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Three Years Later, CMS Still Fails to Meet Medical Standards in Delaware

by David M. Reutter

Despite federal oversight of its prison medical care, Delaware “continues to have a great deal more to achieve before it comes into substantial compliance with all provisions of the MOA” (Memorandum of Agreement) the state entered into with the U.S. Department of Justice.

That was the conclusion drawn in the fifth semi-annual report by Joshua W. Martin III, the independent monitor who oversees healthcare in Delaware’s prison system. The report was released on September 29, 2009.

PLN previously reported on the inept medical treatment provided to Delaware prisoners by the state’s contractor, Correctional Medical Services (CMS). [See: PLN, Dec. 2005, p.1; Dec. 2006, p.24]. That coverage included details about an outbreak of flesh-eating bacteria and the case of prisoner Anthony Pierce, who had a massive brain tumor that led to his death (Pierce’s condition was so obvious that he was called “The Brother With Two Heads”).

PLN also reported on the MOA when it went into effect in December 2006, and on the monitor’s previous semi-annual reports. [See: PLN, July 2007, pp.8 and 10; Feb. 2008, p.24; Nov. 2008, p.10].

While Delaware has made progress in terms of complying with the MOA, it “still has a great deal to accomplish and it does not appear that the state will have reached substantial compliance with all the provisions of the MOA by the time of the expiration of the MOA,” the monitor’s most recent report found. The MOA with the Dept. of Justice was scheduled to expire on December 29, 2009.

The MOA included a total of 217 provisions related to four prisons. Three of the facilities – the Delores J. Baylor Women’s Correctional Institution (Baylor), the Howard R. Young Correctional Institution (HRYCI) and the Sussex Correctional Institution (Sussex) – were found to be in substantial or partial compliance with the MOA, while the James T. Vaughn Correctional Center (JTVCC, previously the Delaware Correctional Center) was in non-compliance with six provisions.

The report found that only eight of 15 records reviewed at JTVCC demonstrated that a nurse had transcribed clinician orders on the day the order was written; the rest were done the next day. Only six of 13 medication orders were transcribed accurately. The monitor also found that 17% of physician orders that involved completion of laboratory tests, X-rays or electrocardiograms were not timely implemented, and of those 39% were not implemented at all.

Further, JTVCC was in non-compliance with a provision that required juvenile offenders to receive immunizations. The monitor reviewed patients in the chronic disease clinic who were recommended for influenza and pneumococcal vaccinations. Only 2.1% had received influenza vaccine and only 2.8% received pneumococcal vaccine. Those who were vaccinated tended to have received the inoculations before being transferred to JTVCC.

Despite being advised that it was improper, JTVCC nurses still pre-poured medications prior to distributing them, which created a risk of dispensing the wrong dose or an incorrect medication. That practice was a violation of standard nursing procedures and was done solely to save time when providing medications to prisoners.

Another major problem at JTVCC was the “continuity of medications for newly arrived and existing patients with mental health disorders and chronic diseases.” The monitor’s report documented several cases of total disruption in care and continuance of medication upon an intrasystem transfer.

The pharmacy at JTVCC continued to be in non-compliance. It was described as a “cramped and cluttered environment” with a dirty floor. Although a cleaning schedule existed, no one was assigned to clean the area. Refrigeration temperatures were not documented daily, there was no system to account for the use of stock prescription medications, and expired medication was not returned to the vendor per policy.

The monitor further noted that JTVCC guards were not notifying mental health staff that prisoners needed mental health assessments. As a result, prisoners with serious mental illnesses were being placed in isolation without being assessed.

The monitor’s report also detailed the areas where only partial compliance was found. That rating “can signify that the state is nearly in substantial compliance, or it can mean that the state is only slightly above a non-compliance rating.”

Of the MOA’s 217 provisions, the state was found to be in partial compliance with 147 and in substantial compliance with only 64. With profit being the primary concern of private medical contractors like CMS, obtaining substantial compliance in all areas will likely take quite some time.

As in earlier reports, the monitor expressed concern over “the lack of stable and effective leadership at the vendor-level” – that is, with CMS. State officials apparently got the message and announced in October 2009 that Delaware’s $39 million contract for prison medical services would be re-bid.

A Request for Proposals (RFP) for a new healthcare provider was issued on November 18. The RFP allows companies to submit bids for separate parts of the contract such as mental health care, substance abuse programs or providing prescription medication. The new contract may also include a “shared risk” component in which the state pays for certain medical costs.

“In years past, the Department of Correction [DOC] could wash its hands of medical issues by saying, ‘It was the provider’s responsibilities and not ours,’” said Delaware Corrections Commissioner Carl C. Danberg. “That day has passed.”

The state’s existing contract with CMS expires on June 30, 2010; the deadline for companies wanting to bid on the RFP is February 26. DOC spokesman John R. Painter informed PLN that nothing in state law prevents CMS from submit-ting a bid proposal in an attempt to regain the contract. Hopefully, though, Delaware officials would reject CMS as a contractor, as it was that company’s inadequate medical care that resulted in the MOA with the Department of Justice in the first place.

“What we are trying to do is minimize the problems,” said Rev. Christopher Bullock, a founder of the Delaware Coalition for Prison Reform and Justice. “That begins with a credible health care provider, who understands not only the medical side but the moral and ethical side.” Bullock has worked for years to remove CMS as the DOC’s medical care provider.

Regardless of which company wins the RFP, it still will have to deal with federal monitoring. Delaware officials announced on December 24, 2009 that they had extended the MOA with the Department of Justice until 2011. The extended agreement is “greatly reduced in scope,” and the provisions related to Baylor and medical care at Sussex will no longer be covered under the MOA. Monitoring will continue for one year, then the DOC will begin self-monitoring and reporting during the second year.

“This is good news for Delaware,” said state Representative J.J. Johnson, who chairs the House Corrections Commit-tee. “The U.S. Department of Justice has clearly indicated that significant progress has been made, but we have more work to do. This agreement commits the State to finish what we started.”

