COURT OF CHANCERY
OF THE
SAM GLASSCOCK 111 STATE OF DELAWARE COURT or Ci-iAth-LRY Coua'mouss

VICE Cl-IANCELLOR 34 THE CIRCLE
GEORGE'I'OWN, DELAWARE 19947

Date Submitted: October 24, 2014
Date Decided: November 20, 2014

Augustus I-l. Evans, Jr.

#191247 Unit #17 C-U-ll

James T. Vaughn Correctional Center
1181 Paddock Road

Smyrna, DE 19977

Re: Augustus Evans, Jr. v. David Pierce, 9: a1.
Civil Action No. 10065—ML

Dear Mr. Evans:

This letter resolves your exceptions to Master LeGrow’s August 14, 2014
Report, which denied your application to proceed in forma pauperis “in order to
ﬁle a ‘Rule 65 injunction motion.” In that motion, you seek a positive injunction
requiring the Department of Corrections to provide a medical examination by a
specialist regarding the effects of the drug Risperdal. As a prisoner of the State of
Delaware, you are subject to 10 Del. C. § 8804, which bars a plaintiff from
proceeding in forma pauperis where he has previously ﬁled at least three
complaints that were dismissed for failure to state a claim or as frivolous or
malicious. As the Master correctly found, you are in the category precluded from

proceeding in forma pauperis unless, as the statute provides, you were “under

imminent danger of serious physical injury at the time that the complaint [was]
filed.”1 The Master found that you had failed to sufficiently allege facts from
which it appeared that you were in imminent danger of serious physical injury.
You have disputed this finding.

Master’s decisions in this Court are reviewed de novo.2 I have reviewed
carefully the Master’s Report and the record submitted. On exception, you
complain of severe headaches and nosebleeds. The record you attach shows that
you have reported these conditions to the medical staff provided to you by the
Department of Corrections, that you have been seen by medical staff on multiple
occasions and also refused to be seen on “mental health sick call visits on multiple
occasions,”3 and have refused Excedrin when offered. You now claim that these
symptoms indicate the possibility of stroke or death and that this danger is
imminent, but may be avoided by reference to a “Risperdal specialist.” Aside from
these bald allegations, however, there is nothing in the record to substantiate your
claim that you face an imminent risk of serious physical injury if you do not
receive the injunctive relief which you seek. In fact, it appears that you are no

longer taking Risperdal, the drug you believe has caused these symptoms.4

1 10 Del. C. §8804(f).

2 DiGiacobbe v. Serrak, 743 A.2d 180, 184 (Del. 1999).

3 Mot. for Rule 65 Injunction Ex. 3.

4 In your Motion, you complained of the effects of two prescription drugs—~-Risperdal and
Naprosyn. But your Exceptions only address Risperdal and do not advance any argument based
on Naprosyn. Accordingly, I considered only your allegations regarding Risperdai. However,

2

Prisoners of the State are entitled under the Eighth Amendment to the United
States Constitution to have medical care, and a deliberate indifference to the
serious medical needs of a prisoner may violate the Eighth Amendment.5 It seems
clear to me that where, as here, a prisoner has ﬁled multiple frivolous suits in
forma pauperis, the requirement to proceed under Section 8804 on a complaint
seeking an order for additional or alternative medical treatment must be sufficient
to withstand a motion to dismiss a claim based on the Eighth Amendment.

This Court recently addressed that standard in Szubielski v. Correct Care
Solutions LLC,6 in considering a motion to dismiss. The Court noted that the
plaintiff there had made two contentions. First, the plaintiff alleged, and the Court
found, that the State’s medical contractor had prescribed a treatment which the
State had not made available; the Court found that allegation to state a conceivable
claim. A second allegation, however, that the State and its contractor were failing
to supply adequate pain medication, “fai1[ed] to state more than a disagreement

n7

about appropriate treatment. This conclusion was based on the United States

Supreme Court’s decision in Estelle where the Court expressly provided that “the
question whether . . . additional diagnostic techniques or forms of treatment is

indicated is a classic example of a matter for medical judgment. A medical

even if i were to consider the arguments you previously raised regarding Naprosyn, I would not
find that you have shown imminent risk of serious physical injury.
5 US. Const. amend. Vii; see also Estelle v. Gamble, 429 US. 97, 103404 (1976).
:Szubielski v. Correct Care Soluliorzs LLC, CA. No. 9750nVCN (Del. Ch, Oct. 31, 2014).
Id. at 11.

decision not to order [speciﬁc diagnostic tools], does not represent cruel and

”8 “In sum,” this Court has held, “an inmate's disagreement

unusual punishment.
with prison health care providers over the proper course of treatment does not rise
to the level of a constitutional violation.”9

In this case, you point to no evidence that you have been prescribed the
expert medical review which you seek here. The unsubstantiated allegations that
you need physical treatment beyond that which is being provided represent a
disagreement over the medical care you are receiving; this fails to adequately
allege the imminent possibility of serious physical injury required for proceeding
under Section 8804 informal pauperis.

For the above reasons, your request to proceed in forma pauperis is
DENIED. After de novo review, the Report of the Master is AFFIRMED.

To the extent the foregoing requires an Order to take effect, IT IS SO
ORDERED.

Sincerely,

/s/ Sam Glasscock 111

Sam Glasseock III

3 Estelle, 429 vs. at 107.
9 Cardone v. State Dep't quorr., 2008 WL 2447440, at *8 (Del. Ch. June 4, 2008).

4

