United States District Court, D. Delaware
PAULA. FAHMY, Plaintiff,
COMMISSIONER PERRY PHELPS, etal., Defendants.
A. Fahmy, James T. Vaughn Correctional Center, Smyrna,
Delaware. Pro Se Plaintiff.
ANDREWS, U.S. District Judge
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. (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 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).
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. (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.).
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).
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. (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).
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.
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.).
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).
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).
seeks injunctive relief "to be free of danger" and
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.
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. ...