United States District Court, D. Delaware
Hardwick, James T. Vaughn Correctional Center, Smyrna,
Delaware, Pro Se Plaintiff.
ANDREWS, U.S. District Judge:
James Hardwick, an inmate at the James T. Vaughn Correctional
Center, Smyrna, Delaware, filed this action pursuant to 42
U.S.C. § 1983. He appears pro se and has been
granted leave to proceed in forma pauperis. (D.I.
6). The Court proceeds to review and screen the Complaint
(D.I. 2) and Amended Complaint (D.I. 8) pursuant to 28 U.S.C.
§ 1915(e)(2)(B) and § 1915A(a).
4, 2015, Plaintiff sustained a muscle injury to his shoulder
while exercising. Plaintiff submitted a sick call slip and
wrote "emergency" on the form. Defendant Nurse #1,
whose initials are O.M.R., triaged the sick call slip and
scheduled Plaintiff for a regular sick call. Plaintiff was
seen by Defendant Nurse #2 on June 6, 2015, and she provided
Plaintiff with Motrin. The area was swollen and black and
blue. Plaintiff complains that Nurse #2 did not provide ice,
ice packs, or a sling.
13, 2015, Plaintiff submitted a grievance complaining of the
lack of medical care and stating that when he was seen on
June 6, 2015, he was told he would be seen by a physician on
the following Tuesday. As of June 13, 2015, he had not been
seen by a physician, and he was not seen by a medical
provider until July 20, 2015. The shoulder was x-rayed on
August 4, 2015, and Plaintiff was seen by the medical
provider on August 28, 2015.
began physical therapy on September 3, 2015. He alleges this
exacerbated the injury. Plaintiff again saw the medical
provider on October 1, 2015.
October 2, 2015, Plaintiff's grievance was upheld;
"specifically that contracted provider ensures grievant
is seen in a timely fashion by a provider with a
well-documented treatment plan in place, " and
"medical must have the grievant evaluated by the next
higher level of care." (D.I. 8 at pp.20-22). Plaintiff
submitted another grievance on November 23, 2015 asking to be
seen by an outside orthopedic specialist. He was seen by the
medical provider on December 10, 2015, with complaints of
shoulder pain. The medical provider recommended an MRI.
February 14, 2016 and April 4, 2016, Plaintiff submitted
grievances asking to be seen by an outside orthopedic
specialist. Plaintiff was finally seen by an outside
orthopedist who ordered pain medication, a sling and a pillow
to aide in isolating the area. Plaintiff alleges that he has
yet to receive these items. Plaintiff ultimately underwent
surgery. He alleges that when he returned to the prison
following the surgery, he was not provided adequate pain
named defendants appear to be Connections, VCC, Marc Richman,
Nurse #1, Nurse #2, Nurse #3, unnamed supervisor of Nurse #2,
unnamed Department of Correction staff, and unnamed
Connections staff. Plaintiff seeks compensatory and punitive
federal court may properly dismiss an action sua
sponte under the screening provisions of 28 U.S.C.
§ 1915(e)(2)(B) and § 1915A(b) if "the action
is frivolous or malicious, fails to state a claim upon which
relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief." Ball v.
Famiglio, 726 F.3d 448, 452 (3d Cir. 2013); see
also 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).
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
Plaintiff proceeds pro se, 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).
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 U.S. at 327-28; Wilson v.
Rackmill, 878 F.2d 772, 774 (3d Cir. 1989).
legal standard for dismissing a complaint for failure to
state a claim pursuant to § 1915(e)(2)(B)(ii) and §
1915A(b)(1) is identical to the legal standard used when
ruling on Rule 12(b)(6) motions. Tourscher v.
McCullough,184 F.3d 236, 240 (3d Cir. 1999). However,
before dismissing a complaint or claims for failure to state
a claim upon which relief may be granted pursuant to the
screening provisions of 28 U.S.C. §§ 1915 and
1915A, the Court must grant Plaintiff leave to amend ...