                                                              EFiled: Oct 31 2014 03:26PM EDT
                                                              Transaction ID 56275298
                                                              Case No. 9750-VCN
                                COURT OF CHANCERY
                                      OF THE
                                STATE OF DELAWARE

                                                                    417 SOUTH STATE STREET
 JOHN W. NOBLE                                                      DOVER, DELAWARE 19901
VICE CHANCELLOR                                                    TELEPHONE: (302) 739-4397
                                                                   FACSIMILE: (302) 739-6179

                                     October 31, 2014


Via File & ServeXpress
and First Class Mail
Mr. Gerard E. Szubielski                           Daniel A. Griffith, Esquire
SBI #285119                                        Scott G. Wilcox, Esquire
James T. Vaughn Correctional Center                Whiteford Taylor Preston LLC
1181 Paddock Road                                  405 North King Street, Suite 500
Smyrna, DE 19977                                   Wilmington, DE 19801

       Re:    Szubielski v. Correct Care Solutions, LLC
              C.A. No. 9750-VCN
              Date Submitted: July 25, 2014

Dear Mr. Szubielski and Counsel:

       Plaintiff, a prisoner at a state facility, filed this action to ask the Court to

order Defendant to treat him with weekly physical therapy and stronger pain

medication for his severe neck pain and headaches.1 Defendant has moved to

dismiss Plaintiff’s complaint.




1
 Letter from Gerard E. Szubielski 2, June 30, 2014 (clarifying his complaint). The Court
generally refers to efiling dates. Due to Plaintiff’s status as a self-represented litigant, the
Court will view his June 30 letter as an amendment to his complaint.
Szubielski v. Correct Care Solutions
C.A. No. 9750-VCN
October 31, 2014
Page 2

                                       *****

      Plaintiff Gerard E. Szubielski is an inmate at James T. Vaughn Correctional

Center (“JTVCC”), serving a life sentence pursuant to 11 Del. C. § 4214(b).2 He is

representing himself in this action.     Defendant Correct Care Solutions, LLC

(“CCS”) is a company that provided correctional health care services to the State

of Delaware under contract from at least July 1, 2010 to June 30, 2014.3

      Szubielski sustained head and neck injuries in a 2006 car accident, after

which he was treated at Christiana Hospital and incarcerated.4 He has suffered

from headaches and neck pain since the accident, but the pain became severe in

2012.5 Over the last two years, he has seen facility nurses over twenty times, and

Dr. Louise Desrosiers over six times, for his pain.6 He has been prescribed Tylenol

and Excedrin for at least twenty months and a mild muscle relaxer on two

occasions. On February 26, 2014, Szubielski saw a neurologist in private practice,

who prescribed physical therapy and an exercise program after suggesting that
2
  Szubielski v. State of Delaware, 82 A.3d 730, 2013 WL 6211807, at *1 (Del. Nov. 26,
2013) (TABLE).
3
  Def. Correct Care Solutions, LLC’s Mem. in Supp. of its Mot. to Dismiss (“Def.’s
Mem.”) 3.
4
  Pl.’s Mot. for TRO (“Compl.”) 2. Szubielski’s Motion for Temporary Restraining
Order serves as his complaint.
5
  Compl. 2-3.
6
  Compl. 3.
Szubielski v. Correct Care Solutions
C.A. No. 9750-VCN
October 31, 2014
Page 3

Szubielski might be suffering from bone spurs.7 The neurologist did not conduct

an MRI or any other tests when making this diagnosis.

