United States District Court, D. Delaware
GREGORY M. SLEET, District Judge.
The plaintiff, Russell Steedley ("Steedley"), an inmate at the James T. Vaughn Correctional Center ("VCC), Smyrna, Delaware, filed this lawsuit pursuant to 42 U.S.C. § 1983, (D.I. 2.) He appears pro se and was granted permission to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (D.I. 9.) The case proceeds on the amended complaint. (D.I. 31.) Pending before the court are Steedley's motion to compel, motion for continuance, and motion to extend time to file a reply brief (D.I. 113, 122, 126) and the defendants' motions for summary judgment (D.I. 117, 118.)
I. FACTUAL AND PROCEDURAL BACKGROUND
Steedley alleges that he has two distinct lumps on his body that have grown unchecked for years and, while all physicians who have examined him have recommend that he see an expert to remove and/or test the lumps for cancer, the defendants have denied him the recommended medical treatment. On June 1, 2010, the court screened the original complaint and dismissed it as frivolous and for failure to state a claim under § 1915(e)(2)(b) and § 1915A(b)(l). (D.I. 14.) Steedley appealed and the matter was remanded for consideration of whether Steedley should be allowed amend the complaint. (D.I. 23.) Steedley filed an amended complaint. (D.I. 31.) The matter proceeds against the defendants James MacBride, M.D. ("Dr. MacBride"),  Corizon, Inc., f/k/a Correctional Medical Services, Inc. ("CMS"), and Correct Care Solutions, Inc. ("CCS"), all other defendants having been dismissed. ( See D.I. 31, 111.) Steedley has been housed at the VCC since June 1990. (D.I. 31, ¶ 3.) CMS provided health care service at the VCC from July 1, 2005 through June 30, 2010. Parkell v. Danberg, 21 F.Supp.2d 339 (D. Del. 2014). Dr. MacBride, who is the former regional medical director for CMS,  began his tenure in Delaware during April 2009. (D.I. 119 ex. A, ¶2.) CCS provided health care service at the VCC from July 1, 2010 through June 30, 2014. Taylor v. Correct Care Solutions, 2015 WL 602873 (D. Del. 2015).
On October 15, 2007, a surgical consultation request was submitted for Steedley to undergo a biopsy of a mass on his right neck to rule out malignancy. (D.I. 43.) A CT scan performed on December 10, 2007 revealed a right neck mass. (D.I. 119 ex. A at ¶ 5.) Steedley was seen by Dr. Levente Szalai ("Dr. Levente Szalai") on March 12, 2008. With regard to the neck mass, Dr. Szalai stated that Steedley had the condition "for probably all of his life, although it had just grown recently in size." (D.I. 43.) Examination revealed a "right neck mass which measures 1.5 × 1.5 cm at its greatest diameters, which is smaller than 3 months ago." He opined that the mass "is most likely benign" and that the CT scan is essentially negative. Id. Dr. Szalai recommended an MRI rather than a surgical biopsy and to proceed with a biopsy only if the MRI indicated it. Id. An MRI performed in March 2008 was consistent with lipoma making a biopsy unnecessary. (D.I. 119 ex. A at ¶ 5.)
A consultation request was submitted in April 2009. (D.I. 129 at CCS 0679.) Dr. MacBride's April 30, 2009 note on the request states that he discussed the issue with the surgeon and was resubmitting for surgical biopsies in two areas, with a reevaluation after the biopsy diagnoses. ( Id. )
August 13, 2009 medical notes refer to a lump on Steedley's neck and a lump on his left hip and flank. (D.I. 29.) The notes state that the neck lump has been there for 30 years and the lump on his flank has been there since 2004. ( Id. ) Steedley was seen by medical on September 25, 2009. (D.I. 129 at CCS 00814.) A consultation request for an excisional biopsy was approved on October 15, 2009. ( Id. ) at CMS 00487.)
