Submitted: July 25, 2014
Dear Mr. Szubielski and Counsel:
Plaintiff, a prisoner at a state facility, filed this action to ask the Court to order Defendant to treat him with weekly physical therapy and stronger pain medication for his severe neck pain and headaches. Defendant has moved to dismiss Plaintiff's complaint.
Plaintiff Gerard E. Szubielski is an inmate at James T. Vaughn Correctional Center ("JTVCC"), serving a life sentence pursuant to 11 Del. C. § 4214(b). He is representing himself in this action. Defendant Correct Care Solutions, LLC ("CCS") is a company that provided correctional health care services to the State of Delaware under contract from at least July 1, 2010 to June 30, 2014.
Szubielski sustained head and neck injuries in a 2006 car accident, after which he was treated at Christiana Hospital and incarcerated. He has suffered from headaches and neck pain since the accident, but the pain became severe in 2012. Over the last two years, he has seen facility nurses over twenty times, and Dr. Louise Desrosiers over six times, for his pain. He has been prescribed Tylenol and Excedrin for at least twenty months and a mild muscle relaxer on two occasions. On February 26, 2014, Szubielski saw a neurologist in private practice, who prescribed physical therapy and an exercise program after suggesting that Szubielski might be suffering from bone spurs. The neurologist did not conduct an MRI or any other tests when making this diagnosis.
Szubielski has seen a physical therapist periodically since February. The physical therapist explained that he has multiple bulging discs and discs "out of place." The physical therapist further stated that he needs "a weight physical therapy treatment . . . but this prison does not offer [it], " and that "she needs to see [him] and treat [him] at least once a week" but cannot do so because of understaffing. Szubielski continues to experience severe pain. He buys large quantities of acetaminophen and aspirin from the inmate commissary to supplement his prescribed Tylenol and Excedrin.
Szubielski filed a motion for a temporary restraining order on June 9, 2014, asking the Court to order CCS to "properly treat" him. The Court denied the motion after a hearing on June 16. On June 27, Szubielski filed a motion to appoint counsel. After receiving a letter from the Court seeking clarification of his complaint,  Szubielski replied that he is asking for weekly physical therapy and stronger pain medication as "a start." He filed a motion for a preliminary injunction for the same on July 1. He also filed a motion for discovery to obtain his prison medical file from May 2006 to July 2014. He contends that the file will allow him to prove that CCS is not providing adequate treatment. CCS moved to dismiss, in lieu of filing an answer, on July 9, arguing that Szubielski failed (1) to satisfy the requirements for a preliminary injunction on an Eighth Amendment theory,  (2) to show that Defendant's services were inappropriate or unreasonable,  (3) to establish that he suffers from a serious injury,  and (4) to allege that CCS is liable due to a policy or custom of deliberate indifference. In a later brief, CCS takes issue with Szubielski's non-compliance with statutory requirements for medical negligence claims.
A. CCS's Motion to Dismiss Szubielski's Eighth Amendment Claims
On a motion to dismiss, a court "should accept all well-pleaded factual allegations in the complaint as true, . . . draw all reasonable inferences in favor of the plaintiff, and deny the motion unless the plaintiff could not recover under any reasonably conceivable set of circumstances susceptible of proof." Complaints drafted by self-represented litigants "may be held to a somewhat less stringent technical standard than formal pleadings drafted by lawyers." Nonetheless, a complaint must "allege sufficient facts to state a plausible claim for relief."
In his complaint, Szubielski invokes the Eighth Amendment. The Eighth Amendment's protection against cruel and unusual punishment requires the government "to provide medical care for those whom it is punishing by incarceration." More specifically, "deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment." To succeed on an Eighth Amendment claim, a plaintiff bears the burden of proving a serious medical need as well as the defendant's deliberate indifference in response. Deliberate indifference requires subjective culpability: "the [actor] 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." Allegations of negligence or challenges of a physician's professional judgment do not state a claim.
At the outset, a plaintiff asserting an Eighth Amendment claim pursuant to 42 U.S.C. § 1983 must establish that a person acting under color of state law violated his rights. The only defendant here is CCS, a non-governmental entity. Courts have found that "when the state contracts out its medical care of inmates, the obligations of the [E]ighth [A]mendment attach to the persons with whom the state contracts." CCS has not challenged its status as a state actor and, thus, waives the argument.
The next issue is whether Szubielski alleges a serious medical need. CCS argues that Szubielski's claims fail in the absence of expert testimony because "[a] lay person cannot appreciate what Plaintiff is claiming and cannot determine if he suffers from a bone spur or a bulging disc." Courts have held that to show a serious medical need, a plaintiff must "demonstrat[e] that failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain." While some courts have deemed a medical need serious when "it is one that has been diagnosed by a physician as mandating treatment, or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention, " the Third Circuit Court of Appeals requires expert testimony "when the seriousness of the injury or illness would not be apparent to a lay person." It is not clear that the Third Circuit Court of Appeals' requirement for expert testimony is dispositive at this stage. Szubielski's well-pleaded complaint alleges that a neurologist has prescribed a course of treatment for his condition—whether bone spurs or bulging discs. It is at least reasonably conceivable that Szubielski has serious medical needs.
The remaining question, therefore, is whether the complaint states a claim that CCS exhibited deliberate indifference to those needs. Read liberally, Szubielski's complaint alleges that CCS has failed to provide (1) a physical therapy program as prescribed by the neurologist (and as suggested by his physical therapist) and (2) proper pain medication despite his numerous appeals to CCS staff. In Farmer v. Brennan, the United States Supreme Court adopted "subjective recklessness as used in the criminal law . . . as the test for 'deliberate indifference' under the Eighth Amendment." Deliberate indifference encompasses "intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed."
One who brings a § 1983 claim against a private contractor also must address causation; respondeat superior does not suffice for liability. A plaintiff establishes causation by showing that the private entity had a policy or custom that caused the violation. Liability for policies and customs can be found when the entity (i) "promulgate[d] a generally applicable statement of policy and the subsequent act complained of is simply an implementation of that policy"; (ii) committed an act that violates federal law; or (iii) failed to act when the need was "so obvious, and the inadequacy of existing practice so likely to ...