      Szubielski has seen a physical therapist periodically since February.8 The

physical therapist explained that he has multiple bulging discs and discs “out of

place.”9 The physical therapist further stated that he needs “a weight physical

therapy treatment . . . but this prison does not offer [it],” and that “she needs to see

[him] and treat [him] at least once a week” but cannot do so because of

understaffing.10 Szubielski continues to experience severe pain. He buys large

quantities of acetaminophen and aspirin from the inmate commissary to

supplement his prescribed Tylenol and Excedrin.11




7
   Compl. 3. Szubielski refers to the neurologist’s “written recommendation,” but CCS
describes the recommendation as a prescription. See, e.g., Def.’s Mem. 4.
8
  Compl. 3. Szubielski alleges that he has seen a physical therapist, identified as “Mary,”
five times from February to late June 2014. Letter from Gerard E. Szubielski 1, June 30,
2014.
9
  Compl. 4.
10
   Letter from Gerard E. Szubielski 1-2, June 30, 2014.
11
   Compl. 4.
Szubielski v. Correct Care Solutions
C.A. No. 9750-VCN
October 31, 2014
Page 4

                                       *****

      Szubielski filed a motion for a temporary restraining order on June 9, 2014,

asking the Court to order CCS to “properly treat” him.12 The Court denied the

motion after a hearing on June 16. On June 27, Szubielski filed a motion to

appoint counsel. After receiving a letter from the Court seeking clarification of his

complaint,13 Szubielski replied that he is asking for weekly physical therapy and

stronger pain medication as “a start.”14     He filed a motion for a preliminary

injunction for the same on July 1. He also filed a motion for discovery to obtain

his prison medical file from May 2006 to July 2014. He contends that the file will

allow him to prove that CCS is not providing adequate treatment.15 CCS moved to

dismiss, in lieu of filing an answer, on July 9, arguing that Szubielski failed (1) to

satisfy the requirements for a preliminary injunction on an Eighth Amendment

theory,16 (2) to show that Defendant’s services were inappropriate or




12
   Compl. 5. It appears that Szubielski has exhausted the grievance process, and CCS
does not argue otherwise.
13
   Letter from the Court, June 24, 2014.
14
   Letter from Gerard E. Szubielski 2, June 30, 2014.
15
   Pl.’s Mot. for Disc.
16
   Def.’s Mem. 7-11.
Szubielski v. Correct Care Solutions
C.A. No. 9750-VCN
October 31, 2014
Page 5

unreasonable,17 (3) to establish that he suffers from a serious injury,18 and (4) to

allege that CCS is liable due to a policy or custom of deliberate indifference.19 In a

later brief, CCS takes issue with Szubielski’s non-compliance with statutory

requirements for medical negligence claims.20

                                       *****

A. CCS’s Motion to Dismiss Szubielski’s Eighth Amendment Claims

      On a motion to dismiss, a court “should accept all well-pleaded factual

allegations in the complaint as true, . . . draw all reasonable inferences in favor of

the plaintiff, and deny the motion unless the plaintiff could not recover under any

reasonably conceivable set of circumstances susceptible of proof.”21 Complaints

drafted by self-represented litigants “may be held to a somewhat less stringent




17
   Id. at 9.
18
   Id. at 9-10.
19
   Id. at 10.
20
   Def. Correct Care Solutions, LLC’s Reply Br. in Supp. of its Mot. to Dismiss (“Def.’s
Reply”) 2-3. As noted infra note 24, the Court need not address the issue.
21
   Cent. Mortg. Co. v. Morgan Stanley Mortg. Capital Hldgs. LLC, 27 A.3d 531, 536
(Del. 2011).
Szubielski v. Correct Care Solutions
C.A. No. 9750-VCN
October 31, 2014
Page 6

technical standard than formal pleadings drafted by lawyers.”22 Nonetheless, a

complaint must “allege sufficient facts to state a plausible claim for relief.”23

      In his complaint, Szubielski invokes the Eighth Amendment.24 The Eighth

Amendment’s protection against cruel and unusual punishment requires the

government “to provide medical care for those whom it is punishing by

incarceration.”25 More specifically, “deliberate indifference to serious medical

needs of prisoners constitutes the unnecessary and wanton infliction of pain

proscribed by the Eighth Amendment.”26 To succeed on an Eighth Amendment

claim, a plaintiff bears the burden of proving a serious medical need as well as the

defendant’s deliberate indifference in response.27 Deliberate indifference requires

subjective culpability: “the [actor] must both be aware of facts from which the

inference could be drawn that a substantial risk of serious harm exists, and he must



