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Dickens v. Desrosiers

United States District Court, D. Delaware

July 20, 2018

LOUISE DESROSIERS, M.D., et al, Defendants.



         The plaintiff Lawrence Dickens ("Dickens") filed this lawsuit against Dr. Louise Desrosiers, M.D. ("Dr. Desrosiers"), Dr. Tamar Jackson, M.D. ("Dr. Jackson"), Deputy Warden James Scarborough, Deputy Warden Phil Parker, Warden David Pierce, and Connections Community Support Programs, Inc. ("Connections"), on August 8, 2016 in the Delaware Superior Court. (D.I. 1, Ex. 4.) The case was removed to the District Court on October 7, 2016. (D.I. 1.) The Complaint raises three claims relating to an injury Dickens sustained while playing softball at the James T. Vaugh Correctional Center ("JTVCC"). (D.I. 1, Ex. 4 at ¶ 14.) Specifically, Dickens alleges (1) a 42 U.S.C. § 1983 claim and a violation of his Eight Amendment rights against Dr. Louise Desrosiers, M.D., Dr. Tamar Jackson, M.D. (collectively, the "Doctor Defendants") and Deputy Warden James Scarborough, Deputy Warden Phil Parker, Warden David Pierce (collectively, the "Warden Defendants"); (2) a medical malpractice claim against the Doctor Defendants; and (3) a respondeat superior claim against the Connections. (D.I. 1, Ex. 4.)

         The Warden Defendants filed the instant motion to dismiss for failure to state a claim on October 18, 2016. (D.I. 5.) For the reasons stated below, the court will deny the Warden Defendants' motion.


On August 9, 2014, Dickens was playing softball at the JTVCC when he collided with another player and suffered a bicep tendon injury. (D.I. 1, Ex. 4 at¶¶ 15-17.) On August 11, 2014, Dr. Jackson examined Dickens' injury and created a Progress Note in Dickens' file indicating Dickens' self-reported symptoms, recorded her diagnosis of Dickens with a bicep tendon rupture, and referred Dickens to "PT/Ortho." (D.I. 1, Ex. 4 at ¶ 17.) Dr. Jackson also noted in Dickens' file that he should visit with a physical therapist and an orthopedist, Dr. Richard Dushuttle, M.D., by August 13, 2014. (D.I. 1, Ex. 4 at ¶ 19.)

         Dickens did not visit Dr. Dushuttle until August 28, 2014. (D.I. 1, Ex. 4 at ¶ 20.) Dr. Dushuttle's Progress Note included Dickens' diagnosis of a "[r]upture distal biceps tendon" and recommended surgery be done "very soon" because "ideal time to fix the tendon is 5 to 10 days" post-injury and since it was already "[t]hree weeks post injury, surgery may not help and could make him worse." (Id.) Upon Dickens' return to JTVCC that same day, Andrew Gallaher, R.N. completed a Department of Corrections ("DOC") form entitled "Off Site Return (Progress Note)" which stated that the "[s]pecialty clinic referral recommendation" was "Surgery to Repair Bicep tendon (Left extremity)." (D.I. 1, Ex. 4 at ¶ 21.) The DOC form also indicated that follow-up was needed "ASAP." (Id.)

         On September 4, 2014, Dr. Desrosiers created a Progress Note in Dickens' file where she wrote that she requested the repair of Dickens' left bicipital tendon. (D.I. 1, Ex. 4 at ¶ 22.) Dr. Desrosiers also completed a "Chronic Disease Clinic Follow-Up" form which noted the ruptured tendon, but did not include a referral to a specialist. (D.I. 1, Ex. 4 at ¶ 23.) An October 14, 2014 Progress Note stated that Dr. Dushuttle called to cancel Dickens' scheduled surgery because it was "too late to repair." (D.I. 1, Ex. 4 at ¶ 24.)

