established that Mr. Carroll's
act was performed. FNS Plaintiff is proceeding pro alleged failure to provide adequate medical care
se in this action and tiled a handwritten Complaint, was in bad faith or performed with gross or wanton
Plaintiff contends that FCM failed to properly " negligence. Therefore, this claim is dismissed.
train, supervise, educate and control their
employees," and that Dr. Kastre failed to provide
the Plaintiff with adequate medical care. Plaintiff COHCIUNOH
generally describes the medical care he received
and describes the condition from which he suffers. Based on the above, Plaintiffs claims based upon
However, the Complaint does not specify the dates the Eighth Amendment to the United States
on which the alleged events occurred and never Constitution are dismissed as to Defendants First
alleges that FCM and Dr. Kastre were his treating Correctional Medical, Tammy Kastre, M.D., and
physicians or were responsible for his medical care Thomas Carroll. Plaintiffs claims based upon
at that time. Defendants contend that the alleged negligence and medical malpractice as to FCM and
events occurred before they took over management Dr. Kastre also are dismissed. Finally, Plaintiffs
of DCC's healthcare in July 2002, and thus they claim of negligence as to Thomas Carroll is
could not have been negligent. Plaintiffs Complaint dismissed.
fails to establish the negligence of these Defendants
with specificity. Therefore, Plaintiffs claims based ITIS SO ORDERED
upon negligence and medical malpractice are
dismissed. Del,Super.,2004.
Slade v. Carroll
Not Reported in A.2d, 2004 WL 4403Sl
rhs. Myer V. nya, 542 A.2t1 s02,s0s tD¤1.Sup¤r-J
(Del.Super.Ct.19S7).
END OF DOCUMENT
*3 Defendants further contend that Plaintiffs
medical malpractice claim should be dismissed
because Plaintiff does not have expert medical
testimony supporting his claim. However, the
statute Defendants rely upon, 18 Del. C. § 6853,
does not require expert testimony at the pleading
stage.FN° Therefore, even though Plaintiffs
Complaint lacks expert support, it would not be
dismissed on this basis. However, because the
claims have been dismissed as stated above, this
point is moot.
FN9, See Myer, 542 A.2d at 803.
Title 10, section 4001 of the Delaware Code states
that public officials, such as Mr, Carroll, are not
subject to civil liability when the act complained of
arose out of the performance of an official duty, was
performed in good faith, and was without gross or
wanton negligence. The burden of proof is on the
Plaintiff to establish bad faith and gross or wanton
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