United States District Court, D. Delaware
GREGORY M. SLEET, District Judge.
The plaintiff, Robert Saunders ("Saunders"), an inmate at the James T. Vaughn Correctional Center ("VCC"), Smyrna, Delaware, brings this lawsuit pursuant to 42 U.S.C. § 1983,  the Americans with Disabilities Act, 42 U.S.C. § 12131, and 42 U.S.C. § 1981 and § 1985. (D.I. 38.) Saunders appears pro se and was granted permission to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (D.I. 9.) The court reviewed and screened the complaint (D.I. 3) and amended complaint (D.I. 11) and dismissed the complaint for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1) and the amended complaint as noncompliant with Fed.R.Civ.P. 20. ( See D.I. 36, 37.) Saunders was given leave to amend. An amended complaint (D.I. 38) was filed on February 19, 2014.
The amended complaint (D.I. 38) raises claims against Delaware Governor Jack Markell ("Markell"), former Delaware Department of Correction ("DOC") Commissioner Carl Danberg ("Danberg"), current DOC Commissioner Robert Coupe ("Coupe"), the DOC, Healthcare Director Dr. Vincent Carr ("Dr. Carr"), former VCC Warden Perry Phelps ("Phelps"), VCC Deputy Warden James Scarborough ("Scarborough"), Bureau Chief of Correctional Healthcare Services James Welch ("Welch"), Medical Director Dr. Laurie Spraga ("Dr. Spraga"), and VCC Director ofNursing Michelle Swell-Jones ("Jones"). Saunders states that he suffers from a number of medical conditions including a kidney cyst, glaucoma, cataracts in both eyes, degenerative disc disease, brain tumors, irregular heartbeat, uncontrolled urination, and serious dermatologic issues. ( Id. at ¶ 4.) Saunders alleges that he is an individual with disabilities and that the unconstitutional conditions have denied him access to prison services and activities in violation of the ADA. (D.I. 38, ¶ 1.) It appears that he continue to assert violations of § 1983.
The original complaint alleges that a September 2007 sonogram indicated that Saunders has a lesion in the left kidney. When Saunders was seen in December 2007, he was told the mass is a complex cyst. The condition was left untreated until 2011 when Saunders had constant complaints of pain, passing blood in his urine, and urination issues. Beginning in 2011, Saunders met with nephrologist Dr. Michael Yosin ("Dr. Yosin") and consultation orders were written on three different occasions for Saunders to see a urologist. (D.I. 3, ¶ 3.)
On February 18, 2013, Saunders was approached by a correctional officer for transport to see a physician off-site who was either an eye specialist or dermatologist. Saunders advised the correctional officer he had previously seen both and, because he was in the law library working on a post conviction issue, he signed a refusal for treatment not knowing that the appointment was with a urologist. Saunders met with Dr. Yosin on July 12, 2013, and he gave Saunders the results of blood tests from June 2012 through July 2013. The testing indicated that Saunders had sustained 16 percent loss of kidney function. While not clear, it appears that a written consultation referral to see a urologist on an urgent basis was issued. Saunders alleges that, to date, he has not seen medical personnel for his kidney issue. (D.I. 3 at ¶ 4; D.l. 38 at ¶ 9.) The amended complaint alleges that a radiologist report, dated September 19, 2013, indicated bladder wall thickening without evidence of mass. (D.I. 38 at ¶ 9.) On an unknown date, opthalmologist Dr. Gary Markowitz, diagnosed Saunders with cataracts and glaucoma. (D.I. 38, ¶ 10.) Saunders alleges that there has been no intervention by defendants to address the conditions. ( Id. )
Saunders alleges that on October 15, 2013, an unnamed defendant was fully aware that a "wheelchair was to be made available to plaintiff, " yet he has not received same. ( Id. ) On an unknown date, Saunders was seen by Drs. DuShuttle and Hershey and who prescribed a firm and/or two mattress and a first floor/bottom bunk assignment, both ignored by all defendants. (D.I. 38, ¶ 5.) On an unknown date, Saunders was moved from T-1 to D-Building. ( Id. at ¶ 8.) While there he fell in the shower. ( Id. ) Saunders alleges that the bathrooms in T-1 and T-2 are the only ones in ADA compliance. ( Id. ) On an unknown date, Saunders was housed in the infirmary. ( Id. at ¶ 10.) He alleges the infirmary violates ADA standards because the patient alarm system is disconnected in individual rooms. ( Id. ) The amended complaint alleges that overcrowding has resulted in an aged prison population, lacking specialized programs. ( Id. at ¶ 11.)
On an unknown date, Saunders was placed in administrative segregation for forty-one days but was not provided a reason for his placement there. ( Id. )
Saunders submitted grievances that were ignored. In addition, upon final review, Welch denied a medical grievance for a mattress and he continues to deny the grievance. ( Id. ) Saunders alleges that he has complained to all defendants, via grievance. ( Id. at ¶ 6.)
Markell, Danberg, Coupe, Dr. Carr, Welch, Phelps, Scarborough, Dr. Spraga, and Jones are named as defendants based upon their supervisory positions and responsibility to inmates to provide safe and secure housing and medical care. (D.I. 38, ¶¶ 6, 16-22.) In addition, Saunders alleges that Phelps and Jones failed to adequately train their respective staff. The amended complaint also alleges that Carr is responsible for establishing policies and procedures to ensure that in-house and specialist orders are carried out. ( Id. at ¶ 19.) Markell is sued in his official capacity, and Danberg, Coupe, Carr, Welch, Phelps, Scarborough, Dr. Spraga, and Jones are sued in their personal capacities. ( Id. at ¶¶ 13-14, 16-22.)
Saunders alleges that the DOC operates a correctional facility (presumably VCC) in violation of the ADA. ( Id. at¶ 15.) He further alleges that Danberg, Carr, Phelps, Scarborough, Coupe, Jones, and Dr. Spraga were deliberately indifferent to his serious medical needs in violation of the Eight Amendment to the United States Constitution. ( /d. at¶ 23.) Saunders alleges that as a result, he has suffered, and will continue to suffer kidney, skin, disc/hip, blood pressure, eye disorders, pain and suffering, and emotional distress for their refusal to correct the conditions. ( Id. ) Saunders seeks injunctive relief and compensatory and punitive damages. He also requests counsel.
II. STANDARD OF REVIEW
This court must dismiss, at the earliest practicable time, certain in forma pauperis and prisoner actions that are frivolous, malicious, fail to state a claim, or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2) ( in forma pauperis actions); 28 U.S.C. § 1915A (actions in which prisoner seeks redress from a governmental defendant); 42 U.S.C. § 1997e (prisoner actions brought with respect to prison conditions). The court must accept all factual allegations in a complaint as true and take them in the light most favorable to a pro se plaintiff. Phillips v. County of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008); Erickson v. Pardus, 551 U.S. 89, 93 (2007). Because Saunders proceeds prose, his pleading is liberally construed and his complaint, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. at 94 (citations omitted).
An action is frivolous if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). Under 28 U.S.C. § 1915(e)(2)(B)(i) and § 1915A(b)(1), a court may dismiss a complaint as frivolous if it is "based on an indisputably meritless legal theory" or a "clearly baseless" or "fantastic or delusional" factual scenario. Neitzke, 490 at 327-28; Wilson v. Rackmill, 878 F.2d 772, 774 (3d Cir. 1989); see, e.g., Deutsch v. United States, 67 F.3d 1080, ...