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Rodriguez v. Schanne

United States District Court, D. Delaware

February 21, 2017

FRANCIS SCHANNE, et al, Defendants.

          John L. Rodriguez, James T. Vaughn Correctional Center, Smyrna, Delaware, Pro Se Plaintiff.




         Plaintiff John L. Rodriguez ("Plaintiff), an inmate at the James T. Vaughn Correctional Center in Smyrna Delaware, filed this action pursuant to 42 U.S.C. § 1983 alleging negligence and violations of his constitutional rights.[1] (D.I. 3) He appears pro se and has been granted leave to proceed in forma pauperis. (D.I. 5) Plaintiff has filed a motion for leave to amend (D.I. 7), a motion to supplement/amend (D.I. 10), and an amended complaint (D.L II).[2] The motions (D.L 7, 11) will be denied as moot. The first amended complaint (D.I. 11) is the operative pleading. The Court proceeds to review and screen the first amended complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(a).

         II. BACKGROUND[3]

         In 2010, Dr. Francis Schanne ("Dr. Schanne")[4] performed two testicular surgeries on Plaintiff. On October 18, 2015, Plaintiff was taken to Kent General Hospital for pain and severe swelling of the left testicle. A urologist indicated that Plaintiff required a third surgery and provided a treatment plan for Defendants Delaware Department of Correction ("DOC") medical clinic ("DOC medical clinic") and its health care provider, Connections ("Connections3'), [5] to follow, Plaintiff returned to the prison infirmary the same day. He alleges that the treatment plan "was quickly dismissed/' and he was given "different non-effective medication" for his discomfort. (D.I.11 ¶ 5)

         Plaintiff was discharged from the infirmary on October 20, 2015; that same day he submitted a sick call slip requesting treatment for left testicular pain. Plaintiff was seen by nurse practitioner Defendant Cynthia Malee ("Make"), who refused to provide Plaintiff with "better pain medication." (Id. at ¶ 8) On November 2, 2015, Plaintiff submitted a sick call slip, complaining of a severely swollen testicle, headaches, and eye irritation. He was sent to the medical clinic the next day, but he did not see a provider, and he was not examined for his condition and health concerns. The following day, November 3, 2015, he was seen by Defendant nurse Alyssa Silles ("Silles"), who informed Plaintiff that he would see a provider that week. (Id. at ¶ 11) Plaintiff was seen by Malee regarding his severe discomfort and other health concerns, but she refused to further examine him and informed him that, in December, he would see a specialist and have the surgery. (Id. at ¶ 12)

         Plaintiff submitted a sick call slip on December 2, 2015, but he was not seen. The next day, he spoke to Emma ("Emma")[6] at the medical clinic and she advised him that his surgery had been approved. (Id. at ¶ 14) Plaintiff presented to the infirmary the next day and told nurse Weaver about his discomfort and health conditions.[7] (Id. at ¶ 15) Weaver scheduled an appointment for Plaintiff to be evaluated by a provider. Plaintiff alleges that he was never seen. On December 8, 2015, Plaintiff was sent to the infirmary for lab work and a psych evaluation and, on December 10, 2015, he discussed his lab work with Emma. (Id. at¶¶ 16, 17) Plaintiff advised Emma of his severe discomfort and she prescribed Zocor, [8] but nothing was done for his discomfort. (Id. at¶ 17) On December 11, 2015, when Plaintiff awakened with a severe headache and vomited, he was sent to the medical clinic for an evaluation, (Id. at¶ 18) Defendant nurse Stephanie M. ("Stephanie") told Plaintiff he would have to submit three sick call slips to be evaluated by a provider. (Id.)

         Plaintiff submitted a sick call slip on December 30, 2015, complaining of testicular discomfort, chest pans, and breathing problems. That night he was sent to the infirmary for chest pains and seen by Silles, who scheduled an appointment with the provider. (Id. at ¶ 20) Plaintiff complains that Silles did not perform an EKG, and he was never evaluated by a provider. (Id.) The next day, Plaintiff was seen by a psychiatrist and prescribed medication for depression.

