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Slip Copy, 2005 WL 1353336 (D.Del.)
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H Delaware. (D.I. 35 at 1.) FN2 On September 26,
Briefs and Other Related Documents 2003, Plaintiff commenced this action by filing a
Only the Westlaw citation is currently available. Complaint pursuant to the 42 U.S.C. § 1983,
United States District Court,D. Delaware. alleging that the State of Delaware Department of
Kevin D. MILLER, Plaintiff, Corrections ("DDC"), several prison officials and
v. correctional officers at Gander Hill, and certain
Rafael WILLIAMS, Phillip Thomas, Nurse Jackie, First Correctional Medical ("FCM") employees
Stan Taylor, Corporal Brown, John Doe l,John violated Plaintiffs Eighth Amendment right to be
Doe 2, John Doe 3, First Correctional Medical, free frem er-eel and unusual puniShmgnt_ FN? (])_[_
Dli1H€H€m9·Hd€Z»Ducmrcorkj-¤»DOcl0YSha11> 37 at 4-5, 7.) Specifically, Plaintiff alleges that
DOCYOY Allie Sltl`i€» and Dcclcf Reach, defendants acted with negligence and deliberate
N0. Civ.A. O3-913-KAJ. indifference toward "the conditions wider which his
injury [to his back] was sustained," "his injuries at
June 7, 2005. the scene of the accident," and his "serious medical
needs" that developed as a result. (D.I. 37 at 7-8.)
Kevin D. Miller, Smyrna, DE, pro se.
Daniel L. McKc¤ly,McC¤1lc¤sh & MCKBUU/» PA-, FN2. At the time he filed this complaint,
Wllmlilgtfms DE, fcr Rafael Williams, ct al- Plaintiff was incarcerated at the Howard R.
JORDAN, J- Young Correctional Institution (“Gander
Hill") in Wilmington, Delaware. (D.I. 35
I. INTRODUCTION at l_)
*1 BCfUI'C HIC is B Motion to DiSH]jSS ("Docket FN3_ was the contract medical
["D.I."] 34; the "Motlon") tiled by defendants provider er DDC_
Raphael Williams, Stan Taylor, and Phillip Thomas
(ccllectivelv, the “Mcvi¤s Dcfc¤
fled by plaintiff Kevin D- Miller ("Pl¤i¤liff’)- headed rar court. (11.1. 2, Attachment (··A¤sch.··) 1
(D.I.l0.) For the reasons that follow, the Motion to at l_) Whilc boarding flre Van, Plaintiff allegedly
DiSH]iSS be and motion and fron-1 the upper Step Of the van Onto
bl? dlmled as TBODY- the concrete floor of the garage. (Id.) Plaintiff
claims he suffered injuries to his "back, tailbone,
neck and (Id) Plaintiff asserts that he fell
H. BACKGROUND FN! because the floor and steps of the van were wet and
he was not given the required “physical escort." (Id.
) After Plaintiff fell, he lay on the ground and
FNI. The f0ll0Wi11g 1‘€l1difi01â€l of informed the transportation officer, defendant
background information is cast in the light Thomas, that he could not get up and needed a
most f3VOI'8bl6 to the 11011-H10Vll1g Pliffy doctor. (Id.) Subsequently, four or tive officers and
311d dOCS DOI COIISIIIUTC findings of fHClC. "3 nurse named IackiC" (“Nur5g Jgckie") arrived at
the scene in response to Plaintiffs request for
Plaintiff is a pro se litigtmt iltcarceraied at the medical help. (Id. at 2.) Nurse Jackie asked Plaintiff
Delaware Correctional Center (“DCC") in Smyrna, to get up, but he informed her that he could not get
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up and again requested to see a doctor. (Id.) Despite slips but was never called to the infnmary until it
his requests not to be moved, the officers allegedly was time for his physical on January 4, 2003. (Id. at
picked Plaintiff up by his arms, placed him on his 6.) During his physical, Hernandez prescribed
feet, and "forced [him] to limp to the infrrmary." (Id medication for Plaintiffs pain and scheduled an
) At the infirmary, Diane Hernandez ("Hernandez"), appointment for him to sec a doctor on February 25.
