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Turner v. Connections CSP

United States District Court, D. Delaware

September 11, 2018

LEE TURNER, Plaintiff,
v.
CONNECTIONS CSP, et al., Defendants.

          Lee Turner, James T. Vaughn Correctional Center, Smyrna, Delaware, Pro Se Plaintiff.

          Nicholas Robert Wynn, Esquire, White & Williams, Wilmington, Delaware. Counsel for Defendants Connections Community Support Programs, Inc. and Herman Ellis, M.D.

          Michael F. McTaggart, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware. Counsel for Defendant David Pierce.

          MEMORANDUM OPINION

          STARK, U.S. DISTRICT JUDGE.

         I. INTRODUCTION

         Plaintiff Lee Turner ("Plaintiff), an inmate at the James T. Vaughn Correctional Center ("VCC") in Smyrna, Delaware, filed this action alleging constitutional violations pursuant to 42 U.S.C. § 1983. (D.I. 2) He also raises claims under the Americans with Disabilities Act ("ADA") and Section 504 of the Rehabilitation Act ("Rehab Act"). Plaintiff appears pro se and has been granted leave to proceed in forma pauperis. (D.I. 9) Before the Court is Medical Defendants' motion to dismiss and Plaintiffs opposition. (D.I. 30)

         II. BACKGROUND

         Plaintiff sustained three injuries to his shoulder that resulted in surgery by an outside orthopedic surgeon. Following the April 18, 2016 surgery, Plaintiff recovered in the VCC infirmary for approximately 16 days. When Plaintiff was seen at his follow-up appointment, he was prescribed pain medication and physical therapy was ordered to start immediately. Plaintiff alleges that Defendant Connections CSP ("Connections") was given specific instructions that Plaintiff receive physical therapy twice weekly.

         Plaintiff was discharged from the infirmary on May 4, 2016, and told by Defendant Dr. Ellis ("Dr. Ellis") that he would be housed in SHU, that his medication would be changed due to his housing assignment, and that he would have to do the physical therapy himself because "we have no physical therapist." (D.I. 2 at 3) Plaintiff was transferred to SHU and never received physical therapy. He submitted grievances over the matter.

         On June 20, 2016, Plaintiff presented to the Christiana Care Rehabilitation Center for a post-op consult complaining of extreme pain, lack of mobility, limited range of motion, stiffness and weakness. Plaintiff was told that physical therapy was most important for a full recovery. Plaintiff alleges that he must wear a brace due to the effects of the failure to receive rehabilitation. He seeks injunctive relief and compensatory and punitive damages.

         Medical Defendants move for dismissal of all claims raised against them pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state claims upon which relief may be granted. Medical Defendants also move for dismissal of Dr. Ellis pursuant to Fed.R.Civ.P. 12(b)(5) for failure to effect service. While Plaintiff opposes the motion, he concedes that his ADA and Rehab Act claims in Count Four against the Medical Defendants are not cognizable and acknowledges that the due process claim in Count Five is actually an Eighth Amendment claim. (See D.I. 31 at 10)

         III. RULE 12(b)(6) MOTION TO DISMISS

         A. Legal Standards

         Evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) requires the Court to accept as true all material allegations of the complaint. See Spruill v. Gillis,372 F.3d 218, 223 (3d Cir. 2004). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." In re Burlington Coat Factory Sec. Litig.,114 F.3d 1410, 1420 (3d Cir. 1997) (internal quotation marks omitted). Thus, the Court may grant such a motion to dismiss only if, after "accepting all well-pleaded allegations in the complaint as true, and viewing them in the light most favorable to plaintiff, plaintiff is not entitled to relief." Maio v. Aetna, Inc.,221 F.3d 472, 481-82 (3d Cir. 2000) (internal quotation marks omitted). A district court ruling on a motion to dismiss may consider the facts alleged on the face of the ...


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