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

Case 1:07-cv-00448-GMS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

: : Plaintiff, : : v. : : CORRECTIONAL MEDICAL : SERVICES, INC., GAIL ELLER, : UNKNOWN EMPLOYEES and : CORRECTIONAL MEDICAL SERVICES : REGIONAL, : : Defendants. :

RUSSELL STEEDLEY,

C.A. No. 07-448 JURY TRIAL DEMANDED

DEFENDANTS CORRECTIONAL MEDICAL SERVICES, INC., JOHN RUNDLE, AND SCOTT ALTMAN'S MOTION FOR SUMMARY JUDGMENT Pursuant to Fed.R.Civ.P 56, Defendants Correctional Medical Services, Inc., John Rundle, and Scott Altman (collectively, "Movants"), by and through their undersigned counsel of record, hereby move this Honorable Court for the entry of an order in the form attached hereto granting judgment in their favor as a matter of law. In support of this Motion, Movants state: I. PRELIMINARY STATEMENT On July 19, 2007, inmate Russell Steedley ("Plaintiff") filed a civil action alleging violation of civil rights based on what he alleged to be a failure timely to provide a surgical solution to a degenerative hip condition. Approximately six months later, he was recovering from that hip replacement surgery. What Plaintiff did not know when he filed his Complaint, his several amendments, and his Motion for Temporary Restraining Order, was that CMS and its doctors were already working to have Plaintiff re-evaluated by an orthopedic specialist after other, more conservative therapies were deemed to have failed. Inmates are never told when

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they will be taken outside the prison walls for outside consultation, due to security concerns. Nonetheless, despite the resolution to his situation, Plaintiff has continued to prosecute this action alleging deliberate indifference to a serious medical need. However, the record shows that CMS and its personnel were anything but indifferent. II. NATURE AND STAGE OF THE PROCEEDINGS Plaintiff's complaint was filed July 19 2007 (D.I. 2), alleging inadequate medical care and seeking a total right hip replacement. (Id.) Specifically, Plaintiff alleged that "Defendant CMS has been deliberately indifferent to plaintiff's need for an operation to replace his severely osteoarthitic hip joint, . . .as recommended by several medical experts, including their own. . . . Defendant(s) policies and practice ensure that the plaintiff is treated with cost-saving drugs that are destroying his internal organs, such as his kidney . . . as opposed to following the recommendations made by medical experts, which is to have plaintiff's total joint replacement operation." (Id.) Also on July 19, 2007, Plaintiff filed a Motion for Temporary Restraining Order/Preliminary Injunction and a Memorandum in support thereof, based on the same facts, and seeking the same general relief, as the Complaint, i.e., hip replacement surgery. (D.I. 4-6) On September 10, 2007, Plaintiff filed a Motion for Leave to File Amended Complaint (D.I. 12) as well as his Amended Complaint. (D.I. 13) The Amendment did not add substantively to his claims, but added details regarding medical complaints and treatment going back to 1997. The Court granted that Motion on September 11, 2007. (D.I. 14) Plaintiff's Amended Complaint provides, in part: Defendant(s), unknown CMS employees, are believed to be the onsite medical administrator(s), however their exact identities and duties have yet to be discovered. The CMS employees are employed by CMS and are assigned to DCC medical department during the pertinent events, in particular, the medical grievance process and are responsible for the confirmation and approval for

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any recommended surgical procedures to be performed on inmates at DCC. The employee(s) uphold CMS policies, customs and practices, and is being sued in their individual and official capacities. (sic) (D.I. 13, ¶6) Plaintiff's Amended Complaint also provides a number of allegations regarding "CMS Administrators". (D.I. 13, ¶¶ 18, 21, 24, 25, 27, 28) Plaintiff filed a second Amended Complaint on November 14, 2007. (D.I. 20) The second amendment did not add any claims, but identified certain defendants, including John Rundle and Scott Altman. (Id.) Defendants assume that Messrs. Rundle and Altman are the

"unknown CMS employees" referred to in paragraph 6 of his Amended Complaint, and that they are the "CMS Administrators" to whom Plaintiff's Amended Complaint refers1. On November 19, 2007, CMS executed and filed its Waiver of Service. (D.I. 22) On

December 11, 2007, CMS filed its Answer to the Amended Complaint as well as its Opposition to Plaintiff's Motion for Temporary Restraining Order. (D.I. 27) Plaintiff filed his Reply to the Opposition on January 2, 2008. On February 25, 2008, the Court denied Plaintiff's Motion for TRO/PI, finding the Motion moot because the Plaintiff was receiving the medical care he sought in the Motion and in his Complaint, and thus was unlikely to succeed on the merits of his claim. (D.I. 33). Plaintiff's cause of action is for deliberate indifference to a serious medical need, i.e., the failure to provide total hip replacement surgery.