a physician‘s assistant, diagnosed Plaintiff with a " (Id.) On February 25, Plaintiff saw Dr. Shah, who
contusion" and "muscle sprain to the back areas and informed him that there was nothing more that
arm [,]" and she "prescribed muscle relaxers ‘ could be done for him because his X-ray was
Robaxin’ and Motiin, for the pair1." (Id. at 2-3.) negative. (Id.) The next day, Plaintiff had his
medical grievance hearing before a board which,
More than a week later, Plaintiff was taken to the according to Plaintiff, consisted of members from
Medical Department because he was still the “Delaware Department of Justice" and "Healt]1
experiencing pain in his neck and back. (Id at 3.) Service Administrators? (Id) The board held that
He was examined by a nurse who was unable to the most appropriate course of treatment for
prescribe medication for his pain but scheduled an Plaintiffs injury was “Tylen0l or Motrin and
appointment for him to see a doctor on October 30. ( exercise." (Id.) Plaintiff appealed the decision, but
Id.) Plaintiff was not taken to the infirmary until his appeal was denied. (Id.)
November 4, when he again saw Hernandez, who
prescribed “Naproxen†for the "pain and spasms." ( Plaintiff says he continued to experience pain, and,
Id.) Plaintiff was again scheduled for a follow-up on April 28, he was taken to the infirmary and seen
appointment on November 8, but was not taken to by a nurse who referred him to either a doctor or a
the infnmary until November 18. (Id) On that date, physician's assistant. (Id) On May 6, Plaintiff again
Plaintiff was again examined by Hemandez, who saw Hemandez, who informed Plaintiff that there
informed him that there was nothing more she could was nothing more that could be done for him, unless
do for his pain but that she would schedule an he was "unable to move." (Id.) Plaintiff informed
appointment for him to see a doctor. (Id) Two days her that he was “unable to move when [his] hips
later Plaintiff saw Dr. Roach, who prescribed [had] sharp shooting pains." (Id.) In response to
muscle relaxers and ordered an X-ray of Plaintiffs Plaintiffs claim that he was unable to move,
back. (Id. at 4.) Plaintiff requested an MRI, but Dr. Hernandez scheduled another appointment for him
Roach allegedly denied his request because it " to seeadoctor. (Id.)
would cost too much money." (Id) Two days alter
his appointment with Dr. Roach, on November 22, On June 5, Plaintiff saw Dr. Sattie who examined
Plaintiff had an X-ray of his lower back. (Id at 4-5.) him and infomied him that there was nothing more
that could be done for him. (Id at 7.) "That same
*2 On November 30, Plaintiff filed a “sick cell s1ip" night," Plaintiff filed a sick cell slip because he felt
because he was still experiencing back pain and was sharp pains and "could not move or breathe
now having headaches as well. (Id. at 5.) On con1fortably." (Id.) On June ll, Plaintiff met with
December 8, Plaintiff tiled a medical grievance the medical administrator. who explained to him
because his sick cell slip had not been answered, that there was nothing more anyone could do for
and he had not been called for his 10 day check-up him except continue to give him "Motrin or Tylenol.
with Dr. Roach. (Id) On December 18, Plaintiff " (Id.) On July 9, Plaintiff was examined by Dr.
again saw Dr. Roach, who reported that the X-ray Corking, who offered to prescribe him more
revealed no broken bones but that he would medication for the pain, but warned him that
continue his medication for the pain. (Id) Five days extended use of such medicines could cause liver
later, Plaintiff tiled another sick cell slip because he damage. (Id) Dr. Corking allegedly wamed
felt a "strong, sharp, pain" in his "lower back, Plaintiff that his back pains may get worse in the
hips [and] buttocks area" when he walked and at future and he would request an MRI, but doubted it
night when he slept. (Id. at 5-6.) According to would be approved since Plaintiffs X-rays were
Plaintiff, he continued to file numerous sick cell negative. (Id.)
