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Parsons v. Delaware Department of Corrections

United States District Court, D. Delaware

March 14, 2018


          Stephen M. Parsons, James T. Vaughn Correctional Center, Smyrna, Delaware. Pro Se Plaintiff.


          ANDREWS, U.S. District Judge.

         Plaintiff Stephen M. Parsons, 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. 3). He appears pro se and has been granted leave to proceed in forma pauperis. (D.I. 5). The Court screens and reviews the complaint pursuant to 28 U.S.C. § 1915(e)(2) and §1915A(a).


         Plaintiff's civil cover sheet indicates that this is an action brought pursuant to 42 U.S.C. § 1983 for "medical malpractice resulting in Plaintiffs hip to be improperly place[d]). (D.I. 3-1). In November 2015, Plaintiff was seen by Defendant Richard P. DuShuttle, M.D., diagnosed with avascular necrosis, and advised hip surgery was indicated. (D.I. 3 at p.5). When Plaintiff was seen by Dr. DuShuttle at the end of January 2017, he was told that he would bet left hip replacement surgery. Plaintiff underwent the surgery on June 20, 2017. Following surgery, Plaintiff was placed in a left knee immobilizer. (Id.) When he complained of severe pain following the surgery, Plaintiff was told it was normal. (Id.). He continued with complaints of pain during his hospital stay. (Id.). Following his discharge, Plaintiff returned to the VCC. (Id.).

         When Plaintiff was examined by Dr. DuShuttle on July 5, 2017, Plaintiffs staples were removed and X-rays were performed. (Id. at 6). Dr. DuShuttle advised Plaintiff the X-rays were normal. (Id.). Plaintiff told Dr. DuShuttle that he continued to have a lot of pain and he was unable to stand and walk properly. (Id.). Dr. DuShuttle told Plaintiff that rehabilitation would take a long time and advised Plaintiff to be patient and work slowly. (Id.).

         Plaintiff was seen by VCC physician Dr. Tamar Jackson the end of July 2017. (Id. at p.6). Dr. Jackson ordered X-rays "after a physical exam felt abnormal to her." (Id.). The radiologist indicated "placement was normal" but "a screw looked out of place." (Id.).

         Plaintiff was seen by Dr. DuShuttle about five days later. (Id.) At that time, he removed the knee immobilizer. (Id.) Plaintiff told Dr. DuShuttle that he continued with a lot of pain, and trouble standing and walking. (Id. at p.7). Plaintiff told Dr. DuShuttle of Dr. Jackson's concerns. Dr. DuShuttle responded that he would review the X-rays and told Plaintiff to continue with physical therapy and pain management. (Id.).

         When Plaintiff was seen by Dr. Jackson on August 6, 2017, Plaintiff was told that Dr. DuShuttle's office notes did not seem to address their concerns. (Id.). Dr. Jackson ordered a second opinion and, on September 8, 2017, Plaintiff was seen by Dr. M. Brady who discovered some problems following his examination of Plaintiff. (Id.). Dr. Brady ordered a CT scan, and it revealed that the ball and cup devices were not properly placed and a screw was going through Plaintiff's pelvic bone. (Id.). Hip surgery is scheduled in January 2018 to correct the abnormalities.

         Plaintiff alleges that, although Defendants Delaware Department of Correction and Connections CSP, Inc. were advised Plaintiff was uncomfortable seeing Dr. DuShuttle, he was forced to see him. (Id. at pp.7-8). Plaintiff states that all surgeries were performed at Bayhealth Medical Center by Dr. DuShuttle. (Id. at p.8).

         Plaintiff seeks injunctive relief in the form of proper after-care treatment and compensatory damages. Plaintiff recently filed a request for counsel. (D.I. 6).


         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); 42 U.S.C. § 1997e (prisoner actions brought with respect to prison conditions). 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. ...

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