Parkell v. Danberg

• Decision Date: 17 August 2016
• Docket Number: No. 14–1667,14–1667
• Citation: 833 F.3d 313
• Parties: Donald D. Parkell, Appellant v. Carl Danberg, Commissioner of Prisons, in his individual and official capacities; Warden Perry Phelps, in his individual and official capacities; Deputy Warden David Pierce, in his individual and official capacities; Mayor Michael Costello, in his individual and official capacities; Captain M. Rispoli, in his official and individual capacities; Lieutenant John Doe, in his individual capacity; Brian Kuhner, in his individual capacity; Ms. West, in her individual capacity; Maintenence Supervisor John Doe, in his official and individual capacities; Correctional Medical Services; Betty Bryant, in her individual capacity; Dr. Baeder, in his individual capacity; Deputy Warden Christopher Klein, in his individual and official capacities; Captain John Doe, in his official and individual capacities; Chris Damron, in her individual capacity; Correct Care Service LLC; Mental Health Management; Allen Harris; John Doe, Medical Director for C.M.S.; John Doe, Medical Director for C.C.S.
• Court: U.S. Court of Appeals — Third Circuit

833 F.3d 313

Donald D. Parkell, Appellant

v.Carl Danberg, Commissioner of Prisons, in his individual and official capacities; Warden Perry Phelps, in his individual and official capacities; Deputy Warden David Pierce, in his individual and official capacities; Mayor Michael Costello, in his individual and official capacities; Captain M. Rispoli, in his official and individual capacities; Lieutenant John Doe, in his individual capacity; Brian Kuhner, in his individual capacity; Ms. West, in her individual capacity; Maintenence Supervisor John Doe, in his official and individual capacities; Correctional Medical Services; Betty Bryant, in her individual capacity; Dr. Baeder, in his individual capacity; Deputy Warden Christopher Klein, in his individual and official capacities; Captain John Doe, in his official and individual capacities; Chris Damron, in her individual capacity; Correct Care Service LLC; Mental Health Management; Allen Harris; John Doe, Medical Director for C.M.S.; John Doe, Medical Director for C.C.S.

No. 14–1667

United States Court of Appeals, Third Circuit.

Argued January 20, 2016

Filed: August 17, 2016

Suzanne M. Bradley (Argued), Brendan M. Walsh (Argued), Pashman Stein, 21 Main Street, Court Plaza South, Suite 200, Hackensack, NJ 07601, Attorneys for Appellant

Joseph C. Handlon, Devera B. Scott (Argued), Office of Attorney General of Delaware, 820 North French Street, 6th Floor, Wilmington, DE 19801, Attorneys for Appellees Danberg, Phelps, Pierce, Costello, Rispoli, and Klein

Chad J. Toms (Argued), Whiteford, Taylor & Preston, 405 North King Street, The Renaissance Centre, Suite 500, Wilmington, DE 19801, Attorney for Appellees Correctional Medical Services, Bryant, and Damron

Daniel A. Griffith (Argued), Scott G. Wilcox, Whiteford, Taylor & Preston, 405 North King Street, The Renaissance Centre, Suite 500, Wilmington, DE 19801, Attorneys for Appellee Correct Care Service LLC

Before: FISHER, CHAGARES, and COWEN, Circuit Judges

OPINION

CHAGARES

, Circuit Judge.

Plaintiff Donald Parkell is a Delaware state prisoner who claims that state officials deprived him of his rights under the Fourth, Eighth, and Fourteenth Amendments by subjecting him to unreasonable thrice-daily visual body-cavity searches and harsh conditions and by depriving him of adequate medical care. He seeks damages and injunctive relief under 42 U.S.C. § 1983

. The United States District Court for the District of Delaware granted summary judgment to the defendants, and Parkell timely appealed. For the reasons that follow, we will affirm in part and reverse in part. We will reverse only as to Parkell's claim under the Fourth Amendment for prospective injunctive relief.¹

I.²

Parkell was an inmate at James T. Vaughn Correctional Center (“VCC”) in Smyrna, Delaware, during the relevant time period, which began on January 1, 2009, when Parkell slipped and fell at VCC and was injured. He was transported to Kent General Hospital in Dover, Delaware, and examined. His chest, spine, head, and right hand and wrist were x-rayed with normal results, except for loss of normal lumbar lordosis

possibly due to muscular strain. He was then discharged to the prison infirmary, where he was housed for approximately a week. Parkell was placed under 24–hour supervision and prescribed pain medication and exercises. He received this treatment through a small slot in the cell door, approximately three feet off the ground, and was told that medical staff were not permitted to enter his cell because of his high-security status as a resident of the Secured Housing Unit (“SHU”). He complained of intense pain, but medical staff refused to treat his elbow because his chart did not mention an elbow injury. Staff refused to give him ice for his injury, again citing his high-security status. His room was unheated, and he complained. But prison officials told him that he would not be moved and had to endure the cold because of his SHU status; they did not provide any extra linens or clothing.