22
   Vick v. Haller, 522 A.2d 865, 1987 WL 36716, at *1 (Del. Mar. 2, 1987) (TABLE).
23
   Walker v. City of Wilmington, 2014 WL 4407977, at *9 (Del. Ch. Sept. 5, 2014).
24
   Compl. 5. Construed liberally, the complaint alleges Eighth Amendment violations
and medical negligence and malpractice. CCS explains that if Szubielski intended to file
medical negligence claims, those claims must fail for non-compliance with 18 Del. C.
§ 6853. Def.’s Reply 2-3. Regardless, the Court dismisses the negligence and
malpractice claims, without prejudice, because jurisdiction is not appropriate.
25
   Estelle v. Gamble, 429 U.S. 97, 103 (1976).
26
   Id. at 104 (citation and internal quotation marks omitted).
27
   See, e.g., Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).
Szubielski v. Correct Care Solutions
C.A. No. 9750-VCN
October 31, 2014
Page 7

also draw the inference.”28 Allegations of negligence or challenges of a

physician’s professional judgment do not state a claim.29

       At the outset, a plaintiff asserting an Eighth Amendment claim pursuant to

42 U.S.C. § 1983 must establish that a person acting under color of state law

violated his rights.30 The only defendant here is CCS, a non-governmental entity.

Courts have found that “when the state contracts out its medical care of inmates,

the obligations of the [E]ighth [A]mendment attach to the persons with whom the

state contracts.”31 CCS has not challenged its status as a state actor and, thus,

waives the argument.32




28
   Farmer v. Brennan, 511 U.S. 825, 837 (1994).
29
   See, e.g., Estelle, 429 U.S. at 105-07; Blackston v. Corr. Med. Servs., Inc., 499 F. Supp.
2d 601, 605 (D. Del. 2007).
30
   Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 580-81 (3d Cir. 2003).
31
   Howell v. Evans, 922 F.2d 712, 723-24 (11th Cir. 1991) (analyzing the possibility of
liability for “a private corporation contracting with the state” to provide medical services
at the relevant correctional facility), vacated pursuant to settlement, 931 F.2d 711 (11th
Cir. 1991), and reinstated sub nom. Howell v. Burden, 12 F.3d 190 (11th Cir. 1994). The
Howell court cites West v. Atkins, in which the United States Supreme Court found that
“a physician employed by North Carolina to provide medical services to state prison
inmates[] acted under color of state law for purposes of § 1983 when undertaking his
duties in treating petitioner’s injury.” 487 U.S. 42, 54 (1988).
32
   In Natale, the Third Circuit Court of Appeals noted that the defendant (a private
provider of health care services to the county prison) did not challenge its status as a state
actor and proceeded to analyze the Eighth Amendment claim. 318 F.3d at 581 & n.4.
Szubielski v. Correct Care Solutions
C.A. No. 9750-VCN
October 31, 2014
Page 8

      The next issue is whether Szubielski alleges a serious medical need. CCS

argues that Szubielski’s claims fail in the absence of expert testimony because

“[a] lay person cannot appreciate what Plaintiff is claiming and cannot determine if

he suffers from a bone spur or a bulging disc.”33 Courts have held that to show a

serious medical need, a plaintiff must “demonstrat[e] that failure to treat a

prisoner’s condition could result in further significant injury or the unnecessary

and wanton infliction of pain.”34 While some courts have deemed a medical need

serious when “it is one that has been diagnosed by a physician as mandating

treatment, or one that is so obvious that even a lay person would easily recognize

the necessity for a doctor’s attention,”35 the Third Circuit Court of Appeals

requires expert testimony “when the seriousness of the injury or illness would not

be apparent to a lay person.”36 It is not clear that the Third Circuit Court of

Appeals’ requirement for expert testimony is dispositive at this stage. Szubielski’s

