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McNeill v. Snow

United States District Court, D. Delaware

December 5, 2019

DONALD SNOW, etal., Defendants.

          Dale Kevin McNeill, Howard R. Young Correctional Institution. Pro Se Plaintiff.

          Ryan Patrick Connell, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware. Counsel for Defendant Steven Wesley.

          Dana Spring Monzo, Esquire, and Karine Sarkisian, Esquire, White & Williams, Wilmington, Delaware. Counsel for Defendant Connections CSP Inc.



         Plaintiff Dale Kevin McNeill ("Plaintiff"), an inmate at Howard R. Young Correctional Institution ("HRYCI") in Wilmington, Delaware, filed this lawsuit pursuant to 42U.S.C. § 1983. (D.I. 2) Before the Court are Defendants'motions for summary judgment, opposed by Plaintiff in his combined motion to continue and motion for summary judgment and combined motion for summary judgment and motion to dismiss, and Defendant Steven Wesley's motion to dismiss for failure to prosecute.[1] (D.I. 51, 52, 55, 56) The motions have been fully briefed.


         A. The Complaint

         The Complaint alleges that on May 17, 2015,[2] Plaintiff was attacked by Defendant inmate Donald Snow ("Snow").[3] (D.I. 2 at 5) Plaintiff alleges that the assault was videotaped and replayed by HRYCI staff. (Id.) Plaintiff also alleges that Defendant Steven Wesley ("Wesley"), the former HRYCI warden, and security staff stood by and watched the assault and did nothing to help Plaintiff. (Id. at 6) Plaintiff alleges that Wesley housed three inmates in a two-person cell, and he did not supervise mentally-ill inmates. (Id.)

         Following the assault, Plaintiff was taken to Christiana Hospital, treated, and released the next day. (Id. at 5, 7) Plaintiff alleges that HRYCI medical staff did not follow Christiana Hospital's follow-up care instructions for follow-up care and, as a result, he submitted a medical grievance to obtain the appropriate medical follow-up care. (Id. at 7) Plaintiff also submitted a grievance for medical problems that resulted from the assault. (Id.)

         Plaintiff seeks compensatory damages

         B. Evidence of Record

         On May 18, 2015, Plaintiff was assaulted by a fellow inmate. (D.I. 54, Ex. C at 41; D.I. 57 at 1) Plaintiff was taken by ambulance to the Christiana Hospital Emergency Room and diagnosed with a left ear laceration and concussion. (Id.) While there, he underwent a head CT scan that revealed no acute intracranial abnormality.[4] (D.I. 54, Ex. D; D.I. 57 at 2) Discharge instructions provided for follow-up with oral and facial surgery if the HRYCI infirmary was not able to manage Plaintiffs condition. (D.I. 54, Ex. C at 41; D.I. 57 at 3) Other discharge instructions were to keep Plaintiffs ear laceration clean and apply antibiotic ointment twice daily. (Id.)

         On May 19, 2015, Plaintiff was admitted to the HRYCI infirmary for medical observation and supportive care, including neurological checks due to concussion. (D.I. 54, Ex. C at 41, Ex. E; D.I. 57 at 1) On May 20, 2015, while under medical observation, Plaintiff asked when his ear laceration would be cleaned, the nurse checked his chart, saw the order to clean the laceration, and cleaned the wound. (D.I. 54, Ex. C at 39; D.I. 57 at 5) On May 20, 2015, Plaintiff submitted a grievance seeking care for his ear laceration, and the grievance was resolved the same day. (D.I. 54, Ex. F, May 20, 2015 grievance #307191; D.I. 57 at 6)

         On May 21, 2015, Plaintiff was discharged from the infirmary with no complications and all symptoms of headache, unsteady gait, and dizziness resolved. (Id. at Ex. C at 39) When Plaintiff was seen for a follow-up on May 28, 2015, he stated he continued with an equilibrium issue, although it was resolving. (Id. at 38) On May 29, 2015, Plaintiff submitted a sick call slip and asked for removal of the left ear sutures.[5] (Id. at Ex. G, May 29, 2015 Sick Call) In response to the sick call slip, Medical staff saw Plaintiff on June 4, 2015. (Id. at Ex. C at 38) Plaintiff was examined and medical records indicate the laceration was completely healed with no sutures seen. (Id.)

         Over the next few months, Plaintiff continued with treatment for lower back, right ankle, and neck pain as well as lower extremity swelling. (Id. at 34-38) At Plaintiffs November 9, 2015 chronic care visit, he complained of tinnitus and provided a history that the symptoms began about a week after the May 18, 2015 assault.[6] (Id. at 34-35) Plaintiff next saw medical on November 18, 2015, and complained of continuous tinnitus and equilibrium issues since approximately a week following the May 2015 assault. (Id. at Ex. C at 34) Nurse practitioner Kathryn Stillman ("Stillman") evaluated Plaintiffs x-ray and CT scans that were taken on May 18, 2015 and noted the chest x-ray showed no active disease, the cervical spine CT showed no acute cervical vertebral fracture, and the head CT showed the ventricular system was within normal limits in size, no midline shift was observed, and there was no acute intracranial abnormality. (Id. at Ex. C at 34) Stillman advised Plaintiff to continue his medication as prescribed, wear compression stockings, not stand too quickly, and provide time to adjust positions. (Id.) Stillman submitted a physical therapy referral for evaluation and possible treatment of Plaintiffs gait issues, ambulatory dysfunction, and right ankle pain. (Id.) Medical records indicate that on November 30, 2015, Plaintiff refused physical therapy without reason despite being asked multiple times and being advised of the risks involved in refusing treatment. (Id. at Ex. C at 33, Ex. H at Nov. 30, 2015 refusal of treatment)

         Plaintiff had chronic care appointments on February 1, 2016 and May 28, 2016. (Id. at Ex. C at 32-33) Medical addressed his complaints and other symptoms related to the May 2015 assault. (Id.) At his August 16, 2016 chronic care appointment, Plaintiff reported experiencing intermittent dizziness since the May 2015 assault, he was diagnosed with peripheral vertigo, and prescribed medication. (Id. at 30)

         Plaintiff reported the same symptoms at his November 8, 2016 appointment and was diagnosed with sensory ataxia. (Id. at 29) Physician assistant Mitchell White ("White") instructed Plaintiff to continue his medication and ordered blood tests. (Id. at 29) On November 30, 2016, Plaintiff submitted a sick call slip, indicated that he was being treated with new medication, complained of balance issues, and demanded an MRI to assess brain damage. (Id. at Ex. G at 3) Plaintiff was seen by medical on December 6, 2016, and it was noted that Plaintiffs prior multiple CT scans were negative. (Id. at Ex. C at 29)

         On February 1, 2017, during Plaintiffs chronic care appointment, he reported diminished symptoms of tinnitus and ataxia and asked to discontinue Elavil. (Id. at 26) On March 24, 2017, Plaintiff was seen by medical with complaints of worsening headaches and ataxia, intermittent nausea and dizziness, and equilibrium problems, among other medical issues. (Id. at 24) Plaintiff was diagnosed with post concussive syndrome. (Id.) White submitted a request for a brain MRI and a mental health evaluation for questionable depressive disorder or PTSD from the May 2015 assault, and concluded that psychological trauma associated with the attack could be affecting Plaintiffs symptoms. ...

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