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*3 Less than a week later, Plaintiff retumed to the for summary judgment. ln making my
infirmary and was examined by Dr. Shah. (Id.) decision, however, I have not considered
According to Plaintiff} Dr. Shah acted " matters outside the pleading and have thus
unprofessiona1ly," so he filed a medical grievance.( chosen to treat the Motion as one to
Id. at 7.) Plaintiff informed the medical dismiss.
administrator that Dr. Shah's conduct was
unprofessional. (Id. at 7-S.) The medical IV. DISCUSSION
administrator told Plaintiff that she would speak
with Dr. Shah. (Id at 8.) The medical administrator Plaintiff alleges that the defendants acted
prescribed him medication for his pain and negligently and with deliberate indifference to his
recommended that he stretch and do exercises. (Id.) safety in violation of his Eighth Amendment rights
when he was "fi.1lly handcuffed and shackled and
On July 9, when Plaintiffs request for an MRI was forced to step up—on the transportation van steps“
denied, he filed another medical grievance. (Id. at without the help of a physical escort. (D.1. 37 at
8.) By August 13, neither "the Warden [nor] 2-5.) A practice that limits or restricts prison
medical personne1" had responded to Plaintiffs last imnates' constitutional rights may be necessary "to
two grievances, so he resubmitted them along with a ensure the safety of inmates and corrections
letter to the Warden "pertaining to [his] medical personnel and to prevent escape or imauthorized
grievances going unanswered? (Id.) A week later, entry." Bell v. Wolfsh, 441 U.S. 520, 545-47, 99
Plaintiff received a response from the grievance S.Ct. 1861, 60 L.Ed.2d 447 (1979). A policy or
chair that "both medical grievances [were] practice that "irnpinges on inmates’ constitutional
non-grievable and therefore denied." (Ia'.) Plaintiff rights is valid if it is reasonably related to
subsequently filed this suit against Defendants. legitimate penological interests." Turner v. Safley,
(D.l.2.) 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64
(1987). If the regulation is valid, the reviewing
court should defer to the expertise of prison
III. STANDARD OF REVIEW officials when deciding whether a particular policy
or practice is necessary to "preserve internal order
In deciding a motion to dismiss pursuant to Federal and discipline and to maintain institutional security.“
Rule of Civil Procedure 12(b)(6), the factual Bell, 441 U.S. at 547.
allegations contained in the complaint must be
accepted as true. Cruz v. Belo, 405 U.S. 319, 322, The Moving Defendants contend that, "given the
92 S.Ct. 1079, 31 L.Ed.2d 263 (1972) (per curiam). severity of the charges against these inmates, [i.e.]
A pro se complaint can only be dismissed for failure murder rape and escape,†the transportation
to state a claim if it appears "beyond doubt that a procedures are necessary to ensure the safety of "
plaintiff can prove no set of facts in support of his the officers, inmates and [the] general public."
claim which would entitle him to relief" Conley v. (D.I. 35 at 3.) Other than to help “e1derly and
Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d medically infirmed inmates," prison officials are
80 (1957) FM required to keep a reasonably safe distance between
themselves and the inmates. (Id.) This is to reduce “
the risk of Serious harm and/or death in the event an
FN4_ The Moving Defendants argue that inmate attempts to seize one of the officer's
because Plaintiffs Response to the Motion weapons." FNS (Id.)
to Dismiss includes matters outside the
pleading, including "letters requesting
assistance at the highest levels of Young FN5. Plaintiff contends that officers "
Correctional Institute" and " routinely assist ‘fu1ly handcuffed and
letters/affidavits from other inmates,†their shackled’ inmates in and out of the van."
