Daniels v. Correctional Medical Services, Inc.

• Court: U.S. District Court — District of Delaware
• Writing for the Court: Sue L. Robinson
• Citation: Daniels v. Correctional Medical Services, Inc., 380 F.Supp.2d 379 (D. Del. 2005)
• Decision Date: 04 August 2005
• Docket Number: No. 03-085-SLR.,03-085-SLR.
• Parties: Roland William DANIELS, Plaintiff, v. CORRECTIONAL MEDICAL SERVICES, INC., Dr. Keith Ivens, and Nurse Dottie, Defendants.

380 F.Supp.2d 379

Roland William DANIELS, Plaintiff, v. CORRECTIONAL MEDICAL SERVICES, INC., Dr. Keith Ivens, and Nurse Dottie, Defendants.

No. 03-085-SLR.

United States District Court, D. Delaware.

August 4, 2005.

COPYRIGHT MATERIAL OMITTED

Roland Williams Daniels, Smyrna, DE, Pro se.

Kevin J. Connors, Esquire of Marshall, Dennehey, Warner, Coleman and Goggin, Wilmington, DE, for Defendants.

MEMORANDUM OPINION

SUE L. ROBINSON, Chief Judge.

I. INTRODUCTION

On January 16, 2003, plaintiff, an inmate incarcerated at Delaware Correctional Center ("DCC") in Smyrna, Delaware filed this action under 42 U.S.C. § 1983 alleging defendants violated his Eight Amendment right. (D.I.2) Plaintiff's case has been closed and reopened twice since this time, the most recent reopening on October 16, 2003. Waiver of service was received from defendant Correctional Medical Services ("CMS") on June 8, 2004. The summons, United States Marshal 285 forms ("285 forms"), issued for defendants Dr. Keith Ivens and Nurse Dottie were returned, unexecuted, on June 22, 2004. Neither Dr. Ivens nor Nurse Dottie were still employed by CMS at the time service was attempted, and the United States Marshal's Service was unable to locate them with the information provided by plaintiff. (D.I.20, 21) Discovery concluded on November 15, 2004.

The court has jurisdiction over this suit pursuant to 28 U.S.C. § 1331. Currently before the court are plaintiff's four motions for representation by counsel (D.I.30, 34, 41, 47), defendants Dr. Ivens and Nurse Dottie's motion to dismiss for insufficient service (D.I.43), and defendant CMS's motion for summary judgment. (D.I.38)

II. BACKGROUND

In 1983, plaintiff was admitted to DCC; it was noted in his admission records that he had occasional stomach pain and prostate problems.¹ (D.I.38, Ex. D) From 1998 through 1999, plaintiff was seen by a physician a total of fifteen times (id.) and he was repeatedly prescribed Tagament, Titralac, Mylicon and/or Bentyl. (Id.) An x-ray of his abdomen in 1998 did not show any evidence of a bowel obstruction. (Ex. Q) On December 3, 1999, plaintiff submitted a "sick call slip" stating that he was "having trouble urinating and [was] passing blood through [his] bowels ... [a]lso having trouble digesting food." (Id.) Plaintiff was subsequently examined on December 3. (Id.)

Plaintiff was seen by a physician four more times before October 18, 2000, when he submitted a sick call slip stating that he had a stomach virus.² (Id., Ex. E) On October 29, plaintiff was examined by a physician and had "no complaints." (Id., Ex. F) On November 8, 2000, plaintiff submitted a sick call slip stating that he was "very sick" and could not "digest foods." (Id.) In this call slip, plaintiff asserted that this was the last request he would make before "writing letters and making phone calls." (Id.) Plaintiff was subsequently examined, but the diagnosis is illegible. On November 15, 2000, plaintiff was complaining of nausea after eating and inability to have a bowel movement. (Id., Ex. H) Two days later plaintiff's blood was drawn for "labs." (Id.) On December 8, 2000, an ultrasound of plaintiff's abdomen was taken; everything appeared normal.³ (Id., Ex. I) On January 16, 2001, plaintiff requested that his prescription be renewed; at this time, plaintiff did not indicate any discomfort or concerns. (Id., Ex. J) Plaintiff alleges that during the month of January 2001, his condition worsened to such a point that he was unable to eat. (D.I.2) On January 25, an EKG was done and plaintiff's blood was drawn again. (D.I.33, Ex. J) On January 31, 2001, plaintiff was diagnosed with possible appendicitis. ( Id.) According to plaintiff, this is the day his appendix ruptured. (D.I.2) The next day plaintiff was sent to St. Francis where he underwent an appendectomy. (D.I.44)

Dr. Mammen, plaintiff's surgeon, noted that plaintiff was "ill-looking," "febrile" and possibly dehydrated upon arriving at St. Francis. (Id.) St. Francis diagnosed plaintiff as having "severe acute transmural appendicitis" or "gangrenous appendicitis." (Id.) Plaintiff alleges that he subsequently had a second operation to remove part of his large intestine which had become infected after his appendix ruptured, as well as a third operation to remove peritonitis (caused by the ruptured appendix) from his stomach. (Id.) The medical records from St. Francis indicate that ten days after the initial surgery, plaintiff underwent a second abdominal surgery. (Id.)

