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

_ . I Case 1 :04-cv-01417-GI\/IS I D0cument·43-2I Filed 05/07/2007. Page 1. of 3 - I , .
Not ReportedinF.Supp.2d _ A I ’ . , I - I
” I I (Cite as: 2003 WL 292085 (D.Del.)) — I _ I I
Only the Westlaw citation is currently available. _ treatment of his injury and to be reassigned to a
II I — — . , bottom bunk. Plaintiff alleges that the Delaware _
I I United States District Court, I I I Correctional Center has retaliated against him for this ~
I D. Delaware. . litigation by assigning him a top bunk. Due to his leg -
, injury, plaintiff experiences pain and suffering from »
Michael T. HYSON, Plaintiff, _ I having to climb to the top bunk. . , I I I
rv. I .
CORRECTIONAL MEDICAL SERVICES, INC., , ."[T]he grant of injunctive relief is an 'extraordinary
Robert Hampton, Dr. Canciho and Dr. I remedy, which should be granted only in limited
Rizwan, Defendants. _ I · · ~ circumstances." ‘ Instant Air Freight Co. v. C.F. Air
. . . . A . II , Freight, Inc., 882 F.2d 797, 800 (3d Cit.1989)
I , No. Civ.A. 02-318. (quoting Frank ’s GMC Track Center, Inc. v. General
» » . . ~ Motors Corp., 847 F.2d 100, 102 (3d Cir.1988)). In
Feb. 6, 2003. ~ ruling on a a preliminary injunction, this court must
_ I ¤ I. I I consider: 1) the likelihood of success on the merits; 2)
_ I MEMORANDUM ORDER , _ I _ the extent to which the plaintiff is being irreparably .
I I I I I I _r harmed bythe conduct complained of; 3) the extent to
ROBlNSON, l. . _ . which the defendant will suffer irreparable harm if the
. , » l I - — - requested relief is granted; and 4) the public interest.
I. INTRODUCTION I . See Clear Ocean Action v. York, 57 F.3d 328, 331
(3d Cir.l995). An injunction should only issue if all
.*1 On April 30, 2002, plaintiff tiled this action under four factors favor injrmctive relief. See S & R Corp.
_ 42 U.S.C. § l983Iagainst Correctional Medical v. Jhjy Lube Intern., Inc., 968 F.2d 371, 374 (3d » .
Services, Inc. ("CMS"), Robert Hampton, Dr. Cir.1992). I .` I I I _
Canciho and Dr. Rizwan. (D.I.2) Plaintiff alleges that _ I
he was "denied proper and adequate medical Plaintiffs claim is that he was denied treatment for a I I
treatrnent." (Id.) I I I I , serious medical need. »
I Failure to give adequate medical treatment to I
Currently before the court is plaintiffs motion for prisoners is a constitutional violation when it results I I
Iinjtmctive relief, motion to compel and motion for I · from "deliberate indifference to aprisoner's serious I
summary judgment. (D.I. 12, 29, 36) Also before the illness or injury." Estelle v. Gamble, 429 U.S. 97,
court is CMS's motion to dismiss for failure to 105 (1976). This standard "requires (1) deliberate
exhaust administrative remedies and for failure to indifference on the part of prison officials and (2)
~ state a claim. (D.l.35) For the following reasons, the _ the prisoner's medical needs to be serious." West v.
court shall deny eachmotion. I j _I , , I. Keve, 571 VF.2d 158, 161 (3d Cir.l978). . _ A · _ ,
ILBACKGROUND I I I · , *** · I . » V
[The Third Circuit] cases describe acts or omissions
Plaintiff is currently incarcerated in the Delaware that fail to display a serious use of medical
Correctional Center. Plaintiff alleges that sometime in judgment. An incidence of negligence or malpractice
February 2001 he slipped in the stairwell of his unit does not violate the Eighth Amendment. Estelle, 429 I
and injured his leg. (D.1.2) He was treated at that time U.S. at 106. Similarly, a difference of medical
and was informed that x-rays showed no visible opinion between theIp1ison's medical staff and the · .
injruy. Plaintiff alleges continuing pain and visible inmate as to the latter‘s course of treatment does not
injury to his leg. (Id.) Plaintiff states he was examined support a claim of cruel and unusual prmishment.
several times and each time told that there was no _ , See Waldrop v. Evans, 871 F.2d 1030, 1033 (11th
visible irnury on the x- rays. I _ I I , , I..» Cir.1989). . ,
I I I · I ~ I · I _ *2 Miller v. Correctional Medical Services, Inc.,
HI. DISCUSSION . 802 F.Supp. 1126, 1130-31 (D.Del.l992). I
A. Plaintiffs Motion for Injunctive Relief _ I Under the requisites for injunctive relief, plaintiff has
I I I I failed to demonstrate a likelihood to succeed on the _
Plaintiff requests injunctive rrehef for ~ outside » merits. Plaintiff concedes in his complaint that he has ( s I
( , . I, . Copr. © West 2003 No Claire to Orig. U.S. Govt. Works I , I ._ ». I , I

[ ‘ · Case1:04#cv-O141.7+GI\/IS . .Documemi4_3—2" ·Fi|ecl·O5/07/2007) `P_ag`e_2.of`3,r?, I Q .
