DERECK E. STONES, Plaintiff,
DR. LAWRENCE McDONALD, et aI., Defendants.
Dereck E. Stones, Sussex Correctional Institution, Georgetown, Delaware. Pro se Plaintiff.
Daniel A. Griffith, Esquire, Whiteford, Taylor & Preston, LLC, Wilmington, Delaware. Counsel for Defendants Dr. Lawrence McDonald and Correct Care Solutions.
Kenisha LaShelle Ringgold, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware. Counsel for Defendants G. R. Johnson and Carl C. Danberg.
SUE L. ROBINSON, District Judge.
Plaintiff Dereck E. Stones ("plaintiff"), an inmate at the Sussex Correctional Institute ("SCI"), Georgetown, Delaware, filed this lawsuit pursuant to 42 U.S.C. § 1983. (D.I. 3) He proceeds pro se and has been granted leave to proceed in forma pauperis. Presently before the court are plaintiffs motions to compel (D.I. 44, 49), request for counsel (D.I. 64), and motion to appoint expert (D.I. 65); State defendants' motion for judgment on the pleadings (D.I. 37) and motion for summary judgment (D.I. 70); and medical defendants' motion to strike (D.I. 53) and motion for summary judgment (D.I. 68). The court has jurisdiction pursuant to 28 U.S.C. § 1331. For the following reasons, the court will: (1) deny as moot State defendants' motion for judgment on the pleadings (D.I. 37) and medical defendants' motion to strike (D.I. 53); (2) deny plaintiffs motions to compel (D.I. 44, 49), request for counsel (D.I. 64), and motion to appoint expert (D.I. 65); and (3) grant medical defendants' motion for summary judgment (D.I. 68) and State defendants' motion for summary judgment (D.I. 70).
II. PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff filed his complaint on June 5, 2012 alleging defendants deliberately delayed addressing a serious medical need and/or failed to address the condition. In addition, the complaint alleges that Delaware Department of Correction ("DOC") has a policy of entering into contracts for medical care with for-profit providers that place the bottom-line ahead of an inmate's medical needs. (D.I. 3) Named as defendants are Dr. Lawrence McDonald ("Dr. McDonald") and Correct Care Solutions ("CCS") (together "medical defendants"), and Warden G. R. Johnson ("Johnson") and Carl C. Danberg ("Danberg"), former DOC Commissioner (together "State defendants"). Plaintiff seeks injunctive relief in the form of medical care, as well as compensatory and punitive damages.
CCS is the contract medical provider for the DOC. Plaintiff testified that in July or August 2010, he injured the nerves in his left ankle and foot when his foot slipped off a curb, and he rolled his ankle. (D.I. 3; D.I. 69, ex. A at 10) Plaintiff's medical records indicate that he presented to SCI medical on August 12, 2010 regarding the injury. (D.I. 69, ex. B at DOC129) The injury caused permanent nerve damage to plaintiff's left lower extremity. ( Id. at DOC436-437) Plaintiff submitted numerous slips for medical care from 2010 through 2013, the majority of which sought renewal of medications, some that contained bottom-bunk requests, and several with specific requests for foot or ankle care, those specifically dated October 19, 2010, April 25, 2011, November 29, 2011, December 15, 2011, February 5 and 28, 2012, March 31, 2012, October 16, 2012, November 1, 2013 and May 9, 2013. (D.I. 58 at DOC206-279, 281-285, 475-477, 479-505, 507-519, 520-25, 526-533, 534-36, 539-540, 550, 552-563) Plaintiff submitted two grievances seeking medical care for his ankle/foot, one on May 27, 2011 and the other on December 28, 2011. (D.I. 27 at DOC 176-185) The first grievance sought an MRI and the second grievance sought immediate corrective surgery without further delay. ( Id. )
CCS progress notes indicate that plaintiff was either seen by medical personnel or had his medical records reviewed in: (1) 2010 on August 12 and 19, and November 4; (2) 2011 on January 27 and 29, February 7 and 22, March 28, April 27, June 1, 28, and 29, August 8 and 30, September 9 and 26, October 20, November 4, and December 9 and 13; (3) 2012 on February 9, 14, 15, March 8, June 21, and November 8; and (4) 2013 on January 23, February 22, May 2, and May 22. (D.I. 58 at DOC265, 280, 307, 307, 311-314, 567, 568, 572-78, 580-83) There were two physician's orders in 2010, and numerous other physician's orders in 2011, 2012, and 2013. ( Id. at DOC255, 257, 258, 452, 453, 455-59, 463, 466, 467, 469, 470) Finally, Dr. McDonald, as well as other CCS medical personnel, submitted outpatient referral requests for plaintiff on numerous occasions throughout 2011. ( Id. at DOC232, 237, 238, 243-245, 248, 249, 412, 418, 421, 422, 424, 427, 432, 440, 446)
Subsequent to the injury, plaintiff's left foot and ankle were x-rayed on August 19, 2010 and March 16, 2011, an EMG study was performed on June 29, 2011, and an MRI of the left ankle and left foot was conducted on August 30, 2011. (D.I. 69, ex. B at 119, 120, 129, 230, 439) X-ray findings were normal, the EMG studies of the left peroneal nerve were normal for latencies with moderate to severely diminished amplitudes distally and decrement in amplitude across the fibular head, and the MRI revealed nerve damage common peroneal nerve left - motor neuropathy and lateral ankle ligament tears. ( Id. )
The first request for medical care following the injury occurred on October 19, 2010 when plaintiff complained of "having problems with my (left ankle) again. It keeps "rolling/twisting' when I walk at times." (D.I. 72 at A50) Plaintiff was seen on November 4, 2010, and told to increase his exercises, avoid running and wear support boots, and he was scheduled for a follow-up in 90 days. ( Id. at A65)