If they are not, then Plaintiff's claims against them should be dismissed for failure to state a claim for there are no other allegations in the pleadings that could be construed as being directed against Mr. Rundle or Mr. Altman.

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On March 3, 2008, defendants John Rundle and Scott Altman executed and filed Waivers of Service. (D.I. 35, 36) Their Answers to the Amended Complaint were filed on March 26, 2008. (D.I. 43, 44) This is the Defendants' Motion for Summary Judgment. III. FACTUAL STATEMENT As stated above, on July 19, 2007, Plaintiff filed his Complaint to initiate the abovecaptioned action seeking equitable, compensatory and punitive relief. In his Complaint and the subsequent Amendments, Plaintiff references medical treatment dating back to 1999. (D.I. 2, 13, 20) Specifically, Plaintiff alleged that CMS was "deliberately indifferent to plaintiff's need for an operation to replace his severely osteoarthritic hip joint . . ." (D.I. 2) Plaintiff's medical records, however, tell a different story. On July 1, 2005, CMS took over medical care for inmates in the Delaware State Prison System, following the sudden departure of First Correctional Medical, CMS's predecessor. On July 14, 2005, Plaintiff was seen in Chronic Care Clinic. (Exhibit "A", medical records at 1-2. At that time, Plaintiff denied any complaints except mild, sharp pain in his right hip. (Id.) The same day, Plaintiff received a cortisone injection in his right hip. (Id. at 3) Orders were written to adjust Plaintiff's medication and a note made for follow up visit in three months. (Id. at 4) On October 2, 2005, Plaintiff submitted a Sick Call Request form. (Id. at 5) The care provider's note, dated October 3, indicated he was already scheduled to be seen. (Id.) Plaintiff submitted another Sick Call Request form on October 18. (Id. at 6) Plaintiff was seen and examined on October 24, and scheduled again for Chronic Care Clinic. (Id.) Plaintiff submitted another Sick Call Request on November 9, stating that he was due for a Chronic Care appointment "for review and renewal of current medication." (Id. at 7) When

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Plaintiff was seen in Chronic Care Clinic again on November 11, 2005, he was again examined, blood tests were done, his medications were adjusted and he was scheduled for another hip injection. (Id. at 8-9) Plaintiff was seen again on January 31, 2006. (Id. at 3, 10) A complete physical exam was performed, medications were adjusted and renewed, and a cane was ordered for Plaintiff. (Id. at 8-10) Plaintiff's chart contains no further Sick Call Request forms until the span of May 4, 2006 to June 6, 2006, when he sent three requests to be seen because he claimed his prescriptions were running low. (Id. at 11-13) None of these requests indicates any complaint of pain and, in fact, Plaintiff's medications did not run out. (Id. at 14-15). Plaintiff was seen again on June 12, 2006 in Chronic Care Clinic. (Id. at 16) Again, a complete physical exam was done with lab work and x-rays ordered. (Id. at 17) The physician also ordered an orthopedic consult pending the results of the imaging studies. (Id.) On August 14, Nurse Practitioner Chuks met with Plaintiff and reviewed the x-ray report, which showed joint space narrowing and rheumatoid arthritis with degenerative changes. (Id. at 18-19) An outpatient consultation was requested (id. at 18), and Plaintiff was seen outside the prison in consultation by Dr. DuShuttle on September 12, 2006. (Id. at 20-22) DuShuttle noted: Bilateral hip pain, right worse than left. Pain with range of motion bilateral hips. Minimal range of motion. No groin pain. Walks with assistance of cane. No numbness or tingling, no

neurological or sensory deficit. (Id.) DuShuttle diagnosed marked degenerative joint disease, bilateral hips. (Id.) The precise language of the doctor's note is as follows: I have explained to the patient that his options are to live with his condition as is treating conservatively versus total hip replacements. I have explained to him that he is young for a total hip replacement. If he proceeded, it would not last a lifetime. He would need a repeat total hip replacement, which becomes more difficult. Surgery is based on pain and should be considered as a

