Damiani v. Gill.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY

PABLO A. DAMIANI, ) Plaintiff, ) v. ) C.A. No. N14C-05-186-ALR ) GEORGE GILL (Sergeant), ) Defendant. )

Submitted: December 16, 2014 Decided: January 28, 2015

Upon Defendant’s Motion for Summary Judgment — GRANTED

On December 3, 2014, Defendant Sergeant George Gill filed a motion for summary judgment in his favor, and Plaintiff Pablo A. Damiani has opposed Defendant’s motion. Upon consideration of Defendant’s motion and Plaintiff’s opposition thereto, the Court finds as follows:

1. The Court may grant summary judgment only where the moving party can

“show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.” 1 The moving

party bears the initial burden of proof, and once that is met, the burden shifts

to the non-moving party to show that a material issue of fact exists. 2 At the

1 Super. Ct. Civ. R. 56. 2 Moore v. Sizemore, 405 A.2d 679, 680-81 (Del. 1979).

motion for summary judgment phase, the Court must view the facts “in the

light most favorable to the non-moving party.” 3

2. Plaintiff filed a complaint as a self-represented litigant on May 22, 2014

against Defendant. Plaintiff is an inmate at the James T. Vaughn

Correctional Center. Defendant is a correctional officer for the Delaware

Department of Corrections. The complaint mentions a Defendant John Doe

#1 and a Defendant John Doe #2, but the complaint was never amended to

add the names of those individuals. Plaintiff has not requested leave to

amend the complaint.

3. Plaintiff’s complaint alleges that during the afternoon of December 18,

2013, Plaintiff fell and hurt his back during a basketball game and that

Defendant failed to provide adequate medical care. Plaintiff contends that

after the alleged fall he was on the ground in pain and that John Doe #1 and

John Doe #2 ignored his requests get immediate medical help. Plaintiff

alleges that his injury required the assistance of other inmates to help him

walk back to his cell. Around 2:45 p.m., just over an hour after the alleged

fall, Plaintiff claims to have told Defendant about his pain and requested

medical assistance. Plaintiff states that Defendant told Plaintiff to wait until

3 Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995).

the next medical pass, which occurred at 4:00 p.m. 4 Plaintiff saw the nurse

and received pain medication. Plaintiff later saw a doctor and received an x-

ray and physical therapy. Plaintiff claims he was denied access to medical

treatment because of the two-hour time between Plaintiff’s injury and

Plaintiff’s access to medical treatment.

4. First, the claims against John Doe #1 and John Doe #2 should be dismissed,

as they were never formally listed as defendants in this case. Suits against

John Doe defendants are a nullity under Delaware law. 5 Accordingly, the

claims and relevant portions of the complaint relating to Defendants John

Doe #1 and John Doe #2 J must be stricken. 6

5. Defendant, the only remaining adversary, has provided his own affidavit as

well as an expert report for the Court’s consideration of Defendant’s motion

for summary judgment. Defendant has denied any recollection of the injury

and events alleged by Plaintiff. More importantly, Dr. Vincent Carr, a

licensed doctor for the Delaware Department of Corrections, reviewed

Plaintiff’s medical records and states that Plaintiff received prompt and

appropriate medical treatment. Specifically, Dr. Carr noted that Plaintiff has

a long history of lower-back pain with x-ray reports indicating mild to

4 According to Defendant’s Affidavit, the medical pass usually occurs at 3:00 p.m.. 5 Mohl v. Doe, 1995 WL 339099, at *1-2 (Del. Super. May 11, 1995). 6 Id.

normal degenerative disease. Dr. Carr did not find that Plaintiff suffered any

serious injury from his alleged fall in December 2013. Further, Dr. Carr did

not find that the two hours between the time of Plaintiff’s fall and the time

Plaintiff received medical treatment was significant, or that Plaintiff suffered

any injury or additional injury as a result of any alleged delay in treatment.

