United States District Court, D. Delaware
CHAD J. MCCLOSKEY, Plaintiff,
BUREAU CHIEF JAMES WELCH, et al., Defendants.
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. 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.)
FACTUAL AND PROCEDURAL BACKGROUND
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.)
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. (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
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.)
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
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.)
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.
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.)
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.)
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
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." (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.)
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