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last resort. There is no guarantee that surgery will help him. The patient will return to the office (as needed). (Id. at 22) Dr. DuShuttle did not recommend total hip replacement surgery on September 12, 2006. He recommended that the Plaintiff live with his condition for as long as possible and return to his office as needed. Based on DuShuttle's examination and consultation, Dr. VanDusen ordered a consultation and evaluation for physical therapy and home exercise program. (Id. at 18, 23) On October 3, 2006 Plaintiff was seen again by CMS doctors and his medications adjusted and re-ordered and another outpatient consultation was written, this time for physical therapy, to see whether that could help to manage Plaintiff's condition. (Id. at 23-24) Plaintiff was seen again in follow up on October 24, 2006, November 21, 2006, and January 18, 2007. (Id. at 25-26) On December 21, 2006, Plaintiff submitted a Sick Call Request for physical therapy. (Id. at 27) An appointment was scheduled for Plaintiff to be seen in sick call, but he failed to show up. (Id.) On January 6 and January 15, 2007, Plaintiff submitted Sick Call Requests stating that his medications were about to expire and he had not yet had physical therapy. (Id. at 28, 29) Providers responded, noting that prescriptions were not expired, and indicating an appointment was scheduled with physicians. (Id.) On February 2, 2007, Plaintiff was taken out to Bayhealth Medical Center for Physical Therapy. (Id. at 30-32) The physical therapist noted that "he did well with his initial exercises and was given a copy of a home exercise program to continue." (Id. at 31) On February 17, 2007, Plaintiff submitted another Sick Call Request stating that his Chronic Care medications were going to expire. (Id. at 33) He was seen in Chronic Care follow up on March 2, 2007. (Id. at 34) Again, an exam was conducted, medications re-ordered and follow up scheduled. (Id.)

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On April 4, 2007, Plaintiff submitted a Sick Call Request stating that his pain medication would soon run out. (Id. at 35) The responding care provider indicated that Plaintiff's

medications had been re-ordered April 5, and Plaintiff was scheduled with physicians. (Id.) On April 5, Plaintiff's Chronic Care chart was reviewed. (Id. at 36) Nurse Ott noted that Plaintiff's medications were up to date, and lab work was ordered. (Id.) Plaintiff was seen again in Chronic Care Clinic on May 7, 2007. (Id. at 37) He was examined, labs were ordered and medications renewed. (Id.) On May 30, 2007, Plaintiff submitted another Sick Call Request stating that he needed to re-order pain medication. (Id. at 38) The responding care provider indicated that Plaintiff had just been seen and would need to be seen during his regular visit, which would have been 90 days from May 7. (Id.) Nonetheless, Plaintiff was seen again in Chronic Care Clinic on June 18, 2007. (Id. at 39) Plaintiff was seen again on July 23, and additional medications, Mobic and ACE, were added to his regimen. (Id. at 38-40) Plaintiff was seen again in Chronic Care Clinic on September 14, 2007. (Id. at 41) He was examined, and his medications were adjusted and renewed. (Id. at 42-43) Meanwhile, as CMS continued to treat the Plaintiff with medications and regular exams, CMS also continued to monitor his condition and assess the need for surgery. On January 18, 2007, another request for orthopedic consult was written. (Id. at 44) On January 23, CMS requested clarification as to whether a physical therapy evaluation had been done, and asked for the most recent x-ray results. (Id. at 45) Physical therapy was completed February 2, 2007. (Id. at 30-32) The x-rays were completed February 7, 2007. (Id. at 46) On August 23, 2007,

another request was written for orthopedic consult to evaluate the Plaintiff for a total hip replacement. (Id. at 47) That request was approved August 31, 2007. (Id.) Plaintiff was seen by Dr. DuShuttle for a second orthopedic consultation on October 2, 2007. (Id. at 48-50) Dr.

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DuShuttle noted: "There is severe, marked, limited ROM of the right hip. There is a lot of pain with ROM of the right hip. There is a lot of groin pain. The patient ambulates with an antalgic gait. There is pain with ambulation." (Id. at 48) His recommendations: I explained to the patient, due to the fact that the pain is so severe, I would recommend a total hip replacement for the right hip, based up on pain, even though he is so young. I will make my recommendations to the Department of Corrections and I will await their scheduling. (Id.) This time, DuShuttle recommended total hip replacement. (Id.) The procedure was performed on January 21, 2008. (Id. at 50) IV. ARGUMENT A. The Statute of Limitation Bars any Portion of Plaintiff's Claims Based on Events Occurring Prior to July 19, 20052.

