Free Motion to Amend/Correct - District Court of Delaware - Delaware

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Julian A. Miller1 3936262 Delaware Correctional Center3 1181 Paddock Road4 Smyrna, Delaware 199775 In propria personam6IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF DELAWARE
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JULIAN A. MILLER, Julian A. Miller Plaintiff, v.

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STANLEY TAYLOR, individually and in his official capacity as Commissioner of the COMPLAINT23 Delaware Department of Correction: THOMAS CARROLL, individually and in his official capacity as Warden of11 the Delaware Correctional Center at12 Smyrna: DR. ALIE13Stanley Taylor, individually; Thomas Carroll, individually; Dr. Sitta B. Gombeh-Alie14, individually and in her official capacity as Medical Director at DCC Civil Action No. 04cv24-251367 (KAJ)26 Smyrna: RN IHOMA15medical director at16 the 27 28 Delaware Correctional Center at17 Smyrna; (CIVIL RIGHTS) Demand For Jury Trial Registered Nurse Ihoma18, individually and in her official capacity as Registered Nurse at DCC Smyrna:19capacity as a registered nurse at the Delaware Correctional Center at Smyrna; and First Correctional Medical,20 Defendants,21.22

SECOND 29AMENDED COMPLAINT I. JURISDICTION30

1. This is a civil action authorized by 42 U.S.C. sec. 1983 to redress the deprivation, under color of State Law, of rights secured by the constitution of the United States. The court has jurisdiction under 28 U.S.C. sec. 2201 and 2202.31

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II. 2.

PLAINTIFF32

Plaintiff JULIAN MILLER, is33Plaintiff Julian A. Miller, by and through

his undersigned counsel, hereby files this Second Amended Complaint against Stanley Taylor, Thomas Carroll, Dr. Sitta B. Gombeh-Alie, Registered Nurse Ihoma, and First Correctional Medical requesting damages and injunctive relief.34

NATURE OF THE ACTION35 1. Plaintiff Julian A. Miller ("Plaintiff Miller") is presently,36 and was at all

times mentioned herein, prisoner of37incarcerated by38 the state of39 Delaware, in the custody of the40 Department of Corrections of the State of Delaware41. He is currently confined in the Delaware Correctional Center, Smyrna, Delaware.42 III. 2. 3. DEFENDANTS43

Plaintiff Miller has suffered and continues to suffer from pain in his feet.44 Defendants have violated Plaintiff Miller's rights guaranteed by the

United States Constitution in failing to treat his medical condition.45 4. The acts of defendants Dr. Sitta B. Gombeh-Alie, Registered Nurse

Ihoma, and First Correctional Medical constitute medical malpractice.46 5. By virtue of defendants' wrongful actions, Mr. Miller is entitled to

damages and injunctive relief.47

THE PARTIES48 6.
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Plaintiff Miller is, and was at all times relevant herein, incarcerated at the

Delaware Correctional Center50 (the "DCC"), 118 Paddock Road, Smyrna, Delaware

19977.51 3. Defendant STANLEY TAYLOR is the Commissioner527. Defendant

Stanley Taylor ("Defendant Taylor"), at all times relevant herein, was employed as the 2

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commissioner53 of the Delaware Department of Corrections. He is legally responsible for the overall operation of the department of each institution under it' s jurisdiction including DCC Smyrna54 (the " DOC" ). Defendant Taylor' s duties included overseeing the operations of the DOC and the DCC55. 4. Defendant THOMAS CARROLL is the Warden of DCC Smyrna. He is legally responsible for the operation of DCC Smyrna and the welfare of all the inmates of that prison56 8. Defendant Thomas Carroll (" Defendant Carroll" ), at all times relevant

herein, was employed as the warden of DCC. Defendant Carroll' s duties included overseeing the operations of the DCC.57 5. Defendant DR. ALIE is the Director589. Defendant Dr. Sitta B.

Gombeh-Alie (" Defendant Gombeh-Alie" ), at all times relevant herein, was employed as the director59 of the medical staff at the 60DCC Smyrna. She is legally responsible for the overall61. Defendant Gombeh-Alie' s duties included overseeing the62 operations of the medical department and for the health of all the inmates of that prison department and for the health of all the inmates of that prison63providing health care to all inmates at the DCC.64 6. Defendant RN IHOMA is6510. Defendant Registered Nurse Ihoma

(" Defendant Ihoma" ), at all times relevant herein, was employed as66 a registered nurse of 67at 68the medical staff at 69DCC Smyrna. She is legally responsible for the health of those inmates who comes70. Defendant Ihoma' s duties included providing health care to inmates71 under her direct72 supervision at the DCC. Defendant Ihoma' s full name is not currently known and will be ascertained during discovery.73 11. Defendant First Correctional Medical (" Defendant FCM" ), at all times

relevant herein, was the primary health-care provider for the DCC and was responsible for the overall health care and treatment for all inmates.74

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12.

The defendants may be categorized into the following groups: (1) the

" State Defendants" being comprised of Stanley Taylor and Thomas Carroll; and (2) the " Health Care Defendants" being comprised of Dr. Sitta B. Gombeh-Alie, Registered Nurse Ihoma, and First Correctional Medical.75 7. Each defendant is sued individually and in his or her official capacity at all

times mentioned in this complaint. Each defendant acted under the color of Delaware Law7613. All individual defendants and Defendant FCM acted under the color of

state law and at all times mentioned herein were agents and employees of the State of Delaware.77 14. The State Defendants are sued in their individual capacities.78

JURISDICTION AND VENUE79 15. This action seeks injunctive relief and monetary damages for violations of

the rights, privileges, and immunities secured under the United States Constitution, 42 U.S.C. § 1983 and an ancillary state law claim of medical negligence.80 16. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331,
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1343, and 1367. 17.

Venue is proper in this district pursuant to 28 U.S.C. § 1391(b) since the
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acts and transactions complained of herein occurred within this district. IV.
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FACTS84

8. 8518. 86On or about January 15, 2004, Plaintiff MILLER87Miller88' s feet began to ache in and around the arch area of his feet89. Prior to this, 90Plaintiff MILLER began soaking his feet at night and massaging them to sooth the ache. This worked for a week or two.91Miller had no pain in or medical problems with his feet.92

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19. 20.

