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Cephas v. Metzger

United States District Court, D. Delaware

October 2, 2018

VERNON ERNEST DORIAN CEPHAS, Plaintiff,
v.
WARDEN DANA METZGER, et al., Defendants.

          Vernon Ernest Dorian Cephas, James T. Vaughn Correctional Center, Smyrna, Delaware. Pro Se Plaintiff.

          MEMORANDUM OPINION

          ANDREWS, U.S. District Judge.

         Plaintiff Vernon Ernest Dorian Cephas, 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. 3). He appears pro se and has been granted leave to proceed in forma pauperis. (D.I. 7). The Court screens and reviews the complaint pursuant to 28 U.S.C. § 1915(e)(2) and §1915A(a).

         BACKGROUND

         Plaintiff complains of actions taken when he was both an unsentenced detainee and a sentenced inmate at the JTVCC.[2] Count One of the Complaint alleges deliberate indifference to medical needs in violation of the Eighth and Fourteenth Amendments;[3]Count Two alleges retaliation in violation of the First Amendment; and Count Three alleges denial of the right to due process in violation of the Fourteenth Amendment. On September 4, 2018, Plaintiff filed an amendment that added claims against two new defendants. (D.I. 9). The Court considers D.I. 3 and D.I. 9, together, as the operative pleading.

         Count One, Medical Needs. On the morning of September 19, 2016, Plaintiff complained of breathing problems and chest pains. (D.I. 3 at 6). He was taken to the nurses' station and examined. The nurse contacted Defendant physician's assistant Deadra Parker, and Parker ordered an EKG and an x-ray. (Id. at 7). That morning, Parker told Plaintiff there was nothing wrong with him based upon the EKG results and she diagnosed Plaintiff with pneumonia. (Id.). Plaintiff complains that Parker did not personally evaluate, treat, or assess him. (Id.). Plaintiff returned to his housing unit that morning.

         Plaintiff continued to complain that he was struggling to breathe. (Id.). During the 3:00 p.m. count, Plaintiff told the unit officer that he could not breathe. (Id.). Plaintiff was taken to the infirmary, and nurses took his vitals. (Id. at 8) Parker entered the room and told Plaintiff he had pneumothorax on the left side. (Id.). Plaintiff was taken to Bayhealth Kent General Hospital by ambulance. (Id.). Plaintiff underwent an emergency procedure that afternoon, had surgery on September 23, and was discharged on September 27, 2016. (Id. at 8-9).

         Plaintiff alleges that Defendant Connections Community Services, the contract healthcare provider for the Delaware Department of Correction: (1) failed to adequately staff the JTVCC medical unit, which causes delays in providing inmates with treatment; (2) instituted a set of rules, policies, and protocols that all medical staff diagnose inmates "based on word of mouth rather than actual evaluation," and that Parker followed those policies that when she diagnosed Plaintiff with pneumonia without "touching or evaluating" him; and (3) did not have appropriate safeguards in place to insure test results are timely read. (Id. at 8-9). Plaintiff alleges that the combined failures of Connections and Parker caused him pain and suffering in violation of his constitutional rights. (Id. at 9).

         Count Two, Retaliation.

         Plaintiff ran out of medication on February 14, 2017, and submitted a sick call request late that afternoon. (Id. at 10). Plaintiff did not report this as an emergency. (Id.). The next morning, Defendant R.N. Amy Malkin had Plaintiff taken to medical for triage, and she addressed the sick call request as an emergency. (Id.) When Plaintiff arrived, he explained to Malkin that it was not an emergency. (Id.). Malkin was "upset" and put Plaintiff out of triage. (Id. at 11). Plaintiff submitted a grievance over the matter. (Id.). Plaintiff alleges that after he submitted the grievance he received inadequate medical care and was without medication for months. (Id.)

         Plaintiff alleges that he spoke to Defendant Deputy Warden Scarborough about a rash and explained he had been unsuccessful in getting it treated. (Id. at 12). Scarborough advised Plaintiff that he would email someone in medical so that Plaintiff would be seen. (Id.). Plaintiff states, "This too was unsuccessful." (Id.). Plaintiff wrote to Defendant Warden Dana Metzger that he was not getting proper medical care and had not received assistance from Scarborough. (Id.). Plaintiff continued to seek treatment and file grievances. (Id.).

         Plaintiff alleges that Scarborough transferred him from minimum to medium high security (i.e., MHU") on October 18, 2018, in retaliation for the letter he sent to Metzger complaining about Scarborough's failure to assist Plaintiff in obtaining medical care. (Id. at 17). Plaintiff alleges Metzger was made aware of Scarborough's reprisal and did nothing to intercede or correct the wrongdoing. (Id.).

