Free Opening Brief in Support - District Court of Delaware - Delaware

Case 1:04-cv-01385—Gl\/IS Document 22-7 Filed 12/30/2005 Page 1 pLé3C2 Ot-4
Not Reported in A.2d Page l
Not Reported in A.2d, 2004 WL 440381 (Del.Super.)
(Cite as: Not Reported in A.2d)
Court.
Only the Westlaw citation is currently available.
UNPUBLISHED OPINION. CHECK COURT
RULES BEFORE CITING. Background
Superior Court of Delaware.
Linnard SLADE, Plaintiff, Plaintiff Lirmard Slade has been an inmate at DCC
v. since 1999. Five or six months after he was
Thomas CARROLL, Warden, Delaware incarcerated, Plaintiff sought medical treatment for
Correctional Center; Dr. Ivans, 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
No. 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
Limiard Slade, Smyrna, Delaware, pro se. negligence and medical malpractice against Dr.
Steven F. Mones, of McCullough & McKenty, 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,
Wilmington, 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 l2(b)(6), the
WITHAM, J. Court must accept all allegations in the Complaint
as true and view the complaint in the light most
Introduction favorabie 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
I`I`lOliOl1S to (liSIT1iSS pl11'SI.131'lt to Sl1p€I`iO1° COHIT gircunlstancgg susceptible gfpyggf FN1
Rule l2(b)(6). The Defendants in the case are First
Correctional Medical (FCM), the current provider
since July 2002 of medical care to inmates at FNI. Bautista v. Chrysler Corp., 454 A.2d
Delaware Correctional Center; Tammy Kastre, 286 (D€]_gupc;_(jt_]9g2)_
M.D. (Dr. Kastre), the president of FCM; and
Thomas Carroll, the Warden at Delaware Civil Rights Claims
Correctional Center (DCC). Plaintiff has not tiled
written opposition to the motions. However, he does The Eighth Amendment prohibits the government
oppose the motions and has done so before the from inflicting “cruel and unusual punishmer1t.” The
© 2005 Thomson/W est. No Claim to Orig. U.S. Govt. Works.
http://print.westlaw.com/delivery.html?dest=atp&format=HTMLE&dataid=A005580000... l2/30/2005

Case 1:04—cv—01385-GI\/IS Document 22-7 Filed 12/30/2005 Page 2 pig, 3 OM
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
ihrnates. F"'2 A failure to provide such medical care dcctriee cf respcndeet Supcricr is net acceptable as
can constitute cruel and unusual punishment under a basis for liability. FN6 Therefore, Plaintiffs
the Eighth Amendment. claims of civil rights violations by FCM and Dr.
Kastre are dismissed regardless of whether he has
exhausted administrative remedies.
FN2. West v. Keve, 57l F.2d 158,161 (3*9
Cir.1978).
FN6. Hyson v. Correctional Medical
lu order to state a cognizable claim [under the Services, 2003 U.S. Dist. LEXIS 1879 *8.
Eighth Amendment], a prisoner must allege acts or
omissions sufficiently harmful to evidence To support a civil rights claim based on lack of
deliberate indifference to serious medical needs. It adequate medical care, Plaintiff must establish more
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). FN7. Norris v. Frame, 585 F.2d 1183 (3rd
Cir.1978).
Title 42, section l997e(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 law. FN4 Nothing in Plaintiffs Complaint However, this is not supported by the Complaint.
indicates that he has exhausted all of the Plaintiff has not established any personal
administrative remedies available, in fact, it does involvement by Mr. Carroll. Sick call request forms
not indicate whether he has followed through with were submitted by the Plaintiff] but he has not
any of the administrative remedies available to him, established that Mr. Carroll demonstrated deliberate
Therefore, Plaintiffs allegations of civil rights indifference to Plaintiffs medical needs. Thus,
violations pursuant to 42 U.S.C. § 1983 are nothing has been alleged establishing that Mr.
dismissed as to all parties, unless he can establish Carroll showed deliberate indifference to Plaintiffs
that he has exhausted all of the administrative medical problem. Because Plaintiff has failed to
remedies aVai1ab1c.FN5 establish personal involvement by Mr. Carroll and
deliberate indifference on his part, Plaintiffs civil
rights claim with respect to Mr. Carroll are
FN4. 42 U.S.C. § 1997e(a) (2003). 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
remedies, but Defendants dispute this. Negligence and Medical Maljpractfce Claims
*2 However, even if Plaintiff has followed through Dcfcndants FCM and DY- Keene contend that
on the administrative remedies, FCM and Dt; because Plaintiffs Complaint failed to assert the
Kastre argue that they cannot be liable for civil elleseticne cf eesliscuce with specificity ee is —
rights violations because Plaintiffs claim alleges feqlltted by Superior Court Rule 9(b), Plaintiffs
Viearious liability. There is no allegation that Dt-_ Degllgeflee CIHHHS should be dismissed. In order to
Kastre personally treated Plaintiff and his claim S¤¤SfY this Rule, the Plaintiff must inform the
against FCM is based upon vicarious liability. It is defendant of (1) what duty, 1f any, was breached;
© 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.
http://print.westlaw.com/delivery.html‘?dest=atp&format=HTMLE&dataid=A005580000... 12/30/2005

Case 1:04—cv—01385-GI\/IS Document 22-7 Filed 12/30/2005 Page Spiég 4 Oi-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. Carrol1's
act was peefem-leel_ FNS Plaintiff ie proceeding pre alleged failure to provide adequate medical care
se in this action and tiled a henrlwrinen Complaint was in had faith or pcrfonnod with gross or wanton
plaintiff contends that FCM failed to pygpgrly “ negligence. Therefore, this claim is dismissed.
train, supervise, educate and control their
emp1oyees,” and that Dr. Kastre failed to provide
the Plaintiff with adequate medical care. Plaintiff C01'1€h¢Sl0F1
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 A11‘1¤11€lH1€11l to the U11lli€d States
OH the alleged gvgntg gc(;u_[]·gd and HBVQI COlZ1SlIll11tl0I1 HIC dlSH'].iSSCd ZS to Defendants
alleges that FCM and Dr. Kastre were his treating C0¤'€¤l'l0¤¤l Medical, Tammy KBSUB, M-D-, 8116
physicians or were responsible for his medical care Thomas Carroll. Plaintiffs olaims based noon
at that time Dgfgndantg eememi ll-le; the alleged negligence and medical malpractice as to FCM and
events occurred before they took over management D1'- K¤SU‘€ 11150 M6 €liS1‘11l$$€d- Finally, Pl¤llllll`l`S
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 dlS111lSS¢d·
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 440381
FNS. Myer V. Dyer, 542 A.2d 802,805 (Del.S¤per.)
(De1.Super.Ct.l987).
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. W9 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
tl1at 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
© 2005 Thomson!West. No Claim to Orig. U.S. Govt. Works.
http://p1·int.westlaw.com/delivery.html?dest=atp&format=HTMLE&dataid=A005580000... 12/30/2005