Plaintiff's amended complaints reference events beginning in 1997. His initial Complaint was filed July 19, 2007. The statute of limitation for actions such as the Plaintiff's is two years. Accordingly, Plaintiff is barred from bringing any claims based on events prior to July 19, 2005, and any portion of his claims that relate to events prior to July 19, 2005 should be dismissed. B. Plaintiff Cannot Establish "Deliberate Indifference"

In order to prevail on his claims, Plaintiff must establish that Mr. Rundle and Mr. Altman were "deliberately indifferent" to a serious medical need (Estelle v. Gamble, 429 U.S. 97, 106 (1976)), and/or that CMS instituted a policy or custom that demonstrates deliberate indifference, and that Mr. Rundle and Mr. Altman furthered such policy or custom. See Monell v. Dep't of Social Services, 436 U.S. 658, 694 (1979). Plaintiff cannot prevail on either claim, because each

In fact, CMS cannot be held liable for any care occurring between June 30, 2002 and July 1, 2005 because it did not hold the state contract for prison health care during that period.

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is dependent on Plaintiff establishing "deliberate indifference." The Plaintiff's medical records instead demonstrate that he received appropriate, ongoing, comprehensive medical attention. 1. Neither John Rundle, nor Scott Altman, had any Authority to "Confirm" or "Approve" Surgical Procedures for Inmates

The facts asserted in the Complaint, and the amendments thereto, do not support Plaintiff's claim against either Mr. Rundle or Mr. Altman. Plaintiff repeatedly alleges that, despite recommendations from treating physicians that he receive hip replacement surgery3, "CMS Administrators" denied and delayed the procedure. In his Complaint, he identifies

"(U)nknown CMS employee(s) . . . (who) are responsible for the confirmation and approval of any recommended surgical procedures to be performed on inmates at DCC." (D.I. 13, ¶6) Plaintiff's November 8, 2007 letter to the Court (docketed as "Motion to Amend Complaint") indicates that he has identified John Rundle and Scott Altman as the "unknown CMS employee(s)". (D.I. 20) Essentially, Plaintiff is contending that Rundle and Altman somehow negatively affected approval for his hip surgery; however, neither man had the authority to do so and neither man was involved in the process. See Exhibit "B", Affidavits of John Rundle and Ronnie Moore. Because neither man did, or had the ability to, affect a decision regarding the timing of Plaintiff's surgery, neither man can be said to have been "deliberately indifferent" within the context of a 42 U.S.C. § 1983 claim. In order to state a claim for a violation of civil rights based on medical care, a plaintiff "must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend `evolving standards of decency.'" Estelle v. Gamble, 429 U.S. 97, 106 (1976). In order to show "deliberate indifference," a None of which is borne out in the medical records. There is no statement in the medical records that any doctor recommends hip replacement surgery until Dr. DuShuttle's October 2, 2007 office note.
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plaintiff must demonstrate an act or omission and a sufficiently culpable state of mind on the part of the defendant. Farmer v. Brennan, 511 U.S. 825, 837-38 (1994). The plaintiff must also show personal involvement by the defendant. Clyne v. Correctional Medical Services, 2004 WL 502215, *2 (D. Del. 2004) (Exhibit "C") citing Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988); see also Monell v. Dep't of Social Services, 436 U.S. 658, 694 (1979) (respondeat superior may not be used in a § 1983 claim). Plaintiff cannot show "deliberate indifference" on the part of a person who had no involvement in the process Plaintiff claims violated his civil rights. Logic tells us that one who has no ability to affect the outcome of a decision, and, with no duty to do so, takes no action to affect a decision that forms the basis of Plaintiff's claims, cannot be liable. As the Farmer court explained, in the context of a prison conditions claim: We hold instead that a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. . . . An act or omission unaccompanied by knowledge of a significant risk of harm might well be something society wishes to discourage, and if harm does result society might well wish to assure compensation. . . . But an official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment. Farmer, 511 U.S. at 837-838 (emphasis supplied). Thus, to show "deliberate indifference" as developed by Estelle and clarified by Farmer, Plaintiff here would have to show that Mr. Rundle and Mr. Altman were aware of Plaintiff's need for a hip replacement, knew that denying him the hip replacement created a significant risk to Plaintiff's health, and consciously disregarded that risk in the course and scope of their employment and were personally involved in the decision to delay or deny. As stated herein,

