         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).
                                                2
       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.
                                                3
       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).
                                             4
      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.
                                            5
        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).
                                               6
     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




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