         Plaintiffs surgery was not performed by December 31, 2015 (despite Plaintiff having been told it would be done before the end of the year) and his condition worsened. (Id. at ¶ 22) When Plaintiff was at the infirmary on January 13, 2016, he explained to Stephanie that his condition and discomfort had worsened. Stephanie stated that Plaintiffs medication would be refilled (it was not), but nothing else was done for his conditions. (Id. at ¶¶ 24, 25) Plaintiff submitted sick call slips on January 17 and 28 and February 7, 2016. Plaintiff alleges that he was not seen following submission of the January 28th and February 7th sick call slips. (Id. at ¶¶ 27-29)

         The third surgery took place on February 25, 2016. Plaintiff was told by the surgeon that his unexpected complications were the result of the two prior surgical procedures. Plaintiff alleges that, following his surgery, Connections and DOC medical clinic did not follow the surgeon's treatment plan. (Id. at ¶ 31) Plaintiff was given different medication that did not help in reducing his pain. He still experiences pain, pulling of the left testicle, and other health concerns. Plaintiff was having suicidal thoughts and had constant discomfort. (Id. at ¶ 32)

         On February 29, 2016, Plaintiff was discharged from the prison infirmary and transferred to general population. (Id. at ¶ 34) On March 2, 2016, Plaintiff was advised that his pain medication prescription had expired. He could not sleep and had extreme discomfort. (Id. at ¶ 34) After complaining, he was offered Tylenol. (Id. at ¶ 35) At some point that same day, a corrections officer called the infirmary and head nurse, John Doe, indicated that nothing could be done for Plaintiff except to prescribe Tylenol. (Id. at ¶ 37) Later that afternoon, Plaintiff was sent to the infirmary on an emergency visit and seen by provider Roxanne ("Roxanne"), [9] "who seemed not to care much." Plaintiff was evaluated by someone else and given pain medication. (Id. at ¶ 38)

         Plaintiff was seen by his surgeon on March 23, 2016, and by Malee on March 30, 2016. (Id. at¶¶ 39, 41) Plaintiff submitted a sick call slip on April 5, 2016, and was seen on April 7, 2016, with complaints of discomfort. (Id. at ¶ 42, 43) The head nurse "put in to see a provider, " but he never saw one. (Id., at ¶ 43)

         Plaintiff alleges that he did not receive his pain medication on April 7 or 8, 2016. He was sent to the infirmary for treatment of his severe discomfort. He alleges that Defendant M. Gay ("Gay") refused to resume his medication and altered his dose but, "even after greatly expressing" his pain, Gay "seemed numb and show[ed] no concern." (Id. at ¶ 47) Plaintiff submitted another sick call slip on April 18, 2016, again complaining of testicular discomfort and burning pain, and submitted a second sick call slip for mental health. On April 20, 2016, he was seen by Stephanie who told him that she scheduled an appointment with a provider, but he never saw one. (Id. at ¶ 50) Plaintiff submitted another sick call slip for testicular discomfort on April 27, 2016. His April 27 and April 29, 2016 appointments were canceled. (Id., at ¶ 53)

         Plaintiff continued to submit sick call slips in May 2016, A sick call slip was submitted on May 3, 2016, and Plaintiff was seen by Gay on May 4, 2016 in the infirmary on an "emergency visit, " and alleges that she stated, "I see nothing wrong." Gay finally agreed to "put in" for Plaintiff to have an ultrasound, but it was never performed. Plaintiffs pain medication was reduced. He presented at the infirmary on'May 13, 2016, but was not seen. He was thoroughly examined on May 14, 2016, was advised by medical personnel that he had nerve pain and possible nerve damage, and prescribed pain medication. (Id. at ¶ 59) He was seen on May 16, 2016 for heart palpitations and told it would be best if he was seen by a cardiologist. (Id. at ¶ 60) Plaintiff presented at the infirmary, and a nurse scheduled an appointment with a provider, but he never saw one. (Id. at ¶ 61) Plaintiff submitted a mental health slip on May 25, 2016 but was never seen, and then another sick call slip for testicular discomfort on May 30, 2016. (Id. at ¶¶ 63, 64)

         Plaintiff experienced "a lot of pain" on June 7, 2016. The C/O's on duty called the infirmary to have Plaintiff evaluated but medical personnel refused to evaluate him, stating there were no nurses on duty. (Id. at¶ 68) The C/O's called a code and Plaintiff was transported to the infirmary. Upon his arrival, Defendant Robert B. ("Robert") stated there was nothing he could do for Plaintiff, at which point Plaintiff asked Robert to call the "on-call" physician, but Robert refused, (Id.) Robert stated, "there are no doctors on-call." Plaintiff was seen by nurse J atricia JK.. ("Patricia") when she came on duty and was scheduled for an appointment the following day.

