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Wood v. Russell

United States District Court, D. Delaware

June 8, 2017

KENNETH E. WOOD, JR., Plaintiff,
SHIFT SERGEANT RUSSELL, et al., Defendants.

          Kenneth E. Wood, Jr. James T. Vaughn Correctional Center, Smyrna, Delaware. Pro se Plaintiff.

          Kenisha LaShelle Ringgold, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware. Counsel for Defendants Sergeant Russell, Lieutenant Flint, Deputy Warden Raymond, and Lieutenant Roberts.

          Daniel A. Griffith and Scott G. Wilcox, Esquires, Whiteford, Taylor & Preston, L.L.C., Wilmington, Delaware. Counsel for Defendants Correct Care Solutions LLC, Jill Moser, Dr. Dale Rogers, and Dr. Lawrence McDonald.


          ROBINSON, Senior District Judge


         Plaintiff Kenneth E. Wood Jr. ("plaintiff"), an inmate at the James T. Vaughn Correctional Center ("VCC"), Smyrna, Delaware, proceeds pro se and has been granted leave to proceed in forma pauperis. He filed this lawsuit in April 2014 pursuant to 42 U.S.C. § 1983 and Title II of the American with Disabilities Act, 42 U.S.C. § 12132.[1] (D.I. 3, 19, 66) Presently before the court are defendants' motions for summary judgment and plaintiff's opposition thereto. (D.I. 111, 117) The court has jurisdiction pursuant to 28 U.S.C. § 1331.


         On March 19, 2008, plaintiff was convicted of two counts of rape in the third degree. (D.I. 66 at ¶ 12) As a condition of his sentence, plaintiff was to have no contact with his victim or the victim's family and no contact with anyone under the age of 18. (Id. at ¶ 13) In May 2012, plaintiff began a level four work-release sentence at Morris Community Correction Center ("MCCC") in Dover, Delaware. (Id. at ¶ 14) In late June 2012, plaintiff's victim's uncle was moved to the tier where plaintiff was housed. (Id. at¶15) According to plaintiff, he advised defendant Sgt. Russell ("Russell") of the no contact order and, when he explained that the victim's uncle was now housed on his tier, she told him, "don't worry about it, it'll be alright, " and the two remained housed on the same tier. (D.I. 121 at ¶ 4) According to Russell, she has no recollection of plaintiff ever informing her of the no contact order or that plaintiff was housed on the same tier as a relative of his victim. (D.I. 115) According to deputy warden Kent Raymond ("Raymond"), [2] neither plaintiff nor any member of the victim's family would have been assigned to the same housing tier had the staff known. (D.I. 114) According to Raymond, a search of plaintiffs institutional records (including contact notes) contained no evidence that plaintiff requested a change in his housing assignment during the entire time he was housed at the MCCC. (Id.) Also, according to Raymond, there is no evidence that plaintiff informed anyone that he and his victim's family member were housed on the same tier. (Id.)

         On July 8, 2012, plaintiff was attacked and badly beaten by two unidentified inmates who called him a "child molester" and said "this is from Brad." (D.I. 121 at ¶ 5) Plaintiff was taken to the infirmary where he lied and said his injuries were from a slip and fall incident because he "did not want to be labeled as a snitch or get into trouble." (D.I. 45 at DOC548, 585; D.I. H3atA25; D.I. 121 at ¶6) Plaintiff was treated at the infirmary for abrasions, and medical staff ordered x-rays of the left foot and ankle and an orthopedic consultation. (D.I. 113 at ¶ 11-12, 25; D.I. 121, ¶ 7) Plaintiff's ankle was wrapped, he was given pain medication, provided crutches, and ordered to ice and elevate the leg, with no weight bearing. (D.I. 45 at DOC562-563; D.I. 113 at ¶ 11)

         When plaintiff was taken to Kent General Hospital for x-rays, during the ride he told Officer Wall ("Wall"), the guard transporting him, that he had not slipped and fallen but that he had been attacked by an inmate. (D.I. 114 at ¶ 4; D.I. 121 at ¶ 7) Raymond refers to one of the incident reports where plaintiff stated that "he would be OK if he was just moved to a different tier, separate from the inmate that allegedly attacked him." (D.I. 114 at ¶ 4) Defendant officer Eugene Roberts ("Roberts") and Wall both reported that plaintiff either said that "he feared for his life and would like to be transferred to SCCC" or that he was scared to return to the building but, when plaintiff returned to MCCC, he told Roberts that he did not have a problem going on a different tier and he preferred that to leaving. (D.I. 45 at DOC713, 718) Plaintiff told Wood that "he would be ok if he was just moved to A-tier." (Id. at DOC718)

         According to Raymond, once plaintiff returned to the MCCC, he was housed in a holding cell for his own protection and safety while his allegations were being investigated and pending further medical evaluation. (D.I. 114 at ¶ 5) Raymond instructed Roberts to keep plaintiff in the holding cell for plaintiff's protection.[3] (Id.) The cell had a bunk, sink, toilet, and barber's chair. (D.I. 121 at ¶ 8) According to plaintiff, the cell was not equipped for a person with a handicap of any kind. (Id.) According to Raymond, if medical staff had determined that plaintiffs medical needs could not have been met in the holding cell, alternative housing would have been considered and arranged. (D.I. 114 at ¶5)

