Free Motion for Summary Judgment - District Court of Delaware - Delaware

Case 1 :04-cv-01205-SLB Document 67-8 Filed 02/22/2006 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JEFFREY ALONZO SIMMS, :
Plaintiff C.A. No. 04-1205-SLR
v.
2 TRIAL BY JURY OF
: TWELVE DEMANDED
HARRY M. FREEDMAN, M.D., :
DONNA BURNS, DR., and :
MAJOR R. L. HUGHES, :
Defendants.
DEFENDANT HARRY M. FREEDMAN, M.D.’S
MOTION FOR SUMMARY JUDGMENT
COMES NOW, defendant Harry M. Freedman, M.D. (hereinafter referred to as
"Dr. Freedman"), by and through undersigned counsel, and moves this Honorable Court
pursuant to Federal Rule of Civil Procedure 56 for dismissal of plaintiffs complaint. In
support of his motion, Dr. Freedman offers the following:
l. This suit, a copy of which is attached, (Exh. A) was filed by plaintiff under the
Civil Rights Act, 42 U.S.C. § 1983
2. In his statement of claim, plaintiff asserts that on August 24, 2004 he was
denied emergency treatment. Consequently, he claims that he sustained
disfigurement to his maine (sic) leg and that Dr. Freedman misconceived his
injury.
3. Dr. Freedman did evaluate and treat plaintiff as an outpatient in his office on
three separate occasions for complaints of right and left knee pain. A copy of
Dr. Freedman’s office chart for plaintiff is attached. (Exh. B)

Case 1 :04-cv-01205-SLR Document 67-8 Filed 02/22/2006 Page 2 of 4

4. Dr. Freedman was never called upon to evaluate and/or provide treatment for
plaintiff on August 24, 2004. (Exh. C — Dr. Freedman’s Affidavit)
5. As the office chart reflects, plaintiff never presented to Dr. Freedman’s office
for emergency treatment and surgery to either leg. Thus, Dr. Freedman
contends that p1aintiff’s complaint directed against him is wholly and
completely without merit and must be dismissed.
6. In order for plaintiff to recover against Dr. Freedman, in addition to proving
that Dr. Freedman provided treatment that deviated from the applicable standard of
care so as to evidence deliberate indifferencel, he must also demonstrate that he was
deprived of a constitutional right by a person acting under the color of state 1aw.2
Prison officials such as correctional officers are deemed to be state actors for this
purpose.3 Under certain circumstances, a physician can be held to be a state actor
pursuant to § 1983.4 In West, an imnate brought a civil rights action against the
defendant physician who was under contract with the state to provide medical
services. The District Court granted summary judgment in favor of the contract
orthopaedic surgeon which held that as a contract physician, the defendant was not
acting under color of state law, a jurisdictional predicate for a § 1983 action.5 The
decision was affirmed by the Court of Appeals. The Supreme Court reversed. It held
that a physician who is under contract with the State to provide medical services to
imnates at a state-prison hospital acts under color of state law within the meaning of
I Wilson v. Douglas County, 2005 WL 3019486 *5 (D.Neb.)
2 See 42 U.S.C. § 1983 (1984); Foster v. Mumford, 2001 WL 311255 *3 (D.De1.)
3 Foster v. Mumford, 2001 WL 311255 *3 (D.Del.)
4 West v. Atkins, 487 U.S. 42 (1988)
5 Id. at 42.

_ Case 1 :04-cv-01205-SLR Document 67-8 Filed 02/22/2006 Page 3 of 4
§ 1983 when treating an inmate.6
6. In the matter sub judice, not only was Dr. Freedman not called upon to
evaluate and treat plaintiff on August 24, 2004, he is not and never has been
an employee of the State of Delaware. (Exh. C) In addition, he has never
entered. into a contract with either Sussex Correctional Institution or First
Correctional Medical, the company which did contract with the State of .
Delaware to provide medical care to inmates. Rather, Dr. Freedman is a
private physician who maintains a medical practice specializing in
- orthopaedic surgery. In his twenty—eight years of practicing medicine, Dr.
Freedman has provided care to fewer than one hundred inmates. Inmates have
been occasionally referred to him on a case by case basis. Plaintiff was
referred by First Correctional Medical to Dr. Freedman’s private practice for
evaluation and treatment of knee pain. Dr. Freedman maintained no function
within the state system, other than that of a private physician consulted to treat
an imnate that could conceivably render him capable of depriving plaintiff of
a constitutional right under color of state law. Therefore, because Dr.
Freedman was not a State of Delaware employee at the relevant time and
because he has never served as a medical provider under contract with Sussex
Correctional Institute or First Correctional Medical, he is not a state actor
within the meaning of § 1983. Thus, the suit against Dr. Freedman must be
dismissed.
6 West v. Atkins, 487 U.S. 42 (1988).

Case 1:04-cv-01205-SLR Document 67-8 Filed 02/22/2006 Page 4 of 4
WHEREFORE, for the reasons set forth herein, Dr. Freedman prays that this
Honorable Court will GRANT the within motion for summary judgment and sign an
Order in the form attached herein.
ELZUF ON AUSTIN REARDON
TARLOV & MONDELL, P.A.
JEFFREY M. AUSTIN, ESQUIRE
DIANE M. ANDREWS, ESQUIRE
300 Delaware Avenue, Suite 1700
P.O. Box 1630
Wilmington, DE 19899-1630
(302) 428-3181
Attorney for Dr. Freedman
DATE: O? be /06