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Parsons v. Connections CSP Inc.

United States District Court, D. Delaware

December 12, 2018

STEPHEN M. PARSONS, Plaintiff,
v.
CONNECTIONS CSP, INC., eta!., Defendants.

          Stephen M. Parsons, James T. Vaughn Correctional Center, Smyrna, Delaware. Pro Se Plaintiff.

          MEMORANDUM OPINION

          ANDREWS, U.S DISTRICT JUDGE:

         Plaintiff 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:[1] (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).

         BACKGROUND

         In 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).

         In 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).

         Plaintiff 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.).

         Plaintiff 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 management. (Id.).

         When 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.).

         Plaintiff 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.).

         Plaintiff seeks injunctive relief in the form of proper medical care and compensatory damages. (Id. at 14). He requests for counsel. (D.l. 15).

         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. ...


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