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Wenzke v. Munoz

United States District Court, D. Delaware

July 23, 2019

ADAM WENZKE, Plaintiff,
PAOLA MUNOZ, et al., Defendants.

          Adam Wenzke, James T. Vaughn Correctional Center, Smyrna, Delaware. Pro Se Plaintiff.

          Dana Spring Monzo, Esquire, and Karine Sarkisian, Wynn, Esquire, White & Williams, Wilmington, Delaware. Counsel for Defendants.



         Plaintiff Adam Wenzke (“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). The original Complaint was dismissed upon screening and Plaintiff was given leave to amend. (D.I. 12, 13). Plaintiff timely filed an Amended Complaint. (D.I. 15, 16). Before the Court is Defendants' motion to dismiss the Amended Complaint. (D.I. 25). Briefing is complete.

         I. BACKGROUND

         The original Complaint alleged that Defendants were deliberately indifferent to Plaintiffs serious medical needs and he was denied his right to equal protection when he was refused medical care, prison employment, and educational and computer classes. The Complaint was dismissed and Plaintiff was given leave to amend the mental health/medical needs claims. (D.I. 13). Plaintiff has filed an Amended Complaint with two supplements. (D.I. 15, 16, 31).

         Plaintiff alleges that thirteen years ago he was diagnosed with bi-polar disorder, depression, and anxiety. (D.I. 15 ¶ 2). Over the years he has tried “just about every mental health medication” so he knows first-hand what works for him and what does not work for him. (Id.). On March 29, 2016, Plaintiff was transferred from Howard R. Young Correctional Institution to the JTVCC. (Id. ¶ 1). When Plaintiff arrived at JTVCC, he spoke to mental health and was told he would be seen by a mental health physician because his medication was causing side effects. (Id.).

         Plaintiff's main complaint is that health care providers will not provide him the type of medication he requested. (Id. ¶¶ 3, 4). Instead he is prescribed medication the mental health care providers believe is appropriate for Plaintiff. (Id. ¶¶ 3, 4, 8, 9). Plaintiff alleges that he suffered side-effects from the medication prescribed. (Id. ¶ 4). At one point, Plaintiff stopped taking his medication due to the side-effects. (Id. ¶ 5).

         On August 28, 2017, Plaintiff was told that he was scheduled to be seen by Defendant Susan Mumford (“Mumford”) and he was seen by her on September 14, 2017.[2] (Id. ¶ 15). She prescribed a new medication (Cymbalta) which Plaintiff agreed to take “against his better judgment.” (Id. ¶¶ 16, 35). Plaintiff alleges that during the visit Mumford stated that she did not think Plaintiff was bi-polar anymore and expressed concern about different diagnoses and treatments of different health care providers. (Id. ¶¶ 17, 34). Within two weeks, Plaintiff began having side effects from the medication prescribed by Mumford. (Id. ¶ 18). Plaintiff complained to a mental health counselor about the medication and the counselor told Plaintiff he would see if a medication could be prescribed for the side effects, but nothing happened. (Id.).

         Plaintiff continued to complain about side effects throughout October and November 2017, and he also wrote to Mumford. (Id. ¶¶ 20, 21, 35). He saw Mumford on November 20, 2017, and she told Plaintiff to stop taking the medication. (Id. ¶¶ 23, 36). Plaintiff asked Mumford to prescribed Wellbutrin which Plaintiff has found works best for him (in combination with other medications), but Mumford prescribed a different medication (Trazadone), a drug Plaintiff had originally asked for but was told the “policy” was to not give Wellbutrin. (Id. ¶¶ 6, 23, 24).

         Even though he stopped taking it, Plaintiff continued to have side effects from Cymbalta and complained in writing to Mumford. (Id. ¶ 25). Plaintiff alleges that mental health knew of Cymbalta's side effects and of his complains that even though he stopped taking the medication months ago he continues to experience the side effects. (Id. ¶¶ 33, 37). After reading a basic pharmacology book, Plaintiff self-diagnosed tardive dyskinesia and tardive akathisia. (Id. ¶ 19). Plaintiff alleges that when Mumford later prescribed Trazadone it stopped working after ten days, and Mumford promised to raise the dosage. (D.I. 16 at 2). Plaintiff alleges that he has been promised this before and it has never happened. (Id.).

         Plaintiff alleges that he was switched to a new doctor he identifies as mental health Defendant Dr. Moses (“Moses”).[3] (D.I. 15 ¶ 38). Moses provided Plaintiff information about his mental health condition and told Plaintiff that if other mental health providers were not going to treat Plaintiff then neither could he. (Id. ¶ 38). Plaintiff continued to be seen by Moses from whom he requested mental health treatment. (Id. ¶ 40). Plaintiff requested medication to treat the side effects from Cymbalta and Moses told Plaintiff that he was not going to prescribe any medication “at this time.” (Id. ¶ 40).

         Plaintiff was examined by a dentist on May 21, 2018, who recommended a mouth guard for sleeping to ease Plaintiff's side effects. (Id. ¶ 39). Plaintiff was told that if the mouth guard was approved it would take two to four weeks “if” they were going to order one. (Id.). Plaintiff alleges that dental ordered the night guard, but it only partially works. (D.I. 16 at 3). Plaintiff alleges that dental ordered the wrong guard and will not change it. (Id.).

         Plaintiff alleges that Defendant mental health director Paola Munoz (“Munoz”) failed to respond to his letters complaining of his mental health treatment and asking for help, although Munoz responded to Plaintiff's request for an affidavit of merit. (D.I. 15 ¶¶ 11, 13, 26, 27, 29, 35). Plaintiff alleges that Munoz has known about his situation for over a year and has ...

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