’ Not ReportedinF.Supp.2d V I V i ‘ 7 ` t » i· lt - . .
°‘ s (Cite as: 2003 WL 292085, *2 (D.Del.)) · _ e '
had at least two sets of x—rays and been seen by at F.3d 478, 483 (3d Cir.1998). "A complaint should be _
least two different doctors for his injury. Both doctors dismissed only if, after accepting as true all of the
reported no injury based ou the x—rays. Plaintiff, on facts alleged in the complaint, and drawin all
the other hand, believes he is iruured. On the face of . reasonable inferences in the plaintiffs favor, no ielief
the complaint, plaintiff has not shown a deliberate could be granted under any set of facts consistent with
indifference on the part of defendants to serious the allegations of the complaint." Id. Claims may be
· medical needs. [ENI] i dismissed pursuant to a Rule 12(b)(6) motion only if
_ ` . - ` ` the plaintiff cannot demonstrate any set of facts that
FN1. Plaintiff claims that his bunk placement is in ‘ would entitle him to relief. See Conley V. Gibson, 355
retaliation forthis lawsuit. (D.I. 12 at 1) Courts have U_S_ 41, 45-46 1957 _ Whcyg the pkjjmjff js a yo sg
"irecognized that retaliation claims by prisoners are Htigaut’ thc cmg-( ha; an Obligation to const!-EC the
.ee¤eee¤v ‘Pee¤e te eeeee—' Dee te 'eee eeee Wee complaint uuersuy. see Haines v. Korner sus us.
· ‘”“°'“ ‘°“‘“°“°” °‘“i““ mw b?.f*‘b“°““d· my 519 520-521 (l972)· Gibbs v Roman ire l‘·‘3d as
should he] viewed[ed] with skepticism and particular ’ _ ' _' ’ _ ‘ ’
careiv r Woods V. Ggard, NCL O1 Civ_ 3255, 2002 _ I1. 6 Urrutzcz V. HU}°ITSbUTg COIUZZY
WL 31296325, at *7 (5_D_N _Y_ Oct_ 10_ 2002) Police Dep 't., 91 F.3d. 451, 456 (3d Cir.1996). The
. (quoting Flaherty u. ceugmzs, ua rad ro, ra ou moving pany has the burden ¤f r:>¤rs¤asi¤¤· See Keir
4 Cir.1983); Colon v. Coughlin, 58 F.3d 865, 873 (2d ·,Packages, Inc. v. Fidelcor, bzc ., 926 F.2d 1406,
Cir.1995)). p . 1409 (3d Cir. 1991). 1
There being no evidence presented regarding either 1. Erthaustion of Administrative Remedies _ z
the extent to which defendants will suffer irreparable ·
harm if injunctive relief is granted, or the public Defendant Correction Medical services argues that
interest, the court cannot address those issues. , plaintiff did not exhaust his administrative remedies
However, it is not necessary to do so, as failure to prior to tiling this action pursuant to the Prison
meet any one ofthe factors is sufficient to deny relief. Litigation Reform Act ("PLRA"), 42 U.S.C. §
Thus, the court denies plaintiff's motion for injunctive i 1997c(a). [FN4] Before filing a civil action on a
1 relief. - 4 » C ‘_ denial of medical services claim, a plaintiff-inmate
s ` ‘ V ` must exhaust his administrative remedies. See Booth
B. Plaintiffs lvlotion to Compel v. Cizurner, 206 F.3d 289, 295 .(3d Cir.2000), cent _ .
` ` granted, 531 U.S. 956 (2000), qjj°'d, 121 S.Ct. 1819
Plaintiff has filed a motion to compel CMS to provide (2001). i e i C Q .
the addresses of Robert Hampton, Dr. Canciho and ~ A - `
Dr. Rizwan. Although not stated, the court assumes FN4. The PLRA provides, inpertinentpart: ·
plaintiff desires the addresses to effCCtL1HlZe Se1'viCe of r No action shall be brought with respect to prison
, pl-OccSS_ [FN2] Plaintiffs mgtjgn is gmmgd fp; mg ‘ conditions under section 1983 of this title, or any
purpose or obtaining addresses to serve preeess. To Meer Federal 1eW· ev epeieeeee eeefeeee ie eevleih
the extent CMS is able to provide an address to serve ‘ » Pmcfuy °’_ °m°’ °°‘T°°“°m1 fmmy Plum eee
the Hamed dcfmdams [FNB] it must do SO. A _ administrative remedies as are available are
_ ’ V exhausted. V
~ _ » 42 U.S.C. § 1997e(a). .