To alleviate the pain, Plaintiff Miller soaked his feet at night and After approximately two weeks, Plaintiff Miller realized he could not

massaged them. This alleviated the pain for one to two weeks.93 himself alleviate the pain, and he submitted a sick-call slip on January 27, 2004.94 9. When Plaintiff MILLER realized that the pain was getting worse he

submitted a sick- 9521.The January 27, 2004 sick-96call slip to be seen at medical. The first slip was admitted Jan. 27th, 2004. It97 has not been returned as of 2-8-2005. It should be98to Plaintiff Miller. On information and belief, the slip is99 a part of Plaintiff100plaintiff101' s medical files at the DCC102. 22. When a sick call slip is submitted, the inmate' s name is placed on a list to

appear at the hospital103 to see a nurse or doctor.104 10. 10523. 106On Feb. 4th,107February 4,108 2004, Plaintiff MILLER109Miller110 was seen at the hospital111 by Defendant RN IHOMA who upon112Ihoma. Upon113 hearing Plaintiff' s114 symptoms and nature of plaintiff' s complaint, immediately stated that " we115condition, Defendant Ihoma responded, " We116 do not issue sneakers or corrective shoes anymore" . All actions henceforth mentioned and documented herein is consistent with the implementation and follow-through of this practive of policy.117." Defendant Ihoma provided Plaintiff Miller with pain medication and stated that she ordered arch supports. Defendant Ihoma took no further actions to examine or treat Plaintiff Miller' s condition.118 24. On information and belief, the actions taken by Defendant Ihoma were

part of a cost-saving policy initiated by Defendant FCM.119 11. 12025. 121On Feb. 16th,122February 16,123 2004, Plaintiff MILLER124Miller125 submitted a second sick- call slip explaining126detailing127 his inability to sleep or walk properly due to the pain and suffering that he was experiencing as a result of this condition not being treated128in his feet129.

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12.

The13026.

In response to the second131 sick-call procedure is as

follows: A sick- call slip is submitted and this inmate is put on a list to appear at the infirmary132 to see a nurse or doctor.133 In this instance134call slip135, Plaintiff Miller
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was not put137placed138 on a list and was139 therefore couldn' t appear140unable to obtain

medical care141 at the hospital. Instead, defendant RN IHOMA142Defendant Ihoma143 mailed plaintiff a reply144Plaintiff Miller a form145 which stated that 146he' d already had been seen on this issue; even though nothing was done the first time. SEE EXIBIT A147been seen on this matter. A copy of Defendant Ihoma' s response to Plaintiff Miller' s second sick-call slip is attached as Exhibit A to the Declaration Of Plaintiff Julian Miller in Opposition to State Defendants' Joint Motion to Dismiss Pursuant to Rules 12(B)(1) and 12(B)(6) of the Federal Rules of Civil Procedure and in Support of Julian Miller' s Motion to Amend the Complaint.148 13. A copy of this and all sick ­ call slips, letters, requests and grievances are included in this complaint as EXIBITS A-Z and used as confirmation of statements herein made.
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14. 15027. 151On Feb. 22nd,152February 22,153 2004, Plaintiff MILLER154Miller155 submitted a 3rd156third157 sick ­ 158-159call slip alerting160notifying161 the medical staff to the fact that Tylenol prescribed162that the pain medication provided to him163 by Defendant RN IHOMA164Ihoma165 had absolutely 166no affect167effect168 on his pain. It also made reference to plaintiff MILLER not getting proper169Plaintiff Miller also indicated that he was unable to170 sleep at171through the172 night because of the pain. SEE EXIBIT B173 in his feet. A copy of Plaintiff Miller' s third sick-call slip is attached as Exhibit B to the Declaration Of Plaintiff Julian Miller in Opposition to State Defendants' Joint Motion to Dismiss Pursuant to Rules 12(B)(1) and 12(B)(6) of the Federal Rules of Civil Procedure and in Support of Julian Miller' s Motion to Amend the Complaint.174 28. slip.175 6 Plaintiff Miller received no response to his February 22, 2004 sick-call

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15. 17629. 177On March 4th,1784,179 2004, Plaintiff MILLER180Miller181 submitted a medical 182grievance complaining about his183regarding his deteriorating medical184 condition worsening. It also mentioned that185. In his grievance, Plaintiff Miller noted that he had not received the186 arch supports supposedly ordered on Feb. 4th, had not been received by plaintiff MILLER as of yet. SEE EXIBIT C1 and C2187following his February 4, 2004 hospital visit. A copy of Plaintiff Miller' s March 4, 2004 grievance is attached as Exhibit C to the Declaration Of Plaintiff Julian Miller in Opposition to State Defendants' Joint Motion to Dismiss Pursuant to Rules 12(B)(1) and 12(B)(6) of the Federal Rules of Civil Procedure and in Support of Julian Miller' s Motion to Amend the Complaint.188 16. 18930. 190On March 9th,1919,192 2004, Plaintiff MILLER193Miller194 submitted a 4th,195fourth196 sick ­ 197-198call slip complaining about not being able to get proper199reiterating that he was unable to200 sleep through the night 201because of the
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pain. IT also mentions that Plaintiff hadn' t203 in his feet. Additionally, he noted that

he still had not204 received the 205arch supports supposedly 206ordered on 2 ­ 4 ­ 04. SEE EXHIBIT D207following his February 4, 2004 hospital visit. A copy of the March 9, 2004 sick-call slip is attached as Exhibit D to the Declaration Of Plaintiff Julian Miller in Opposition to State Defendants' Joint Motion to Dismiss Pursuant to Rules 12(B)(1) and 12(B)(6) of the Federal Rules of Civil Procedure and in Support of Julian Miller' s Motion to Amend the Complaint.208 17. On March 13th, 2004 Plaintiff Miller wrote a letter to defendant and

Medical Director DR. ALIE to acquaint her with his situation. SEE EXIBIT E The details of that letter included: the pain being experienced; the progression of the injury; the fact that plaintiff submitted sick-call slips, a grievance, and had been seen by defendant RN IHOMA, who had supposedly scheduled plaintiff to see her (defendant DR. ALIE) as seen in EXIBIT C2; and that plaintiff felt to be getting " inadequate treatment" . as documented in EXIBIT E20931. On March 13, 2004, Plaintiff Miller wrote a 7

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detailed letter to Defendant Gombeh-Alie to notify her of his medical condition and of the inadequate medical care he was receiving. In that letter, he detailed the pain he was experiencing; the progression of his medical condition; his attempts to receive medical care through the filing of sick-call slips and grievances; the discontinuation of pain medication; and his efforts and desire to be examined. A copy of the March 13, 2004 letter is attached as Exhibit E to the Declaration Of Plaintiff Julian Miller in Opposition to State Defendants' Joint Motion to Dismiss Pursuant to Rules 12(B)(1) and 12(B)(6) of the Federal Rules of Civil Procedure and in Support of Julian Miller' s Motion to Amend the Complaint.210 32. On March 25, 2004, a full three weeks after submitting his grievance,

Plaintiff Miller received a notice of informal resolution. In the informal resolution, Defendant Gombeh-Alie noted that Plaintiff Miller does not qualify for medically purchased shoes. A copy of the March 25, 2004 notice of informal resolution is attached as Exhibit D to the Declaration Of Plaintiff Julian Miller in Opposition to State Defendants' Joint Motion to Dismiss Pursuant to Rules 12(B)(1) and 12(B)(6) of the Federal Rules of Civil Procedure and in Support of Julian Miller' s Motion to Amend the Complaint.211 18. 21233. 213Plaintiff MILLER214Miller215 received a reply to this216his March 13, 2004217 letter from Defendant Gombeh-Alie nearly218 two months later statin219, on May 3, 2004, and was informed220 that he would be seen (or 221scheduled to be seen)222evaluated223 by defendant DR. ALIE soon as recorded on the back of EXIBIT E224her.225 19. 22634. 227On March 21st,22821,229 2004, Plaintiff Miller submitted a fifth sickcall slip which detailed230that described231 the intense232 pain he was having233suffering234 and the fact that the swelling had235 increased and now included Plaintiff' s236swelling in his237 feet and ankles. This238

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35. slip was240.241 36.

