United States District Court, D. Delaware
O. Williford and Andrew J. Huber, THE WILLIFORD FIRM LLC,
Wilmington, DE Attorneys for Plaintiff
P. Connell, Deputy Attorney General, DEPARTMENT OF JUSTICE
STATE OF DELAWARE, Wilmington, Delaware Attorneys for
U.S. DISTRICT JUDGE
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)
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.).
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)
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; 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
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
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)
Cropper filed this lawsuit on July 23, 2012. 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))
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).
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.