Delaware prisoner Edward G. Williams, who is housed at JTVCC, would agree that more needs to be done. According to a January 4, 2010 article in The News Journal, Williams, 50, has “a bulge the size of a cantaloupe protruding from his abdomen.” He claims he is not receiving adequate treatment in retaliation for a federal lawsuit he filed in 2007 seeking surgery for his condition. “They’re trying to act like it doesn’t exist,” Williams said. He was finally provided with a colonoscopy after filing suit, but still has not received surgery.

The U.S. District Court issued an opinion in his case on June 24, 2009, stating, “The delay in providing [Williams] the colonoscopy, from the time it was first medically determined that it was necessary, until it was finally performed a few months after the filing of the lawsuit, raises concerns of a constitutional dimension. Moreover, at the time this lawsuit was filed, hernia surgery was recommended and approved at least twice, but it was not performed.”

Williams agreed to settle his suit with CMS on September 3, 2009 in exchange for $15,000 and being allowed to see another doctor who would determine if he should receive surgery. Less than a month later, however, Williams asked the court to set aside the settlement, claiming deception by CMS attorneys and stating the monetary amount was insufficient to cover his pain and suffering, court costs, and medical and living expenses after his release. Counsel was appointed to represent Williams, and on January 12, 2010, CMS withdrew its objections to setting aside the settlement. The case is still pending. See: Williams v. CMS, U.S.D.C. (D. Del.), Case No. 1:07-cv-00637-JJF.

Another Delaware prisoner, Kenneth Abraham, a former deputy attorney general serving time for drug and theft offenses, received treatment for skin cancer and an enlarged prostate only after he filed lawsuits. “I had no idea that things were this dysfunctional,” he said. “I had no idea this place was run the way it is.”

PLN acknowledges the excellent reporting by The News Journal concerning inadequate medical care in the Delaware DOC, which resulted in the MOA with the U.S. Department of Justice and improved treatment for many Delaware prisoners.

Sources:,, The News Journal

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Related legal case

Williams v. CMS

629 F. Supp. 2d 360, *; 2009 U.S. Dist. LEXIS 55851, **


Civ. Action No. 07-637-JJF


629 F. Supp. 2d 360; 2009 U.S. Dist. LEXIS 55851

June 24, 2009, Decided

PRIOR HISTORY: Williams v. Corr. Med. Servs., 2009 U.S. Dist. LEXIS 7201 (D. Del., Jan. 29, 2009)

COUNSEL: [**1] Edward G. Williams, Pro se Plaintiff, James T. Vaughn Correctional Center, Smyrna, Delaware.

James Edward Drnec, Esquire, Balick & Balick, LLC, Wilmington, Delaware. Attorney for Defendants Correctional Medical Services and Sherell Ott.

Catherine C. Damavandi, Esquire, Deputy Attorney General, Delaware Department of Justice. Attorney for Defendants Commissioner Carl Danberg, Warden Thomas Carroll, and Attorney General Beau Biden.


OPINION BY: Joseph J. Farnan, Jr.



June 24, 2009

Wilmington, Delaware

Joseph J. Farnan, Jr., District Judge

Plaintiff Edward G. Williams ("Plaintiff"), an inmate currently incarcerated at the James T. Vaughn Correctional Center ("VCC") filed this lawsuit pursuant to 42 U.S.C. § 1983 alleging deliberate indifference to serious medical needs. Plaintiff proceeds pro se and has been granted leave to proceed in forma pauperis. Presently before the Court are several Motions [*363] filed by the parties, including Motions For Summary Judgment and Motions To Amend the Complaint. (D.I. 45, 50, 64, 73, 86, 88, 93.) For the reasons discussed below, the Court will deny Ott's Motion To Dismiss as moot, will grant Defendants' Motion [**2] For Summary Judgment as to Ott, will grant in part and deny in part Defendants' Motion For Summary Judgment as to CMS, will deny Plaintiff's Motion For Summary Judgment, will grant Plaintiff's Requests For Counsel, and will deny Plaintiff's remaining Motions.


The following facts are taken from the Complaint and other documents and exhibits submitted by the parties. The Court dismissed several Defendants and claims following its initial screening of the Complaint. (D.I. 9, 10.) The remaining Defendants are Correctional Medical Services ("CMS"), First Correctional Medical ("FCM") 1, Commissioner Carl Danberg ("Danberg"), Warden Thomas Carroll ("Carroll"), Attorney General of the State of Delaware Beau Biden ("Biden"), Old Correctional Services ("OCS") 2, and Sherell Ott ("Ott") 3. The Complaint alleges that Plaintiff was evaluated by Dr. Levente Szalai ("Dr. Szalai") on October 17, 2005, for daily pain, constipation, bloody bowel movements, hemorrhoids, abdominal hernia pain, and that Dr. Szalai recommended an immediate colonoscopy and an abdominal hernia repair. (D.I. 2, P IV.) As of the date he filed his Complaint, October 9, 2007, Plaintiff had yet to undergo the recommended [**3] colonoscopy or abdominal hernia repair surgery. 4 Plaintiff alleges deliberate indifference to his serious medical needs.


1 FCM has not been served. (See D.I. 69.)

2 OCM has not been served. (See D.I. 25.)

3 Ott is incorrectly named as Dr. Ott. The record indicates that Sherell Ott is a nurse practitioner, not a physician. Ott was not formally served. The record reflects, however, that counsel accepted service accepted on her behalf. (D.I. 30.)

4 The computation of time for complaints filed by pro se inmates is determined according to the "mailbox rule." In Houston v. Lack, 487 U.S. 266, 108 S. Ct. 2379, 101 L. Ed. 2d 245 (1988), the United States Supreme Court held that a prisoner's notice of appeal of a habeas corpus petition was deemed filed as of the date it was delivered to prison officials for mailing to the court. While Houston dealt specifically with the filing of a habeas appeal, the decision has been extended by the Court of Appeals for the Third Circuit to other prisoner filings. See Burns v. Morton, 134 F.3d 109, 112 (3d Cir. 1998). Additionally, this District has extended the Houston mailbox rule to pro se § 1983 complaints. Gibbs v. Deckers, 234 F. Supp. 2d 458, 463 (D. Del. 2002).

