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Cropper v. Danberg

United States District Court, D. Delaware

August 1, 2019

CARL DANBERG, et al., Defendants.

          Evan O. Williford and Andrew J. Huber, THE WILLIFORD FIRM LLC, Wilmington, DE Attorneys for Plaintiff

          Ryan P. Connell, Deputy Attorney General, DEPARTMENT OF JUSTICE STATE OF DELAWARE, Wilmington, Delaware Attorneys for Defendants



         I. Introduction

         Dwayne E. Cropper is an inmate at the James T. Vaughn Correctional Center ("Vaughn"), located in Smyrna, Delaware. (D.I. 120-1 at ¶ 134 ¶ 1) Mr. Cropper, proceeding pro se, initially filed his Complaint on July 23, 2012 against former Department of Correction ("DOC") Commissioner Carl Danberg, former Vaughn Warden Perry Phelps, Vaughn Deputy Warden James Scarborough, Vaughn Lieutenant John Endres, former Vaughn Sgt. Dereke Doane, and former Vaughn Correctional Officer Isaac Torres (collectively "Defendants"). (D.I. 2) The Court appointed counsel for Plaintiff from its Federal Civil Panel in March of 2016. (D.I. 77; D.I. 79) Plaintiff filed the now operative Amended Complaint in July 2017, alleging violations of Plaintiff s rights under the Eighth Amendment, the Americans with Disabilities Act (ADA) and Rehabilitation Act (RA), and seeking monetary and injunctive relief. (D.I. 86) Defendants answered in September 2017. (D.I. 87)

         Pending before the Court is a motion for summary judgment filed by Defendants. (D.I. 117) The motion was fully briefed (D.I. 118, 120, 122, 125, 126), and the Court heard oral argument on November 2, 2018 (Tr.).

         II. Background

         Plaintiffs complaint relies on a series of events leading to his fall from the top bunk of his prison cell. He claims that deliberate indifference to his medical conditions on the part of Defendants led to his inappropriate placement on the top bunk and, thus, his fall. (D.I. 120 at 2) Defendants describe largely the same series of events, but argue that "there is no evidence that supervisory Defendants were deliberately indifferent." (D.I. 118 at 1)

         During his time in Vaughn (1999 until the present), Mr. Cropper has suffered from long-running medical issues, including with his feet and back. (D.I. 119 at A-10) Although he was diagnosed with seizure disorders in 1965 (D.I. 120 at 6), both he and Vaughn were unaware of this disorder until he was assessed in 2016 - after the incident from which this suit arises - at which point he was permanently assigned a bottom bunk. (D.I. 120-1 at ¶ 137) Previously, in 2008, in response to Mr. Cropper's reported medical conditions, Plaintiff was granted a bottom bunk memo;[1] then in 2011, Mr. Cropper was transferred to a top bunk after his previous bottom bunk assignment had expired, without warning or his knowledge. (D.I. 220-1 at ¶ 137, B94) His foot and back conditions had not changed, nor is there evidence that these conditions would have been expected to change. Mr. Cropper was moved to a top bunk with no notice. (D.I. 120 at 6-7) (citing D.I. 120-1 at ¶ 212) Mr. Cropper immediately filed a medical request to transfer bunks. (D.I. 120-1 at ¶ 13, B14) He alleges that he directly told Defendants Phelps, Doane, and Torres that he should be transferred for medical reasons. (Id. at B93, B96-97) He also alleges that he told Defendant Endres that he should be transferred back to a bottom bunk, though Endres did not recall this. (Id. at B95-96, B150) Mr. Cropper was seen by medical staff on October 25, who recommended he be given a bottom bunk due to back pain and flat feet (D.I. 119 at A-02), with the end date space left blank (D.I. 120-1 at ¶ 138). The memo was returned to medical personnel to correct the deficiency, and on November 2 it was updated with one-year expiration date; on November 4 the memo was approved by Defendant Scarborough. (Id. at B138; B19-20) Mr. Cropper did not learn of this approval. Defendant Scarborough relied on the transfer officer to move Mr. Cropper, but this was not done immediately.[2]

         On November 18, 2011, Mr. Cropper had what he later learned was a seizure in his sleep and fell from his top bunk, hitting his head and causing serious injuries. (See D.I. 120 at 9) He was not sure what exactly caused his fall, but testified that his cellmate woke him up and said "[m]an, you must have had a seizure or something." (D.I. 119 at A-1, A-12)

         On September 1, 2016, Dr. Herman Ellis, the Interim Medical Director of Sussex Correctional Institution, diagnosed Mr. Cropper with generalized seizure disorder, sleep seizures, and sleep-related hypermotor epilepsy. (D.I. 120-1 at ¶ 453-56) He was treated by Dr. Robert J. Varipapa on December 1, 2016 and prescribed medication for his diagnoses. (Id. at B438-40) Mr. Cropper has not been assigned to a top bunk since November 2014. (D.I. 119 at A-07) On May 1, 2017, Plaintiff was given an indefinite bottom bunk memo for "seizure disorder." (D.I. 120-1 at B115)

         Mr. Cropper filed this lawsuit on July 23, 2012.[3] Plaintiff describes what he sees as inappropriate policies that led to and caused his injuries. Specifically, Vaughn has policies for inmates who request not to be placed on top bunks, requests it grants by way of a memorandum signed by the Deputy Warden of Program Administration. (Id. at B136, B254) Vaughn generally grants time-limited memoranda for most medical conditions, based on Defendant Scarborough's reluctance to bind a successor's hand with a permanent memorandum and a belief that an inmate's conditions may improve over time or be overstated. (D.I. 119 at A-38, A-39) A bottom bunk is indefinitely granted only when it is "painfully obvious" that an inmate needs the bunk. (Id. at A-41) These bottom bunk memoranda are not provided to inmates; nor are inmates informed when their memorandum is granted or expired. (D.I. 120-1 at ¶ 288) Moreover, the policy at Vaughn provides that an inmate who is granted a bottom bunk may only be transferred once a bottom bunk becomes available. (D.I. 120-1 at ¶ 65, B247, B261) Plaintiff points out two cases where inmates alleged injury as a result of bunking issues, as evidence that certain defendants should have been aware of the problems he, too, identifies. (See D.I. 120 at 5-6) (citing Smith v. Danberg, 2010 WL 2400468 (D. Del. June 15, 2010); Guilfoil v. Pierce, 2009 WL 688957 (D. Del. Mar. 16, 2009))

         III. Legal Standards

         A. Summary Judgment

         Under Rule 56(a) of the Federal Rules of Civil Procedure, "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). An assertion that a fact cannot be ~ or, alternatively, is - genuinely disputed must be supported either by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials," or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1)(A) & (B). If the moving party has carried its burden, the nonmovant must then "come forward with specific facts showing that there is a genuine issue for trial." Matsushita, 475 U.S. at 587 (internal quotation marks omitted). The Court will "draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).

         To defeat a motion for summary judgment, the nonmoving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586; see also Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005) (stating party opposing summary judgment "must present more than just bare assertions, conclusory allegations or suspicions to show the existence of a genuine issue") (internal quotation marks omitted). The "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment;" a factual dispute is genuine only where "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (internal citations omitted); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (stating entry of summary judgment is mandated "against aparty who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial"). Thus, the "mere existence of a scintilla of evidence" in support of the nonmoving party's position is insufficient to defeat a motion for summary judgment; there must be "evidence on which the jury could reasonably find" for the nonmoving party. Anderson, 477 U.S. at 252.

         B. ...

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