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McCardell v. Harewood

United States District Court, D. Delaware

October 26, 2017

JAMES N. MCCARDELL, Plaintiff,
v.
ADRIAN HAREWOOD, et al., Defendants.

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

          MEMORANDUM OPINION

          ANDREWS, U.S. DISTRICT JUDGE.

         Plaintiff James N. McCardell, an inmate at the James T. Vaughn Correctional Center in Smyrna, Delaware, filed this action pursuant to 42 U.S.C. § 1983.[1] (D.I. 1). Plaintiff filed an amended complaint on October 23, 2017, and it is the operative pleading. (D.I. 8). He also filed a motion for injunctive relief. (D.I. 9). Plaintiff appears pro se and has been granted leave to proceed in forma pauperis. (D.I. 6). The Court proceeds to review and screen the amended complaint pursuant to 28 U.S.C. § 1915(e)(2) and §1915A(a).

         BACKGROUND

         On December 15, 2015, Plaintiff was shot and sustained injuries that require him to use a colostomy bag and a suprapubic catheter. Plaintiff alleges Defendants Delaware Department of Correction[2] and Connections Community Support Programs, Inc. have a regular practice of withholding necessary medical care. He alleges he must constantly "fight" with Defendants to receive any type of medical treatment.

         Plaintiff has not seen a "Gl" physician or urologist in over a year and suffers from constant urinary tract infections which result in the frequent administration of antibiotics. Plaintiff alleges the use of antibiotics is harming his kidneys, and he is developing an immunity to the antibiotics. Plaintiff alleges it has been determined that surgery is required to correct his problems.

         Plaintiff is unable to digest numerous fruits and vegetables. As a result he is unable to consume the food served at the VCC and is constantly hungry. Plaintiff alleges the medical and DOC Defendants advised him they cannot order the type of food he requires.

         Plaintiff was seen by a nurse practitioner on October 12, 2017 who adjusted his insulin and prescribed several medications. Later that day, when Plaintiff was called to the infirmary to see Defendant Dr. Adrian Harewood, he told Dr. Harewood he had seen the nurse practitioner. Plaintiff alleges Dr. Harewood cancelled his medications and told Plaintiff that he did not want to see him again. Plaintiff later learned that there was a problem between Dr. Harewood and the nurse practitioner.

         Named defendants include Dr. Harewood, DOC Commissioner Perry Phelps, the DOC, Connections, Bureau Chief of the Bureau of Correctional Healthcare Services Marc Richman, and VCC Deputy Warden Phillip Parker. Plaintiff alleges that Defendants' actions constitute deliberate indifference to his serious medical needs. He seeks injunctive relief, as well as compensatory and punitive damages. He also asks the Court to allow inmate Robert Saunders to provide him legal assistance until counsel is secured. In addition to the relief sought in the amended complaint, Plaintiff filed a motion for injunctive relief for Defendants to provide him needed medical services and a medical diet and to allow inmate Saunders to assist him in this case. (D.I. 9).

         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. Partus, 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. §§1915 and 1915A, the Court must grant Plaintiff leave to amend his complaint unless amendment would be inequitable or futile. See Grayson v. Mayview State Hosp., 293 F.3d103, 114(3dCir. 2002).

         A well-pleaded complaint must contain more than mere labels and conclusions. See Ashcroft v. Iqbal,556 U.S. 662 (2009); BellAtl. Corp. v. Twombly,550 U.S. 544 (2007). A plaintiff must plead facts sufficient to show that a claim has substantive plausibility. See Johnson v. City of Shelby, __U.S.__, 135 S.Ct. 346, 347 (2014). A complaint may not dismissed, ...


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