United States District Court, D. Delaware
STEPHEN M. PARSONS, Plaintiff,
CONNECTIONS CSP, INC., eta!., Defendants.
Stephen M. Parsons, James T. Vaughn Correctional Center,
Smyrna, Delaware. Pro Se Plaintiff.
ANDREWS, U.S DISTRICT JUDGE:
Stephen M. Parsons, an inmate at the James T. Vaughn
Correctional Center in Smyrna, Delaware, filed this action
pursuant to 42 U.S.C. § 1983: (D.I. 3). He appears pro
se and has been granted leave to proceed in forma
pauperis. (D.I. 5). The original complaint was dismissed
after screening and Plaintiff was given leave to amend upon
reconsideration. (D.I. 13). An Amended Complaint was filed on
October 16, 2018. (D.I. 14). The civil cover sheet for the
Amended Complaint describes the action as a § 1983 claim
for "[m]edical [m]alpractice by defendants resulting in
insufficient surgery and improperly placed hip." (D.I.
14-1). The Court screens and reviews the Amended Complaint
pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(a).
Plaintiff also requests counsel. (D.I. 15).
October 2015, Plaintiff was referred for a consult with
Defendant Richard P. DuShuttle, an orthopedic surgeon. (D.I.
14). Plaintiff advised medical that he "was not willing
and uncomfortable to seeing Dr. DuShuttle, " and
Plaintiff was told that he did not get to choose his doctors.
(Id. at 5). Plaintiff alleges that Dr. DuShuttle has
a contract with Defendant Connections CSP and the Delaware
Department of Correction and Defendant Bayhealth Medical
Center also has a contract with Connections making them both
"state actors." (Id. at 6, 8).
November 2015, Plaintiff was seen by Dr. DuShuttle, diagnosed
with avascular necrosis, and advised hip surgery was
indicated. (Id. at 5). His right hip was replaced on
November 1, 2016, at Milford Memorial Hospital.
[Id.). Plaintiff continued to advise medical of his
distrust of Dr. DuShuttle's surgical abilities.
(Id.). Plaintiff was seen by Dr. DuShuttle at the
end of January 2017 and told they would proceed with left hip
replacement surgery. (Id. at 6).
underwent the surgery on June 20, 2017. (Id.).
Following surgery, Plaintiff was placed in a left knee
immobilizer, and he complained of pain during his hospital
stay. (Id.). He was told that Dr. DuShuttle placed
him on the immobilizer and medical personnel had been advised
not to remove it for any reasons. (Id.). When
Plaintiff was examined by Dr. DuShuttle on July 5, 2017, for
a follow-up visit, Plaintiffs staples were removed, and
X-rays were performed. (Id. at 7). Dr. DuShuttle
advised Plaintiff the X-rays were normal. (Id.).
Plaintiff told Dr. DuShuttle that he continued to have a lot
of pain and he was unable to stand and walk properly.
(Id.). Dr. DuShuttle told Plaintiff that
rehabilitation would take a long time and advised Plaintiff
to be patient and work slowly. (Id.).
was seen by VCC physician Dr. Tamar Jackson the end of July
2017. (Id.). Dr. Jackson ordered X-rays and saw a
screw out of place. (Id.). Plaintiff was seen by Dr.
DuShuttle about five days later. (Id.) At that time,
he removed the knee immobilizer. (Id.) Plaintiff
told Dr. DuShuttle that he continued with a lot of pain and
had trouble standing and walking. (Id.). Plaintiff
told Dr. DuShuttle of Dr. Jackson's concerns. Dr.
DuShuttle responded that he would review the X-rays and told
Plaintiff to continue with physical therapy and pain
Plaintiff was seen by Dr. Jackson on August 6, 2017,
Plaintiff was advised that Dr. DuShuttle did not seem to
address their concerns. (Id.). Dr. Jackson ordered a
second opinion and, on September 8, 2017, Plaintiff was seen
by Dr. M. Brady who discovered some problems following his
examination of Plaintiff. (Id.). Dr. Brady ordered a
CT scan, and it revealed that the ball and cup devices were
not properly placed and a screw was going through Plaintiffs
pelvic bone. (Id.). Plaintiff underwent left hip
revision surgery on January 26, 2018 at Christiana Care
Health Systems. (Id. at 8). Plaintiff continues to
follow-up with Dr. Brady. Plaintiff alleges Dr. Brady told
him he could not guarantee a total recovery due to the
malpractice performed by Dr. DuShuttle. (Id.).
alleges that he was the third patient in 2017 who underwent
revision surgery following a mistake by Dr. DuShuttle.
(Id.). Plaintiff alleges that Metzger and
Scarborough should have known from his letters and grievances
there was a problem with Dr. DuShuttle, but inmates were
still sent to Dr. DuShuttle for consultation and surgery and
nothing was done to protect inmates. Plaintiff alleges that
Connections forced him to see Dr. DuShuttle after he
expressed his dislike and prior malpractice, and this
violated his right to be free from cruel and unusual
punishment under the Eighth Amendment of the United States
Constitution. (Id. at 8). Finally, Plaintiff alleges
that the Connections staff lied in 2015 when Plaintiff was
told that Dr. DuShuttle was the only orthopedic provider on
contract, but he learned that Connections also had a contract
with First State Orthopedics. Plaintiff alleges that
Scarborough is the deputy warden in charge of the medical
department at the VCC. (Id.).
seeks injunctive relief in the form of proper medical care
and compensatory damages. (Id. at 14). He requests
for counsel. (D.l. 15).
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. ...