United States District Court, D. Delaware
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.
NOREIKA, U.S. DISTRICT JUDGE.
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. (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).
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.
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). (D.I. 38). On May 21, 2019, Defendants
filed a motion for review of the affidavit of
merit. (D.I. 39). To date, Plaintiff has not
filed a file a response to Defendants' motion to dismiss.
original Complaint 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.
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.).
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).
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).
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
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.).
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 ...