FN2. The court notes that return of service .
» agjlecuted :1; gee medinr Dm'. Geese {md V s *3 In the case at bar, the record indicates that
. m' (D` `“ ’ 6) ‘ ` _ plaintiff tiled grievance forms on December 12, 2001
‘ _ _ and February 24, 2002. (D.I.2) The record does not
FN3‘ The r°°°rd d°°s ee mdmm Whether ee reflect a resolution of these grievances of the current
ueeeeeeefeeeeeeeeeeeeeeyeeeeleyeeeyelee- , Sess. Plaintiff use alleges to have exhausted us
_ _ _ ’ . 1 administrative remedies. (D.I. 36 at 1) Thus, the court
C- Defe¤de¤t¤MS'e Meeeeee Demise . . . finds that plaintiff rue exhausted his administrative
In al _ ti t di _ [ t Rm remedies. Defendants motion to dismiss for failure to _
en Yzmg a mo Ou O Smiss Pufsum 0 6 exhaust administrative remedies is denied. . » i 3
12(b)(6), the court must accept as true all material t t _ . . _ ' `
allegations of the complaint and it must construe the g_ Liability gf CMS ` . i
complaint in favor of the plaintiff. See Trurrln Hotels V ° _ A
»& Cosirzo Resorts; mc. v. Mirage Resorts, L·zc ., 140 As to the liability of CMS, it is an established · .. v_ -
‘ ~ Copr. © West 2003 No Claim to Orig. U.S. Govt. Works _ . ._ _

( Case 1“:O4—cv—O1$417-GIVIS Document 43—2 . Filed 05/O7/2007 ,._Page,3 ofV3‘ ‘ P
V p ,NotRep0rtedinF.Supp.2d f · · ‘ . Q ‘ V ° V - · V . as —
. (Cite ast 2003 WL29208S, *3 (D.Del.)) — ‘ V · l · ~ V V. " . · V. i
principle that, as a basis for liability under 42 U.S.C. summary judgment is denied as moot., , V ‘ i V ( f ‘ ‘
‘ § 1983, the doctrine of respondeat superior is not V “ ~ ’ ‘ -‘ s _ _ 2 V °
acceptable. See Monell v. Dep 'i. of Social Saws., 436 V. CONCLUSION V V i V
U.S. 658 (1978); see also Roole`v. Dellarciorete, 845 ’
F.2d 1195, 1207 (3d Cir.l988); Swan v. Daniels, 923 Therefore, at Wilmington, this 6th day of February, ,
_ F.Supp. 626, 633 (D.Del.1995) (applying principle to _— 2003; V··. » i — ,
liability of private corporations that provide medical ( , »V ‘ V » »_ .
services for State). Personal involvement by a ’ · IT IS ORDERED that: . - , ‘ ;
defendant is essential in a civil rights action. See ~ ·
Rode, 845 F.2d at 1207. "Allegations of personal , l. Plaintiffs motion for injunctive relief (D.I.12) is
. . direction or of actual knowledge and acquiescence" denied. ‘»i‘ ‘ ` ’ . ‘ V .
are adequate to demonstrate personal involvement. Id. I V V I -
_ Such allegations are required to be "made with 2. Plaintiffs motion to compel (D.I.29) is granted.
appropriate particularity." Id. Plaintiffs complaint 1 On or before March 5, 2003, defendant Correction
’ states "the defendants knew of and were aware of his Medical Services shall provide plaintiff with the
_ foot problem, yet ignored administering the, adequate service address for defendants Hampton, Canciho and
and proper tream1ent[.]" The court finds that, on a — Rizwan or aver that it does not have such information. .
. motion to dismiss, the complaint is sufficient to allege_ V _
actual knowledge with the appropriate particularity. · 3. Defendant Correctional Medical Servicefs motion `
. Thus, defendanfs motion to dismiss is denied. I to dismiss (D.I.35) is denied. l ; V
_ D. Plaintiffs Motion for Summary Judgment _ 4. Plaintiffs motion for summary judgment (D.I.36)
· -. V · is denied as moot. - ‘ _ V
Plaintiffs motion, although styled as a motion for »
summary judgment, is an answer to defendant's 2003 WL 292085 (D.Del.) · _ I ° ; . .
motion to dismiss. The court has denied defendant's — V ·
motion to dismiss. _As such, plaintiffs motion for · END OF DOCUMENT _
_ V · · — . Copr.©West 2003 No Claim to Orig. U.S. Govt. Works. ” A S r .