         On October 20, 2014 and October 24, 2014, Dickens inquired about the status of his surgery. (D.I. 1, Ex. 4 at ¶¶ 25-26.) In response, a nurse referred Dickens to "medical records for chart review." (D.I. 1, Ex. 4 at ¶ 26.) Sometime after his inquiry Dickens learned that his surgery was canceled. As a result, Dickens filed two medical grievances and one regular grievance that was later converted into a third medical grievance. (D.I. 1, Ex. 4 at ¶ 27.) In response to one of his grievances, the DOC allowed Dickens to review his medical records. (D.I. 1, Ex. 4 at ¶ 29.) The DOC also granted Dickens a hearing on another one of his grievances. (D.I. 1, Ex. 4 at ¶ 30.) At the hearing, the DOC denied Dickens' grievance because the DOC determined that it followed the proper policy with respect to Dickens' treatment in light of the fact that Dr. Dushuttle canceled Dickens' surgery. (Id.) No action was taken on Dickens' third grievance. (D.I. 1, Ex. 4 at ¶ 28.)

         On October 30, 2014, Dr. Jackson met with Dickens and requested that he be scheduled to see Dr. Dushuttle and to begin physical therapy. (D.I. 1, Ex. 4 at ¶ 32.) On November 6, 2014, one week later, a physical therapist created a Progress Note indicating that Dickens suffered from pain and weakness related to his left bicep rupture. (D.I. 1, Ex. 4 at ¶ 33.) The physical therapist also noted that Dickens was supposed to have had surgery on September 4, 2014, "but was not scheduled to see the surgeon till [sic] mid-October, at which time he was told it was too lete [sic] to fix it." (D.I. 1, Ex. 4 at ¶ 33.)

         On December 4, 2014, Dickens attended an appointment with Dr. Dushuttle who recorded in a Progress Note that Dickens' condition had worsened since his last visit. (D.I. 1, Ex. 4 at ¶ 34.) He further "advised pt it is too long to do surgery at this time. As explained to patient previously time was of the essence in surgically repairing the tendon." (Id.) Following Dickens' return from his appointment with Dr. Dushuttle, an "Off Site Return (Progress Note)" was prepared and stated that the "Consultants Recommendation" was to "[f]ollow-up as needed." (D.I. 1, Ex. 4 at ¶ 35.) Dickens continued seeing a physical therapist through December 2014. (D.I. 1, Ex. 4 at ¶ 36.)

         Count I of Dickens' Complaint alleges a violation of 42 U.S.C. § 1983. (D.I. 1, Ex. 4 at ¶¶ 38-48.) Dickens contends that the Doctor Defendants knew of Dickens' injury and the limited window of opportunity to repair the injury, but failed to promptly notify the Warden Defendants or advocate on Dickens' behalf to the Warden Defendants regarding the severity of the injury and the need for immediate medical attention. (D.I. 1, Ex. 4 at ¶¶ 42-44.) Dickens also alleges that the Warden Defendants were responsible for approving the transportation of inmates to outside medical facilities and that the Warden Defendants refused to approve or transport Dickens promptly to Dr. Dushuttle. (D.I. 1, Ex. 4 at ¶¶ 40, 46.) Dickens further claims that the Warden Defendants' actions were committed intentionally, recklessly, or with deliberate indifference to Dickens' known medical need for prompt medical treatment in violation of his Eighth Amendment rights. (D.I. 1, Ex. 4 at ¶ 47) Count II alleges a medical malpractice claim against the Doctor Defendants for their breach of the standard of care. (D.I. 1, Ex. 4 at ¶ 52.) Finally, Count III alleges a respondeat superior claim against Connections as a result of the failures of their agents or employees to properly notify and inform the DOC of Dickens' need for immediate medical care. (D.I. 1, Ex. 4 at ¶ 55.)


         Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal where the plaintiff "fail[s] to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). In considering a motion to dismiss, the court "accept[s] all factual allegations as true, construe[s] the complaint in the light most favorable to the plaintiff, and determine[s] whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). The issue for the court is "not whether the plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). As such, the touchstone of the pleading standard is plausibility. Bistrian v. Levi, 696 F.3d 352 365 (3d Cir. 2012). Plaintiffs must provide sufficient factual allegations "to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "Determining whether a complaint states a plausible claim for relief will... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

         IV. ...

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