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Fahmy v. Phelps

United States District Court, D. Delaware

May 30, 2019

PAULA. FAHMY, Plaintiff,
v.
COMMISSIONER PERRY PHELPS, etal., Defendants.

          Paul A. Fahmy, James T. Vaughn Correctional Center, Smyrna, Delaware. Pro Se Plaintiff.

          MEMORANDUM OPINION

          ANDREWS, U.S. District Judge

         Plaintiff Paul A. Fahmy, 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). He appears pro se and has been granted leave to proceed in forma pauperis. (D.I. 9). His original Complaint was dismissed and Plaintiff was given leave to amend. (D.I. 16, 17). The Court screens and reviews the Amended Complaint[2] pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(a). It names ten defendants, not including John and Jane Does. (D.I. 23 at 1-2).

         BACKGROUND

         On October 3, 2016, Plaintiff was scalded with chemicals and assaulted by another inmate while he was talking on the phone. Defendant Officer Thomas P. Runyon saw two inmates fighting, called a Code 8 and when he arrived at the tier saw Plaintiff, who had a torn T-shirt, scratches on his neck and bruises to his face. (D.I. 23-1 at 1). A second assailant was not identified. (Id.). Plaintiff was questioned by Defendant Officer Sergeant Floyd and Staff Lieutenant Charles Sennett, but he did not provide any answers on why there were marks on him.[3] (D.I. 23 at 11; D.I. 23-1 at 1). Sennett told Plaintiff that he would be moved to isolation. (D.I. 23 at 12). Plaintiff alleges that he was "treated like the aggressor.. . and moved to maximum security." (Id. at 4). Runyon prepared a disciplinary report and Plaintiff was charged with fighting and failing to obey an order. (D.I. 23-1 at 1). During the October 4, 2016 disciplinary hearing, Defendant Lt. Michael Welcome found Plaintiff guilty of both charges, and Plaintiff appealed. (Id. at 3). Plaintiff was sanctioned to five days of isolated confinement. (Id.). Defendant Captain Marcello Rispoli reviewed the decision, spoke to two witnesses who relayed that Plaintiff said he was "not assaulted that he was just working out" and spoke to another witness who said he saw Plaintiff fighting but could not identify the other inmate. (Id. at 2). On appeal Plaintiff stated that he was attacked by an unknown person while he was using the phone. (Id.).

         Plaintiff alleges that he was kept in isolation while he appealed and that Rispoli's staff punished him for being attacked. (D.I. 23 at 5). Plaintiff alleges that when his mother called to check on his well-being, then VCC warden Defendant David Pierce, "disrespected" her and told her that Plaintiff was lying. (Id.). On October 11, 2016, Pierce sent Defendants Lt. Heishman and Lt. Burman to interrogate Plaintiff. (Id.). Plaintiff claims that, because other inmates saw that he was pulled from his cell by the lieutenants, they suspected that he was a snitch and this placed him in more danger. (Id.). The lieutenants told Plaintiff that Pierce was tired of hearing from Plaintiffs loved ones, and they knew that Plaintiff was lying to get attention. (Id.). Burman took photos of Plaintiffs injuries. (Id.). Plaintiff alleges that Defendant Delaware Department of Correction Commissioner Perry Phelps was "made aware of all of this and he said he 'trusted his staffs actions."' (Id.). The appeal was denied and the appeal decision was sent to Pierce. (D.I. 23-1 at 2).

         Plaintiff received chemical burns to his face and injuries to his ear. Plaintiff was shackled and taken to the infirmary for examination. (D.I. 23 at 12). Plaintiff alleges that when Defendant R.N. Irene Fuh examined him, she told him that she saw some slight redness, but that Plaintiff "looked fine overall." (Id.) He alleges that Fuh did the intake assessment and then lied in his records and said she did not do the intake.[4] (Id. at 6). Plaintiff alleges that, once he was taken to isolation, he was not further examined, and he told every officer who came by his cell during the next 48 hours that he needed to see medical staff; he was told to submit a sick call slip. (Id. at 12). Plaintiff alleges that "nurses were doing the same." (Id. at 13).

         Plaintiff alleges that on October 5, 2016, Defendant R.N. Eric Neba chuckled at Plaintiffs situation, but later Plaintiff was called off the tier and examined by Neba. (Id.). Plaintiff alleges that Neba lied in his assessment to "downgrade" Plaintiffs injuries. (Id. at 6). On several occasions, Plaintiff was seen by Neba and other nurses who are not named as Defendants, although Plaintiff has named John/Jane Doe Defendants.

         Plaintiff alleges that he was not sent to see an outside physician until twenty-five days after he was injured. (Id. at 14). According to Plaintiff, the physician assessed Plaintiffs hearing and told him he was at "20 decibels," and with the injury Plaintiff would only recover up to "40 decibels at best." (Id.). The physician told Plaintiff that a normal individual's hearing is 60 decibels. (Id.).

         Progress notes indicate that Plaintiff was seen by medical and mental health on October 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 17, 21, 24, 25, and 28; and November 2, 3, 4, 8, 2016. (D.I. 24 at 1-10). On October 5, 2016, Plaintiffs left ear was examined after he complained that he could not hear. (Id. at 2). During October, Plaintiff was placed on antibiotics, given antibiotic cream, and ear drops were administered to his left ear. (Id. at 1-6). Plaintiff submitted grievances on October 12 and 14, 2016, complaining that ear drops were not being administered correctly. (D.I. 23-1 at 18-19, 32-35). The grievance was upheld after it was discovered that on two days, Plaintiff received only one dose of medication when it was ordered as "twice daily." (Id. at 39). Investigation clarified that "ear drops were ordered around 4 PM on 10/5 so [Plaintiff] would only be scheduled for one dose on the 5th. He only received one dose on 10/6 and this [was] not consistent with the . . . order. The remainder of the dosages, ƒ.e. twice daily are annotated as given for the remainder of the treatment." (Id.). On October 28, 2016, Plaintiff was seen by an outside ENT and on November 8, 2016, his medical records were sent to the ENT for document review. (D.I. 24 at 8-9). In the meantime, on October 25, 2016, Plaintiff submitted a medical grievance and requested that he be "sent out to a proper doctor." (D.I. 23-1 at 21). The grievance was denied, noting that Plaintiff had been seen for the issue multiples times, had seen an offsite ENT provider in October 2016, and a treatment plan was in place. (Id. at 27-28).

         Audiometric testing on January 13, 2017 found "mixed hearing loss for the left ear" and tympanometry revealed "noncompliant mobility for the left ear." (D.I. 24 at 10). Plaintiff submitted a medical grievance on March 7, 2017, complaining that he was being denied medical treatment. (D.I. 23-1 at 11). A First State ENT progress note dated October 2, 2017, summarized Plaintiffs condition as "persistent left ear perforation of more than 1 year duration associated with exposure to hot scalding liquid. He has moderate mixed hearing loss with a air-bone gap of 20 dB in the right ear. Tympanoplasty was recommended in the past, but patient appears to be skeptical about proceeding with surgery. . . At present we will hold off on scheduling his tympanoplasty and he will call office if wants to proceed with surgery." (D.I. 24 at 11).

         Plaintiff seeks injunctive relief "to be free of danger" and compensatory damages.

         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 Amended 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.

         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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