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McCloskey v. Welch

United States District Court, D. Delaware

April 5, 2018

BUREAU CHIEF JAMES WELCH, et al., Defendants.



         The plaintiff, Chad J. McCloskey ("McCloskey"), an inmate at the James T. Vaughn Correctional Center ("VCC") in Smyrna, Delaware, filed this lawsuit pursuant to 42 U.S.C. § 1983.[1] The operative complaint consists of Docket Items 3, 20, and 58. (See D.I. 67.) McCloskey appears pro se and was granted permission to proceed in forma pauperis. (D.I. 7.) Pending before the court are motions to dismiss and a motion for summary judgment filed by State defendant James Welch ("Welch"), a motion for summary judgment filed by medical defendants Correct Care Solutions, LLC ("CCS") and Louise Desrosiers, M.D. ("Dr. Desrosiers"), and the plaintiffs request for counsel. (D.I. 69, 70, 74, 98.)


         Mr. McCloskey alleges deliberate indifference to serious medical needs as a result of an injury he sustained on June 3, 2013. At the time, CCS was the medical service contract provider for the Delaware Department of Correction ("DOC"). Its contract with the DOC expired on June 30, 2014, when a different provider began providing medical care to inmates. McCloskey alleges delay in medical care and treatment and lack of post-surgical follow-up care including pain management and physical therapy. (D.I. 3, 20, 38.)

         The record reflects that McCloskey injured his right arm on June 3, 2013, while doing push-ups. (D.I. 21 at 2; D.I. 72 at A-0211.) He was seen by CCS medical personnel and evaluated the same day after telling a correctional officer he had injured himself. (D.I. 72 at A-215.) CCS personnel contacted Dr. Desroisers, and she gave a verbal order for ice packs and a prescription for Tylenol, but McCloskey refused the treatment.[2] (Id. at A-54, A-215-16.) Dr. Desrosiers indicated that she wanted to see McCloskey within the week. (Id. at A-56.) When Dr. Desrosiers examined McCloskey three days later, on June 6, 2013, she ordered an x-ray of his right arm and referred him for outpatient treatment with an orthopedic specialist. (Id. at A-45, A-53, A-211, A-214.) Medical notes indicate that in 2005 McCloskey was involved in a severe motor vehicle accident that resulted in a right shoulder fracture. (Id.)

         McCloskey submitted a sick call request on June 13, 2013, stating that he was told the previous week that he needed an x-ray the following day. (Id. at A-212.) X-rays of the right upper arm and shoulder were taken on June 14, 2013, and revealed a fractured intramedullary rod that was present in McCloskey's arm on the date of the injury. (Id. at A-42.) McCloskey was next seen by Dr. Desrosiers on June 25, 2013, for follow-up. (Id. at A- 223.) Dr. Desrosiers submitted an outpatient referral request for McCloskey to see an outpatient orthopedic specialist "ASAP please." (Id. at A-52.)

         Progress notes indicate that on June 27, 2013, McCloskey was concerned that he had not seen an outside specialist and was informed that the consultation had been scheduled. (Id. at A-0214.) On July 1, 2013, McCloskey was examined by CCS physician Laurie Ann Spraga, D.O. ("Dr. Spraga"). (Id. at A-222.) McCloskey was ordered to remain on pain medications and keep his arm in a sling. (Id.) On that same date, a CCS outpatient referral request indicates that McCloskey was scheduled to see Dr. DuShuttle. (Id. at A-12.) Progress notes dated July 2, 2013 state "no acute distress ... right shoulder no pain with palpation ... see ortho as planned." (Id. at A-214, A-262.)

         On July 9, 2013, McCloskey was taken to Dr. DuShuttle's office for consultation but was not seen because Dr. DuShuttle was "behind" and the appointment was to be rescheduled. (Id. at A-48, A-262.) The same day, Dr. Desrosiers completed another outpatient referral request for McCloskey to be seen by Dr. DuShuttle. (Id. at 50.) Dr. Desrosiers sent a fax to Dr. DuShuttle's office on July 11, 2013, that McCloskey "should be seen earlier, " and he was seen by Dr. DuShuttle the same day (Id. at A-14, A-243.) Dr. DuShuttle examined McCloskey, advised him that his upper right arm was broken, and recommended reconstructive surgery. (Id. at A-14-15.) At the time, McCloskey complained of "having a lot of pain." (Id.) On July 15, 2013, CCS transmitted a request for McCloskey to undergo pre-admission blood work for his upcoming surgery. (Id. at A-47.)

         Dr. Desrosiers examined McCloskey on July 16, 2013, and discussed the planned surgery. (Id. at A-223.) On the same date Dr. Desrosiers completed an outpatient referral request for McCloskey that was faxed with the note "please schedule ASAP." (Id. at A-13.) The surgery was scheduled for the end of July.

         McCloskey arrived at the VCC infirmary the day prior to his scheduled surgery. (Id. at A-225, A-282.) July 28, 2013 progress notes indicate that McCloskey was resting comfortably and had no complaints of pain or discomfort. (Id.) The next day, July 29, 2013, McCloskey was transported to Kent General Hospital where Dr. DuShuttle performed surgery. (Id. at A-79.) The surgery involved removal of the broken intramedullary rod and proximal distal screws, re-rodding of the humerus, and bone grafting of the nonunion site of the humerus. (Id.) McCloskey was prescribed Keflex 500 mg and Percocet 325 mg for pain following his July 31, 2013 discharge from the hospital. (Id. at A4-6, A-81, A-86.)

         McCloskey then returned to the VCC infirmary where he remained until August 12, 2013. (Id. at A-266-281.) Progress notes indicate that while in the infirmary, McCloskey refused care to surgical site, vitals, dressings, post-op antibiotics, and pain medication, even though it was contraindicated and could cause his medical conditions to worsen. (Id. at A-39-41, A-93-115, A-266.) McCloskey was discharged from the infirmary with orders to follow-up with Dr. DuShuttle and Dr. Desrosiers. (Id. at A-266.)

         McCloskey submitted a sick call slip on August 14, 2013, complaining of right upper arm and shoulder pain and that he could not lift his arm higher than his shoulder even with the help of his other arm. (Id. at A-237.) McCloskey indicated the pain was only at night. (Id.) He was seen by CCS staff the next day who advised McCloskey that he was three weeks post surgery. (Id.) He was given pain medication. (Id.)

         On August 29, 2013, McCloskey had a follow-up appointment with Dr. DuShuttle. (Id. at A-79.) McCloskey relayed experiencing weakness, but with decreased pain, improved swelling and no redness. (Id.) Dr. DuShuttle noted that McCloskey "is always going to have weakness in arm secondary to previous nerve damage." (Id.) Dr. DuShuttle's report states, "no medication needed at this time."[3] (Id. at A-80.) Dr. Desrosiers examined McCloskey on September 5, 2013. (Id. at A-0262.) She noted that he was "already exercising" and cautioned about over-exercising. (Id.) He was "well healed." (Id.)

         McCloskey submitted a sick call slip on March 2, 2014, with numerous complaints including right arm pain, an inability to sleep due to pain, cannot stretch or workout with more pain, cannot control right wrist, cramping, stiffness, and range of motion lessening. (Id. at A-235.) He requested a wrist brace. (Id.) McCloskey was evaluated by CCS staff on March 5, 2014. McCloskey had a pain rating of three out often. (Id.) His chart was provided to Dr. Desroisers for review. (Id.) A March 6, 2014 ...

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