United States District Court, D. Delaware
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.
U.S. DISTRICT JUDGE.
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.
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.
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.
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.
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)
RULE 12(b)(6) MOTION TO DISMISS
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