DONALD D. PARKELL, Plaintiff,
SARGEANT DUKES and G.R. JOHNSON, Defendants.
Donald D. Parkell, Wilmington Delaware. Pro se.
Devera B. Scott, Deputy Attorney General, State of Delaware Department of Justice, Wilmington, Delaware, Counsel for Defendants Dukes and Johnson.
SUE L ROBINSON, District Judge.
Plaintiff Donald D. Parkell ("plaintiff') is a Delaware prison inmate currently incarcerated at the Howard R. Young Correctional Center in Wilmington, Delaware. On January 17, 2012, plaintiff filed a complaint and motion to proceed in forma pauperis pursuant to 42 U.S.C. § 1983 against Sergeant Dukes ("Dukes") and Warden Johnson ("Johnson"), (collectively "defendants") alleging Eighth Amendment violations. (D.I. 1, 3) The court has subject matter jurisdiction over the claims asserted pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1331. Currently before the court is plaintiffs motion to compel (D.I. 22), and defendants' motion for summary judgment. (D.I. 26)
In March 2011, plaintiff underwent surgery on his right shoulder while incarcerated at the correctional facility in Smyrna. (D.I. 19 at A000083) After the surgery, he was issued a bottom bunk memo, which expired on July 23, 2011. (D.I. 19 at A000034) On June 27, 2011, plaintiff was transferred to Sussex Correctional Institution ("SCI"). (D.I. 28, ex 1, Parkell Dep. 11:5-12, Nov. 19, 2012) While at SCI, plaintiff had several bunk assignments. (Parkell Dep. 30:5-19) Plaintiff was first placed in a single cell room while in the Multi-Security Building, a top bunk in tier D (October 12, 2011-October 23, 2011), a bottom bunk in tier 8 (October 23, 2011-November 11, 2011), and finally a top bunk in tier A (starting November 11, 2011), where the incident at hand occurred. (Parkell Dep. 30:3-24; 31:1; D.I. 27, ex. 2, Dukes aff. ¶¶ 2-4 & ex. A)
Plaintiff alleges that, when he was moved from a bottom bunk in tier 8 to a top bunk in tier A, it was an attempt by Dukes to harass or punish him. (D.I. 3 at 3-4) Duke disputes this. (Dukes aff. at ¶ 18) On November 14, 2011, plaintiff was injured when he fell attempting to reach the top bunk. (D. I. 19 at 00060) A bottom bunk memo, dated November 16, 2011, was sent out by the medical staff and received by the security superintendent on November 18, 2011. (D. I. 19 at A000142) Plaintiff alleges that Dukes was made aware of the need, but ignored it. (D.I. 3 at 4) Dukes disputes this. (Dukes aff. at ¶¶ 14-17) On November 24, 2011, plaintiff again fell attempting to reach his bed. (D.I. 19 at A000058) After visiting the nurse, the bottom bunk memo was sent out again on November 26, 2011, and approved on November 28, 2011. (D.I. 19 at A000143) Plaintiff alleges that after his second fall, Dukes was informally reprimanded. (D. I. 3 at 4) Dukes disputes this. (Dukes aff. at ¶ 5)
After learning of the memo on November 26, 2011, Dukes ordered plaintiff and his cell mate, Guinn, to switch bunks so that plaintiff could have a bottom bunk. (D.I. 3 at 4-5; Dukes aff. at ¶ 17) At 2:30 P.M., the inmates were counted. (Dukes aft., ex. Bat A000168) During the count, plaintiff was in the bottom bunk and his cell mate was in the top. (Parkell Dep. 65:13-14; Dukes aff. at ¶ 9) At 3:30 P.M., Dukes went off duty. (Dukes aff., ex. Bat A000169) At 3:50 P.M. there was another count of the inmates and still no problems were reported. ( Id. ) At 5:30 P.M., a fight broke out between plaintiff and his cell mate Guinn. ( Id. ) Officers responded and cap stunned both men. ( Id. ) Plaintiff was then sent to ASDA (holding area for pre-hearing detention), where he alleges a policy was put in place by Johnson that did not allow inmates in ASDA to shower for 24 hours, making it impossible for plaintiff to wash the mace from his face and body. (D.I. 3 at 10) Johnson disputes that such a policy was in place. (D.I. 27, ex. 3, Johnson aff. at ¶ 6) When plaintiff was taken to the infirmary, the medical staff noted that the plaintiff was not in any distress and plaintiff testified that he rinsed his eyes out. (D.I. 19 at A000078; D.I. 30, ex 1) Plaintiff claims that he filed grievances, but they were either deemed nongrievable by Dukes himself or they were intercepted. (D.I. 3 at 4, 6-7) Dukes and Johnson dispute this claim. (Dukes aff. at ¶ 11; Johnson aff. at ¶ 7)
III. MOTION TO COMPEL
Pursuant to Fed.R.Civ.P. 26, "[p]arties may obtain discovery regarding any nonprivilged matter that is relevant to any party's claim or defense - including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1).
In his requests for production, plaintiff seeks a full and complete copy of his prison medical record, including photographs taken of his injuries and copies of the disciplinary report relating to the incident with Guinn. (D. I. 16) In response to plaintiff's request for production of documents, defendants produced plaintiff's medical records for the time period relevant to the complaint and the disposition of plaintiff's disciplinary hearing. (D. I. 19; D.I. 24) Plaintiff seeks copies of photos of inmate Guinn's injuries, copies of the disciplinary outcomes of the hearing relating to the incident with Guinn, as well as any and all investigative reports and/or findings related to the investigation into the incident. (D.I. 16) Defendants objected to producing these records on the grounds that they are privileged DOC records pursuant to 11 Del. C. § 4322 and 29 Del. C. § 10002, which statutes specifically protect prison records from disclosure to an inmate. (D.I. 18) For example, § 10002 provides that "[a]ny records in the possession of the Department of Correction where disclosure is sought by an inmate in the Department's custody" are not public documents. (D.I. 25 at 2)
The court has reviewed plaintiff's production requests and defendants' responses thereto. Defendants have properly raised privilege objections to some of plaintiff's discovery requests, and also produced responsive discovery. After reviewing the record, the court concludes that defendants have produced sufficient records for the court ...