         On October 6, 2017, Plaintiff awoke with extreme chest pains and asked the building sergeant to call medical. (Id. at 13). He was taken to medical and triage began. (Id.). Malkin and Defendant R.N. Tyler Bohanan were in medical and, when Malkin saw Plaintiff, she commented that Plaintiff was "just complaining to get his KOP's [i.e., keep on person medications]" and asked if he remembered doing this before. (Id. at 13-14). Malkin took Plaintiff's blood pressure, told the other nurse to perform an EKG, and scheduled a chest x-ray. (Id. at 14).

         Bohanan, who had been in the office, came out and asked Plaintiff if he was really there to get KOP's through the provider. (Id. at 15). Plaintiff told Bohanan that he knew how to use the process to get refills. (Id.) Bohanan returned to the office, came back a few minutes later and asked the officer escorting Plaintiff if he had to tell Plaintiff that [Bohanan] was writing him up. (Id.). Plaintiff returned to his housing unit and submitted a grievance, # 381129. (Id.) He never received the write-up (i.e., disciplinary report) from Bohanan. (Id.).

         The Medical Department received Plaintiff's grievance on October 11, 2017. (Id.). On October 15, 2017, Plaintiff was told to report to the Lieutenant's Office and was formally notified of Bohanan's disciplinary report. (Id.). The report stated that Plaintiff lied about having chest pains and gave a false alarm on October 6, 2017. (Id. at 15-16). The disciplinary report referred to Plaintiff's February 15, 2017 medical visit when Malkin accused Plaintiff of seeing medical on an emergency basis to receive K.O.P. (Id. at 16). Plaintiff alleges that Bohanan's disciplinary report was not logged until after Plaintiff's grievance was received by medical. (Id. at 16). He alleges that Bohanan and Malkin conspired to file the false disciplinary report against him and punish him for submitting medical grievances against them. (Id. at 15, 17).

         Count Three, Due Process.

         On October 15, 2017, Plaintiff was awakened in the early morning and told to report to the Lieutenant's Office. (Id.). Defendant Lt. Tony Benson told Plaintiff he had been written up on October 6, 2017, and the write-up had been placed in the system a few days earlier. (Id. at 18). Plaintiff alleges this violated the rules of conduct which provide that disciplinary reports should be submitted before the end of the shift, but no later than 24 hours after the incident. (Id.). Plaintiff alleges that Benson's failure to give him notice of the disciplinary report within 24 hours violated his right to due process under the DOC Rules of Conduct 4.1 and the Fourteenth Amendment. (Id.). He alleges that Benson had a duty to stop the outdated disciplinary report from moving forward. (Id. at 23).

         On October 18, 2017, at approximately 11:40 a.m., Plaintiff was told that Scarborough had directed his transfer to MHU. (Id. at 19). As Plaintiff was packing to move, he was called downstairs at 12:40 p.m. (Id.). Defendant Lt. Stevenson was waiting downstairs to conduct a disciplinary hearing on the Bohanan disciplinary report Plaintiff had received on October 15, 2017. (Id.). Plaintiff told Stevenson the hearing was scheduled in violation of Rules of Conduct Policy 4.2, and Stevenson responded that there was no time limit on hearings. (Id.). Plaintiff alleges that he was not allowed to call witnesses or have an investigation. (Id.) Stevenson found Plaintiff guilty "based on report." (Id.) Plaintiff alleges that Stevenson had a duty to dismiss the disciplinary report because the hearing was not held until 12 days after the incident, Stevenson failed to give adequate findings of guilt, and he did not allow Plaintiff to call witnesses and have access to documents. (Id. at 23). Plaintiff was sentenced to five days confinement to quarters and 15 days loss of all privileges. (Id. at 20). Plaintiff was moved to the MHU tier at 1:30 p.m. (Id. at 20).

         Plaintiff appealed, and on October 24, 2017, Defendant Captain Bruce Burton heard the appeal and affirmed the finding of guilt. (Id.). The next day, Plaintiff was reclassified because of the write-up. (Id.). Plaintiff alleges the write-up served as justification for his transfer from minimum security to MHU.[4] (Id.)

         When Plaintiff noticed there had been no response to grievance # 381129, he reinitiated the process and was told the grievance was abandoned for his failure to appear at the hearing. (Id.). Plaintiff alleges that he had no notice and when he refiled the grievance, he was told that it was a disciplinary matter. (Id. at 21-22). Plaintiff spoke to Defendant Deputy Warden Parker who told Plaintiff he would look into it. (Id. at 22). Plaintiff next wrote to Metzger about the retaliation by the medical staff and Scarborough, who had Plaintiff transferred. (Id.). Both Metzger and Parker responded to Plaintiff's complaints ...


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