         The x-rays revealed that plaintiff sustained fractures to his left ankle and foot. (D.I. 45 at DOC523) Plaintiff was seen by outside orthopedic surgeon Dr. DuShuttle ("Dr. DuShuttle") on July 11, 2012, who scheduled plaintiff for surgery on July 13, 2012. (Id. at DOC543) Plaintiff remained in the holding cell for six days while awaiting a surgical repair to his left foot and ankle. (D.I. 113 at A10.24; D.I. 121 at ¶8)

         Plaintiff underwent surgery on July 13, 2013 at the Dover Surgicenter. (D.I. 45 at DOC484, 544; D.I. 113 at ¶ 23) He returned to the VCC infirmary for post-surgery care and remained there from July 13, 2012 to July 20, 2012. (D.I. 45 at DOC393, 477-482, 532, 558-561, 578-584; D.I. 113 at ¶ 13, 18-19, 21-25) During that time, he received physical therapy. (Id.) Upon release from the VCC infirmary, plaintiff was transferred to Sussex Correctional Institution ("SCI") in Georgetown, Delaware, and then to the Sussex Community Correction Center ("SCCC") with a no weight bearing order. (D.I. 45 at DOC481; D.I. 113 at ¶ 18, 36-40) Plaintiff had a surgical follow-up appointment with Dr. DuShuttle on July 23, 2012. (D.I. 45 at DOC527) He underwent an outpatient procedure on August 20, 2012 to remove the orthopedic hardware (i.e., pins). (D.I. 45 at DOC514, 517) The next day, plaintiff was seen by Dr. DuShuttle for follow-up of the procedure. (D.I. 45 at DOC513) He continued to be followed by the prison medical staff. (D.I. 45 at DOC556-557, 577-578)

         According to plaintiff, when he was housed in the holding cell at MCCC awaiting surgery and at the VCC infirmary during his recovery, he asked every officer who visited his cell for grievance forms only to receive excuses why they were not brought to him or excuses for not having any. (D.I. 121, ¶¶ 8, 9) Once plaintiff was transferred to work release at the SCCC on July 20, 2012, he was able to obtain grievance forms, which he filled out and submitted, but his grievance was returned as time-barred because it was past the seven days from the date of the event plaintiff was grieving. (Id. at ¶ 10) Plaintiff submitted sick call slips on July 21 and 26, 2012 and August 1 and 6, 2012, [4] as well as on August 23, 2012. (D.I. 45 at DOC567; D.I. 113 at ¶ 41-44)

         Raymond searched MCCC records and found no record of plaintiff submitting a grievance while he was housed there during the relevant time-frame. (D.I. 114 at ¶ 6) Lt. Sean Milligan ("Milligan") searched for grievances submitted by plaintiff in connection with this lawsuit, and there is no record that plaintiff submitted a grievance while housed at the SCCC from July 20, 2012 to August 2012[5] or from August 21, 2012 to December 21, 2012. (D.I. 123)

         Plaintiff states that he was required to go job seeking even though he was on crutches with pins sticking out of his foot with a no weight bearing order. (D.I. 121 at ¶ 11) According to plaintiff, he asked for medical clearance to look for a job because, had he not looked, he would have been returned to Level 5. (Id.) Once the pins were removed from his foot, plaintiff was hired by a construction company.[6] (Id. at ¶ 12) According to plaintiff, when he was seen by Dr. DuShuttle on August 27, 2012, he was told that he needed physical therapy, but it was not provided because medical did not feel he needed it. (Id. at ¶ 13)

         Plaintiff alleges that: (1) Russell and defendant Lieutenant Flint ("Flint") failed to protect him from harm (D.I. 66 at ¶¶ 16, 34, 41, 42); (2) Raymond ordered plaintiffs housing in a non-handicapped cell for six days and Roberts carried out the order in violation of the Eighth Amendment and the ADA (id. at ¶¶ 20, 21, 23, 36, 46); (3) defendant Dr. Rogers ("Dr. Rogers") failed to provide plaintiff with prompt medical treatment, failed to implement policies to provide prompt medical treatment, and failed to order or request plaintiffs transfer from the non-handicap isolation/holding cell to the infirmary in violation of the Eighth Amendment and the ADA (id. at ¶¶ 23, 35, 44); (4) defendants Dr. McDonald ("Dr. McDonald") and health service administrator Jill Moser ("Moser") failed to order physical therapy after the pins were removed from plaintiffs foot and ankle and then they cleared plaintiff to go job seeking while he was still on crutches and with a no weight bearing order in violation of the Eighth Amendment (id. at ¶¶ 28, 32); and (5) defendant Correct Care Solutions, LLC ("CCS") failed to properly train medical staff to carry out outside doctor's orders as written, allowed plaintiff to be cleared to go job seeking job despite being on crutches and not being able to bear weight on his foot or ankle, and failed to follow a doctor's order to provide plaintiff physical therapy in violation of the Eighth Amendment, the ADA, and the "RA [of] 1973"[7] (id. at ¶¶ 25, 28, 32, 43).


         "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.10 (1986). A party asserting that a fact cannot be-or, alternatively, is-genuinely disputed must be supported either by citing to "particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of the motions only), admissions, interrogatory answers, or other materials, " or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1)(A), (B). If the moving party has carried its burden, the nonmovant must then "come forward with specific facts showing that there is a genuine issue for trial." Matsushita, 475 U.S. at 587 (internal quotation marks omitted). The court will "draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).

         At the summary judgment stage, the judge's function is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 249 (1986). The judge must ask not whether the evidence unmistakably favors one side or the other, but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. Id. at 252. The court must not engage in the making of "[credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts" as these "are jury functions, not ...

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