After his week in the infirmary, Parkell was returned to the SHU. He submitted a request for “sick call” for his elbow, which was swollen, discolored, and painful. On or about January 12, he was brought to Betty Bryant, a nurse employed at VCC. According to Parkell, Bryant never truly examined the elbow and “would not allow [Parkell] to talk while in her presence” or to “describe his injury and symptoms.” Appendix (“App.”) 96, 178. She characterized his condition as mere “edema” (i.e., swelling) even though it was a “massive infection,” and accused Parkell of “run[ning] game” to get Vicodin

, adding that she would not bother the doctor because he would not “fall for it” either. Id. She said that she would order an x-ray herself and that if Parkell needed aspirin he could buy it from the commissary. She then told officers to “get him out of here.” App. 96. Bryant, on the other hand, claims in her affidavit that she examined his elbow, saw no sign of infection, advised him to avoid sleeping on his arm, and ordered follow-up x-rays. She argues that that is corroborated by a January 12, 2009 physician order implementing her own x-ray order, along with the x-ray reports, dated January 16, showing normal results. Parkell's elbow got worse “[o]ver the next few days,” and the wound

ultimately opened and “squirted” pus. App. 96. A doctor arrived to perform emergency surgery and prescribe antibiotics and pain medication. Testing revealed that Parkell had had a staph infection. When Parkell later complained about tingling and numbness, a doctor performed nerve testing and told Parkell that there might be “branching damage.” App. 97.

Several months later, on November 4, 2009, Parkell was moved to an isolation cell in a unit known as “C–Building” because of disciplinary misconduct, where he remained for twelve days. Parkell, like other inmates in isolation in C–Building, was locked in a stripped-down cell, was given only a t-shirt, boxer briefs, and socks to wear, was not permitted to keep rags, towels, or rolls of toilet paper in his cell, and was provided with soap and other hygienic items only during thrice-weekly showers. Parkell was also denied exercise, never permitted to leave the cell except during the five-minute thrice-weekly showers, and required to eat meals in his cell without any opportunity to wash his hands first. Three times per day officers “strip searche[d]” him, visually inspecting his anus and genitals while he “was forced to squat naked and cough

loudly.” App. 99. Parkell attests that he had “no contact with any other human beings” while in isolation, though he says that “[n]urses would arrive daily to pass out medication.” App. 98–99. When nurses arrived to pass out medication, Parkell showed them the infection, but they said it was against policy for medical staff to visit inmates in isolation. His elbow again deteriorated and released pus.

There is some question as to precisely how long it took for Parkell to receive treatment for his elbow injury while in C–Building. Parkell's account provides little detail. He claims that his elbow was not evaluated until “[a] few days” into his isolation period, when a mental health worker who visited him finally advocated for him. App. 98, 180. He was then taken to the infirmary and given antibiotics and pain medication, and nurses were ordered to clean the wound

. But “Interdisciplinary Progress Notes” dated November 5, 2009 (Parkell's second day in C–Building), which appear to be prepared by a nurse (although it is unclear who prepared them), note the swollen elbow and pus drainage and suggest that the nurse took a culture, cleaned and dressed the wound, and called the on-call doctor, who ordered medication. App. 959–60. Records of physician orders suggest that the medication was to begin on November 5, 2009, although the order was not actually signed by the doctor until November 10. Further progress notes dated November 9 note that Parkell was “referred ... to a provider” on November 6 but “[w]as never seen” and that “[t]he lab report[ed] never receiving specimen.” App. 962. The preparer of those notes describes cleaning and dressing the wound, “reculturing” it, and “refer[ring] to provider again—tomorrow.” Id. The report of the culture result lists the collection date as November 9. Records suggest that further treatment was ordered on November 10 and Parkell's elbow was x-rayed on November 13. Parkell agrees that his elbow was operated on a second time on December 4, 2009.

The final series of events concerns Parkell's physical therapy for his elbow, which was ordered (presumably by his treating doctor, but the complaint is unclear) to begin in August 2009. By March 2010, Parkell had received only three physical therapy sessions. His therapist informed him that he had ligament damage

, most likely requiring an MRI, and that the long delay between his injury and the start of therapy had caused him to heal incorrectly.

He was taken for an MRI around June 1, 2010, and then referred to an orthopedic specialist who recommended surgery. Two months later, there had been no “progression in treatment,” so Parkell filed a grievance. App. 196. He was initially told in response to the grievance that there was no record of the surgery recommendation, but the recommendation was later uncovered. The surgery was performed on March 9, 2011. He then spent two weeks in the infirmary, where he was denied any time outside his cell, even to shower, and required to receive medication and therapy through the small slot in the door, which caused Parkell pain.

On March 21, 2011, his orthopedic surgeon, Dr. DuShuttle, prescribed four Vicodin

per day for pain, but upon his return to VCC, Parkell was given only two per day. One day Parkell received only one pill, and on two occasions he received no pills for the day; he was told that there was a supply shortage. During a follow-up visit on April 13, 2011, Dr. DuShuttle ordered more pain medication and physical...