Bredbenner v. Malloy, Civ. No. 11–739–SLR.

• Decision Date: 20 February 2013
• Docket Number: Civ. No. 11–739–SLR.
• Citation: 925 F.Supp.2d 649
• Parties: Donald BREDBENNER, Plaintiff, v. Robert MALLOY, et al., Defendants.
• Court: U.S. District Court — District of Delaware

925 F.Supp.2d 649

Donald BREDBENNER, Plaintiff,

v.Robert MALLOY, et al., Defendants.

Civ. No. 11–739–SLR.

United States District Court, D. Delaware.

Feb. 20, 2013.

Donald Bredbenner, Laurel, DE, Pro Se Plaintiff.

Daniel A. Griffith and Scott G. Wilcox, Esquires, Whiteford, Taylor & Preston, L.L.C., Wilmington, DE, for Defendants Robert Malloy, Ihoma Chuks, and Correct Care Solutions LLC.

Ryan Patrick Connell, Deputy Attorney General, Delaware Department of Justice, Wilmington, DE, for Defendant Sgt. Doane.

MEMORANDUM OPINION

ROBINSON, District Judge.

I. INTRODUCTION

Plaintiff Donald Bredbenner (“plaintiff”), a former inmate at the James T. Vaughn Correctional Center (“VCC”), Smyrna, Delaware, filed his complaint pursuant to 42 U.S.C. § 1983. He proceeds pro se and has been granted leave to proceed without prepayment of fees. Presently before the court are several discovery motions (D.I. 45, 55, 56, 59, 84) filed by plaintiff, motions for summary judgment (D.I. 60, 75) filed by defendants, a motion to stay discovery (D.I. 65) filed by defendant Sgt. Doane (“Doane”), motions for sanctions (D.I. 68, 69) filed by plaintiff, and motions to strike (D.I. 71, 73) filed by plaintiff. The court has jurisdiction pursuant to 28 U.S.C. § 1331. For the reasons discussed, the court will deny: (1) plaintiff's discovery motions (D.I. 45, 55, 56, 59, 82); (2) plaintiff's motions for sanctions (D.I. 68, 69); (3) plaintiff's motions to strike (D.I. 71, 73); (4) defendants' motions for summary judgment (D.I. 60, 75); and (5) Doane's motion to stay discovery (D.I. 65).

II. BACKGROUND

Plaintiff filed this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights by virtue of defendants' alleged deliberate indifference to serious medical needs. The court screened the complaint pursuant to 28 U.S.C. § 1915 and § 1915A and allowed plaintiff to proceed with claims against Doane, as well as medical defendants Robert Malloy (“Malloy”), Ihoma Chuks (“Chuks”), and Correct Care Solutions (“Correct Care”) ¹ (“collectively medical defendants”). The court dismissed the claims against defendants Michael Deloy, Chris Kline, and Warden Phelps.

On the afternoon of December 22, 2010, plaintiff was knocked to the ground on the basketball court and injured his arm. Plaintiff asked Doane for medical attention, but Doane did not call medical or send plaintiff to medical. That night, the evening corporal saw plaintiff's swollen wrist and took him to the sergeant on duty who immediately called medical and sent plaintiff for medical attention. Robert Davenport (“Davenport”), the nurse on duty, telephoned the on-call physician, and provided treatment and pain medication. Medical records indicate that Davenport ordered an x-ray, scheduled a follow-up appointment, and advised plaintiff to return if there were worsening of conditions. Plaintiff alleges that Davenport placed plaintiff on the sick call list for 9:00 a.m. the next morning. Davenport's physician orders state, “f/u w ppt. 12/23/10.” The next morning plaintiff went out when medical was called, but Doane said that plaintiff was not on the list, and he would not call medical to confirm that plaintiff had been added to the list. An x-ray was taken on December 24, 2010. (D.I. 2, D.I. 76)

On December 28, 2010, plaintiff was seen by Chuks, a nurse practitioner. When plaintiff presented, Chuks had not yet reviewed the x-ray because the result was not in the chart. Chuks reviewed the x-ray and it revealed an acute fracture of the distal radius, mild displacement and intraarticular extension. An orthopedic consultation was written for plaintiff to see Dr. DuShuttle, and the form was given to the consult clerk marked “urgent.” According to plaintiff, Chuks told him that he would have to be sent out and could not be treated at VCC. Chuks was aware that VCC was not equipped with medical devices and personnel who specialized in treating a broken wrist. (D.I. 2, D.I. 57, ans. to interrog. 5, D.I. 76)

On December 31, 2010, plaintiff submitted a grievance in an effort to obtain treatment. Because the grievance complained of acts by Doane as well as requesting medical attention, it appears the two issues were decided separately, but given the same grievance number–217351. Plaintiff complained that Doane had not called medical after he injured his wrist and that Doane refused to let him go to medical on December 23, 2010 because plaintiff was not on the list (“Doane grievance”). The grievance noted that plaintiff had been seen by medical on December 28, 2010. Plaintiff requested that he be “sent out to specialist immediately,” receive x-rays, appropriate treatment, and pain medication (“medical grievance”). The Doane grievance was sent to Kimberly Tribbitt (“Tribbitt”) for an investigation. She reported on the informal resolution that the Doane grievance was not an emergency grievance, that it mentioned only security staff, and that if plaintiff had an issue with security staff he is to write to the unit commander. (D.I. 2, exs.)

