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Ryle v. Fuh

United States District Court, D. Delaware

June 20, 2019

ALEX RYLE, Plaintiff,
v.
IRENE FUH, et al., Defendants.

          Alex Ryle, James T. Vaughn Correctional Center, Smyrna, Delaware. Pro Se Plaintiff.

          Nicholas Robert Wynn, Esquire, White & Williams LLP, Wilmington, Delaware. Counsel for Defendants Irene Fuh, Kathleen M. Gustafson, Katie A. Wheeler, Connections Community Support Programs, Inc., and Tamar Jackson.

          MEMORANDUM OPINION

          NOREIKA, U.S. DISTRICT JUDGE.

         Plaintiff Alex Ryle (“Plaintiff), who appears pro se and was granted permission to proceed in forma pauperis, is an inmate at the James T. Vaughn Correctional Center (“JTVCC”) in Smyrna, Delaware. He filed this lawsuit pursuant to 42 U.S.C. § 1983.[1] (D.I. 3). He also raises supplemental state claims. (Id.). On May 17, 2019, Plaintiff filed an Amended Complaint. (D.I. 38). Before the Court are Defendants' unopposed motion to dismiss, Plaintiffs motion for leave to file a document under seal, and Defendants' motion for review of affidavit of merit. (D.I. 19, 36, 39).

         I. BACKGROUND

         The original Complaint raises medical needs claims under the Eighth Amendment and medical negligence claims under Delaware law. (D.I. 3). A service order issued on September 25, 2018. (D.I. 8). On February 19, 2019, Defendants Irene Fuh (“Fuh”), Katie Wheeler (“Wheeler”), Dr. Tamara Jackson (“Jackson”), Kathleen Gustafson (“Gustafson”), and Connections Community Support Programs, Inc. (“Connections”) (collectively, “Defendants”) filed a motion to dismiss. (D.I. 19). Plaintiff requested an extension of time (D.I. 25) to file a response to the motion. On February 28, 2019, the Court granted that request giving Plaintiff until May 21, 2019 to file a response.

         On March 5, 2019, Plaintiff filed an Amended Complaint. (D.I. 28). Two days later, Plaintiff filed a motion to strike or withdraw the Amended Complaint, granted by the Court on March 20, 2019. (D.I. 32, 34). The Order reiterated that Plaintiffs response to Defendants' motion to dismiss was due on May 21, 2019. (D.I. 34). On May 13, 2019, Plaintiff filed a motion for leave to file a document under seal, and on May 15, 2019, he filed an affidavit of merit. (D.I. 36, 37). On May 17, 2019, Plaintiff filed an Amended Complaint without leave of court in derogation of Fed.R.Civ.P. 15(a)(1).[2] (D.I. 38). On May 21, 2019, Defendants filed a motion for review of the affidavit of merit.[3] (D.I. 39). To date, Plaintiff has not filed a file a response to Defendants' motion to dismiss.

         The original Complaint[4] alleges that after Plaintiff injured his hand on December 6, 2016, he was treated at the JTVCC infirmary by Fuh and Defendant Jane Doe (“Doe”). (D.I. 3 ¶ 1). Plaintiff was given pain medication and a hand splint. (Id.). He alleges the pills provided no relief and the splint aggravated his pain. (Id.). Plaintiff alleges that Fuh “led the exam and was adamant that [his] hand was not broken, notwithstanding [Plaintiff's] assertion that [his] hand was hurting intensely and the prominent protrusion.” (Id.). Fuh instructed Plaintiff to submit a sick-call slip so that he could receive treatment. (Id.).

         Plaintiff submitted a sick call slip and was seen in medical on December 10, 2016 by Fuh and R.N. Wheeler. (Id. ¶ 2). Fuh diagnosed Plaintiff with swollen muscles and tendons, not a broken hand. (Id.). After Fuh telephoned Gustafson, she informed Plaintiff he would be x-rayed on December 12, 2016. (Id. ¶ 2). Plaintiff was not called for the December 12, 2016 x- ray, medical was contacted, and Plaintiff was advised that the x-ray would take place on December 16, 2016. (Id. ¶ 3). Plaintiff was x-rayed and taken to the emergency room at Kent General Hospital that day. (Id. ¶ 4). At Kent General, Plaintiff was seen by an emergency room physician and an orthopedic specialist. (Id.). Plaintiff alleges that both failed to “fix [his] various injuries.” (Id.). Plaintiff alleges that the healthcare providers told him that due to the lapse of time between his injury and emergency room visit, their resetting attempts were no longer viable. (Id.).

         Plaintiff alleges the delay in treatment by Fuh, Doe, Wheeler, and Gustafson demonstrates deliberate indifference to a serious medical need in violation of the Eighth Amendment and medical negligence under Delaware law. (Id. ¶ 6). In addition, he alleges that Connections' policy that requires inmates to submit sick-call slips prior to receiving medical care, exacerbated his hand injury and demonstrates deliberate indifference to a serious medical need and medical negligence. (Id. ¶ 7).

         During the last week of December 2016, Plaintiff was evaluated by a surgeon and advised that surgery was necessary. (Id. ¶ 9). The surgeon asked why it had taken so long for Plaintiff to get an appointment. (Id.). Surgery was performed on January 5, 2017. (Id. ¶ 10). The surgeon advised Plaintiff that the anesthesia would wear off in a few hours and he prescribed Plaintiff pain medication. (Id.). When Plaintiff returned to the JTVCC he began having extreme pain and notified nurse Green. (Id.). Green offered Plaintiff Ibuprofen or to call Defendant Second On-Call Provider (“Second On-Call Provider”) for something stronger. (Id.). Plaintiff asked Green to call the On-Call Provider. (Id.) Green told Plaintiff that the On-Call Provider would not issue anything else. (Id.). Plaintiff alleges he was compelled to wait more than ten hours to get adequate pain relief. (Id.). Plaintiff alleges that Green and the On-Call Provider failed to get him proper pain relief following surgery and Dr. Jackson failed to create an appropriate post-surgery pain management plan in violation of the Eighth Amendment and Delaware's medical negligence law. (Id. ¶ 11).

         Plaintiff spent five days in the infirmary following surgery. (Id. ¶ 13). Plaintiff alleges his transfer was in contravention of Dr. Jackson's declaration that it was policy for Plaintiff to remain housed in the infirmary for months to convalesce according to medical and security policies. (Id.).

         Plaintiff seeks compensatory and punitive damages, declaratory relief, and an injunction for Connections to reform its policy/common practice of denying inmates medical care without filing a sick-call slip. (Id. Section VII.).

         Defendants' unopposed motion to dismiss seeks dismissal for failure to state a claim upon which relief may be granted pursuant to Fed.R.Civ.P. 12(b)(6) on the grounds that: (1) Plaintiff did not allege any personal action or inaction by Defendants that amounts to claims of deliberate indifference; (2) Plaintiff did not submit an affidavit of merit when he filed the original complaint; and (3) the claim against Connections fails because the sick ...


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