NOT PRECEDENTIAL

CLD-243

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-1898

___________

DANIEL WOODS,

Appellant

v.

FIRST CORRECTIONAL MEDICAL INC.; CORRECTIONAL MEDICAL SERVICES 

INC.; L.P.N. LISA SUGAR; SHARI CAIN; R.N. JAMILLA MCKENZIE; 

NURSE VERIA MURPHY; RICHARD OKONIBO; JOHN DOE; JANE DOE; 

RONNIE MOORE, Health Services Administrator; INVESTIGATOR BRENDA 

LUCAS; JAMES T. VAUGHN CORRECTIONAL CENTER; DR. NIEZ; JOHN/JANE 

DOE DIRECTOR OF MEDICAL AT DCC 2007-2008

____________________________________

On Appeal from the United States District Court

for the District of Delaware

(D.C. Civil No. 08-cv-00397)

District Judge: Honorable Leonard P. Stark

____________________________________

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)

and for Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6

July 21, 2011

Before: RENDELL, FUENTES AND SMITH, Circuit Judges

(Opinion filed August 18, 2011)

_________

OPINION

_________

PER CURIAM
2

Daniel Woods, a Delaware state prisoner incarcerated in the James T. Vaughn 

Correctional Center (“JTVCC”), appeals pro se from the order of the United States 

District Court for the District of Delaware granting Defendants’ motion for summary 

judgment. For the following reasons, we will summarily affirm. 

I.

We write for the parties’ benefit and recite only the facts essential to our 

disposition. In May 2007, after being diagnosed with Hepatitis C, Woods was referred to 

Dr. Lawrence McDonald, a former employee of Correctional Medical Services, Inc.’s 

(“CMS”),

1

to initiate Interferon protocol to treat Woods’ condition. Treatment consisted 

of Pegasys and Ribavirin injections. Dr. McDonald also wrote orders for Woods to 

receive nutritional supplements throughout the course of his treatment. 

Woods alleged that, despite Dr. McDonald’s directives, he was denied proper 

treatment by several CMS nurses. Specifically, he claimed that they: 1) incorrectly 

administered his injections; 2) changed physician orders so that Woods did not receive 

his prescribed nutritional supplements; and 3) refused treatment, including necessary 

medication, on several occasions. In June 2008, Woods filed a complaint in the District 

Court pursuant to 42 U.S.C. § 1983, alleging that the Defendants acted with deliberate 

indifference to his serious medical needs in violation of the Eighth Amendment. Woods 

sought money damages. 

 

1 CMS was the medical services contract provider for the Delaware Department of 

Correction from July 2005 through June 2010. Dr. McDonald was not named in the 

action.
3

Several of the Defendants filed motions to dismiss, which the District Court 

granted because they were either immune from suit or had not been timely served with a 

copy of the complaint. At the close of discovery, the remaining Defendants, which 

included CMS, Lisa Sugar, Robert Okinobo, Shari Cain, and Jamilla Mickenzie 

(collectively “the Medical Defendants”), filed a motion for summary judgment. They 

also moved to strike a supplemental letter that Woods filed with the Court regarding a 

2006 investigation of five Delaware prison facilities. Woods filed a cross-motion for 

summary judgment. After reviewing the submissions, the District Court granted the 

Medical Defendants’ motions for summary judgment and to strike, and denied Woods’s 

motion for summary judgment. Woods timely appealed. 

II.

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review 

the District Court’s decision to grant a motion to dismiss de novo. See Dique v. N.J. 

State Police, 603 F.3d 181, 188 (3d Cir. 2010). We also exercise plenary review over the 

District Court’s entry of summary judgment, viewing the underlying facts and all 

reasonable inferences therefrom in the light most favorable to the non-moving party. See

Ray v. Twp. of Warren, 626 F.3d 170, 173 (3d Cir. 2010). After reviewing the record on 

appeal, we conclude that the District Court committed no reversible error in disposing of 

Woods’ claims.

III.

As an initial matter, we conclude that the District Court correctly dismissed 

Defendants Ronnie Moore, Veria Murphy, Dr. Niez, John Doe, Jane Doe, John/Jane Doe 
4

Director for Medical Services at DCC 2007 2008, and First Correctional Medical 

Services from the action because Woods failed to timely identify and/or serve those 

defendants with a copy of the complaint. 

Defendants JVCC and Brenda Lucas were also properly dismissed from the action 

because Woods failed to state viable claims against them. As to JVCC, under the 

Eleventh Amendment a Delaware state prison is immune from suit in federal court. See

Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993). 

While states can waive their Eleventh Amendment immunity, see Koslow v. 

Commonwealth of Pennsylvania, 302 F.3d 161, 168 (3d Cir. 2002), Delaware has not 

done so, see Green v. Howard R. Young Corr. Inst., 229 F.R.D. 99, 102 (D. Del. 2005) 

(Jordan, J.). Accordingly, we agree that Woods’ section 1983 claims against the JVCC

for monetary damages are barred.

With regard to Brenda Lucas, Woods alleged that she failed to act upon several of 

the administrative grievances that he filed. Lucas was identified in the complaint as an 

investigator in several of Woods’ grievances. We agree with the District Court that 

because a prisoner has no free-standing constitutional right to an effective grievance 

process, see Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991), Woods cannot maintain a 

constitutional claim against Lucas based upon his perception that she ignored and/or 

failed to properly investigate his grievances. 

Eighth Amendment Claims

The Eighth Amendment, through its prohibition on cruel and unusual punishment, 

mandates that prison officials not act with deliberate indifference to a prisoner’s serious 
5

medical needs by denying or delaying medical care. Estelle v. Gamble, 429 U.S. 97, 104 

(1976). In order to sustain a constitutional claim, a prisoner must make: 1) an “objective” 

showing that the prisoner’s medical needs were sufficiently serious; and 2) a “subjective” 

showing that the prison official acted with a sufficiently culpable state of mind. 

Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002). “To act with deliberate 

indifference to serious medical needs is to recklessly disregard a substantial risk of 

serious harm.” Giles v. Kearney, 571 F.3d 318, 330 (3d Cir. 2009).

Nutritional Supplements

Woods alleged that Defendant Shari Cain unilaterally changed Dr. McDonald’s 

orders regarding his dietary supplements. The record reflects that, at various times, 

Woods was prescribed either Boost or Resource 2.0. Woods claimed that around August 

2007, Cain unilaterally changed Dr. McDonald’s orders of two cans of Boost per day to 

one can per day of Resource 2.0. However, Dr. McDonald is unequivocal that when the 

medical department switched supplements from Boost to Resource 2.0, he ordered that 

Woods be given only one can of Resource 2.0 per day. Further, the record reflects that, 

on August 1, 2007, Cain entered a “clarification note” on Woods’ chart stating that Dr. 

McDonald had changed Woods’ order. Woods presented no evidence demonstrating that 

Cain changed Dr. McDonald’s order and thus acted with deliberate indifference to his 

medical needs. Therefore, we will affirm the District Court’s grant of summary judgment

on this claim.

Failure to Treat
6

Woods also alleged that Defendant Lisa Sugar refused to treat and assess his 

conditions at various times. Specifically, he claimed that she did not adequately respond 

to several of his sick call complaints. As an initial matter, Woods presented no evidence 

to suggest that Sugar was aware of all of his complaints. In any event, the record reflects 

that Sugar provided Woods with treatment, both through regularly scheduled 

appointments and when she became apprised of Woods’ written requests for treatment. 

On one occasion, when Sugar attempted to treat Woods in his unit, but was unable to 

because he was in the shower, Sugar ordered another nurse to examine him, and later 

wrote Woods a prescription for his condition. Based on the record, we agree with the 

District Court that a reasonable jury could not find that Sugar acted with deliberate 

indifference to Woods’ medical needs.

Injections

Woods claimed that the Medical Defendants used incorrect needles to administer 

his injections, and that the syringes could not hold the proper dose of the medication. 

However, Woods does not dispute that he received sufficient doses of the medication, nor 

does he claim that his Hepatitis C treatment was unsuccessful.2 In addition, there is no 

record evidence to support his claim that incorrect syringes were used during the course 

of his treatment. Therefore, a reasonable jury could not find for Woods on this issue.

Woods also claimed that because the Medical Defendants failed to rotate the site 

of his injections, he experienced nausea, sores, jaundice, dizziness, weakness, nose 

 

2 Dr. McDonald discharged Woods from the Hepatitis C Infectious Disease Clinic in July 

2009 because Woods’ viral load was undetectable in his blood work.
7

bleeds, and infections. With the exception of the nose bleeds and infections, the 

conditions that Woods claimed to have suffered are known side-effects of Interferon 

treatment. Woods acknowledged at his deposition that Dr. McDonald’s informed him 

about those possible side-effects. And, although Dr. McDonald was not able to 

determine the cause of Woods’ nose-bleeds, he did not attribute them to the alleged 

failure to rotate the injection site.3 Woods did not present any information contradicting 

Dr. McDonald’s medical opinion. Moreover, the record reflects that, when Woods raised 

the issue that the injection site was not rotated with sufficient frequency, steps were taken 

to remedy the problem. 

Accordingly, we agree with the District Court that there is insufficient evidence 

upon which a jury could conclude that the Medical Defendants disregarded the risk to his 

safety during the administration of his injections. 

State Law Claim

Lastly, we conclude that the District Court properly granted Defendants’ motion 

for summary judgment as to Woods’ state law claim of medical negligence. Under 

Delaware state law, when a party alleges medical negligence, that party is required to 

produce an affidavit of merit, signed by an expert witness, when the complaint is filed. 

See 18 Del. C. § 6853. The record reflects that Woods filed no such affidavit, nor did he 

timely move for an extension to do so. Id.

 

3 Dr. McDonald reached a similar conclusion regarding Woods’ infection, which Woods 

does not allege occurred at the site of any of his injections. Although the record reflects 

that Woods was prescribed antibiotics at one point, it was because he had been diagnosed 

with sinusitis.
8

For all of these reasons, we conclude that the District Court properly entered 

summary judgment in favor of the Medical Defendants. We also conclude that the 

District Court properly granted the Medical Defendants’ motion to strike. As mentioned, 

Woods asked the Court to consider a letter regarding the investigation of five Delaware 

prison facilities. The investigation found substantial civil rights violations at several of 

those facilities and resulted in the entry of an agreement between the Department of 

Justice and State of Delaware. However, the agreement clearly states that it may not be 

used as evidence of liability in any other legal proceeding. Therefore, the District Court 

correctly declined to consider it as evidence in Woods’ case.

4

 

As Woods’ appeal presents no substantial question, we will summarily affirm. 

See Third Cir. LAR 27.4; I.O.P. 10.6. Woods’ “Motion for Appointment of Counsel and 

Request to Reverse and Remand the Lower Court’s Ruling” is denied. See Tabron, 6 

F.3d at 155-56. Woods’ motion for default is also denied.

 

4

To the extent that Woods also argues that the District Court improperly denied his 

requests to appoint counsel, because his claims were neither complex nor meritorious, the 

District Court did not abuse its discretion in denying his requests. See Tabron v. Grace, 6 

F.3d 147, 155-56 (3d Cir. 1993).