United States District Court, D. Delaware
Melendez, James T. Vaughn Correctional Center, Smyrna,
Delaware. Pro Se Plaintiff.
ANDREWS, U.S. DISTRICT JUDGE
Anibal Melendez, an inmate at the James T. Vaughn
Correctional Center in Smyrna, Delaware, filed this action
pursuant to 42 U.S.C. § 1983. (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).
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.).
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.).
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
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.
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).
seeks compensatory damages and injunctive relief.
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).
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).
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. §§1915 and 1915A,
the Court must grant Plaintiff leave to amend ...