Plaintiff Miller received no response to his March 21, 2004239 sick-call

The March 21, 2004 sick-call slip has242 not been 243returned to plaintiff

and should be included in244Plaintiff Miller. On information and belief, the slip is a part of245 plaintiff' s medical records246files at the DCC247. 20. On March 25th, 2004, plaintiff MILLER was called before RN TERRY

HASTINGS who was sent to mediate a grievance filed on March 4th, 2004. Two days prior to this meeting Plaintiff was given some hard plastic arch supports that has supposedly been ordered in January, but by now Plaintiff' s arches had completely fallen and those arch supports actually added to the pain plaintiff was experiencing24837. On March 23, 2004, seven weeks after they were supposedly ordered following his February 4, 2004 hospital visit, Plaintiff Miller finally received hard, plastic arch supports. The delivery date of the arch supports is indicated on the March 25, 2004 notice of informal resolution. See Exhibit C to the Declaration Of Plaintiff Julian Miller in Opposition to State Defendants' Joint Motion to Dismiss Pursuant to Rules 12(B)(1) and 12(B)(6) of the Federal Rules of Civil Procedure and in Support of Julian Miller' s Motion to Amend the Complaint.249 38. During the nearly two month lapse between Plaintiff Miller' s February

hospital visit and receipt of the arch supports, his untreated medical condition worsened. When finally used, the arch supports actually caused more pain250. Plaintiff was told to try arch251Miller was instructed to use the252 supports for a month or two,253 and if they didn' t help254his condition did not improve255, to file another grievance. SEE EXIBIT C2256 21. On April 7th, 2004, Plaintiff MILLER257 39. No explanation for the delay in receiving the arch supports was given. On

information and belief, the delay was due to Defendant FCM' s cost-saving policy, which

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Defendant FCM knew denied medical care to DCC inmates, causing or exacerbating inmates' injuries.258 40. On March 25, 2004, Plaintiff Miller appeared before registered nurse

Terry Hastings, who was appointed to mediate the grievance filed by Plaintiff Miller on March 4, 2004. Registered nurse Hastings noted that Plaintiff Miller should have a follow up visit with Defendant Gombeh-Alie on a March 25, 2004 notice of informal resolution. See Exhibit D to the Declaration Of Plaintiff Julian Miller in Opposition to State Defendants' Joint Motion to Dismiss Pursuant to Rules 12(B)(1) and 12(B)(6) of the Federal Rules of Civil Procedure and in Support of Julian Miller' s Motion to Amend the Complaint.259 41. On April 7, 2004, Plaintiff Miller260 submitted a 6th261sixth262 sick-call slip

which detailed the pain and swelling of his feet, ankles and legs up to his calves. It also mentioned that Plaintiff had yet to receive a response to the sick-call slip that was submitted on March 21st. It was not returned to Plaintiff and should be263, which again described the pain he was suffering and the swelling in his feet, ankles, and calves.264 42. The April 7, 2004 sick-call slip has not been returned to the Plaintiff. On

information and belief, the sick-call slip is265 a part of plaintiff' s medical records.266 22. On April 19th, 2004, Plaintiff MILLER submitted a second grievance The details of that grievance included: Plaintiff' s conren that the situation going untreated may have led to something else and Plaintiff MILLER requested to be examined to confirm or deny such concerns. It also mentioned pain, not being able to sleep properly and the fact that plaintiff was told he would be scheduled to see defendant and Medical Director DR. ALIE. SEE EXIBIT F1 andF2267 23. Plaintiff will note at this time that it has been 3 months since the first or initial complaint and plaintiff haven' t yet been visually examined, even amidst the many complaints already filed.268

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24. The grievance procedure (according to prison guidelines) should go as follows: A grievance is submitted and within 10 working days inmate should go before an intermediate who attempt to resolve the grievance before it goes to the next level. If intermediate cannot resolve grievance, their job or duty is to referrer it to a Level 2 hearing which go before a board or committee who either confirm or deny complaining party' s request.269 25. On May 24th, 2004, Plaintiff MILLER was called to medical to see defendant DR. ALIE- Medical Director; two months after plaintiff wrote her a letter describing his situation. Plaintiff MILLER began to redirect defendant DR. ALIE' s attention to his condition because; 1) he knew that she dealt with many patients and 2) it had been 2 months since his letter had been wrote to her. About 2 sentences into plaintiff' s explanation, defendant DR. ALIE interrupted abruptly and said " we are not here to talk about your feet" . Plaintiff then showed defendant DR. ALIE the leter that he has written to her (EXIBIT E) and the grievance that said he was scheduled to see her (EXIBIT C2). DR. ALIE then (without any examination) told plaintiff MILLER that " he didn' t qualify for sneakers or orthopedic shoes" . Plaintiff MILLER asked DR. ALIE to put that in writing and she said " sure" . SEE EXIBIT C2270 26. On May 7th, 2004, Plaintiff was called to medical to see RN EDITH RIVERA, who was the grievance mediator that week. At this time RN EDITH RIVERA made plaintiff aware that DR. ALIE had diagnosed his condition as postherpetic neuralgia and had issued and ordered a medication called gaba pentin. All this without ever examining plaintiff' s feet or discussing it at all with plaintiff. This diagnosis was written in plaintiff' s files after plaintiff left defendant DR. ALIE' s office on May 4th, 2004. SEE EXIBITS C2 and F2271files at the DCC.272 43. On April 19, 2004, Plaintiff Miller submitted a second grievance. In this

grievance, Plaintiff Miller described his untreated condition, which included the pain he was feeling, the swelling in his feet and legs, and his inability to sleep because of the 11

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pain. Additionally, Plaintiff Miller expressed his desire to be examined by Defendant Gombeh-Alie, whom he was told during his March 24, 2004 grievance proceeding would examine him. A copy of the April 19, 2004 grievance and the notice of informal resolution to the grievance are attached as Exhibit F to the Declaration Of Plaintiff Julian Miller in Opposition to State Defendants' Joint Motion to Dismiss Pursuant to Rules 12(B)(1) and 12(B)(6) of the Federal Rules of Civil Procedure and in Support of Julian Miller' s Motion to Amend the Complaint.273 44. On May 4, 2004, Plaintiff Miller finally saw Defendant Gombeh-Alie.