Plaintiff's Complaint was signed [**4] on October 9, 2007, and the envelope it was mailed in is post-marked October 13, 2007. Therefore, Plaintiff's Complaint was delivered to prison authorities for mailing some time between October 9, 2007 and October 13, 2007. Giving Plaintiff the benefit, the Court concludes that Plaintiff's Complaint was filed on October 9, 2007, the date it was signed, and the earliest date possible that it could have been delivered to prison officials in Delaware for mailing.

Medical records indicate that on August 3, 2005, Ott examined Plaintiff and ordered an abdominal ultrasound, a surgical consult, and an abdominal binder. 5 (D.I. 35, [*364] D76; D.I. 66, A1; D.I. 85, D164.) The response to her request for an abdominal ultrasound, dated August 22, 2005, states, "per RMD, Dr. Hellander - a nonreducible hernia is [at] risk for strangulation - need to move forward [with] repair." (Id.)


5 Defendants state that Plaintiff's chart contains almost no medical records prior to 2006, with the earliest progress note dated December 16, 2006, since the prior medical vendor left on less than amicable conditions. (D.I. 65 n.l.) The Court takes judicial notice that FCM provided contract medical services to Delaware prisons [**5] from July 1, 2002 through June 30, 2005. Francisco v. Correctional Med. Sys., Civ. No. 03-499-JJF, 2007 U.S. Dist. LEXIS 20455, 2007 WL 896190, at *1 (D. Del. Mar. 22, 2007). CMS began providing medical services to Delaware prisons on July 1, 2005 and, at present, is the contract medical service provider. Francisco v. Correctional Med. Sys., 548 F. Supp. 2d 128, n.2 (D. Del. 2008). The Court has scoured the record and discovered that it contains a few of Plaintiff's medical records from 2005 and 2006.

A lower abdominal sonogram was performed on November 5, 2005. (D.I. 72, D71.) The sonogram revealed normal nondistended bowel loops with positive peristalsis beneath the abdominal wall corresponding to clinically palpable lump. (Id.) The report indicates that it was radiographically difficult to rule out a recurrent hernia and that a CT scan should be considered. (Id.)

Plaintiff submitted a medical grievance dated November 17, 2006, inquiring whether he had been approved for a colonoscopy. 6 (D.I. 77.) The grievance states that when Plaintiff inquired at medical he was told by the doctor (presumably Ott, incorrectly identified as a physician) that she thought Plaintiff had been transferred to Georgetown, but Plaintiff [**6] did not receive as answer to his question. (Id.) The grievance was sent to medical on December 1, 2006. (Id.) As a result, Plaintiff was scheduled to see Dr. Frederick VanDusen ("Dr. VanDusen") on December 5, 2006. (D.I. 56, ex.) At that time Dr. VanDusen submitted a request for a surgical consult regarding Plaintiff's complex ventral hernia condition. (D.I. 72, D75.) The request states that "the surgery was already approved by prior reviewing MD in August 2005 and never followed up!" (D.I. 72, D75.) Plaintiff submitted a request for medical care, including surgery, on December 12, 2006, and he was told that the "urgent surgery [was] being worked on." (D.I. 35, D138.) During his December 20, 2006 medical appointment, Plaintiff was advised that surgery was approved, but he was not provided the date for security reasons. (D.I. 36, D162.)


6 Plaintiff requested medical care for his abdominal condition in 2006 on November 14, 20, and 30; and December 12; in 2007 on January 15, 16, 22, and 26; February 8; April 6; June 20, 23, 26, 27, and 30; July 2, 3, 4, and 9; August 28; October 20, 22, and 28; November 19 and 20; and December 14, 16, 20, and 30; in 2008 on January 1, 8, 24, and 27; February [**7] 4 and 20; March 10 and 22; April 17; May 5 and 27; June 30; July 27; August 25; October 15, 19; November 18; and December 18 and 27. (D.I. 35, D138-141; D.I. 66, A8, All-13, A15, A23, A29-37, A45, A49-51, A56, A59, A66-68, A71-74, A79-80, A83-85, A87, A90, A95, A97-98, A102, A104, A106; A111-112, A122, A125-126.)

Plaintiff submitted grievances in an effort to obtain medical treatment for his abdominal condition. On January 15, 2007, he complained that he had been approved for surgery a year earlier, "but someone marked [his] serious medical condition down as non-medical." (D.I. 56, ex.) Medical grievances for his abdominal condition were also submitted on January 19, 2007, April 16, 2007, and June 26, 2008. (Id.)

CMS progress notes indicate Plaintiff was seen by CMS medical personnel in 2005 on May 23; August 3; and November 2; in 2006 on January 10; and December 5 and 20; in 2007 on February 14; March 13; April 19; May 10; July 12, 17, 24; August 30; September 19; October 27; November 20; and December 6, 8, 10, 11, 12, 13, and 20; in 2008 on January 7, 11, 19, and 30; February 28; March 17; April 8, 15, and 16; August 9; September 3, November 9, 10, 11, 12, 13, 14, and 20; and December [**8] 21 and 29 (D.I. 35, D142, D146, D156, D162-165; D.I. 66, A16, A21, A26, A38, A40, A46, A48-49, A57, A60, A63, A69, A73-A75, A81, A92, A94, A99, A107, A113, A118, A123-125, A127; D. I. 85, D147.)

Plaintiff was seen by Dr. Szalai on March 1, 2007, and presented with a large, incisional, abdominal wall ventral hernia, and frequent bloody bowel movements. (D.I. 54, at 2.) At the time, Dr. Szalai recommended a colonoscopy and ventral [*365] hernia repair. (Id.) On March 5, 2007, Dr. VanDusen requested a CT scan of the abdomen and pelvis for evaluation prior to surgery and a colonoscopy, and although not approved, he ordered the same. (D.I. 35, D70.) On March 27, 2007, Dr. VanDusen submitted a consultation request for a colonoscopy. (Id. at D72; D.I. 66, A18-19, A22.) The March 5, 2007 colonoscopy was either approved on May 10, 2007 or May 14, 2007; there are two different versions of the approval. (D.I. 35, D73; D.I. 66, A19.) The May 10th version states "5-23 @ 6:00." (D.I. 35 at D73.) The May 14th version states "per Dr. [illegible] suggest do colonoscopy first. If that's OK, then re-submit for CT. OK; [illegible] 6-21 @ 9:00; Surgeon requests CT abdomen & pelvis first F[checkmark]; done 6/21/07 [**9] (See report)." (D.I. 66, A19.)