Steedley was seen by outside physician Dr. Barnett ("Dr. Barnett") on November 3, 2009, for evaluation of several subcutaneous masses including an area to the left hip and flank and an area on the right neck. (D.I. 29; D.I. 119 ex. A at ¶ 6.) Examination revealed soft, fleshy subcutaneous masses most consistent with lipomas in the area of the left hip/flank and right neck. ( Id. ) It was recommended that Steedley have the areas excised as an outpatient. (D.I. 29.) In early January 1, 2010, nurse practitioner Ihuoma Chuks ("Chuks") submitted a written consultation request for Steedley to undergo an excisional biopsy as recommended by Dr. Barnett. ( Id. ) Dr. Dale Rodgers ("Dr. Rodgers"), the site medical director, signed the consultation request on January 12, 2010. (D.I. 119 ex. A at ¶ 7.)
According to Dr. MacBride: (1) lipoma is a slow-growing, fatty lump that is most often situated between your skin and the underlying muscle layer; (2) it is often easy to identify because it moves readily with slight finger pressure; (3) it is not cancer and is usually harmless; and (4) treatment generally is not necessary, but if the lipoma is painful or is growing, it can be removed. ( Id. ) Dr. Barnett's notes recommend excision as an outpatient but, according to Dr. MacBride, consultation notes by an outside provider are only recommendations and not requirements. Id. Steedley was seen by medical on December 29, 2009 for follow-up on the neck mass. (D.I. 129 at CCS 0078.)
Dr. MacBride performed a utilization management review of Steedley's case in mid-January 2010. ( Id. ) at ¶ 7.) Utilization management is a medical industry term referring to the process that helps ensure that patients receive the right care at the right time in order to improve clinical outcomes and lower costs. ( Id. at ¶¶ 3, 8.) According to Dr. MacBride, the goal and purpose of a utilization management review is to assure that appropriate care is received. ( Id. ) at ¶ 8.) Dr. MacBride states that Steedley's utilization managment review sought to assure that services provided him were efficient, cost effective, and consistent with recognized standards of care. ( Id. ) Dr. MacBride wrote on the consultation request in the "alternative treatment plan for consideration" section, "lipomas excision not medically necessary provider to monitor." (D.I. 116.)
Dr. MacBride opines that: (1) the utilization management review utilized by CMS as applied to Steedley's medical care was consistent with the health care industry; (2) the utilization management review did not result in Steedley receiving medical care that was less than appropriate or less than demanded by the applicable standard of medical care; (3) Steedley received care that was appropriate for his medical condition; and (4) up through June 30, 2010, Steedley had only lipomas, the masses were not cancerous, and needed only to be monitored. ( Id. ) at ¶ 9.) According to Dr. MacBride, Steedley's medical records indicate that he was monitored by medical providers at least up through June 30, 2010, after said time CMS and Dr. MacBride no longer provided medical care to the Delaware Department of Corrections ("DOC"). ( Id. ) at ¶ 8.) ( Id. )
On May 22, 2011, Steedley submitted a medical grievance complaining that when he presented for his last two chronic care appointments, the examining physician, Dr. Linda Surdo-Galef ("Dr. Surdo") failed to examine or ask Steedley about the lumps. (D.I. 125, ex. C.) In his grievance, Steedley states there that is continuous growth and pain from both lumps and they are not being monitored by the medical staff. ( Id. ) On May 23, 2011, Steedley complained to the U.S. Department of Justice that Dr. Surdo failed to examine his lumps at his last two chronic care appointments. (D.I. 125, ex. D.) He stated that Dr. Surdo lacks the expertise and proper testing equipment to adequately examine the lumps and that neither Dr. Surdo nor anyone at the prison is qualified to do so. ( Id. ) Steedley next complained to Jim Welch ("Welch"), medical director for the DOC, that Dr. Surdo would only monitor and recognize his hypertension as a chronic condition and that he would need to file separate appointments with regard to his two lumps. ( Id. ) at ex. E.) Dr. Surdo advised Steedley that she did not recognize the lumps as chronic conditions. ( Id. )
In the amended complaint, Steedley alleges that Dr. MacBride knowingly employed and acquiesced in the unconstitutional policies/customs of CMS with deliberate and callous indifference to Steedley's known serious medical needs and failed to adhere the recommendation of an expert. (D.I. 31, Count II.) Steedley alleges that CMS and CCS promulgated policies and customs denying him: (1) access to timely and adequate medical care that was prescribed by an expert, and (2) access to an expert for treatment and devices to test or treat his medical condition. (D.I. 31, Counts I, V.) In addition, he alleges that they both employed and ratified their employees' actions as defacto gatekeepers who followed the practices, policies and/or ...