Plaintiff Miller attempted to describe his medical condition to Defendant Gombeh-Alie and summarize his March 13, 2004 letter to her, but was interrupted by Defendant Gombeh-Alie, who informed him that they were not there to discuss his feet.274 45. Without ever examining Plaintiff Miller' s feet, Defendant Gombeh-Alie

informed him that he didn' t qualify for sneakers or orthopedic shoes. Upon Plaintiff Miller' s request, Defendant Gombeh-Alie wrote that Plaintiff Miller " does not qualify for medically purchased shoes" on the Informal Resolution page from Plaintiff Miller' s March 4, 2004 grievance submission. See Exhibit C to the Declaration Of Plaintiff Julian Miller in Opposition to State Defendants' Joint Motion to Dismiss Pursuant to Rules 12(B)(1) and 12(B)(6) of the Federal Rules of Civil Procedure and in Support of Julian Miller' s Motion to Amend the Complaint. This concluded Plaintiff Miller' s " examination." 275 46. On information and belief, Defendant Gombeh-Alie' s decision that

Plaintiff Miller did not qualify for medically purchased shoes is part of FCM' s costsaving policy, which Defendant FCM knew denied medical care to DCC inmates, causing or exacerbating inmates' injuries.276 47. Following Plaintiff Miller' s May 4, 2004 " examination," Defendant

Gombeh-Alie discontinued Plaintiff Miller' s pain medication. A copy of a May 24, 2004 sick-call slip, indicating the discontinuation of my pain medication, is attached as Exhibit 12

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G to the Declaration Of Plaintiff Julian Miller in Opposition to State Defendants' Joint Motion to Dismiss Pursuant to Rules 12(B)(1) and 12(B)(6) of the Federal Rules of Civil Procedure and in Support of Julian Miller' s Motion to Amend the Complaint.277 48. On May 7, 2004, Plaintiff Miller appeared before registered nurse Edith

Rivera, who was appointed as grievance mediator for his April 14, 2004 grievance submission. Plaintiff Miller was told for the first time that Defendant Gombeh-Alie had diagnosed his condition as post-therpetic neuralgia and had prescribed the drug Gabapentin. See Exhibit F to the Declaration Of Plaintiff Julian Miller in Opposition to State Defendants' Joint Motion to Dismiss Pursuant to Rules 12(B)(1) and 12(B)(6) of the Federal Rules of Civil Procedure and in Support of Julian Miller' s Motion to Amend the Complaint.278 27. 27949. 280On May 14th, 200428114, 2004,282 Plaintiff MILLER283Miller284 submitted a third grievance which mentioned285describing his increasing foot286 problems walking and plaintiff287and his inability to walk. Additionally, Plaintiff Miller288 requested to go to an outside hospital. Exibits G1,G2, and G3289be seen by an outside physician. A copy of the May 14, 2004 grievance and the notice of informal resolution to the grievance are attached as Exhibit H to the Declaration Of Plaintiff Julian Miller in Opposition to State Defendants' Joint Motion to Dismiss Pursuant to Rules 12(B)(1) and 12(B)(6) of the Federal Rules of Civil Procedure and in Support of Julian Miller' s Motion to Amend the Complaint.290 28. On May 14th, 2004, also; Plaintiff MILLER wrote a letter to the following authorities: 1) DCC Commissioner STANLEY TAYLOR; 2) DCC Warden THOMAS CORROLL and 3) Support Services Manager JOE HUDSON, alerting all of them of his situation in depth; and to the fact that the medical starff was inadequate and deficient in treating his condition. JOE HUDSON was the only one out of the three to respond at all. EXHIBIT H291

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29. On May 17th, 2004, Plaintiff MILLER submitted an 8th sick-call slip which alerted medical staff to the fact that medication supposedly ordered on 5-4-04, plaintiff hadn' t been issued or started yet. SEE EXIBIT I292 30. On may 24th, 2004, Plaintiff Miller submitted a 9th sick-call slip. It mentioned once again Plaintiff' s pain and lack of sleep. Also medicine (Tylenol) plaintiff was taking for pain prior to 5-4-04, when plaintiff was seen by defendant DR. ALIE was discontinued by defendant DR. ALIE on that date. SEE EXIBIT J293 31. On June 1st, 2004, Plaintiff MILLER submitted a sick-call slip mentionion pain and lack of sleep once again. SEE EXIBIT K294 32. EXIBITS L and M are follow ­ up notes DCC Commissioner and DCC Warden ( defendants STANLEY TAYLOR AND THOMAS CARROLL) alerting them that plaintiff haven' t received any response from them and reminding them that the medical staff have not been providing adequate care.295 33. On July 6th, 2004, Plaintiff MILLER submitted another sick-call slip requesting attention. It mentioned pain plaintiff has been experiencing plus continuous swelling. See EXIBIT N296 34. On July 6th,2004, also, Plaintiff MILLER was called to medical to meet with RN TERRY HASTINGS to mediate a grievance submitted 5-4-04. RN HASTINGS informed plaintiff that he had now been approved for orthopedic shoes. SEE EXIBIT G 3297 35. On Aug 8th, 2004, Plaintiff submitted 15th sick-call slip requesting to see a foot specialist and complainting of sharp pains that he was beginning to experience. SEE EXIBIT O298 36. On Aug 18th, 2004, Plaintiff was called to medical to attend a level 2 hearing headed by LINDA HUNTER (Director of First Correctional Medical services). The outcome of that meeting was that the board was supposed to recommend that Plaintiff see a foot specialist (Pediatrist) and that Plaintiff be recommendedFOR ORTHOPEDIC 14

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SHOES; EVEN THOUGHT Plaintiff was told more than a month before that he' d been approved for both.299 37. On Sept 6th, 2004, Plaintiff MILLER submitted another grievance which was very abundant and specific in detail. It talked about pain; it300 requested to be seen by a
301

specialist or to be sent to an outside consultant. It also talked about Plaintiff

beginning to lose feeling302 in his feet and that he had not 303been able to sleep, exercise or walk properly for nine months. SEE EXIBIT P304 38. On Sept 7th, 2004, Plaintiff MILLER wrote a very detailed letter to the DCC Wardendefendant THOMAS CARROLL, telling him the full summary of his situation and how it was being handled. There was no way possible to be any clearer about the problem. SEE EXIBIT Q305 39. On Sept 9th, 2004, Plaintiff MILLER wrote a letter to the DCC Commissioner ­ defendant STANLEY TAYLOR which was just as detailed ( if not more ) as the letter to the Warden. SEE EXIBIT R306 40. On Oct 11th, 2004, Plaintiff MILLER wrote a letter to the DCC deputy Warden Betty Burris to acquaint her with his situation since he knew that she had a reputation for responding SEE EXIBIT U307 50. On May 14, 2004, Plaintiff Miller wrote to Defendant Carroll informing

him in detail of his medical condition, his repeated attempts to receive medical care, and the lack of health care being provided to him by the DCC medical staff.308 51. 52. Plaintiff Miller received no response from Defendant Carroll.309 Plaintiff Miller received no indication that this correspondence was not

delivered to Defendant Carroll.310 53. On information and belief, Defendant Carroll received this

correspondence.311

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54.