Motion to dimiss should be treated as one (D.l. 37 at 4.) He also asserts that the
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officers "are not routinely armed with diagnosed him with "back spasms" and treated him
weapons at their side" because "more often with pain medication, muscle relaxers, and
than not" the officers weapons are "stored suggested exercise. (Id.; D.l. 37 at 7.) Plaintiff
in the front compartment of the contends that different measures should have been
transportation van." (Id) taken both at the scene of the accident and during
his course of treatment. (D.I. 37 at 5.) Plaintiff
*4 Because the safety of inmates and officers is a suggests that "proper procedure at the scene of the
legitimate penological interest, the transportation injury would have been to provide a stretcher,
procedures are valid. FN6 Therefore, I defer to to S¤€l'¤€Y [sic], dlld lm1T10blliZ¤l€i¤¤ brscc f0l' T-llc
expertise gf the prison gfficiglg Thug, [he Mgving lZ1€HCl Bhd I‘1CCk.†at He also COI’1tC1’ldS that 3.11
Defendants‘ Motion to Dismiss will be granted with MRI of his b¤¤k WHS HCWSSBYY to lend to 3 P1‘0Pf>l'
respect to Plaintiffs claims that the failure to diagnosis of his condition. (Id- sto.)
physically escort handcuffed and shackled inmates
boarding a van ggngtjtuteg Crue] and unusual The SUPICIIIC C0ll1't l13S that COI’IlplH.ll].tS based
punishment under the Eighth A[nend]nent_ on the negligent diagnosis or treatment of a medical
condition, such as "a decision not to order an X-ray,
or like measures," are "matter[s] for medical
In addressing the relationship ef the _j\1dg'[1‘lC1'1l,†and thl.lS do HOT l'i.I'1'l0l.1I`lt to CI'L1€] and
transportation issues to penological l1l1l1Sl1Hl pllI1iSl'lI1'l€1'lli under the Eighth Arncrldmcnt.
interests, [ do net imply that any of the Estelle, 429 U.S. at 106-07. These claims rest on
Plaintiffs eenstimnem] rights were decisions with respect to his medical care, but
iynpinged Plaintiff has failed to plead facts which would
support allegations that defendants were
Plaintiff also alleges that he received "improper and deliberately indifferent to his medical needs.
inadequate medical care" for his back injury
because defendants were deliberately indifferent to
his medical needs, in violation of his Eighth IV. CONCLUSION
Amendment right to be free from cruel and unusual
punishment. (15.1. 37 at 5-7.) In order to establish a Accordingly, the Motion ro Disrniss (D-1.34) will be
claim under § 1983 based on lack of adequate granted and Plaintiffs motion for appointment of
medical care, a prisoner must allege facts or C0l¤1S¢‘¤l (D-l-10) will c dc¤icd RS 11100l.
omissions sufficiently hamiful to evidence
deliberate indifference to serious medical needs. D.Dc1.,2005.
Estelle ii Gamble, 429 Us. 97, 106, 97 s.ct. 285, Miller v. Williams
50 L.Ed.2d 251 (1976). Ailegatiehs er medical Slip Copy.2005WL1353336(D.Dc1.)
malpractice do not state a claim under § 1983,
beeause mere negligence does not amount to 3 BI'lCfS Bild Ofl'lCl‘ Related DOCUHIEIIIS (Blick to top)
violation of the Constitution, and a constitutional
violation is required to establish a § 1983 claim. Id ' l203¤V009l3 (Docket) (Sep- 29, 2003)
at 106.
END OF DOCUMENT
After Plaintiffs accident on October 16, 2002, a
member of the medical staff arrived on the scene to
assist with his getting to the infmnary. (D.I. 2,
Attach. l at 2.) Over the following several months,
Plaintiff was seen by medical personnel on
numerous occasions to receive treatment for his
injuries. (Id. at 2-8.) After taking and examining an
X—ray on Plaintiffs lower back, doctors eventually
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