well-pleaded complaint alleges that a neurologist has prescribed a course of


33
   Def.’s Mem. 9.
34
   See, e.g., Jett, 439 F.3d at 1096 (internal quotation marks omitted).
35
   See e.g., Gaudreault v. Municipality of Salem, Massachusetts, 923 F.2d 203, 208 (1st
Cir. 1990).
36
   See Heath v. Shannon, 442 Fed. Appx. 712, 716 (3d Cir. Aug. 25, 2011) (noting the
Third Circuit’s requirement of expert testimony).
Szubielski v. Correct Care Solutions
C.A. No. 9750-VCN
October 31, 2014
Page 9

treatment for his condition—whether bone spurs or bulging discs. It is at least

reasonably conceivable that Szubielski has serious medical needs.37

      The remaining question, therefore, is whether the complaint states a claim

that CCS exhibited deliberate indifference to those needs.             Read liberally,

Szubielski’s complaint alleges that CCS has failed to provide (1) a physical

therapy program as prescribed by the neurologist (and as suggested by his physical

therapist) and (2) proper pain medication despite his numerous appeals to CCS

staff. In Farmer v. Brennan, the United States Supreme Court adopted “subjective

recklessness as used in the criminal law . . . as the test for ‘deliberate indifference’

under the Eighth Amendment.”38               Deliberate indifference encompasses

“intentionally denying or delaying access to medical care or intentionally

interfering with the treatment once prescribed.”39




37
    Under these circumstances, Szubielski is capable of describing the pain that he
regularly suffers.
38
   511 U.S. at 839-40.
39
   Estelle, 429 U.S. at 104-05 (footnote omitted). Delay of “necessary” treatment “for
non-medical reasons” may violate the Eighth Amendment. See Ancata v. Prison Health
Servs., Inc., 769 F.2d 700, 704 (11th Cir. 1985).
Szubielski v. Correct Care Solutions
C.A. No. 9750-VCN
October 31, 2014
Page 10

       One who brings a § 1983 claim against a private contractor also must

address causation; respondeat superior40 does not suffice for liability.41 A plaintiff

establishes causation by showing that the private entity had a policy or custom that

caused the violation.42 Liability for policies and customs can be found when the

entity (i) “promulgate[d] a generally applicable statement of policy and the

subsequent act complained of is simply an implementation of that policy”;

(ii) committed an act that violates federal law; or (iii) failed to act when the need

was “so obvious, and the inadequacy of existing practice so likely to result in the




40
    While Szubielski formally makes claims only against CCS, his complaint, read
liberally, asserts that CCS is liable for its various employees’ failure to treat him.
41
   See, e.g., Natale, 318 F.3d at 583 (analyzing a claim against a private company that
contracted with the state to provide health services to prisoners); Howell, 922 F.2d at 724
(same); cf. Pembaur v. City of Cincinnati, 475 U.S. 469, 478-79 (1986) (discussing
Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658 (1978), and § 1983’s
causation requirement in the context of municipal liability). At least one court has
questioned whether the Monell doctrine applies in the same way to private contractors as
it does to municipalities, but the parties have not raised that issue. See Williams v. Guard
Bryant Fields, 535 Fed. Appx. 205, 211 n.6 (3d Cir. Aug. 23, 2013) (“Although Williams
raises in a footnote the argument that Monell’s limitations may not apply to a private
contractor, he failed to raise this issue below and therefore has waived the issue.”).
42
   See, e.g., Natale, 318 F.3d at 583-84 (invoking Bd. of Cnty. Comm’rs of Bryan Cnty.,
Okla. v. Brown, 520 U.S. 397, 403-04 (1997)). A policy is “a final proclamation, policy
or edict” issued by one with final policymaking authority, and “[a] custom is an act that
has not been formally approved by an appropriate decisionmaker, but that is so
widespread as to have the force of law.” Id. at 584 (internal quotation marks omitted).
Szubielski v. Correct Care Solutions
C.A. No. 9750-VCN
October 31, 2014
Page 11

violation of constitutional rights, that the policymaker can reasonably be said to

have been deliberately indifferent to the need.”43

      At this stage, Szubielski must make allegations demonstrating that it is

reasonably conceivable that he will be able to prove that CCS deliberately denied

or delayed his treatment. He is not yet responsible for providing evidence or

proof.44 As a preliminary matter, the Court notes that Szubielski’s allegations are

of two types. The first, allegations regarding inadequate pain medication, fails to

state more than a disagreement about appropriate treatment. Although Szubielski

suggests that the prescription of Excedrin, Tylenol, and a muscle relaxer cannot

alleviate his pain, second-guessing medical judgment is neither the province of this