On May 14, 2004, Plaintiff Miller wrote to Defendant Taylor informing

him in detail of his medical condition, his repeated attempts to receive medical care, and the lack of health care being provided to him by the DCC medical staff.312 55. 56. Plaintiff Miller received no response from Defendant Taylor.313 Plaintiff Miller received no indication that this correspondence was not

delivered to defendant Taylor.314 57. On information and belief, Defendant Taylor received this

correspondence.315 58. On May 17, 2004, Plaintiff Miller submitted an eighth sick-call slip

indicating that he was still experiencing pain and swelling316 in his feet and that he had not 317yet received the medication supposedly prescribed for him following Defendant Gombeh-Alie' s May 4 " examination." A copy of the May 17, 2004 sick-call slip is attached as Exhibit I to the Declaration Of Plaintiff Julian Miller in Opposition to State Defendants' Joint Motion to Dismiss Pursuant to Rules 12(B)(1) and 12(B)(6) of the Federal Rules of Civil Procedure and in Support of Julian Miller' s Motion to Amend the Complaint.318 59. On May 24, 2004, Plaintiff Miller submitted a ninth sick-call slip

indicating that he was experiencing pain and swelling in his feet and legs, that his pain medication was discontinued as of May 4, 2004, and that because of the pain, he was unable to sleep through the night. See Exhibit G to the Declaration Of Plaintiff Julian Miller in Opposition to State Defendants' Joint Motion to Dismiss Pursuant to Rules 12(B)(1) and 12(B)(6) of the Federal Rules of Civil Procedure and in Support of Julian Miller' s Motion to Amend the Complaint.319 60. On June 1, 2004, Plaintiff Miller submitted an eleventh sick-call slip

indicating that because of the pain in his feet, he was unable to sleep through the night. A copy of the June 1, 2004 sick-call slip is attached as Exhibit J to the Declaration Of Plaintiff Julian Miller in Opposition to State Defendants' Joint Motion to Dismiss 16

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Pursuant to Rules 12(B)(1) and 12(B)(6) of the Federal Rules of Civil Procedure and in Support of Julian Miller' s Motion to Amend the Complaint.320 61. Having received no response to his May 14, 2004 letter to Defendant

Carroll, Plaintiff Miller wrote a follow-up letter on June 14, 2004 to again notify him of the lack of medical care he was receiving for his feet and to ask him to take action to help resolve this situation. A copy of the June 14, 2004 letter to Defendant Carroll is attached as Exhibit K to the Declaration Of Plaintiff Julian Miller in Opposition to State Defendants' Joint Motion to Dismiss Pursuant to Rules 12(B)(1) and 12(B)(6) of the Federal Rules of Civil Procedure and in Support of Julian Miller' s Motion to Amend the Complaint.321 62. Having received no response to his May 14, 2004 letter to Defendant

Taylor, Plaintiff Miller wrote a follow-up letter on June 14, 2004 to again notify him of lack of medical care he was receiving for his feet and to ask him to take action to help resolve this situation. A copy of the June 14, 2004 letter to Defendant Taylor is attached as Exhibit L to the Declaration Of Plaintiff Julian Miller in Opposition to State Defendants' Joint Motion to Dismiss Pursuant to Rules 12(B)(1) and 12(B)(6) of the Federal Rules of Civil Procedure and in Support of Julian Miller' s Motion to Amend the Complaint.322 63. On July 6, 2004, Plaintiff Miller submitted a fourteenth sick-call slip

indicating that he was experiencing swelling and pain in his feet. A copy of the July 6, 2004 sick-call slip is attached as Exhibit M to the Declaration Of Plaintiff Julian Miller in Opposition to State Defendants' Joint Motion to Dismiss Pursuant to Rules 12(B)(1) and 12(B)(6) of the Federal Rules of Civil Procedure and in Support of Julian Miller' s Motion to Amend the Complaint.323 64. On July 6, 2004, Plaintiff Miller appeared before registered nurse Terry

Hastings, who was the mediator for the May 4, 2004 grievance. Registered nurse Hastings informed Plaintiff Miller that he had been approved for orthopedic shoes. See 17

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Exhibit H to the Declaration Of Plaintiff Julian Miller in Opposition to State Defendants' Joint Motion to Dismiss Pursuant to Rules 12(B)(1) and 12(B)(6) of the Federal Rules of Civil Procedure and in Support of Julian Miller' s Motion to Amend the Complaint.324 65. On August 8, 2004, Plaintiff Miller submitted a fifteenth sick-call slip

indicating that he was experiencing pain in his feet and requesting to see a foot specialist. A copy of the August 8, 2004 sick-call slip is attached as Exhibit N to the Declaration Of Plaintiff Julian Miller in Opposition to State Defendants' Joint Motion to Dismiss Pursuant to Rules 12(B)(1) and 12(B)(6) of the Federal Rules of Civil Procedure and in Support of Julian Miller' s Motion to Amend the Complaint.325 66. On August 18, 2004, Plaintiff Miller attended a Level II hearing led by

director of First Correctional Medical Services Linda Hunter. The board' s recommendation following the hearing was that Plaintiff Miller was to see a foot specialist and receive orthopedic shoes.326 67. On September 6, 2004, Plaintiff Miller submitted a medical grievance

describing the pain he was suffering in his feet, his repeated request to see a foot specialist, the loss of feeling he was experiencing in his toes, and his inability to sleep, exercise, or walk properly for nine months, since January, 2004, because of his condition. A copy of the September 6, 2004 medical grievance is attached as Exhibit O to the Declaration Of Plaintiff Julian Miller in Opposition to State Defendants' Joint Motion to Dismiss Pursuant to Rules 12(B)(1) and 12(B)(6) of the Federal Rules of Civil Procedure and in Support of Julian Miller' s Motion to Amend the Complaint.327 68. On September 7, 2004, Plaintiff Miller wrote to Defendant Carroll for the

third time regarding his medical condition and the lack of health care being provided to him. In particular, Plaintiff Miller specifically provided the following information: his foot problems began in January, 2004; over the past nine months, he' s filed numerous sick-call slips and grievances regarding this condition but he has been denied adequate medical care; nine months after submitting his initial sick-call slip, and despite repeated 18

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requests, his feet had not even been visually examined; he has persistent pain and swelling in his feet; he has begun to lose feeling in his toes; without any examination, Defendant Gombeh-Alie determined he did not qualify for medically purchased shoes; he has328 requested to be seen by a 329foot specialist on at least three occasions; Defendant Ihoma informed him that because of a money-saving policy, the DCC no longer issues sneakers or corrective shoes; and he is unable to exercise, sleep, or walk properly because of his condition. A copy of the September 7, 2004 letter to Defendant Carroll is attached as Exhibit P to the Declaration Of Plaintiff Julian Miller in Opposition to State Defendants' Joint Motion to Dismiss Pursuant to Rules 12(B)(1) and 12(B)(6) of the Federal Rules of Civil Procedure and in Support of Julian Miller' s Motion to Amend the Complaint.330 69. On information and belief, after receiving three letters from Plaintiff

