         IN THE SUPREME COURT OF THE STATE OF DELAWARE

MARCUS JOHNSON,                 §
                                §            No. 426, 2017
    Plaintiff Below,            §
    Appellant,                  §            Court Below: Superior Court
                                §            of the State of Delaware
    v.                          §
                                §            C.A. No. N16C-12-217
CONNECTIONS COMMUNITY           §
SUPPORT PROGRAMS, INC., et al., §
                                §
    Defendants Below,           §
    Appellees.                  §

                         Submitted: July 19, 2018
                         Decided: October 16, 2018

Before VALIHURA, VAUGHN, and SEITZ, Justices.

                                    ORDER

      (1)   The appellant, Marcus Johnson, is serving a sentence in the custody of

a Delaware correctional facility. Johnson has filed this appeal from the Superior

Court’s order of September 29, 2017, dismissing his civil complaint against

Connections Community Support Programs, Inc., and several of the company’s

employees. Connections Community Support Programs (CCSP) provides medical

care to inmates incarcerated in Delaware. Johnson’s complaint asserted liability

under stand-alone theories of negligent supervision and deliberate indifference of a

prisoner’s serious medical needs.
       (2)     Johnson alleged that he was injured as a result of the defendants’

repeated failures to schedule him for a follow-up medical appointment to address a

sleeping disorder—sleep apnea—which he described as severe.1 Johnson alleged

that CCSP’s repeated errors and oversights caused a delay of nearly one year during

which he suffered daily pain and exhaustion from his untreated medical condition.

Johnson alleged that a CCSP employee advised him in May 2016 that the repeated

failures to schedule the appointment were due to CCSP being understaffed. And

Johnson alleged that, notwithstanding two medical grievance decisions in August

2016 ruling in his favor and directing that the follow-up appointment be scheduled

without further delay, CCSP still had not made the appointment at the time he filed

his complaint in January 2017.

       (3)     In April 2017, the defendants moved to dismiss the complaint. After

considering the motion and Johnson’s response, the Superior Court dismissed the

complaint with prejudice. This appeal followed.

       (4)     Johnson raises only one argument on appeal—that the Superior Court

erred when dismissing his deliberate indifference claim under Superior Court Civil




1
 Specifically, Johnson alleged that “every day and throughout the day” he experienced excessive
daytime sleepiness, depression, dry mouth, dry throat, fatigue, lack of breathing, migraines, blurred
vision, extreme redness of the eyes, eye strain, excessive throbbing pain in his left and right ears,
and limited hearing in the right ear. Pl.’s Am. Compl., Johnson v. Connections Cmty. Support
Programs, Inc., No. N16C-12-217 (Jan. 25, 2017).

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Rule 12(b)(6). All other claims and issues that Johnson could have raised on appeal,

but did not, are deemed waived and abandoned.2

       (5)    When ruling on a motion to dismiss under Rule 12(b)(6) for failure to

state a claim, the Superior Court must determine whether the plaintiff “may recover

under any reasonably conceivable set of circumstances susceptible of proof under

the complaint.”3 We review a dismissal under Rule 12(b)(6) de novo to determine

whether the trial judge erred as a matter of law.4

       (6)    It is well-established that “deliberate indifference to serious medical

needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain,’

proscribed by the Eighth Amendment.”5 To succeed with a claim of deliberate

indifference, the plaintiff must prove that he has a serious medical need and that the

defendant knew of the serious medical need and disregarded it.6 A medical need is

sufficiently serious if a physician has diagnosed it as requiring treatment or if it is

one that is so obvious that a layperson could easily recognize the need for a




2
  Murphy v. State, 632 A.2d 1150, 1152 (Del. 1993). On appeal, Johnson does not challenge the
Superior Court’s dismissal of the two “Jane Doe” defendants, the negligent supervision claim, a
claim for injunctive relief; and any claims alleging medical malpractice.
3
  Spence v. Funk, 396 A.2d 967, 968 (Del. 1978).
4
  Dunlap v. State Farm Fire and Casualty Co., 878 A.2d 434, 438 (Del. 2005).
5
  Estelle v. Gamble, 429 U.S. 97, 104 (1976).
6
  Id. at 106.

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physician’s attention.7 Courts have long held that deliberate indifference can occur

when prison medical authorities cause a delay in providing medical treatment.8

       (7)     The individual defendants include four nurses, Cynthia Mallee, Laura

Brackett, Staci Collins-Young, and Sharon Henderson. We agree with the Superior

Court that the plaintiff has not alleged facts sufficient to show that they had the

culpable state of mind for a claim of deliberate indifference. Therefore, the dismissal

of the complaint as to those four defendants is affirmed. After carefully considering

the parties’ briefs and the record, however, we have concluded that the Superior

Court erred when dismissing Johnson’s deliberate indifference claim as to the

remaining two defendants, CCSP and Jami Jones, who is alleged to have been

responsible for seeing that medical requests were handled appropriately. Johnson

has alleged more than the ordinary delays attendant to routine prison medical care.

He claims a serious medical condition left untreated for over a year, two medical

grievance decisions in his favor finding the need for treatment, and yet at the time


7
  Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3rd Cir. 1987).
8
  See, e.g., Lee v. Sewell, 2005 WL 3506346, at **2 (3rd Cir. Dec. 23, 2005) (“Short of absolute
denial, if necessary medical treatment [i]s . . . delayed for non-medical reasons, a case of deliberate
indifference has been made out.”); Inmates of Allegheny Cnty. Jail v. Pierce, 612 F.2d 754, 762
(3rd Cir. 1979) (“Systemic deficiencies in staffing which effectively deny inmates access to
qualified medical personnel for diagnosis and treatment of serious health problems have been held
to violate constitutional requirements.”); Deputy v. Conlan, 2007 WL 3071424, at *2 (Del. Oct.
22, 2007) (“Nonetheless, courts have held that prison officials’ delay in providing surgery, if it
proves harmful to the prisoner, can amount to deliberate indifference.” (citing Shapley v. Nevada
Bd. of State Prison Comm’rs, 766 F.2d 404, 408 (9th Cir. 1985))); Szubielski v. Correct Care
Solutions, LLC, 2014 WL 5500229, at *5 (Del. Ch. Oct. 13, 2014) (denying motion to dismiss
after determining that the pro se complaint could not be read to foreclose a claim of deliberate
indifference based on an alleged policy or custom of not hiring adequate medical staff).

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of filing the complaint, he still had not received treatment. Viewing the complaint’s

factual allegations in a light most favorable to Johnson, we conclude that the claim

against CCSP and Jami Jones was sufficient to survive dismissal under Rule 12(b)(6)

for failure to state a claim.9 Accordingly, dismissal of the complaint as to those two

parties is reversed.

       NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED IN PART and REVERSED IN PART and this matter is

remanded for further proceedings consistent with this Order. Jurisdiction is not

retained.

                                             BY THE COURT:

                                             /s/ James T. Vaughn, Jr.
                                             Justice




9
  Haskins v. Kay, 2008 WL 5227187, at *2 (Del Dec. 16, 2008) (“Even if the Superior Court
ultimately concludes that Haskins’ complaint lacks merit, we conclude that dismissal of the
complaint at this stage was error because the trial court failed to draw every reasonable inference
in favor of Haskins.”).

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