         The next day, Plaintiff was evaluated by Defendant Carla Cooper ("Cooper") who ordered a CT scan and a consult by a urologist, (Id. at ¶ 69) Plaintiff advised Cooper that Gay had previously ordered an ultrasound. Cooper explained that Gay had not ordered the ultrasound but had only considered one if Plaintiffs condition worsened. (Id.) Cooper increased his medication. The CT scan was performed on June 20, 2016; on June 22, 2016, Cooper provided Plaintiff the results of the scan and scheduled an ultrasound, which was performed on June 23, 2016. (Id., at ¶¶ 76-78) Cooper advised Plaintiff that no other urologist in Delaware wanted to treat him due to his extensive history, During the same visit, Plaintiff raised the issue of his housing assignment, and Cooper told him that the issue should be addressed with the DOC, and there was nothing she could do about it. (Id. at ¶ 77)

         Plaintiff was seen by his urologist on June 29, 2016, who indicated that surgery was needed, but that he would not perform the surgery due to Plaintiffs extensive history and age. The urologist recommended better pain management and for the DOC medical clinic and Connections to provide Plaintiff special undergarments, (Id. at ¶ 81)

         During the month of July 2016, Plaintiff submitted sick call slips for testicular discomfort, had some medical appointments canceled, and was seen on an emergency basis at 6:15 a.m. on July 13, 2016. (Id. at ¶¶ 83-87) At that time, he was advised that he would be seen that day and later told by a nurse that when the providers felt an inmate's sick call was not as important, they canceled medical appointments and bumped a few people depending on the severity of the patient's situation. (Id. at ¶ 88) When he was called into the infirmary at 8:30 a.m., he was told by Jennifer ("Jennifer")[10] that he would not be seen because the providers were only working a half day, and he was sent back to his housing unit. (Id. at ¶ 89) At 1:30 p.m. on the same day, Plaintiff was sent to the infirmary for 23-hour observation after Defendant Lt. Stephon Boone ("Boone") had called the infirmary and demanded Plaintiffs immediate placement. (Id. at ¶ 90) Plaintiff was informed that he would be evaluated the next day by Defendant State Medical Director Herman Ellis ("Ellis"). (Id.)

         Ellis evaluated Plaintiff and confirmed that he has chronic pain and testicular issues. Ellis told Plaintiff that they only have contracts with certain doctors, that he had contacted ever)7 urologist in the State of Delaware, and no one would accept Plaintiff. (Id. at ¶ 91) Plaintiff discussed his current housing situation with Ellis, who told Plaintiff he would see what he could do, but that the issue was in the discretion of the DOC. (Id.) Ellis increased Plaintiffs medication. Plaintiff was evaluated the next day by Monica Mills ("Mills"), who recommended Plaintiff see another doctor for a second opinion, "but [she] cannot find one." (Id. at ¶ 92) Mills told Plaintiff that Ellis had recommended a different housing assignment. Mills also recommended that Plaintiff seek an early release due to his medical condition.

         On June 12, 2016, Plaintiff sent a letter to Boone regarding his current housing situation. Plaintiff alleges that his current housing assignment does not allow him to safely and properly attend his limited abilities in the capacity that best fits his testicular condition. (Id. at ¶ 70) Plaintiff requested a different housing assignment. (Id.) The next day, Plaintiff sent a letter to Defendant Deputy Warden Scarborough ("Scarborough")[11] making the same request. A few days later, he submitted a sick call slip for a new housing assignment, complaining that his housing assignment was hazardous to his health and condition. On June 17, 2016, Plaintiff sent a letter to Internal Affairs seeking an investigation on his behalf regarding his treatment, neglect, and housing. On July 20, 2016, Plaintiff sent letters to Boone and Deputy Warden Scarborough requesting a move as recommended by Ellis. (Id. at¶94) On July 22, 2016, Plaintiff was assaulted. He alleges the assault would not have happened if he had been transferred as he requested. (Id. at ¶ 95)

         On May 25, 2016, Defendants Stacie Collins-Young ("Collins"), Penny Davis-Wipf ("Davis"), and Luann Don Paolino ("Paolino") denied his grievances. (Id. at¶ 62) Plaintiff appealed to Defendant bureau chief Marc Richman ("Richman"). (Id. at ¶ 66) On June 17, 2016, Plaintiff was advised that he had not appealed his grievances. Plaintiff alleges that he submitted his appeals on June 3, 2016, via the grievance box. (Id. at ¶ 74) He then submitted grievances regarding the mishandling of his appeals. (Id. at ¶ 75) On June 23, 2016, Plaintiff submitted two grievances, one of which stated that he feared for his life due to the mishandling of his appeal. (Id. at ¶¶ 79, 80) Plaintiff submitted a grievance on July 18, 2016 for the cancellation of medical appointments. (Id. at ¶ 93) He submitted grievances on July 22 and 23, 2016, for failure to move him to a new housing assignment. (Id. at ΒΆΒΆ 96, 97) Defendants Laura ...

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