Miller, Defendant Carroll knew of his medical condition, the lack of treatment by Defendants Gombeh-Alie and Ihoma, and the cost-saving policy initiated by Defendant FCM.331 70. On September 9, 2004, Plaintiff Miller wrote to Defendant Taylor for the

third time regarding his medical condition and the lack of health care being provided to him. In particular, Plaintiff Miller specifically provided the following information: his foot problems began in January, 2004; over the past nine months, he' s filed numerous sick-call slips and grievances regarding this condition but he has been denied adequate medical care; nine months after submitting his initial sick-call slip, and despite repeated requests, his feet had not even been visually examined; he has persistent pain and swelling in his feet; he has begun to lose feeling in his toes; without any examination, Defendant Gombeh-Alie determined he did not qualify for medically purchased shoes; he has requested to be seen by a foot specialist on at least three occasions; Defendant Ihoma informed him that because of a money-saving policy, the DCC no longer issues sneakers or corrective shoes; Defendant Ihoma directed him to a memorandum signed by 19

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Defendant Gombeh-Alie regarding the DCC' s money saving policy regarding sneakers and corrective shoes; he is unable to exercise, sleep, or walk properly because of his condition; his inability to ambulate has created a security problem at the DCC; Lieutenants Dixon, Satterfield, and Sekoy of the DCC have all inquired about his condition and have remarked about his inability to walk from his housing unit to the mess hall; Lieutenant Ryder of the DCC escorted him to the medical unit on an emergency basis as a result of Plaintiff Miller creating a security risk and inquired about the lack of medical treatment he has received. A copy of the September 7, 2004 letter to Commissioner Taylor is attached as Exhibit Q to the Declaration Of Plaintiff Julian Miller in Opposition to State Defendants' Joint Motion to Dismiss Pursuant to Rules 12(B)(1) and 12(B)(6) of the Federal Rules of Civil Procedure and in Support of Julian Miller' s Motion to Amend the Complaint.332 71. On information and belief, after receiving three letters from Plaintiff

Miller, Defendant Taylor knew of his medical condition, the lack of treatment by Defendants Gombeh-Alie and Ihoma, and the cost-saving policy initiated by Defendant FCM.333 72. On September 14, 2004, registered nurse Terry Hastings issued a notice of

informal resolution for the grievance filed on September 6, 2004, and noted that Defendant Gombeh-Alie continued to deny treatment and referred the grievance to Level II. A copy of the informal resolution to the September 6, 2004 medical grievance is attached as Exhibit R to the Declaration Of Plaintiff Julian Miller in Opposition to State Defendants' Joint Motion to Dismiss Pursuant to Rules 12(B)(1) and 12(B)(6) of the Federal Rules of Civil Procedure and in Support of Julian Miller' s Motion to Amend the Complaint.334 73. On October 12, 2004, the grievance filed on September 6, 2004 was

forwarded to the Medical Grievance Committee (" MGC" ). A copy of the Grievance Information ­ IGC form indicating that the grievance was forwarded to the MGC is 20

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attached as Exhibit S to the Declaration Of Plaintiff Julian Miller in Opposition to State Defendants' Joint Motion to Dismiss Pursuant to Rules 12(B)(1) and 12(B)(6) of the Federal Rules of Civil Procedure and in Support of Julian Miller' s Motion to Amend the Complaint.335 74. On October 26, 2004, the Bureau Grievance Officer (" BGO" ) evaluated

Plaintiff Miller' s appeal of the grievance filed on September 6, 2004, and " recommend[ed] that FCM immediately authorize an outside consult with a foot specialist to address the Grievant' s condition." A copy of the BGO' s decision is attached as Exhibit T to the Declaration Of Plaintiff Julian Miller in Opposition to State Defendants' Joint Motion to Dismiss Pursuant to Rules 12(B)(1) and 12(B)(6) of the Federal Rules of Civil Procedure and in Support of Julian Miller' s Motion to Amend the Complaint.336 75. On January 3, 2005, the Bureau Chief concurred with the recommendation

of the BGO and wrote a letter to Plaintiff Miller informing him that his request had been upheld. A copy of the Bureau Chief' s decision and letter to me are attached as Exhibit U to the Declaration Of Plaintiff Julian Miller in Opposition to State Defendants' Joint Motion to Dismiss Pursuant to Rules 12(B)(1) and 12(B)(6) of the Federal Rules of Civil Procedure and in Support of Julian Miller' s Motion to Amend the Complaint.337 76. Despite the Bureau Chief' s decision and the extensive administrative

procedure followed, Plaintiff Miller was not examined by an outside foot specialist until nine months later, and did not receive orthopedic shoes until after that visit.338 41. 33977. 340On information and belief, defendant DR. ALIE prepared a memo in January 2004, which stated that341Defendant Gombeh-Alie drafted a memorandum in January, 2004 that stated, among other things, that because of FCM' s money-saving policies,342 the medical staff was no longer to issue orthopedic shoes or sneakers to inmates under any circumstances343.

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42. Defendant RN IHOMA conveyed this to plaintiff and shew plaintiff the memo. She also knowingly neglected to properly treat or recommend proper treatment for his injury.344 43. 345 78.
346

On information and belief the policy and practice of DCC upon

bringing defendant DR. ALIE onboard as Director of the Medical Staff is/was to save money at all costs, even if it means denying inmates who require treatment ( costly or non-costly) adequate care and even if such actions are essential to the conduct of a lawsuit.347 44. Defendants STANLEY TAYLOR (COMMISSIONER) and THOMAS CARROLL (WARDEN) either knew about defendant DR. ALIE' s " money saving" policies and practices or they should have known in the proper exercise of their official duties. But after Plaintiff MILLER wrote three letters to both fully detailing his situation there is no question that both were/ are aware of such practices. And although both has the power and the legal duty to end these practices, both failed or refused to do so.348 V. LEGAL CLAIMS349

45. Plaintiff have been deprived of his right to " reasonably adequate" medical care which is guaranteed under the Eighth Amendment to the United States Constitution. Courts have defined adequate medical care as " service at a level reasonably commensurate with modern medical science and of a quality acceptable within prudent professional standards" and at " a level of health services reasonably designed to meet routine emergency medical, dental, psychological or psychiatric care " .350, the hiring of Defendant Gombeh-Alie by Defendant FCM as director of the medical staff at DCC was to save money, at the expense of the health care provided to inmates.351

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79.

On information and belief, Defendant Gombeh-Alie is a pediatrician and

is not medically qualified to be director of the DCC medical staff.352 80. On October 18, 2004, Plaintiff Miller filed a complaint in the United

States District Court for the District of Delaware as a result of the inadequate medical care he had received.353 81. On March 7, 2005, Plaintiff Miller filed an amended complaint and served

Defendants Gombeh-Alie, Ihoma, Taylor, and Carroll.354 82. Defendants Gombeh-Alie, Taylor, and Carroll waived service of

summons. Copies of the waivers of service for Dr. Alie, Commissioner Taylor, and Warden Carroll are attached as Exhibit V to the Declaration Of Plaintiff Julian Miller in Opposition to State Defendants' Joint Motion to Dismiss Pursuant to Rules 12(B)(1) and 12(B)(6) of the Federal Rules of Civil Procedure and in Support of Julian Miller' s Motion to Amend the Complaint.355 83. Defendant Ihoma did not waive service of summons. However, she

informed Plaintiff Miller that she received the complaint and no longer wanted to treat him since he filed a law suit naming her as a defendant.356 84. Plaintiff Miller did not receive orthopedic shoes or see a foot specialist

until October, 2005 and January, 2006, respectively, after Defendant FCM was replaced as the health care provider at the DCC by Correctional Medical Services.357

CAUSES OF ACTION358 COUNT I ­ DELIBERATE INDIFFERENCE TO SERIOUS MEDICAL NEED359 (Against State Defendants)360

85. 86.