Plaintiff submitted a grievance on April 16, 2007, seeking medical attention and complaining that he had not received the previously approved surgery and colonoscopy. (D.I. 56, ex. grievance no. 110563 at 1.) During the grievance process it was noted that Plaintiff had seen Ott on April 19, 2007, that on May 9, 2007, Dr. VanDusen ordered a CT scan of the abdomen and pelvis, and that as of May 23, 2007 the CT scan and colonoscopy were approved and scheduled. (Id. at 4.)

An abdominal CT scan performed on June 21, 2007, revealed a ventral hernia containing bile, with no inflammatory changes. (D.I. 43, at 4.) Another CT scan of the abdomen and pelvis was performed on August 8, 2007. (D.I. 54, at 12; D.I. 66, A41-42.) The initial report, dated August 8, 2007, was followed by an addendum, dated August 9, 2007. It reported (1) evidence of previous anterior abdominal wall surgery with thinning of the anterior abdominal wall and small hernias and (2) a fluid-filled, mildly dilated structure, which had the appearance of an anastomotic bowel loop. (Id.)

On July 12, 2007, Dr. McFull submitted a request for Plaintiff to undergo a colonoscopy, noting that Plaintiff had [**10] seen Dr. Szalai on May 1, 2007, a CT scan was performed on June 21, 2007, and a colonoscopy "needs to be done." (D.I. 66, A39.)

Plaintiff returned to Dr. Szalai for consultation on August 17, 2007, for the ventral hernia detected by the August 8, 2007 CT scan. (D.I. 66, A2.) Dr. Szalai recommended surgical repair but, before proceeding, recommended that Plaintiff undergo a colonoscopy. (Id. at A3-4.) A CMS "off-site return progress note" dated August 17, 2007, notes the recommendation of Dr. Szalai as follows: "colonoscopy needed and hernia repair. 3rd time seeing this for same problem please have MD order the above." (D.I. 85, D52.)

On August 20, 2007, Dr. VanDusen submitted a consultation request for Plaintiff to undergo a colonoscopy, noting that the procedure was recommended by the surgeon prior to ventral abdominal hernia repair. (D.I. 54 at 11.) The request also noted that the criteria for the colonoscopy had been met in March, and it continued to be met. (Id.) On August 24, 2007, Dr. VanDusen requested a consult for general surgery and noting that "a referral for colonoscopy was written (again)." (Id. at D53.)

Plaintiff filed his lawsuit on October 9, 2007. (D.I. 2.) At that time, [**11] neither the recommended colonoscopy nor the surgery had taken place.

Plaintiff next saw Dr. Szalai for a consultation on November 2, 2007. (D.I. 54.) Dr. Szalai's report, of the same date, states that he had seen Plaintiff two years earlier for the same problem: a large, incisional abdominal wall ventral hernia and complaints of frequent bloody bowel movements. (Id.) When Dr. Szalai had seen Plaintiff initially, he recommended a colonoscopy and subsequent ventral hernia re [*366] pair, but Plaintiff was not returned to Dr. Szalai for the procedures. (Id. at 1.) Dr. Szalai saw Plaintiff on March 1, 2007, and August 17, 2007, for the same problems and made the same recommendations. (Id. at 1, 8-10.)

Dr. Szalai took note of a CT scan performed on Plaintiff on August 8, 2007. (D.I. 54 at 2, 5-7.) The CT scan revealed a 9.8 cm ventral hernia with slight protrusion of the transverse colon through the hernia defect. (Id.) After conducting a physical examination of Plaintiff, Dr. Szalai personally reviewed the CT scan film and noted that (1) Plaintiff seemed to have had a right-sided rectus muscle tear in the distant past, and (2) Dr. Szalai did not distinctly see a hernia defect but what seemed to [**12] be more of a laxity of the muscle of the anterior abdominal wall. (Id.) Dr. Szalai discussed his findings with a radiologist, who agreed with him. (Id.) In light of the physical examination and his careful review of the CT scan, Dr. Szalai was not certain that a ventral hernia repair would be helpful in relieving Plaintiff's occasional abdominal pain symptoms. (Id. at 3.) He noted that because of Plaintiff's many past abdominal operations, the risk of surgery was fairly high, and questioned whether it would outweigh the benefits of such a procedure. (Id.) Dr. Szalai recommended that Plaintiff undergo a colonoscopy first and then possibly a diagnostic laparoscopy. (Id.)

On November 12, 2007, Dr. VanDusen submitted yet another request for Plaintiff to undergo a colonoscopy. (D.I. 66, A55.) His request states, "this recommendation is 2 yrs old!" (Id.) A letter authored by Dr. Szalai to Dr. VanDusen, and dated December 10, 2007, indicates that the colonoscopy was performed on December 10, 2007. 7 (D.I. 54 at 13.) Dr. Szalai noted that other than small hemorrhoids, the colonoscopy was normal. (Id.) Dr. Szalai discussed his findings with Plaintiff during a January 16, 2008 follow-up appointment. [**13] (Id. at 14.) His report finds that "because of [Plaintiff's] multiple prior abdominal operations, any further operation would carry a significant risk." (Id. at 15.) Plaintiff was scheduled for a three-month follow-up. (Id.; D.I. 66, A70.)


7 CMS infirmary admission notes dated December 10 and 11, 2007, state that Plaintiff's "old record not found," presumably referring to his medical chart (D.I. 35, D109-110.)