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and within the affidavits submitted in support hereof, these two individuals had no such authority and were not involved in the process of approving or reviewing requests for Plaintiff's hip replacement surgery, and so Plaintiff cannot meet that burden and the claims against Mr. Rundle and Mr. Altman should dismissed. 2. CMS was not Deliberately Indifferent to any Serious Medical Need

As stated above, CMS can only be liable to Plaintiff if it instituted a policy or custom that demonstrates deliberate indifference. See Monell v. Dep't of Social Services, 436 U.S. 658, 694 (1979). In this instance, the medical records, and the undisputed facts show that CMS provided extensive care and treatment to Plaintiff and it was not deliberately indifferent to any serious medical need. Plaintiff has not disputed that he received medical treatment. Instead, he alleges that he did not get the treatment that he wanted ­ a hip replacement ­ as soon as he wanted it. He did receive a total right hip replacement surgery on January 21, 2008, but claims he should have gotten it sooner. In fact, CMS and its doctors attempted to treat Plaintiff with conservative measures until the consulting orthopedic surgeon, Dr. DuShuttle, recommended that surgery be performed. A brief synopsis of the detailed records set forth above tell the story: Plaintiff was seen repeatedly and given treatment for his hip condition. (Exhibit A) He was sent for an orthopedic consult in September 2006. (Id. at 18, 20-22) Dr. DuShuttle opined that Plaintiff was a candidate for surgery, but he also recommended first trying physical therapy: "Per MD PT eval & teach HEP ­ If addt'l visits needed please send notes with request." (Id. at 18) In layman's terms, the note indicates that Dr. DuShuttle has recommended that Plaintiff be evaluated by physical therapy and taught a home exercise program. Physical therapy was tried in February 2007, and

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Plaintiff was given a set of exercises to work on. (Id. at 30-32) Contrary to Plaintiff's assertions that the physical therapist told him "There is nothing we can do for you here" (D.I. 13 ¶19), the Physical Therapy report by Ms. Stewart provides, under the heading "Rehabilitation Potential": "The patient presents with a fair rehabilitation potential" and under "Assessment": "He did well with his initial exercises and was given a copy of home exercises to continue." (Exhibit A at 31) However, even if Plaintiff were told that physical therapy was not an option that would make no difference to this instant motion as CMS did not press the issue. Instead, the CMS doctors continued to see him regularly, ordered x-rays and provided medications and began the process of getting a follow up consultation with Dr. DuShuttle, which was held October 2, 2007. (Id. at 44-47) This time, surgery was recommended and performed January 21, 2008. (Id. at 48-50) Plaintiff alleges that CMS was deliberately indifferent because it did not provide surgical intervention on his time table. However, Plaintiff is entitled to adequate medical care, not to direct the type of care he receives or when he receives it: However, "a prisoner has no right to choose a specific form of medical treatment," so long as the treatment provided is reasonable. Poole v. Taylor, 466 F.Supp.2d 578, 589 (D.Del.2006) (citing Harrison v. Barkley, 219 F.3d 132, 138-140 (2d Cir.2000)). An inmate's claims against members of a prison medical department are not viable under § 1983 where the inmate receives continuing care, but believes that more should be done by way of diagnosis and treatment and maintains that options available to medical personnel were not pursued on the inmate's behalf. Estelle, 429 U.S. at 107, 97 S.Ct. 285. Moreover, allegations of medical malpractice are not sufficient to establish a constitutional violation. White v. Napoleon, 897 F.2d 103, 108-109 (3d Cir.1990); Spruill v. Gillis, 372 F.3d at 235. Mere disagreement as to the appropriate treatment is insufficient to state a constitutional violation. Spruill, 372 F.3d at 235. See Blackston v. Correctional Medical Services, Inc., --- F.Supp.2d ----, 2007 WL 2325210 * 3 (D. Del., August 16, 2007) (emphasis supplied) (granting summary judgment in favor of medical provider and against plaintiff/prisoner); accord Pecoraro v. Correctional Medical Services, 2007

