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Melendez v. Dimico

United States District Court, D. Delaware

October 1, 2018

ANIBAL MELENDEZ, Plaintiff,
v.
DR. DIMICO. SR., et al., Defendants.

          Anibal Melendez, James T. Vaughn Correctional Center, Smyrna, Delaware. Pro Se Plaintiff.

          MEMORANDUM OPINION

          ANDREWS, U.S. DISTRICT JUDGE

         Plaintiff Anibal Melendez, an inmate at the James T. Vaughn Correctional Center in Smyrna, Delaware, filed this action pursuant to 42 U.S.C. § 1983.[1] (D.I. 1). Plaintiff filed an amended complaint on June 7, 2018 and it is the operative pleading. (D.I. 7). Plaintiff appears pro se and has been granted leave to proceed in forma pauperis. (D.I. 5). Plaintiff has filed a request for counsel. (D.I. 6). The Court screens and reviews the complaint pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(a).

         BACKGROUND

         Plaintiff's civil cover sheet indicates that this is an action brought pursuant to 42 U.S.C. § 1983 for medical malpractice. (D.I. 1-1). He alleges that on May 31, 2016, Defendant Dr. Dimico, Jr., who is employed at Christiana Hospital, performed surgery to repair a broken eye socket and to correct Plaintiffs double vision. (D.I. 7 at 1-2). The surgery was performed at Christiana Care. Two weeks later, Defendant Dr. Dimico, Sr. provided Plaintiff follow-up care at Christiana Hospital. (Id.). Dr. Dimico, Sr. is also employed by Christiana Hospital. (D.I. 7 at 2). Plaintiff was x-rayed and the x-ray revealed the "bottom eye lid was pinched with the hardware." (Id.).

         Dr. Dimico, Sr. scheduled Plaintiff to see a specialist, Defendant Dr. Doe. (Id.). Dr. Doe scheduled Plaintiff to see Defendant Dr. Abel, a specialist employed at the Limestone Facility, to correct the surgery. (Id.). In turn, Dr. Abel scheduled Plaintiff to see Dr. Moore, who is also employed at the Limestone Facility. (Id.) All three physicians refused to perform the corrective surgery. (Id.).

         Plaintiff complained to prison doctors via sick call slips and grievances that he continued to suffer from double vision and that his right eye hurt because his eyelashes were growing into it. (Id.). Plaintiff alleges that Dr. Dimico, Sr., Dr. Dimico, Jr., and prison medical refused to treat him. (Id.).

         Plaintiff also submitted repeated sick call slips and filed multiple grievances requesting surgery. (D.I. 7 at 3). He alleges that Defendant Jane Doe, an employee at the JTVCC, is responsible for arranging for specialized care outside of the prison. (Id.). One year has passed and he has not received a response from the medical department or Christiana Care. (Id.). Plaintiff believes that he will suffer permanent eye damage if does not undergo the surgery. (Id.).

         Plaintiff alleges that the failure of Defendants to provide adequate care, and/or corrective surgery, and/or follow-up treatment constitutes deliberate indifference in violation of Plaintiff's Eighth Amendment rights to the United States Constitution. (Id. at 3-5). He also alleges Dr. Dimico, Sr. and Dr. Dimico, Jr. committed medical malpractice. (Id. at 6).

         Plaintiff seeks compensatory damages and injunctive relief.

         SCREENING OF COMPLAINT

         A federal court may properly dismiss an action sua sponte under the screening provisions of 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b) if "the action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief." Ball v. Famiglio, 726 F.3d 448, 452 (3d Cir. 2013). See also 28 U.S.C. § 1915(e)(2) (in forma pauperis actions); 28 U.S.C. § 1915A (actions in which prisoner seeks redress from a governmental defendant); 42 U.S.C. § 1997e (prisoner actions brought with respect to prison conditions). The Court must accept all factual allegations in a complaint as true and take them in the light most favorable to a pro se plaintiff. Phillips v. County of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008); Erickson v. Pardus, 551 U.S. 89, 93 (2007). Because Plaintiff proceeds pro se, his pleading is liberally construed and his complaint, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. at 94 (citations omitted).

         An action is frivolous if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). Under 28 U.S.C. § 1915(e)(2)(B)(i) and § 1915A(b)(1), a court may dismiss a complaint as frivolous if it is "based on an indisputably meritless legal theory" or a "clearly baseless" or "fantastic or delusional" factual scenario. Neitzke, 490 U.S. at 327-28; Wilson v. Rackmill, 878 F.2d 772, 774 (3d Cir. 1989).

         The legal standard for dismissing a complaint for failure to state a claim pursuant to § 1915(e)(2)(B)(ii) and § 1915A(b)(1) is identical to the legal standard used when ruling on Rule 12(b)(6) motions. Tourscher v. McCullough,184 F.3d 236, 240 (3d Cir. 1999). However, before dismissing a complaint or claims for failure to state a claim upon which relief may be granted pursuant to the screening provisions of 28 U.S.C. ยงยง1915 and 1915A, the Court must grant Plaintiff leave to amend ...


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