On February 28, 2008, Dr. VanDusen submitted a request for a diagnostic laparoscopy. (D.I. 66, A86.) Plaintiff returned for a follow-up appointment on March 28, 2008. (D.I. 54 at 19.) Examination indicated that Plaintiff did not have a distinct hernia defect, but a laxity of the abdominal wall muscle. (Id.) Dr. Szalai stated that he did not believe that surgery would be helpful in terms of Plaintiff's symptoms, and he did not believe that Plaintiff had a surgical problem. (Id.)

On April 18, 2008 a request was made for Plaintiff to see a gastroenterologist. (D.I. 66, A93.) The request was deferred. (Id.)

Plaintiff was seen for a consultation on July 1, 2008, by Dr. Caruso who recommended a colonoscopy as soon as possible. (Id. at A103.) On September 3, 2008, a request was submitted [**14] for Plaintiff to undergo a EGD (ie., esophagogastroduodenoscopy). (Id. at A109.) Diagnostic testing on October 3, 2008, indicated constipation; no apparent bowel obstruction or free air; post-surgical changes with a bullet fragment seen at the left paraspinal area at the L4-L5 level; bony densities seen at the lateral aspect of the left hemi pelvis of uncertain etiology. (Id. at A110.)

Plaintiff presented on November 10, 2008, for an outpatient EGD. (D.I. 51.) Impressions noted a Barrett's esophagus with biopsy taken, a hiatus hernia, gastritis [*367] with biopsy taken, and a normal duodenum. (Id.) Plaintiff underwent a colonoscopy on November 13, 2008, and it revealed internal hemorrhoids. (Id.)

On January 30, 2009, Plaintiff returned to Dr. Szalai for follow-up with symptoms of chronic, intermittent abdominal pain, frequent bright red blood per rectum with every bowel movement, and a history of internal hemorrhoids. (D.I. 80, A1.) Examination revealed laxity of the abdominal wall muscle, rather than a true hernia and stage III, large, frequently bleeding internal hemorrhoids. (Id. at A2.) Dr. Szalai reiterated his opinion that surgery was not required because he did not believe Plaintiff [**15] had a hernia, but opined that a repeat CT scan and second surgical opinion might be worthwhile. (Id.) With regard to his hemorrhoids, Dr. Szalai recommended certain steps to avoid straining and felt that Plaintiff would benefit from a hemorrhoidectomy procedure. (Id. at A3.)

On February 16, 2009, Dr. Desrosiers submitted a request for a CT scan of the abdomen and pelvis as recommended by Dr. Szalai. (Id. at A4.) The CT scan, performed on March 13, 2009, revealed findings consistent with small Richter's hernias, with no associated bowel wall thickening or inflammation to suggest strangulation incarceration, no evidence of small bowel obstruction, and a small intraperitoneal fat containing midline ventral hernia. (D.I. 91, A6-A7.) On March 18, 2009, a surgical consultation request was submitted for Plaintiff to once against see Dr. Szalai for his abdominal hernias. (Id. at A8.) Plaintiff was seen by Dr. Desrosiers on March 24, 2009, and they discussed a plan for Plaintiff to return to Dr. Szalai for follow-up surgery. (Id. at A9.) Plaintiff indicated that he wished to undergo the surgical repair. (Id. at A1.)


Plaintiff and Defendants CMS and Ott (collectively "Defendants") [**16] move for summary judgment. (D.I. 50, 64.) The Court shall grant summary judgment only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party bears the burden of proving that no genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.10, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986).

When determining whether a genuine issue of material fact exists, the Court must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007). "Facts that could alter the outcome are 'material,' and disputes are 'genuine' if evidence exists from which a rational person could conclude that the position of the person with the burden of proof on the disputed issue is correct." Horowitz v. Federal Kemper Life Assurance Co., 57 F.3d 300, 302 n.1 (3d Cir. 1995) (internal citations omitted).

If the moving party has demonstrated an absence of material [**17] fact, the nonmoving party then "must come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e)). If the nonmoving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).


A. Medical Needs

Plaintiff moves for summary judgment and for a meeting with Defendants to discuss settlement on the grounds that Defendants purposely denied and delayed his abdominal hernia repair surgery as ordered by physicians from 2005 up through 2009. 8 (D.I. 50.) He argues that CMS did not approve the surgery and that Ott purposefully delayed all physician's hernia surgery repair orders by transferring Plaintiff's medical records to Sussex Correctional Institution ("SCI"), Georgetown, Delaware. Only Defendant CMS filed an Opposition to Plaintiff's Motion for Summary Judgment. (D.I 52.)


8 It is not clear if Plaintiff seeks summary judgment against all Defendants or only against CMS and Ott. The filing seems to indicate [**18] the Motion is directed to the medical Defendants. Hence, the Court will discuss the Motion as to the claims only raised against the Medical Defendants; CMS and Ott.

Defendants also move for summary judgment and argue that Plaintiff's Motion must be denied, first noting that Plaintiff cannot rely upon the doctrine of respondeat superior to support his claims. (D.I. 64.) Second, they argue that while Plaintiff's claims rest upon a recommendation that he undergo hernia repair surgery, the opinion was based upon a misdiagnosis, since corrected by Dr. Szalai who had recommended the surgery. CMS notes that Dr. Szalai now opines that an attempt at a surgical repair would be more risky than beneficial. It posits that it is entitled to summary judgment because Plaintiff has received treatment for his complaints and he seeks a surgical solution that is not medically necessary. Ott contends she is entitled to summary judgment as she was executing her duties when she sent Plaintiff's medical chart to a different institution.

When bringing a § 1983 claim, a plaintiff must allege that some person has deprived him of a federal right, and that the person who caused the deprivation acted under color [**19] of state law. West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988). Plaintiff alleges Defendants violated his Eighth Amendment rights by their deliberate indifference to his serious medical needs.