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WL 1560302 at *4 (D.N.J., May 25, 2007)4 (stating prisoner's subjective dissatisfaction with his dental care, and not a deliberate withholding or delay of treatment as alleged in the Complaint, is not in itself indicative of deliberative indifference) (citing Andrews v. Camden County, 95 F.Supp.2d 217, 228 (D.N.J.2000)). CMS cannot be held liable on a theory of respondeat superior, but can only be held responsible where it institutes a policy or custom that demonstrates deliberate indifference. Monell v. Dep't of Social Services, 436 U.S. 658, 694 (1979). Plaintiff cannot point to any such policy or custom. He was seen regularly by doctors and nurses. (Exhibit A) He was prescribed medication. (Id.) He was sent to Dr. DuShuttle who eventually found Plaintiff to be a surgical candidate, but also recommended an attempt at physical therapy and home exercise first. (Id. at 18, 22) Those modalities were attempted without success. Plaintiff was re-evaluated and surgery performed. (Id. at 48-50) Plaintiff attempts to argue that Dr. DuShuttle recommended total hip replacement surgery at the first consultation in September 2006. He did not. At that September visit, Dr. DuShuttle opined that Plaintiff was a "candidate" for the surgery but he did not recommend it until Plaintiff's second office visit in October 2007. A comparison of the office notes from those two visits supports these facts. In September 2006 Dr. DuShuttle wrote: I have explained to the patient that his options are to live with his condition as is treating conservatively versus total hip replacements. I have explained to him that he is young for a total hip replacement. If he proceeded, it would not last a lifetime. He would need a repeat total hip replacement, which becomes more difficult. Surgery is based on pain and should be considered as a last resort. There is no guarantee that surgery will help him. The patient will return to the office (as needed). (Exhibit A at 22)

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All unreported decisions are included as Exhibit C.

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In contrast, in October 2007 Dr. DuShuttle wrote unequivocally that he now recommended the surgery: I explained to the patient, due to the fact that the pain is so severe, I would recommend a total hip replacement for the right hip, based up on pain, even though he is so young. I will make my recommendations to the Department of Corrections and I will await their scheduling. (Id. at 48) The reason for Dr. DuShuttle's change of opinion is contained in his respective recitations of the Plaintiff's conditions. In 2006: "The patient ambulates with the assistance of a cane. Minimal and painful range of motion of the bilateral hips although the patient denies groin pain." (Id. at 22) In 2007: "There is severe, marked, limited ROM of the right hip. There is a lot of pain with ROM of the right hip. There is a lot of groin pain. The patient ambulates with an antalgic gait. There is pain with ambulation." (Id. at 48) In September, 2006, Plaintiff was told that he was a candidate, but that he was young for a total hip replacement, that the surgery was a "last resort" and that he would wait as long as possible. The doctor noted that Plaintiff would return to his office "as needed." (Id. at 22) Additional conservative measures were recommended and attempted, without success. When there was no other choice, Dr. DuShuttle finally did recommend total hip replacement surgery, which was done within three months. CMS was not deliberately indifferent to Plaintiff's condition.

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VI.

CONCLUSION WHEREFORE, for the foregoing reasons, defendants Correctional Medical Services,

Inc., John Rundle and Scott Altman respectfully request the entry of judgment in their favor as a matter of law.

BALICK & BALICK, LLC

/s/ James E. Drnec James E. Drnec, Esquire (#3789) 711 King Street Wilmington, Delaware 19801 302.658.4265 Attorneys for Defendants Correctional Medical Services, Inc., John Rundle and Scott Altman Date: May 28, 2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

: : Plaintiff, : : v. : : CORRECTIONAL MEDICAL : SERVICES, INC., GAIL ELLER, : UNKNOWN EMPLOYEES and : CORRECTIONAL MEDICAL SERVICES : REGIONAL, : : Defendants. : ORDER AND NOW, this day of

RUSSELL STEEDLEY,

C.A. No. 07-448 JURY TRIAL DEMANDED

, 2008, the Court having considered

Defendants Correctional Medical Services, Inc., John Rundle, and Scott Altman's Motion for Summary Judgment and all opposition thereto, it is hereby ordered that the Motion is GRANTED. All claims in the above-captioned action are dismissed with prejudice.

J.

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CERTIFICATE OF SERVICE I, James Drnec, hereby certify that on the 28th day of May, 2008, the foregoing Defendants Motion for Summary Judgment was filed via CM/ECF and served First Class Mail upon the following:

Russell Steedley SBI# 249572 Delaware Correctional Center 1181 Paddock Road Smyrna, DE 19977

/s/ James E. Drnec James E. Drnec, Esquire (#3789)