United States District Court, D. Delaware
JAMES N. MCCARDELL, Plaintiff,
ADRIAN HAREWOOD, et al., Defendants.
N. McCardell, James T. Vaughn Correctional Center, Smyrna,
Delaware. Pro Se Plaintiff.
ANDREWS, U.S. DISTRICT JUDGE.
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. (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).
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 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
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.
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
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
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).
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).
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 his complaint
unless amendment would be inequitable or futile. See
Grayson v. Mayview State Hosp., 293 F.3d103, 114(3dCir.
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, ...