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Parkell v. Danberg

United States District Court, D. Delaware

February 26, 2014

CARL DANBERG, et al., Defendants

Decided February 25, 2014

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Donald D. Parkell, Plaintiff, Pro se, Wilmington, Delaware.

Devera Breeding Scott, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware. Counsel for State Defendants.

Chad J. Toms, Esquire, Whiteford, Taylor & Preston, L.L.C., Wilmington, Delaware. Counsel for Correctional Medical Services, Inc., Christina Damron, and Betty Bryant.

Scott G. Wilcox, Esquire, Whiteford, Taylor & Preston, L.L.C., Wilmington, Delaware. Counsel for Correct Care Services LLC.


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ROBINSON, District Judge.


Plaintiff Donald D. Parkell (" plaintiff" ), an inmate at the Howard R. Young Correctional Institution, Wilmington, Delaware, filed his complaint pursuant to 42 U.S.C. § 1983.[1] He proceeds pro se and has been granted leave to proceed without prepayment of fees. Presently before the court are defendants' motions for summary judgment and plaintiff's oppositions thereto. (D.I. 222, 224, 226, 237, 240, 242) The court has jurisdiction pursuant to 28 U.S.C. § 1331. For the reasons discussed,

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the court will grant defendants' motions for summary judgment.


This case proceeds on the complaint (D.I. 2) and the first amended complaint (D.I. 66).[2] During the relevant time-frame, medical contract service providers Correctional Medical Services, Inc. (" CMS" ) [3] and Correct Care Services, LLC (" CCS" ) provided medical care to the Delaware Department of Correction (" DOC" ). Also during the relevant time-frame, plaintiff was housed at the James T. Vaughn Correctional Center " VCC" ), Smyrna, Delaware. Count I alleges that Commissioner Carl Danberg (" Danberg" ) violated plaintiff's Eighth Amendment rights when he: (a) renewed a contract with CMS as a means of saving money knowing of CMS' failure to provide constitutionally adequate care to inmates at the VCC; (b) chose to retain CCS as the new medical care provider; and (c) implemented or maintained policies or practices that denied or delayed necessary medical and mental health needs. (D.I. 2, ¶ 75, D.I. 66, ¶ ¶ 82, 87) Plaintiff also sued Warden Perry Phelps (" Phelps" ), Major Michael Costello (" Costello" ) as security chief, Deputy Warden David Pierce (" Pierce" ) [4] as responsible for security matters, and Deputy Warden Christopher Klein (" Klein" ) as responsible for medical issues, all of whom allegedly subjected plaintiff to cruel and unusual punishment by implementing, maintaining and/or acquiescing to policies, practices or customs that deprived plaintiff of medical or mental health care, basic human necessities, and undue pain and humiliation. (D.I. 2, ¶ ¶ 70-73, 77, D.I. 55, ¶ ¶ 83-85, 87) Plaintiff sued CMS and CCS for violating his Eighth Amendment rights when they enacted policies, customs, or practices with regard to plaintiff's medical and mental health treatment and care. (D.I. 2, ¶ 76; D.I. 66, ¶ ¶ 68-75, 77, 87) Finally, plaintiff sued Nurse Betty Bryant (" Bryant" ) for allegedly violating his Eighth Amendment rights when she refused to examine his infected arm and provide needed treatment (D.I. 2 at ¶ 66), and Nurse Chris Damron (" Damron" ) for allegedly committing assault and battery under Delaware law when she maliciously twisted and yanked plaintiff's arm through a door slot causing immense pain and contributing to his preexisting condition (D.I. 2 ¶ 67). Count II alleges that Danberg, Phelps, Pierce, Costello, Captain M. Rispoli (" Rispoli" ), Klein, CMS, and CCS violated plaintiff's due process rights under the Fourteenth Amendment

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by refusing to treat him while he was housed in isolation and housed him in atypical conditions in the infirmary. (D.I. 2, ¶ ¶ 79-80, D.I. 66, ¶ 89) Plaintiff seeks compensatory and punitive damages, as well as injunctive relief.