1. Defendant Ott

The government has an "obligation to provide medical care for those whom it is punishing by incarceration." Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976). To prevail in a medical case, Plaintiff must have a serious medical need and prison officials' acts or omissions must indicate deliberate indifference to that need. Id. A prison official is deliberately indifferent if he knows that a prisoner faces a substantial risk of serious harm and fails to take reasonable steps to avoid the harm. Farmer v. Brennan, 511 U.S. 825, 837, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994). Deliberate indifference may be manifested by "intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed." Estelle, 429 U.S. at 104-05. Mere negligence does not violate the Eighth Amendment. Id. at 106. Additionally, "mere disagreement as to the proper medical treatment" is insufficient to establish an Eighth Amendment violation. Monmouth County Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987) [**20] (citations omitted). The Third Circuit has specifically found deliberate indifference when: (1) a prison official knows of the prisoner's need for treatment but intentionally refuses to provide it; (2) the prison official delays necessary medical treatment for non-medical reasons; or (3) [*369] the prison official prevents a prisoner from receiving needed or recommended treatment. Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999) (citations omitted).

Plaintiff claims that Ott purposefully transferred his medical records to a different institution to delay his medical treatment. Plaintiff, however, provides no evidence to support his claim that Ott acted in a willful manner to delay medical treatment. The medical records indicate that it was Ott who first ordered an abdominal ultrasound and surgical consultation in August 2005. Three months later, a lower abdominal sonogram was performed. When Plaintiff inquired about his delay in treatment he was told by Ott that she thought he had been transferred. He infers from this comment that his records were intentionally transferred.

Based upon the facts before the Court, a reasonable jury could not find that Ott's alleged mistaken belief that Plaintiff [**21] was transferred to a different correctional institution constitutes deliberate indifference to a serious medical need. If in fact Plaintiff's delay in medical care resulted from a mistaken transfer of his medical records, while regrettable, the record does not otherwise support a finding that Ott ignored Plaintiff's medical conditions. Rather, Ott provided Plaintiff with medical care, requested additional diagnostic tests, and sought approval for surgery.

With regard to Ott, there are no genuine issues for trial. For the above reasons, the Court will grant Defendants' Motion For Summary Judgment as to Ott and will deny Plaintiff's Motion for Summary Judgment as to Ott. 9 (D.I. 50, 64.)


9 Ott also filed a Motion To Dismiss. (D.I. 45.) The Court will deny the Motion as moot.

2. Defendant CMS

Plaintiff claims that CMS' delay of recommended medical testing and surgery has caused him to experience physical pain and suffering, as well as mental, emotional, and psychological fear of losing his life. In order to establish that CMS is directly liable for the alleged constitutional violations, Plaintiff "must provide evidence that there was a relevant [CMS] policy or custom, and that the policy caused [**22] the constitutional violation[s] [he] allege[s]." Natale v. Camden County Corr. Facility, 318 F.3d 575, 584 (3d Cir. 2003) (because respondeat superior or vicarious liability cannot be a basis for liability under 42 U.S.C. § 1983, a corporation under contract with the state cannot be held liable for the acts of its employees and agents under those theories).

Assuming the acts of CMS' employee have violated a person's constitutional rights, those acts may be deemed the result of a policy or custom of the entity for whom the employee works, thereby rendering the entity liable under § 1983, where the inadequacy of existing practice is so likely to result in the violation of constitutional rights that the policymaker can reasonably be said to have been deliberately indifferent to the need. See Natale, 318 F.3d at 584 (citations omitted). "'Policy is made when a decisionmaker possess[ing] final authority to establish . . . policy with respect to the action issues an official proclamation, policy or edict.'" Miller v. Correctional Med. Sys., Inc., 802 F. Supp. 1126, 1132 (D. Del. 1992) (alteration in original) (quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990)). "Custom, [**23] on the other hand, can be proven by showing that a given course of conduct, although not specifically endorsed or authorized by law, is so well-settled and permanent as virtually to constitute law." Id. (citing Andrews, 895 F.2d at 1480; Fletcher v. O'Donnell, 867 F.2d 791, 793-94 (3d Cir. 1989)).

Policies that subject prisoners to pain that serve no penological purpose are unconstitutional. [*370] See Estelle, 429 U.S. at 103. "[T]he Estelle test gives substantial latitude to prison medical authorities to diagnose and treat inmates patients, but '[i]mplicit in this deference to . . . is the assumption that such an informed judgment has, in fact been made. . . .'" Young v. Kazmerski, 266 F. App'x 191, 194 (3d Cir. 2008) (citations omitted) (not reported); see Monmouth, 834 F.2d at 346 ("Short of absolute denial, if necessary medical treatment is delayed for non-medical reasons, a case of deliberate indifference has been made out." (internal quotation and citation omitted.)

With respect to CMS, there can be no doubt that Plaintiff has proven a serious medical need. Plaintiff has a number of medical conditions, including bloody bowel movements and diagnoses of abdominal hernias. The question [**24] that remains is whether there are genuine issues of material fact that relate to the second prong of the Estelle test. Put simply, whether CMS was "deliberately indifferent" to Plaintiff's serious medical needs.

CMS argues that based upon the medical records, it, not Plaintiff, is entitled to summary judgment, as it has provided Plaintiff ongoing treatment, even if not the treatment he desires. Defendants claim that the ventral abdominal wall hernia never existed and Plaintiff's claimed serious medical problem was the result of a misdiagnosis with a medical expert closely reviewing the evidence and reaching a different conclusion. Defendants posit that while Plaintiff may argue he states a claim for deliberate indifference from October 2005 to November 2007 based upon CMS's failure to follow Dr. Szalai's instructions, his constitutional rights cannot be violated where he is not given treatment for a condition (i.e., ventral wall hernia) that he does not have. CMS further argues that subsequent to November 2, 2007, neither Dr. Szalai nor Dr. Caruso have recommended treatment different than that provided by CMS. Finally, Defendants contend that Plaintiff has no claim for damages even [**25] if there was deliberate indifference by failing to provide a surgical remedy for a non-existent hernia as there is no difference in the outcome with or without the surgery.