Plaintiff Miller re-alleges paragraphs 1-84 of the Second Amended The State of Delaware has an obligation to provide adequate medical care

Complaint as is fully set forth herein.361 to individuals who are incarcerated in its prisons.362 23

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87.

Defendants Taylor and Carroll, jointly and severally, acting in their

individual capacities and under color of state law, were deliberately indifferent to Plaintiff Miller' s rights, guaranteed by the Eighth Amendment of the United States Constitution, as shown by the following:363 (a) They were sent multiple letters from Plaintiff Miller and had actual knowledge of specific instances in which the prison medical staff was mistreating or not treating Plaintiff Miller;364 (b) They had actual knowledge of Plaintiff Miller' s serious medical condition and that the lack of medical treatment exposed Plaintiff Miller to undue suffering;365 (c) They had actual knowledge that Defendant FCM' s cost-saving policy was implicated in Plaintiff Miller' s inadequate medical care; and366 (d) They failed to take any action to seek adequate medical care for Plaintiff Miller.367 88. As a direct and proximate result of the of the State Defendants' failure to

act on their knowledge of Plaintiff Miller' s situation, Plaintiff Miller sustained injuries which have caused and will cause pain, suffering, disability, helplessness, inconvenience, mental and emotional distress, and a dimunition of life' s pleasures.368 89. As a further direct and proximate result of the State Defendants' failure to

act on their knowledge of Plaintiff Miller' s situation, Plaintiff Miller will require specialized medical attention, at significant expense.369 90. As a further direct and proximate result of the State Defendants' failure to

act on their knowledge of Plaintiff Miller' s situation, Plaintiff Miller has sustained an impairment of his capacity to earn a living upon his release from the DCC.370

COUNT II ­ DELIBERATE INDIFFERENCE TO SERIOUS MEDICAL NEED371 (Against Health Care Defendants)372 24

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91.

Plaintiff Miller re-alleges paragraphs 1-84 of the Second Amended

Complaint as is fully set forth herein.373 92. The State of Delaware has an obligation to provide adequate medical care

to individuals who are incarcerated in its prisons.374 93. Defendant FCM was the medical care provider for the DCC at all times

pertinent hereto.375 94. On information and belief, Defendant FCM initiated a cost-saving policy

that resulted in a lack of medical care being provided to Plaintiff Miller.376 95. Defendant Gombeh-Alie was the medical director at the DCC at all times

pertinent hereto.377 96. hereto.378 97. Under color of state law, the Health Care Defendants' conduct evidenced a Defendant Ihoma was a registered nurse at the DCC at all times pertinent

deliberate indifference to Plaintiff Miller' s serious medical condition, and violated his rights guaranteed by the Eighth Amendment of the United States Constitution, in that they:379 (a) failed to or provide medical care and attention to Plaintiff Miller when he was suffering from a serious medical condition;380 (b) were negligent in providing care and attention to Plaintiff Miller, as its conduct fell below the accepted standard of care under the circumstances;381 (c) failed or refused to properly diagnose Plaintiff Miller' s serious medical condition and take the reasonable steps necessary to prevent further pain and suffering;382 (d) failed or refused to schedule an examination with an outside foot specialist; and383

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(e)

failed to take proper and reasonable remedial measures to combat Plaintiff Miller' s serious medical condition following " diagnosis" of his

condition.384 98. The Health Care Defendants acted with deliberate indifference towards

Plaintiff Miller' s serious medical condition in that they knew of Plaintiff Miller' s condition after numerous sick-call slip submissions, filed grievances, and requests for medical care made personally by Plaintiff Miller and by DCC security staff; however, the Health Care Defendants failed or refused to provide medical care or attention.385 99. As a direct and proximate result of the of the Health Care Defendants'

failure to act on their knowledge of Plaintiff Miller' s situation, Plaintiff Miller sustained injuries which have caused and will cause pain, suffering, disability, helplessness, inconvenience, mental and emotional distress, and a dimunition of life' s pleasures.386 100. As a further direct and proximate result of the Health Care Defendants'

failure to act on their knowledge of Plaintiff Miller' s situation, Plaintiff Miller will require specialized medical attention, at significant expense.387 101. As a further direct and proximate result of the Health Care Defendants'

failure to act on their knowledge of Plaintiff Miller' s situation, Plaintiff Miller has sustained an impairment of his capacity to earn a living upon his release from the DCC.388

COUNT III ­ DUE PROCESS OF LAW VIOLATION389 (Against All Defendants)390 102. 103. Plaintiff Miller re-alleges paragraphs 1-84 of the Second Amended The State of Delaware has an obligation to provide adequate medical care

Complaint as is fully set forth herein.391 to individuals who are incarcerated in its prisons. 392 46. 393 104. 394Defendants failure to provide medical care needed by plaintiff MILLER constitutes 1) cruel and unusual punishment: in violation of the Eight Amendment of the 26

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U.S. Constitution and 2)395constitutes396 punishment without due process of law:
398

397

,

in violation of the Fourteenth Amendment to399of400 the U.S.401United States402

Constitution. 47. Defendants demonstrated " deliberate indifference " to serious medical needs of Plaintiff' s; which has led to the " unnecessary and wanton infliction of pain " prescribed by the Eighth Amendment.403 48. The defendants knew of and disregarded an excessive risk to Plaintiff' s health and failed to act on a serious medical need even after Plaintiff continually complained of pain and requested to see a foot specialist. These complaints have continued for one full year ( until present ) without an examination of Plaintiff' s feet or any real treatment which has led Plaintiff to believe that they are being purposely ignored.404 49. Plaintiff have been incarcerated for seven years and have suffered no such pain, nor are there any history of such pain prior to Jan 2004, before Plaintiff' s arches fell. Plaintiff could walk properly exercise and run. Plaintiff also slept normally prior to Jan 2004.405 50. The Plaintiff have no plain, adequate or complete remedy at law to redress the wrongs described herein. Plaintiff have been and will continue to be irreparably injured by the conduct of the defendants unless this court grants the declatory and injunctive relief which Plaintiff seeks.406 105. As a direct and proximate result of the acts and failures of the defendants, Plaintiff Miller sustained injuries which have caused and will cause pain, suffering, disability, helplessness, inconvenience, mental and emotional distress, and a dimunition of life' s pleasures.407 106. expense.408 107. As a further direct and proximate result of the acts and failures of the defendants, Plaintiff Miller has sustained an impairment of his capacity to earn a living upon his release from the DCC.409 27 As a further direct and proximate result of the acts and failures of the defendants, Plaintiff Miller will require specialized medical attention, at significant

