Free MEMORANDUM in Support - District Court of Delaware - Delaware

Case 1.06 cv 00001 GIVIS Document 31 2 Filed 08/25/2006 Page 1 gage 2 OM
Vi/estlaw:
Not Reported in P.Supp.2d Page I
Not Reported in F.Supp.2d, 2003 WL 21383727 (D.Del.)
(Cite as: Not Reported in F.Supp.2d)
C H. BACKGROUND
Only the Westlaw citation is currently available.
United States District Court,D. Delaware. Plaintiff is an imnate at the Sussex Correctional
Terrence L. SMULLEN, Plaintiff, Institution in Georgetown, Delaware. (D.l.6) Upon
v. being incarcerated on July 30, 1999, plaintiff claims
Rick KEARNEY, Warden, Prison Health Services that Dr. Roberta Burns, a physician with Prison
and Roberta Bums, M.D. Defendants. Health Services, told plaintiff that a pre-existing
No.Civ.A. 02-082-SLR. hernia he had was nothing to be alarmed about.
(D.I.2) On April 24, 2000, plaintiff complained of
June I3, 2003. stomach pains, which Dr. Burns treated with an
enema. (fd.) Plaintiff was then sent back to his
housing unit and instructed to retum if his ailments
Terrence L. Smullen, plaintiff, pro se. persisted. (Id.}
Stuart B. Drowos, Department of Justice, State of
Delaware, Robert Karl Beste, lll, White & Alter numerous subsequent complaints, plaintiff
Williams, Wilmington, Delaware, for defendants. was sent to the Medical Department in the Max
Building and then taken to Beebe Medical Center (“
MEMORANDUM OPINION Beebe”) in Lewes, Delaware. (ld.) At Beebe,
plaintiff claims to have been diagnosed with a "
ROBINSON, Chief J. strangulated direct hemia." (In'.) Upon discharge
from Beebe on April 30, 2000, plaintiff claims to
l. INTRODUCTION have been diagnosed with “appendicitis and
incarcerated iight inguinal hernia." (Id.)
*1 On January 31, 2002, pro se plaintiff Terrence
L. Smullen tiled this action against defendants Rick Plaintiff was re-admitted to Beebe on June 29,
Kearney, Warden of Sussex Correctional 2000, complaining of breathing complications. (Id.)
Institution, Prison Health Service and Roberta Upon readmission, plaintiff was diagnosed with an
Burns, M .D. pursuant to 42 U.S.C. § 1983 alleging "e¤larged l1CH1’{” and toxic blood due to depression
violations of t.he Eighth Amendment based on medication administered at the Sussex Correctional
inadequate medical care. This court has jurisdiction Institute. (Id.) On July 3, 2000, plaintiff was
pursuant to 28 U.S.C. § 1331. Presently before the discharged with a diagnosis of “congestive heart
court is plaintiffs motion for appointment of failure." (Id.) Plaintiff now claims to suffer from a
counsel (D.I.20) and defendar1ts' motions to dismiss. severe form of heart disease (cardiomyopothy) due
[D.I.l8, 21) On March 23, 2003 this court issued an to defendants "unprofessional acts and diagnosis? (
order stating that because matters outside the ld.)
pleadings were presented to the court in support of
the motions to dismiss, the court would review On January 31, 2002, this court granted plaintiff
defendants motions as motions for stunmary leave to proceed in forma ptmepris and ordered an
judgment pursuant to Fed.R.Civ.P. 12(b) and 56(b). initial partial tiling fee of $2.33 to be paid within
(D.I.24) For the reasons that follow the court shall thirty (30) days to avoid dismissal. (D.I.l) Plaintiff
deny plaintiffs motion for appointment of counsel did not timely pay the fee and his complaint was
and grant defend.auts' motions for summary dismissed without prejudice. (1).1.4) On March 22,
judgment. 2002, the court received plaintiffs motion for
reconsideration, requesting additional time to pay
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Case 1.06 cv 00001 GIVIS Document 31 2 Filed 08/25/2006 Page 2 qtaigc 3 O,-4
Not Reported in F.Supp.2d Page 2
Not Reported in F.Supp.2d, 2003 WL 21383727 (D.Del.)