CMS provided medical services to the DOC from July 1, 2005 through June 30, 2010. See Williamson v. Correct Care Services LLC, 2010 WL 5260787, at n.4 (D. Del. Dec. 16, 2010). Plaintiff was injured on January 1, 2009. (D.I. 228, ex. 1 at 78; D.I. 238 at A284) At the time, he was housed in Building 17 at the VCC. (D.I. 228, ex. 3 at B404) The maximum security housing units at the VCC, including the Secured Housing Unit (" SHU" ), consist of Buildings 17, 18, and 19. ( Id. at ex. 3, ¶ 2)

Plaintiff was transported to the Kent General Hospital in Dover, Delaware and received treatment following complaints of back and right hand pain. (D.I. 225, A189, A192-201) X-rays taken were normal with the exception of a lumbar spine x-ray which indicated loss of normal lumbar lordosis possibly due to muscular strain. ( Id. ) Hospital records note possible muscle sprain, positive for tenderness to palpation, with no visual abnormality. ( Id. at A196) Plaintiff was discharged from the hospital and returned to the prison infirmary. ( Id. at A326) While in the infirmary, physician's orders dated January 4, 2009, instruct that plaintiff's ace wrap should be removed b.i.d. (i.e., twice a day) and that he should be encouraged to stretch and exercise his fingers for two weeks. ( Id. at A273)

Damron, who provided plaintiff with physical therapy, saw him on January 6, 2009, noted " some popping of hand when exercising," and questioned whether a new x-ray was needed. ( Id. at A324) Damron provided physical therapy the next day, January 7, 2009. Because a correctional officer was not available, she performed the physical therapy through the cell door flap. (D.I. 223, ex. C at ¶ 7) Damron states that the physical therapy was performed correctly and in an appropriate manner. ( Id. at ¶ 7) Plaintiff testified that Damron " snatched my arm, I guess to try to do [the exercise], or maybe she was just yanking it to be vindictive. I don't know. All I know is she yanked and my arm was hurt at the time." (D.I. 228, ex. 1 at 81-82) Plaintiff testified that the incident with Damron caused pain, but no injury or damage. ( Id. at 85-86) Damron states that she did not intend to hurt or cause harm to plaintiff while assisting him in the range of motion exercises. (D.I. 223, ex. C at ¶ 9)

Plaintiff submitted a grievance on January 8, 2009, complaining of lack of heat in the infirmary. (D.I. 238 at B1) According to Pierce, around 2009 there were problems with the heating system for the infirmary, but there was never a time when there was no heat for any extended period of time. (D.I. 228, ex. 2, ¶ 8) When the air handlers were being re-engineered and construction was in progress, it was common practice to provide inmates in the infirmary with extra blankets and, when there were heating problems in the unit, an inmate in the infirmary would receive an extra blanket upon request. ( Id. ) There was no policy that prevented an inmate from receiving an extra blanket. ( Id. )

Plaintiff was discharged from the infirmary and returned to his housing assignment in the SHU. On January 9, 2009, he submitted a sick call slip complaining that his back and hand were " still hurting excruciatingly. The pain medication dulls it slightly, but not enough. I can't take this pain." ( Id. at A302) Plaintiff was seen by Nurse Bryant on January 12, 2009. ( Id. ) Plaintiff testified that he requested treatment

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and medication for an infection in his elbow from Bryant, and she refused.[5] (D.I. 228, ex. 1 at 89-90) According to Bryant, she examined plaintiff, saw no evidence of an infection, took his vital signs, and discussed his complaints. (D.I. D.I. 223, ex. D, ¶ ¶ 4-6; D.I. 225 at A302) The plan included an x-ray of the right elbow to rule out a fracture.[6] (D.I. 25 at A272, A302)

Plaintiff testified that he was seen by a physician on January 16, 2009 after his arm " exploded" and a correctional officer called the doctor. (D.I. 228, ex. 1 at 166) The physician obtained a culture from the elbow and ordered antibiotics. ( Id. at A272; A321) Test results indicated a staphylococcus infection. ( Id. at A544) The same day, x-rays were taken of plaintiff's lumbar spine, right and left hip, pelvis, right elbow and right wrist. (D.I. 225 at A540-543) On January 19, 2009, a medical procedure was performed at the nurses station, the elbow was drained, cleansed and irrigated, and plaintiff was continued on antibiotics. (D.I. 225 at A321-322)

Plaintiff complained of back, shoulder, right arm, and elbow damage and pain in January, March, April, May, July, November and December 2009.[7] (D.I. 238 at A181, A294-A302, A356, A372) Plaintiff was seen by medical on January 12, 2009, February 4, 2009, May 20, 2009, August 6, 2009, and December 15, 2009. (D.I. 238 at A294-A297, A300-A302) On February 4, 2009, Dr. Desrosiers submitted a consultation request for plaintiff to see a neurologist to rule out nerve damage, and on August 19, 2009, he submitted a consultation request for plaintiff to see a physical therapist for an opinion and treatment. ( Id. at A185-86)