6. Plaintiff’s claim against Defendant alleges denial of adequate medical care, a

claim under 42 U.S.C. § 1983 for violation of the Eighth Amendment of the

United States Constitution. The United States Supreme Court has held “that

the deliberate indifference to serious medical needs of prisoners constitutes

the ‘unnecessary and wanton infliction of pain,’ proscribed by the Eighth

Amendment.” 7 In order to establish this deliberate indifference claim,

Plaintiff must prove (1) from an objective standpoint, he had a serious

medical need, and (2) from a subjective standpoint, that Defendant acted

with deliberate indifference towards that serious medical need.8

7. For the purposes of consideration of the motion before the Court, the Court

accepts without finding that Plaintiff might satisfy the first prong on the

grounds that his condition as alleged satisfies the standard of a serious

medical need. A sufficiently serious medical need, defined by decisional

7 Estelle v. Gamble, 429 U.S. 97, 103-04 (1976) (citing Gregg v. Georgia, 428 U.S. 153, 173 (1976)). 8 Farmer v. Brennan, 511 U.S. 825, 834 (1994); Wilson v. Seiter, 501 U.S. 294, 297-98 (1991); Deputy v. Conlon, 2012 WL 4056147, at *2 (Del. Super. Sept. 23, 2010).

law, as one diagnosed by a doctor as requiring treatment, or an injury “so

obvious that a lay person would easily recognize the necessity for a doctor’s

attention.”9 To establish this element, Plaintiff offered the statements of two

eyewitnesses who state that Plaintiff fell and was in extreme pain. Later that

same day, a nurse provided Plaintiff with two different pain medications for

the pain in his lower back. Despite being able to bend and move all

extremities without difficultly, Plaintiff then saw a doctor and received

crutches and physical therapy for his back pain. Accordingly, for the

purposes of consideration of this motion, the Court accepts without finding

that Plaintiff’s injury is sufficiently serious as a matter of law.

8. However, Plaintiff cannot satisfy the second prong of his deliberate

indifference claim. Plaintiff cannot demonstrate as a matter of law that

Defendant’s culpability for acting in a way that demonstrated a “deliberate

indifference to inmate health or safety.” 10 Proof of deliberate indifference

requires a showing that the corrections official knew of facts from which the

official could infer the existence of substantial risk of serious harm to the

inmate and that the official actually made such inference. 11 For instance, it

is deliberate indifference for a correctional officer to “den[y] reasonable

9 Hyson v. Correctional Med. Serv.’s, 2004 WL 769362, at *3 (D. Del. 2004) (citing Monmouth County Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987)). 10 Farmer, 511 U.S. at 834 (1994) (internal quotation marks omitted). 11 Id. at 835. See also Hyson, 2004 WL 769362, at *3; Conlon, 2012 WL 4056147, at *2.

requests for medical treatment . . . and such denial exposes the inmate ‘to

undue suffering or the threat of tangible residual injury.’” 12

9. Here, Plaintiff’s allegations are essentially that Plaintiff complained of back

pain and Defendant told Plaintiff that he would have to wait a very short

period of time until the nurse came for a medical pass in order to receive

treatment. Plaintiff cannot therefore establish a claim for deliberate

indifference. Dr. Carr has stated that the approximate two hours between

Plaintiff’s fall and his treatment was not a significant delay to medical

treatment and did not cause plaintiff any additional injury. The medical

record from the date of the incident showing Plaintiff could move without

pain also supports this opinion. 13 Plaintiff offers no evidence otherwise.

10. Accordingly, Plaintiff cannot establish that Defendant acted with the

culpable state of mind of deliberate indifference toward Plaintiff’s health.

Even when Defendant’s motion is viewed in a light most favorable to

Plaintiff, there are no genuine issues of material fact in dispute. Defendant

as well as the unidentified Defendants John Doe #1 and John Doe #2 are

12 Monmouth County Corr. Inst. Inmates, 834 F.2d at 346. 13 See Monmouth County Corr. Inst. Inmates, 834 F.2d at 346; Bilal v. White, 494 Fed. Appx. 143, 145-46 (2d Cir. 2012) (delay of only a few hours in treating inmate for injury to compressed vertebrae and arthritis in his back failed to state Eighth Amendment claim); Jenkins v. Cnty. of Hennepin, 557 F.3d 628, 632-33 (8th Cir. 2009) (delay of one day or two to treat inmate for swollen jaw and jaw pain was not deliberate indifference).

entitled to judgment as a matter of law and the motion for summary

judgment must be granted.

NOW, THEREFORE, this 28th day of January, 2015, Defendant’s Motion for Summary Judgment is hereby GRANTED.

IT IS SO ORDERED.

Andrea L. Rocanelli _____________________________ The Honorable Andrea L. Rocanelli