A CCS outpatient referral request dated February 17, 2011 states, "needs physical therapy for home progress for increased... strength." (D.I. 58 at DOC248) Dr. McDonald referred plaintiff to physical therapy at Tidewater Physical Therapy, an initial evaluation took place on February 28, 2011, and plaintiff was given a home exercise program. (D.I. 69, ex. B at DOC231, 241-42; D.I. 72 at A33-34) The plan included physical therapy two times per week for four weeks with a long term goal of independent home exercises. (D.I. 69, ex. B at DOC241-242) The off-site return progress note stated, "needs ongoing PT to correct deficits." (D.I. 58 at DOC246) A CCS consult sheet with the same date contains the name notation. ( Id. at 247) A CCS consult sheet dated March 25, 2011, recommends physical therapy three times per week for four weeks at Old Town Physical Therapy. (D.I. 75, ex. C) Medical records indicate that plaintiff performed exercises, but do not reflect that plaintiff was sent to an outside physical therapist. (D.I. 72 at A24, 63, 65)
Dr. McDonald referred plaintiff to an outside neurologist. Prior to his visit with the neurologist, plaintiff was issued all ankle support from the medical department. (D.I. 72, A127) Plaintiff was seen by neurologist Dr. William Thomas ("Dr. Thomas") on June 29, 2011, who performed an EMG. (D.I. 69, ex. B at DOC230, 239) Dr. Thomas reviewed medical testing that included motor nerve studies of the left peroneal nerve that indicated moderate to severely diminished amplitudes distally and decrement in amplitude across the fibular head. ( Id. at DOC 230) Dr. Thomas' impression was "acute on chronic severe left peroneal mononeuropathy secondary to entrapment and/or traction injury proximally across the fibular head." ( Id. at DOC230) Dr. Thomas recommended an orthopedic surgical evaluation and management of the problem peroneal nerve entrapment. ( Id. )
On August 8, 2011, plaintiff was seen by outside orthopaedic physician Dr. Roman Orsini ("Dr. Orsini") of Orthopaedic Associates of Southern Delaware. Dr. Orsini evaluated plaintiff and ordered an MRI. (D.I. 72 at A37) Dr. Orsini stated that "the peroneal nerve is clearly damaged" and "surgery may be impending." ( Id. at A37-38) He also prescribed an AFO (i.e., ankle-foot orthotic) brace to be fabricated for plaintiff's left foot and ankle. ( Id. at A43) When plaintiff saw Dr. Orsini on September 9, 2011, he told Dr. Orsini that he felt the prison should have diagnosed him sooner and sent him to the doctor. (D.I. 69, ex. B at DOC436) Plaintiff blamed the prison for his nerve damage. ( Id. ) Dr. Orsini's plan for that date states:
We discussed treatment at length. Unfortunately, I do not believe that the nerve can be fixed. Once nerve damage occurs to this degree decompressing it will fail. This was discussed at length and the patient was truly upset by this news. He again reiterated that it is his belief that it was the jails [sic] fault that he is in this situation. I have advised him in no uncertain terms that there is foil fault [to] be had, he was injured, nerve damage occurred.... we discussed the ankle ligaments. These are clearly torn and repair will create stability, however, we cannot repair the fact that his anterior and lateral compartments are not working and therefore I believe that his best treatment at this juncture would be to avoid lateral ankle stabilization and utilize a brace. If he does well with the brace, no treatment will be necessary; if he does not do well, a lateral ankle stabilization could be required.
Plaintiff received his brace on November 1, 2011, but he did not like its height. (D.I. 72 at A102) Plaintiff was advised to try the brace for two weeks and to follow-up with Dr. McDonald. ( Id. at A116) Although medical did not believe the height was an issue, it ordered another fabricated brace. ( Id. at A102) In December, plaintiff received another brace but, again, did not like the fit and complained that the brace caused scarring. ( Id. at A114) On December 28, 2011 plaintiff filed a grievance, complaining that the pain and discomfort he was experiencing was due to a delay in treatment. Plaintiff also requested that he "undergo immediate corrective surgery without further delay." ( Id. at A56)
When Dr. Orsini evaluated plaintiff on August 6, 2012, he advised plaintiff that he could not fix the problem and that, while a peripheral nerve decompression could be performed, he doubted "it would be worth it." (D.I. 69, ex. B at DOC 121) Dr. Orsini encouraged plaintiff to wear a brace at all times and noted that Neurontin appeared to be helping with the neuritic pain. ( Id. ) Dr. Orsini opined that "as long as he continues to do well with the brace, no further treatment is necessary." ( Id. )
On February 22, 2013, plaintiff was seen by Dr. Orsini who evaluated him and issued a prescription for special shoes. ( Id. at A45-47) As of March 19, 2013, Dr. Orsini assessed plaintiff with peroneal nerve damage left, drop foot left, left ankle instability, and burning neuropathy. ( Id. at ex. B at DOC406-7) Dr. Orsini's notes state:
I reiterated to him today that there is no issue with the damage to his leg and treatment which he had received. He has nerve damage. This would not have changed regardless to when he was or was not seen. We next discussed instability. I would like to see him once he has his new shoes. Bracing will ...