The medical grievance was referred for investigation of the emergency request for an outside consult to review the fracture. In the meantime, when no “real treatment” had been provided, plaintiff wrote to health services administrator Malloy on January 7, 2011 for assistance. Plaintiff had been given Malloy's name after someone spoke to Malloy about plaintiff's situation. Malloy said for plaintiff “to write to him and he would get [plaintiff] out to the specialist.” In Malloy's answer's to interrogatories, he states that he was not made aware of plaintiff's injuries prior to the filing of the lawsuit. (D.I. 2, exs., D.I. 58 ans. to interrog. 1)

Dr. DuShuttle examined plaintiff on January 13, 2011, and diagnosed a Colles fracture of the left distal radius.² He described the fracture as a closed comminuted ³ minimally displaced fracture and noted that plaintiff had sustained the injury “weeks ago.” Plaintiff had arrived with a splint applied to the left wrist, and Dr. DuShuttle applied a thumb splint, ordered a repeat x-ray, and directed plaintiff to work on his range of motion. In his complaint, plaintiff alleges that Dr. DuShuttle told him that, had he seen him at the time of the injury, he would have needed simple surgery but, because of the delay, he would have to re-break the bone to set it and install a steel plate and pins. (D.I. 2, D.I. 76)

On January 17, 2011, plaintiff wrote a letter to Correct Care complaining of his recent “mistreatment.” (D.I. 2, ex., D.I. 76) On January 25, 2011, the medical grievance committee recommended denial of the medical grievance. The form indicates that plaintiff's remedy had been resolved, but he refused to sign off. Plaintiff appealed on January 31, 2011, stating that he was not satisfied because his left wrist remained untreated except for the initial first aid, it took three weeks to see a physician for a fractured bone and over three weeks for any acknowledgment of other issues, and the treatment to correct the fracture was requested immediately but “it did not happen.” (D.I. 2)

On February 8, 2011, the bureau grievance officer voted to deny the appeal noting that plaintiff was seen by the duty nurse on December 22, 2010, had an x-ray on December 24, 2010, received follow-up on December 28, 2010, and an outside consultation on January 13, 2011. It was further noted that no sick call slips were submitted subsequent to the December 22, 2010 injury date, the consultation remains pending, and that Correct Care continues to follow the case. On February 10, 2011, plaintiff was provided follow-up care by Dr. DuShuttle who recommended physical therapy. On February 19, 2011, the bureau chief voted to deny the appeal and advised plaintiff of the denial on the same date. (D.I. 2, exs., D.I. 76)

Plaintiff presented to Dr. DuShuttle on March 2, 2011. Dr. DuShuttle found mild improvement. He advised plaintiff he would have a permanent problem with the wrist noting the fracture was intraarticular and first seen by him “after three weeks.” He further advised plaintiff that there was a good chance he would develop arthritis and would need surgery in the future. When plaintiff returned to Dr. DuShuttle on April 7, 2011, Dr. DuShuttle recommended surgery that included ulna shortening with plating triangular fibrocartilage complex resection. Surgery was performed on June 29, 2011. Plaintiff continued to see Dr. DuShuttle for follow-up through January 2012, Plaintiff filed the instant lawsuit on August 19, 2011.

On May 3, 2012, the court set a September 4, 2012 discovery deadline and an October 4, 2012 deadline for filing summary judgments. (D.I. 30) Doane filed a motion for summary judgment on September 4, 2012 and medical defendants filed a motion for summary judgment on October 4, 2012. (D.I. 60, 75)

III. DISCOVERY MOTIONS

On July 3, 2012, plaintiff propounded interrogatories upon Doane, which were answered on August 2, 2012. ( See D.I. 44, 51) On July 5, 2012, plaintiff filed a motion to obtain discovery from medical defendants. ( See D.I. 45) The motion appears to be a motion to compel discovery, but there is no indication that plaintiff sought discovery from medical defendants prior to filing the motion as is required by the Federal Rules of Civil Procedure. Therefore, the court will deny the motion.

On July 10, 2012, plaintiff propounded interrogatories upon medical defendants (D.I. 46, 47, 48) and non-parties Marge Slack (“Slack”), the regional office manager for Correct Care (D.I. 47), and Davenport (D.I. 49). When plaintiff had not received medical defendants' and non-parties' answers to interrogatories, he filed two motions to compel, one on August 21, 2012 (D.I. 55) and one on August 24, 2012 (D.I. 56). The August 21, 2012 motion to compel is directed to Doane. Doane, however, fully answered the interrogatories without objection. Therefore, the court will deny the August 21, 2012 motion to compel.

Chuks and...