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Hardwick v. Nurse

United States District Court, D. Delaware

October 10, 2017

JAMES HARDWICK, Plaintiff,
v.
NURSE #1, etal., Defendants.

          James Hardwick, James T. Vaughn Correctional Center, Smyrna, Delaware, Pro Se Plaintiff.

          MEMORANDUM OPINION

          ANDREWS, U.S. District Judge:

         Plaintiff James Hardwick, an inmate at the James T. Vaughn Correctional Center, Smyrna, Delaware, filed this action pursuant to 42 U.S.C. § 1983.[1] 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).

         BACKGROUND

         On June 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.

         On June 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.

         Plaintiff began physical therapy on September 3, 2015. He alleges this exacerbated the injury. Plaintiff again saw the medical provider on October 1, 2015.

         On 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.

         On 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 medication.

         The 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 damages.

         SCREENING OF COMPLAINT

         A 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).

         An 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).

         The 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. ยงยง 1915 and 1915A, the Court must grant Plaintiff leave to amend ...


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