[Cite as: Not Reported in F.Supp.2d)
the filing fee. ([1.1.5) On April 3, 2002, the court U.S.317,322(1936).
extended plaintiffs deadline to pay the initial partial
filing fee to May 6, 2002. (D.l.6) On April 24,
2002, plaintiff made the tirst partial filing fee IV. DISCUSSION
payment of $2.33. (D.l.6) On or around November
1, 2002, plaintiff moved for appointment of A. Plaintiff has not exhausted the administrative
counsel. (D.I.l6) On November 14, 2002, remedies available to him within the Sussex
defendants moved to dismiss. (D.I. 1 8) Correctional Institute, thus requiring dismissal
uI1der42 U.S.C. § 1997e
III. STANDARD OF REVIEW
The Prison Litigation Reform Act of 1996, codified
*2 A court shall grant sumtuary judgment only if " at 42 U.S.C. § 1997e, provides:
the pleadings, depositions, answers to (a) No action shall be brought with respect to prison
interrogatories, and admissions on file, together conditions under [42 U.S.C. § 1983] or any other
with the aftidavits, if any, show that there is no Federal Law, by a prisoner con.f1ned in any jail,
genuine issue as to any material fact and that the prison or other corrmtional facility until such
moving party is entitled to judgment as a matter of admiriistrative remedies as are available to him are
law." Fed.R.Civ.P. 56{c). The moving party bears exhausted.
the burden of proving that no genuine issue of
material fact exists. See Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586 n. 10 Courts have consistently held that inmates must first
(1986). "Facts that could alter the outcome are ‘ exhaust all administrative remedies available prior
material,` and disputes are ‘genuine’ if evidence to tiling a § 1983 action based upon prison
exists from which a rational person could conclude conditions, regardless of" futility. Booth v. Chiimer,
that the position of the person with the burden of 532 U.S. 731 (2001); See, e.g. Nyhuis v. Reno 204
proof on the disputed issue is correct" Horowitz v. F.3d 65, 67 (3d Cir.2000). The Delaware
Fed. Kemper Life Assurance Co., 57 F.3d 300, 302 Department of Correction administrative procedures
rr. l (3d Cir.1995) (internal citations omitted). If the provide that
moving party has demonstrated an absence of medical grievances be submitted to the [Inmate
material fact, the nonmoving party then "must come Grievance Chair], who will forward the grievance to
forward with ‘specific facts showing that there is a the medical service contractual staff for review. The
genuine issue for trial.“ ’ Matsushita, 475 U.S. at medical services contractual staff will attempt
587 (quoting Fed.R.Civ.P. 56(e)). The court will " informal resolution of the matter. If such resolution
view the underlying facts and all reasonable fails, a Medical Grievance Committee (“MGC")
inferences therefrom in the light most favorable to hearing will be conducted, which hearing will be
the party opposing the motion" Po. Cool Asst: 12. attended by the grievant and the [Inmate Grievance
Babbitt, 63 F.3d 231, 236 (3d Cir.1995). The mere Chair]. lf the matter is resolved at that stage, the
existence of some evidence in support of the case is closed; otherwise, the grievant is directed to
nonmoving party, however, will not be sufficient for complete the MGC Appeal Statement section of the
denial of a motion for summary judgment; there written grievance and forward it to the [Inmate
must be enough evidence to enable a Grievance Chair]
reasonably to find for the nonmoving party on that
issue. See Anderson v. Liberty Lobby, inc., 477 U.S. *3 DOC Policy 4.4 (revised May 15, 1998).