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COUNT IV ­ MEDICAL NEGLIGENCE410 (Against Health Care Defendants)411 108. Plaintiff Miller re-alleges paragraphs 1-84 of the Second Amended

Complaint as is fully set forth herein.412 109. At all relevant times herein, agents, servants, and employees of Defendant

FCM were acting in the course and scope of their employment for Defendant FCM.413 110. Defendant and Defendant Gombeh-Alie is a physician licensed to practice

medicine in the State of Delaware.414 111. At all relevant times herein, Defendant Gombeh-Alie was acting within

the course and scope of her employment by Defendant FCM.415 112. 113. Defendant Ihoma is a registered nurse licensed in the State of Delaware.416 At all relevant times herein, Defendant Ihoma was acting within the course

and scope of her employment by Defendant FCM.417 114. During the course of his incarceration at the DCC from January, 2004

until FCM' s contract as health care provider for the DCC was terminated, Plaintiff Miller was under the medical care of the Health Care Defendants.418 115. On January 27, 2004, Plaintiff Miller first notified the FCM medical staff

of his foot problems.419 116. Plaintiff Miller submitted more than a dozen sick-call slips and three

grievances seeking treatment for his medical condition.420 117. Defendants Gombeh-Alie and Ihoma, and Defendant FCM, acting through

its agents, servants, and employees, failed to render medical services to Plaintiff Miller in conformity with acceptable standards of care, and committed malpractice within the meaning of 18 Del. C. § 6801, in that they:421 (a) (b) Failed to monitor Plaintiff Miller' s condition once it was identified;422 Failed to examine and properly diagnose Plaintiff Miller' s condition;423 28

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(c)

Failed to consult with a foot specialist or podiatrist regarding Plaintiff Miller' s condition;424

(d)

Failed to provide orthopedic shoes to Plaintiff Miller for more than a year after Terry Hastings mediated a grievance file by Plaintiff Miller and informed him that he had been approved for orthopedic shoes;425

(e)

Discontinued pain medication despite repeated submissions of sick-call slips and grievances by Plaintiff Miller complaining of pain in his feet; and 426

(f)

Failed to provide Plaintiff Miller with Gabapentin for his " diagnosed" condition for more than one month after it was prescribed.427

118.

Pursuant to 18 Del. C. § 6853, Plaintiff Miller will submit an affidavit of

merit from an expert witness, within 60 days of filing the Second Amended Complaint. Counsel for Plaintiff Miller has been and continues to attempt to retrieve Plantiff Miller' s medical records from the DCC and schedule an examination with an expert witness.428 119. The Health Care Defendants' actions constitute continuous negligent

medical treatment.429 120. Despite his attempts, Plaintiff Miller, while incarcerated at the DCC, could

not in the exercise of reasonable diligence discover and identify the source of his injury.430 121. As a direct and proximate result of the acts and failures of the Health Care

Defendants, Plaintiff Miller sustained injuries which have caused and will cause pain, suffering, disability, helplessness, inconvenience, mental and emotional distress, and a dimunition of life' s pleasures.431 122. As a further direct and proximate result of the Health Care Defendants'

negligence, Plaintiff Miller will require specialized medical attention, at significant expense.432

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123.

As a further direct and proximate result of the Health Care Defendants'

negligence, Plaintiff Miller has sustained an impairment of his capacity to earn a living upon his release from the DCC.433

REQUEST FOR RELIEF434 WHEREFORE, Plaintiff respectfully pray that this court enter judgement
435

Miller requests with respect to Defendants:436 granting Plaintiff:437

1. A declaratory judgment that the defendants438 a. Judgment that State Defendants' 439 acts, policies , 440and practices,441 described herein,442 violate Plaintiff' 443 Miller' 444s rights under the Eighth Amendment of the 445United States Constitution. 2. A preliminary and permanent injunction which:447 A. Requires defendants THOMAS CARROLL (Warden) and DR. ALIE (MEDICAL DIRECTOR) to rescind the policy directive concerning denial of treatment and to have regulations which prohibits such practices in the future, especially when such treatment is necessary and can prevent unnecessary risk to prisoners health and safety.448 and constitute deliberate indifference to Plaintiff Miller' s serious medical needs;449 b. Judgment that Health Care Defendants' acts, policies, and practices, described herein, violate Plaintiff Miller' s rights under the Eighth Amendment of the United States Constitution and constitute deliberate indifference to Plaintiff Miller' s serious medical needs;450 c. Judgment that defendants' acts, policies, and practices, described herein, violate Plaintiff Miller' s rights under the Fourteenth Amendment of the United States Constitution;451
446

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d.

Judgment that Health Care Defendants' actions constitute medical negligence;452

e. f.

An award of compensatory damages to be determined at trial;453 An award of punitive damages in an amount to punish and deter similar conduct in the future;454

g.

An award of Plaintiff Miller' s reasonable attorney fees in accordance with 42 U.S.C. § 1988;455

B.

Prohibits defendants, their agents, employees, successsors in interest and all other persons in active concert or participation with them; from harassing, threatening, punishing or retaliating in any way against the plaintiff because he filed this action or from456h. An order permanently

restraining, enjoining or prohibiting all Defendants, in their individual and official capacities, from undertaking, enforcing, maintaining or adopting any policies, procedures, practices or acts, including, but not limited to,457 transferring Plaintiff Miller 458to any other institution without his express459 consent,460 during the pendency of this action.461, that are retaliatory in character against Plaintiff Miller for his commencement and prosecution of this action; 462 C. Requires defendants to treat Plaintiff to the best of their ability and to have Plaintiff seen by a foot specialist ( podiatrist ) to determine what course of action needs to be followed henceforth.463 3. Compensatory damages in the amount of $20,000. to Plaintiff MILLER from all defendants and each of them.464 4. Punitive damages of $20,000. from defendant DR. Alie and defendant RN Ihoma.465 i. An order requiring Defendants to diagnose and treat Plaintiff Miller, including, but not limited to, an examination by a podiatrist or other foot specialist; and466 31

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j.

All other legal and equitable relief that the Court deems just and proper.467

JURY DEMAND468 5. Trial469Plaintiff Miller demands a trial470 by jury on471of472 all issues

triable by jury473as of right by a jury in this action474. 6. Plaintiff' s cost of this suit.475 7. Such other and further relief as this court may deem just, proper and equitable476

Respectfully Submitted,477 JULIAN A. MILLER478 393626479 Dated:480 3-3-05
481

June 9, 2006

FISH & RICHARDSON P.C.482

By:4
83

Sean P. Hayes (#4413)484 [email protected] 919 N. Market Street, Suite 1100486 Wilmington, DE 19899-1114487 Tel: (302) 652-5070488 Attorney for Plaintiff Julian A. Miller489
second
490

amended complaint.doc

32