Plaintiff contends that he is entitled to summary judgment since it is clear from the record that as early as October 2005 physicians recommended diagnostic testing, including a colonoscopy, as well as surgery, but CMS failed to provide him the recommended treatment. Plaintiff notes that the recommendation that he undergo a colonoscopy was two years old, and it was only after he filed this lawsuit that it was performed. Similarly, a CT scan ordered in November 2005, was not conducted until more than two years later. Finally, he notes that Defendants overlook the fact that hernia surgery was ordered in 2005 up until the time he filed this lawsuit.

It appears from the record that there may be a policy of delay or denial of recommended medical care. Although CMS personnel have provided, and continue to provide, Plaintiff with medical care, the care seems to have increased subsequent to Plaintiff's filing this lawsuit. The Court's discomfort with the record lies with the objective evidence that well before Dr. Szalai [**26] changed his medical opinion and subsequent to the filing of this lawsuit in October 2007: (1) hernia surgery was approved as of August 22, 2005, but it did not take place; (2) hernia surgery was approved a second time on December 20, 2006, but it did not place; (3) a colonoscopy and hernia surgery were recommended by Dr. Szalai on March 1, 2007, but they did not take place; (4) a colonoscopy and hernia surgery were recommended by Dr. Szalai on August 17, 2007, but they did not [*371] take place; (5) Plaintiff had frequent bloody stools and a colonoscopy was requested on August 3, 2005, March 5, 2007, May 10, 2007, July 12, 2007, August 20, 2007, August 24, 2007, and November 12, 2007, but it did not take place until December 10, 2007 - two months after Plaintiff filed this lawsuit; (6) at least two of Dr. VanDusen's requests for a colonoscopy indicated Plaintiff had met the prior criteria and/or he was requesting it "again"; (7) Dr. VanDusen's December 5, 2006 request for surgery pointedly stated that there had been prior approval with no follow-up and the statement ended with an explanation point; (8) Dr. McFull's July 12, 2007 request for a colonoscopy stated that it needed to be done; [**27] (9) medical records state on numerous occasions that a colonoscopy was required before surgery could be performed; (10) when Plaintiff saw Dr. Szalai in November 2007, Dr. Szalai noted that he had recommended a colonoscopy and surgery two years earlier, but Plaintiff was never returned to see him; and (11) Dr. VanDusen's November 12, 2007, request for a colonoscopy stated "this recommendation is 2 yrs. old" followed by an explanation point.

The delay in providing Plaintiff the colonoscopy, from the time it was first medically determined that it was necessary, until it was finally performed a few months after the filing of this lawsuit, raises concerns of a constitutional dimension. Moreover, at the time this lawsuit was filed, hernia surgery was recommended and approved at least twice, but it was not performed. It was not until after Plaintiff filed this lawsuit that Dr. Szalai's medical opinion changed. Defendants' rely upon the change of diagnosis by Dr. Szalai and posit that because Plaintiff does not have a medical condition requiring surgery, summary judgment is appropriate for CMS. Defendants' position is no longer borne by the record. Diagnostic testing once again indicates that [**28] Plaintiff has a midline ventral hernia and surgery, it seems, is indicated. Moreover, Defendants fail to explain why Plaintiff was not provided with a colonoscopy when all physicians repeatedly requested one. Nor do Defendants explain why surgery was not performed prior to the filing of the Complaint, even though it was approved on two occasions. As it now stands, the record leaves unexplained answers to why there was such a delay in providing the diagnostic testing and surgery Plaintiff required. Inasmuch as there remain genuine issues of material facts, the Court will deny Defendants' Motion For Summary Judgment as to CMS and will also deny Plaintiff's Motion For Summary Judgment.

B. Medical Negligence

Defendants move for summary judgment on potential medical negligence claims on the grounds that Plaintiff failed to file an affidavit of merit as required by Del. Code Ann., tit. 18 § 6853. In Delaware, medical malpractice is governed by the Delaware Health Care Negligence Insurance and Litigation Act. Del. Code Ann., tit. 18 §§ 6801-6865. When a party alleges medical negligence, Delaware law requires the party to produce an affidavit of merit with expert medical testimony detailing: [**29] (1) the applicable standard of care, (2) the alleged deviation from that standard, and (3) the causal link between the deviation and the alleged injury. Bonesmo v. Nemours Foundation, 253 F. Supp. 2d 801, 804 (D. Del. 2003) (quoting Green v. Weiner, 766 A.2d 492, 494-95 (Del. 2001)) (internal quotations omitted); Del. Code Ann., tit. 18 § 6853.

At the time the Complaint was filed Plaintiff was required to submit an affidavit of merit signed by an expert witness as to each Defendant he alleges were medically negligent. Del. Code Ann., tit. 18 § 6853(a)(1). Plaintiff, however, failed to [*372] accompany the Complaint with an affidavit of merit as required by Del. Code Ann., tit. 18 § 6853(a)(1). For the above reasons, the Court will grant Defendants' Motion For Summary Judgment as to the medical negligence claims.


A. Motion For Preliminary Injunction

Plaintiff recently filed a Motion For Injunction 10 seeking abdominal surgery to repair his recently re-diagnosed midline ventral hernia and hemorrhoids, as well as a settlement conference. (D.I. 88.) Defendants oppose the Motion on the grounds that Plaintiff cannot meet his burden to show the likelihood of success on the [**30] merits or irreparable harm. (D.I. 90.)


10 The Motion is entitled "Motion For Injunction, For Meeting, For Amendment & Motion For Summary Judgment." The Court will address the injunctive relief and settlement conference issues. The amendment and summary judgment issues are discussed elsewhere in this Memorandum Opinion.

A party seeking a preliminary injunction must show: (1) a likelihood of success on the merits; (2) that it will suffer irreparable harm if the injunction is denied; (3) that granting preliminary relief will not result in even greater harm to the nonmoving party; and (4) that the public interest favors such relief. Kos Pharms., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004)(citation omitted). "Preliminary injunctive relief is 'an extraordinary remedy' and 'should be granted only in limited circumstances.'" Id. (citations omitted).

CMS argues that injunctive relief is not warranted as Plaintiff's medical care continues. CMS notes that subsequent to the most recent CT scan report, Plaintiff is scheduled to see Dr. Szalai but the date cannot be disclosed for security reasons. Additionally, Dr. Desrosiers continues to treat Plaintiff.