242, 249 (1986). If the nonrnoving party fails to
make a sufficient showing on an essential element Based on the record, the court finds that plaintiff
of its case with respect to which it has the burden of has not pursued all administrative remedies
proof, the moving party is entitled to judgment as a available to him, such as a MGC hearing followed
matter of law. See Cefotex Corp. v. Cotrett, 477 by a written MGC Appeal Statement. Thus, 42
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Case 1:06-cv-00001—Gl\/IS Document 31-2 Filed 08/25/2006 Page 3 qi 3
age 4 of 4
Not Reported in l—`.Supp.2d Page 3
Not Reported in F.Supp.2d, 2003 WL 21383727 {D.Del.)
(Cite as: Not Reported in F.Supp.2d)
U.S.C. § 1997e, on its face, bars plaintiff from Plaintiff was examined and treated on numerous
bringing suit since plaintiff did not pursue the occasions for his ailments, including two
grievance process to its finality. hospitalizations with an outside medical provider.
Therefore, plaintiff has failed to show defendants
exhibited a "reck1ess disregard" or "actual intent"
B.P1.1rsuant to 42 U.S.C.§ l983,plaintiff does not to disregard his medical condition. Viewing all
state a claim under the Eighth Amendment underlying facts and reasonable inferences in a light
most favorable to plaintiff does not support a
Even if the court were to review the merits of the finding that defendants violated his Eighth
case, plaintiff has not stated a claim under the Amendment rights.
Eighth Amendment. Defendants accept as true the
facts as offered by plaintiff for purposes of the
present motion. The State has the duty under the V. CONCLUSION
Eighth Amendment to provide "adequate medical
care to those it is punishing" through incarceration. For the reasons stated above, the court shall grant
West V. KEYS, 571 158, 1.61. T1'lC dgfgnd3n{5' motion for gununayy judgmgn[_FNl A1]
Supreme Court has held that in order to state a spppopl-isis 0;-dsy shall iggug,
cognizable claim under the Eighth Amendment, a
prisoner must show deliberate indifference to
serious medical needs. For there to be deliberate FN], P]gjn[if,f‘g motion fg; appgjnungnt gf
indifference, the prison physician's acts must ssusss-1 js dsnjsd ss mss;
constitute "an unnecessary and wanton infliction of
pain," be "repugnant to the conscience of mankind" QRDER
or offend the ‘*evolving standards of decency?
Estelle v. Gamble, 429 U.S. 97, 106 (1976). A *4 A; wjrmjngtsn this 1301 dsy gf gm-,s_ 2[}{}3‘
medical need is serious if it is “tme that has been consistent with the nremornndnrn opinion issued this
diagnosed by a physician as requiring treatment or ssms day;
one that is so obvious that a lay person would easily
recognize the necessity for a doctor’s at1ention.” [T [3 ORDERED [hat;
Monmouth County Corr. lttstfturional Inmates v.
Lanzaro. 834 F.3d 326, 347 (3d Cir.l9S7). l. Plaintiffs motion for appointment of counsel
Furthermore, " ‘where the plaintiff has received (111.20) is denied as moor,
some care, inadequacy or impropriety of the care
that was given will not support an Eighth 2. Defendants motions for summary judgment
Amendment claim." ‘ Norris v. Frame. 585 F.2d (Dj.18,21) are gr;-n·rred_
1183, 1186 {3d Cir.l97S). See also Inmates tif
Allegheny County Jail v. Pierce, 612 F.2d 754, 762 3_ The slsyk is djs-sstsd ts, enter judgment in {som-
{3d Cir.l979) ("[C]ourts will ‘disav0W any of defendants and against plaintiff
attempts to second-guess the propriety or adequacy
of a particular course of treatment [which] [)_Dst_,20()3_
remains a question of sound professional judgment? Smullgn v_ Kssmsy
‘). Therefore, a mere difference of opinion Ns; Rgpgytgd in F_Supp_2d§ 2003 WL 21333727
concerning the treatment received by an inmate is (])_])s|_)
not actionable tmder the Eighth Amendment and §
1983. END OF DOCUMENT
'l"be facts alleged in plaintiffs complaint do not
support the conclusion that defendants acted with
deliberate indifference to plaintiffs medical needs.
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