On November 4, 2009, plaintiff was transferred to the C-Building isolation unit in SHU, and he remained there until November 15, 2009. (D.I. 225 at A318; D.I. 228, ex. 3, ¶ 9) Plaintiff received a medical pre-segregation evaluation on November 5, 2009. (D.I. 225 at A318-19) Examination revealed right elbow edema with puss drainage. ( Id. ) A culture was obtained, and a physician contacted who prescribed an antibiotic. ( Id. ) Plaintiff's elbow was irrigated and topical antiseptics were applied followed by gauze to secure the wound, and plaintiff was checked again about an hour later. ( Id. at A319) Plaintiff was seen by mental health personnel on November 9, 2009. At that time he complained of an elbow infection and that the nurses kept " blowing him off." ( Id. at A370) The mental health note references a phone call to a nurse and that day plaintiff was seen by the nursing staff who noted the condition of his elbow, provided treatment and took a culture of the wound. ( Id. at A316, A370) The culture was negative for staphylococcus. ( Id. at A539). Plaintiff was seen by nursing staff the next day, November 10, 2009. ( Id. at A315) Physical therapy was scheduled for December 29, 2009.[8] (D.I. 237 at B30)

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Plaintiff testified that he was denied medical treatment while housed in isolation because nurses are given the final decision whether an inmate needs treatment by a specialist or physician. (D.I. 412, ex. 1 at 108) After his release from isolation, plaintiff submitted a grievance complaining that he was refused soap, washcloths, recreation, toothpaste and a toothbrush, and allowed only three ten-minute showers per week which was the only time he was allowed to use soap. (D.I. 237 at B39) He also complained that nurses and officers told him that he was not allowed medical treatment while in isolation but, once out of isolation, he could fill out a sick call slip. ( Id. ) The response to the grievance noted that certain items are not allowed in isolation due to security concerns, and recommended education of nursing staff with regard to an inmate receiving medical treatment while in isolation, noting that an inmate should not be denied treatment. ( Id. at B40, B42)

For security reasons, inmates in isolation are strip searched three times per day, once during each eight-hour shift by either a lieutenant or supervisor. (D.I. 228, ex. 3 at ¶ 8; D.I. 240 at ex. A, Phelps Request for Admissions No. 8) According to Rispoli, the check of the inmate on each shift includes medical needs. (D.I. 228, ex. 3 at ¶ 8) According to Rispoli, there is no policy that prevents inmates in isolation from receiving medical treatment. ( Id. 228, ex. 3 at ¶ 7) Inmates in isolation can also submit sick call slips and request medical treatment.( Id. )Inmates in isolation are provided with medical treatment and, if there is a need that warrants treatment in the infirmary, the inmate is sent there.( Id. )

Inmates are provided soap and hygiene items during shower and recreation time and, upon request, inmates are provided with soap, towels, and toilet paper for use in the cell, with the toilets flushed by correctional officers. (D.I. 228, ex. 3 at ¶ 5; D.I. 240 at ex. A, Phelps Request for Admissions Nos. 2, 4) C-Building does not have an outdoor recreation area, but its inmates are provided with indoor recreation, three times a week for an hour.( Id. at ¶ 6) During that time, the inmate can shower and use the time for recreation.( Id. )

Plaintiff's right shoulder and right elbow were x-rayed on January 8, 2010, and the results were within normal limits. (D.I. 225, A534-36) Plaintiff complained of right arm, elbow, and shoulder pain in February and March 2010 and was seen after each complaint. (D.I. 238 at A295, A356) Consultation requests for physical therapy were approved in March and June 2010, with both requests ordering physical therapy two times per week for six weeks. The requests included teaching exercises on physical therapy days and a reevaluation of plaintiff by the provider in six weeks. (D.I. 238 at A174, 181)

On June 16, 2010, plaintiff underwent an MRI of the right shoulder.[9] (D.I. 238 at A644) Impression included tendinosis/tendinopathy of the rotator cuff tendon complex; degenerative/stress related change involving the acromioclavicular joint articulation; mild subdeltoid bursal inflammation; and evidence of degenerative change with minimal ...

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