Plaintiff returned to DCC from St. Francis on March 8, 2001; he had no complaints of pain, his sutures were still intact and did not appear to be infected. (D.I.38, Ex. K) By March 12, 2001, despite complaints of "gas build up," plaintiff was requesting to be discharged from the infirmary, back into the general population; plaintiff was kept in the infirmary until approximately March 15. (Id., Ex. L) He was examined by doctors again on March 19. (Id.) On March 29, plaintiff submitted a sick call slip complaining of pain in his surgical incision.⁴ (Id., Ex. M) On April 23, plaintiff had an annual medical examination, during which he denied having a hernia and his abdomen was not examined. (Id.) On May 28, 2001, plaintiff submitted another sick call slip with complaints unrelated to his medical incision. (Id.) On June 21, however, plaintiff submitted a slip asserting that he was having trouble with the incision. (Id., Ex. N) Upon examination, it was noted that plaintiff's umbilicus bulged when he tensed his abdomen; the examiner requested approval for plaintiff to have a hernia belt and advised him not to strain. (Id.) On July 16, 2001, plaintiff submitted another sick call slip stating that his intestines were protruding through his incision, and that the incision was getting larger. (Id.) Upon examination, plaintiff was referred for a consultation with a surgeon to determine if surgery was necessary. (Id.) Plaintiff was also diagnosed with an incisional hernia and prescribed a hernia belt to start reducing it; he refused the hernia belt. (Id.) On August 16, plaintiff submitted another sick call slip complaining that his hernia was getting worse; on July 26, he was told he would be scheduled for surgery. (Id., Ex. O) The examining physician indicated that the hernia was large, but reducible. (Id.) Plaintiff saw a surgeon, Dr. Mammen, on September 27, 2001. (Id.) Sometime before October 10, plaintiff was tentatively scheduled for surgery with Dr. Mammen.⁵ He eventually had reparative surgery and returned to DDC on November 27, 2001. (D.I.33, Ex. P)

III. MOTIONS FOR APPOINTMENT OF COUNSEL

Plaintiff, a pro se litigant proceeding in forma pauperis, has no constitutional or statutory right to representation by counsel. See Ray v. Robinson, 640 F.2d 474, 477 (3d Cir.1981); Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir.1997). The "decision to appoint counsel may be made at any point in the litigation, and may be made by a district court sua sponte." Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir.2002).

It is within the court's discretion, however, to seek representation by counsel for plaintiff, but this effort is made only "upon a showing of special circumstances indicating the likelihood of substantial prejudice to [plaintiff] resulting ... from [plaintiff's] probable inability without such assistance to present the facts and legal issues to the court in a complex but arguably meritorious case." Smith-Bey v. Petsock, 741 F.2d 22, 26 (3d Cir.1984); accord Tabron v. Grace, 6 F.3d 147, 155 (3d Cir.1993)(representation by counsel may be appropriate under certain circumstances, after a finding that a plaintiff's claim has arguable merit in fact and law). After passing this threshold inquiry, the court should consider a number of factors when assessing a request for counsel, including:

(1) the plaintiff's ability to present his or her own case; (2) the difficulty of the particular legal issues; (3) the degree to which factual investigation will be necessary and the ability of the plaintiff to pursue investigation; (4) the plaintiff's capacity to retain counsel on his own behalf; (5) the extent to which a case is likely to turn on credibility determinations; and (6) whether the case will require testimony from expert witnesses.

Tabron, 6 F.3d at 155-57; accord Parham, 126 F.3d at 457; Montgomery v. Pinchak, 294 F.3d at 499.

In this case, plaintiff has shown that he is able to articulate the alleged facts clearly. Plaintiff's allegations coincide with the records provided by CMS and St. Francis; the issue in this case is predominately a legal one and will not be decided by credibility determinations. Plaintiff was able to undertake his own factual inquiry and obtain his medical records from St. Francis Hospital. Plaintiff's case will most likely not require expert testimony. For these reasons, plaintiff's motions for appointment of counsel are denied.

IV. MOTION TO DISMISS FOR INSUFFICIENT SERVICE OF PROCESS

Defendants Dr. Ivens and Nurse Dottie, through their joint counsel with CMS, have moved to dismiss plaintiff's complaint because they have not been served process. Plaintiff contends that he tried to serve both defendants, but is unable to locate them. Plaintiff further contends that defendant CMS could locate them and serve the complaint upon them.

Pursuant to Federal Rule of Civil Procedure 4(m), plaintiff has 120 days from the date he filed his complaint to serve the complaint on defendants. Upon a showing of good cause for the failure to serve, the court must extend the time for service; the court can, at it discretion, extend the time for service even if plaintiff has not shown good cause for the delay. Fed.R.Civ.P. 4(m).

Plaintiff's complaint was filed January 16, 2003. On November 13, 2003, the court ordered plaintiff to submit U.S. Marshal 285 forms for all defendants within 120 days of the order. (D.I.11) Plaintiff submitted the required forms but, because defenda...