Court nor part of the Eighth Amendment analysis.45 The second type, allegations




43
   See id. (internal quotation marks omitted).
44
   CCS faults Szubielski for failing to “contradict the medical treatment he has received
or to show that other treatment is required”; to provide “proof that the treatment he has
been given amounts to deliberate indifference”; and to “present any evidence that CCS
maintains a policy or custom that has led to the claimed deprivation of constitutional
rights.” Def.’s Mem. 9-10.
45
   The medicines were prescribed by medical professionals, and the neurologist has not
prescribed anything stronger. These medication-related Eighth Amendment claims are
dismissed with prejudice because no amendment could fix their deficiency.
Szubielski v. Correct Care Solutions
C.A. No. 9750-VCN
October 31, 2014
Page 12

regarding a prescription of physical therapy with which CCS has not complied,

raises the possibility of an Eighth Amendment violation.46

      As mentioned above, Szubielski must allege that a CCS policy or custom

caused the violation in order to survive the motion to dismiss. Read liberally,

Szubielski’s complaint alleges that CCS is knowingly denying or delaying the

physical therapy the neurologist prescribed.        The complaint asserts that CCS

knows (and has known) about the neurologist’s prescription, Szubielski’s pain, and

his sporadic treatment, presumably through the grievance process or through the

physical therapist who is CCS’s employee. In the letter clarifying his claims,

Szubielski recalls the physical therapist’s statements that JTVCC does not offer

weight physical therapy and that weekly treatment is not possible because the

facility is understaffed. The fact that CCS has offered some physical therapy

permits an inference that CCS is responsible for providing physical therapy at

JTVCC. It follows that the well-pleaded complaint can be read, for example, to


46
   While CCS states that the neurologist did not order weight physical therapy, Def.’s
Mem. 9, the Court lacks evidence of the frequency and type of physical therapy actually
prescribed. However, Szubielski claims that he has seen the physical therapist five times
over the period from February 2014 to late June 2014. It is reasonably conceivable that
physical therapy roughly once a month does not satisfy what the neurologist did
prescribe.
Szubielski v. Correct Care Solutions
C.A. No. 9750-VCN
October 31, 2014
Page 13

allege a custom of not hiring enough physical therapists to comply with medical

prescriptions, which could constitute deliberate indifference.47 At this early stage

and in light of Szubielski’s self-represented status, the Court cannot foreclose the

reasonably conceivable possibility that a policy or custom of CCS caused a

violation of Szubielski’s Eighth Amendment rights.            Thus, CCS’s motion to

dismiss is denied with respect to that portion of the complaint alleging Eighth

Amendment violations regarding physical therapy.

B. Szubielski’s Motion for a Preliminary Injunction

      In order for a moving party to succeed on a motion for a preliminary

injunction, it must demonstrate “(1) that it has a reasonable probability of success

on the merits, (2) that irreparable harm will occur without the court’s intervention,

and (3) that the harm the moving party will suffer if his motion is denied outweighs

the harm the nonmoving party will suffer if relief is granted.”48 The moving party

bears a heavy burden to convince the Court to grant preliminary relief without the