"[A] prisoner has no right to choose [**31] a specific form of medical treatment," so long as the treatment provided is reasonable. Harrison v. Barkley, 219 F.3d 132, 138-140 (2d Cir. 2000). An inmate's claims against members of a prison medical department are not viable under § 1983 where the inmate receives continuing care, but believes that more should be done by way of diagnosis and treatment and maintains that options available to medical personnel were not pursued on the inmate's behalf. Estelle v. Gamble, 429 U.S. 97, 107, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976). Finally, "mere disagreement as to the proper medical treatment" is insufficient to state a constitutional violation. See Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004) (citations omitted).

It appears that Plaintiff's medical continues. It also appears that once again hernia repair surgery is a possibility. As the record now stands, Plaintiff has not demonstrated the likelihood of success on the merits. Nor do the medical records before the Court indicate that, at the present time, Plaintiff is in danger of suffering irreparable harm. Of course, the Court was not provided with medical records subsequent to March 24, 2009. For these reasons, the Court will deny the Motion.

Defendants are placed [**32] on notice that should hernia repair surgery be medically necessary, the Court will not hesitate to order injunctive relief once it becomes aware that Plaintiff is in danger of suffering irreparable harm, particularly in light of medical records that reflect hernia repair surgery was authorized four year ago, in August 2005.

The Court will deny the request for a settlement conference. The Court will order mediation if it deems it appropriate.

[*373] For the above reasons, the Court will deny the Motion For Injunction. (D.I. 88.)

B. Request For Counsel

Plaintiff has filed Motions For Appointment Of Counsel. 11 (D.I. 86, 93.) Defendants oppose the Motions. (D.I. 89.) Although a plaintiff does not have a constitutional or statutory right to an attorney in a civil case, a district court may seek legal representation by counsel for a plaintiff who demonstrates "special circumstances indicating the likelihood of substantial prejudice to [the plaintiff] resulting . . . from [the plaintiff's] probable inability without such assistance to present the facts and legal issues to the court in a complex but arguably meritorious case." Tabron v. Grace, 6 F.3d 147, 154 (3d Cir. 1993)(citing Smith-Bey v. Petsock, 741 F.2d 22, 26 (3d Cir. 1984)). [**33] Factors to be considered by a court in deciding whether to request a lawyer to represent an indigent plaintiff include: (1) the merits of the plaintiff's claim; (2) the plaintiff's ability to present his or her case considering his or her education, literacy, experience, and the restraints placed upon him or her by incarceration; (3) the complexity of the legal issues; (4) the degree to which factual investigation is required and the plaintiff's ability to pursue such investigation; (5) the plaintiff's capacity to retain counsel on his or her own behalf; and (5) the degree to which the case turns on credibility determinations or expert testimony. Montgomery v. Pinchak, 294 F.3d 492, 498-99 (3d Cir. 2002); Tabron, 6 F.3d at 155-56.


11 The Motion are entitled Motions To Amend, For Discovery, For Appointment Of Counsel (D.I. 86) and Motion To Amend, Motion Declaration For Entry Of Default, Plaintiff Motion For Discovery & Appointment Of Counsel (D.I. 93). Plaintiff has moved for discovery in other motions. At present, there are no Court imposed discovery deadlines. Hence, his requests are unnecessary. Additionally, the Request For Entry Of Default is frivolous.

Plaintiff did not support [**34] his request for an appointed attorney other than to make a few statements in that regard. Up to this point, Plaintiff has ably represented himself in this case. At this juncture, however, his case appears to have sufficient merit from the standpoint of necessary medical testimony that it is appropriate to seek counsel for him. Accordingly, the Court will grant Plaintiff's Requests for Counsel. (D.I. 86, 93.)

C. Motion To Amend/Correct Complaint

Plaintiff has filed several Motions To Amend the Complaint. (D.I. 73, 86, 88, 93.) It appears that the proposed amendments are reiterations of recent medical records, reports, and test results. There is also a redundancy of claims currently before the Court. Additionally, the Motions appear to be responsive to Defendants' Motion For Summary Judgment

"After amending once or after an answer has been filed, the plaintiff may amend only with leave of the court or the written consent of the opposing party, but 'leave shall be freely given when justice so requires.'" Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000) (quoting Fed. R. Civ. P. 15(a)). The proposed amendments reiterate previously raised claims, and their content is better described as evidence [**35] and/or argument in support of Plaintiff's claims, rather than amendments to the Complaint. Therefore, the Court will deny the Motions To Amend. (D.I. 73, 86, 88, 93.)


For the above reasons, the Court will deny Ott's Motion To Dismiss as moot, will grant Defendants' Motion For Summary [*374] Judgment as to Ott, will grant in part and deny in part Defendants' Motion For Summary Judgment as to CMS, will deny Plaintiff's Motion For Summary Judgment, will grant Plaintiff's Requests For Counsel, and will deny Plaintiff's remaining Motions. (D.I. 45, 50, 64, 73, 86, 88, 93.)

An appropriate Order will be entered.



1. Defendant Sherell Ott's Motion To Dismiss is DENIED as moot. (D.I. 45.)

2. Plaintiff's Motion for Summary Judgment is DENIED. (D.I. 50.)

3. Defendants' Motion For Summary Judgment as to Sherell Ott is GRANTED. (D.I. 64.) At the close of the case, the Clerk of the Court is directed to enter judgment in favor of Defendant Sherell Ott and against Plaintiff.

4. Defendants' Motion For Summary Judgment as to Correctional Medical Services is GRANTED as to the medical negligence claims and DENIED as to the 42 U.S.C. § 1983 claims. (D.I. 64.)

5. Plaintiff's [**36] Motion For Preliminary Injunction is DENIED. (D.I. 88.)

6. Plaintiff's Motions To Amend/Correct Complaint are DENIED. (D.I. 73, 86, 88, 93.)

7. Plaintiff's Request for Counsel is GRANTED. (D.I. 86, 93.)

June 24, 2009


/s/ Joseph J. Farnan, Jr.