47
   Cf. Anderson v. City of Atlanta, 778 F.2d 678, 685 (11th Cir. 1985) (“Several officers
testified that understaffing was a persistent problem and that complaints had been lodged
with their supervisors . . . . Certainly this is sufficient to show a custom or policy of
understaffing.”). Again, the Court does not suggest that CCS must provide a specific
type or regimen of physical therapy. It is merely assessing the complaint within the
motion to dismiss framework.
48
   Cardone v. State Dep’t of Corrs., 2008 WL 2447440, at *7 (Del. Ch. June 4, 2008).
Szubielski v. Correct Care Solutions
C.A. No. 9750-VCN
October 31, 2014
Page 14

benefit of a full record.49 When asking for mandatory injunctive relief, moreover,

the moving party must “clearly establish the legal right he seeks to protect or the

duty he seeks to enforce, a standard requiring more than a reasonable probability of

success on the merits.”50

         Szubielski’s motion for a preliminary injunction asks for weekly physical

therapy and stronger pain medication, complains that he is not receiving that care,

and emphasizes his pain. The first prong of the test for a preliminary injunction

requires the moving party to show a reasonable probability of success on the

merits. While Szubielski’s liberally construed complaint survives the plaintiff-

friendly motion to dismiss test, the record is too sparse for the Court to determine

whether Szubielski has a reasonable probability of success on the merits. As

Szubielski has not met this threshold—much less the showing required for

mandatory injunctive relief, the Court need not consider whether Szubielski has

shown irreparable harm and a balance of the harms weighing in his favor. Thus,

Szubielski’s motion for a preliminary injunction is denied.




49
     Id. at *7 n.49.
50
     Id. at *7 (footnote and internal quotation marks omitted).
Szubielski v. Correct Care Solutions
C.A. No. 9750-VCN
October 31, 2014
Page 15

C. Szubielski’s Motion for Appointment of Counsel

      Szubielski filed a motion to appoint counsel on June 27, 2014. Courts have

held that an indigent civil litigant in a § 1983 suit is not entitled to counsel “unless

the case presents exceptional circumstances,” determined by considering a number

of factors such as the litigant’s ability to present and investigate the case. 51 One

court, for example, found special circumstances where the self-represented litigant

“was confined to a wheelchair, had poor eyesight, suffered from a speech

impediment and memory lapses, and had general difficulty in communication.”52

      Szubielski’s motion to appoint counsel does not contain any explanation of

his reasons for the motion or exceptional circumstances that require this Court to

appoint counsel.    A question from an earlier letter to the Court suggests his

motivation:

      After our hearing today I was left with some serious concerns &
      questions. The most important being, how am I, a prisoner with little
      knowledge of the law supposed to represent myself in the court of law
      against Correct Care Solutions [sic] high powered attorney’s [sic]? Is
      there any possible way the state could appoint me an attorney?53


51
   Ulmer v. Chancellor, 691 F.2d 209, 212-13 (5th Cir. 1982).
52
   See Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995) (discussing McCarthy v.
Weinberg, 753 F.2d 836, 837 (10th Cir. 1985)).
53
   Letter from Gerard E. Szubielski 1, June 18, 2014.
Szubielski v. Correct Care Solutions
C.A. No. 9750-VCN
October 31, 2014
Page 16

Szubielski has not alleged reasons to appoint counsel beyond the fact that

assistance would be helpful. Thus, his motion to appoint counsel is denied.

D. Szubielski’s Motion for Discovery

      Szubielski’s motion for discovery asks for “all discovery including a full

copy of his prison medical file from May 2006 to July 2014” for the purpose of

proving his receipt of “less th[a]n adequate medical treatment.”54 CCS’s briefs do

not indicate whether it opposes the motion for discovery. Thus, the Court will not

decide the motion at this time.

                                        *****

      For the reasons above, Defendant’s motion to dismiss is denied with respect

to Szubielski’s Eighth Amendment claims regarding physical therapy and granted

with respect to his other claims.55 Plaintiff’s motion for a preliminary injunction

and motion to appoint counsel are denied. The Court will not decide the motion

for discovery until further briefing.




54
  Pl.’s Mot. for Disc.
55
   This dismissal includes Szubielski’s medical negligence and malpractice claims,
dismissed without prejudice, and his Eighth Amendment medication claims, dismissed
with prejudice.
Szubielski v. Correct Care Solutions
C.A. No. 9750-VCN
October 31, 2014
Page 17

      IT IS SO ORDERED.

                                       Very truly yours,

                                       /s/ John W. Noble
JWN/cap
cc: Register in Chancery-K
