IN THE SUPREME COURT OF THE STATE OF DELAWARE
MILLARD E. PRICE, § § Plaintiff Below, § No. 390, 2021 Appellant, § § v. § Court Below–Superior Court § of the State of Delaware P. TYMOUR BOULOS, M.D., § § Defendant Below, § C.A. No. N21C-10-206 Appellee. § §
Submitted: May 27, 2022 Decided: August 9, 2022
Before SEITZ, Chief Justice; VALIHURA and VAUGHN, Justices.
ORDER
After consideration of the parties’ briefs and the record on appeal, it appears to the
Court that:
(1) The appellant, Millard E. Price, appeals the Superior Court’s dismissal of the
civil complaint that he filed against the appellee, P. Tymour Boulos, M.D. We find no
merit to the appeal and affirm the Superior Court’s judgment.
(2) On May 20, 2021, Price filed a pro se complaint in the Superior Court against
Centurion of Delaware, LLC, an entity providing medical services to the Delaware prison
system, and four of its employees (together, “Centurion”) (the “Centurion Complaint”).
Price alleged that Centurion deliberately deprived Price, an inmate incarcerated at Howard
R. Young Correctional Institution in Wilmington, of access to medical care following an
operation on his spine in June 2020. The Centurion Complaint advanced three causes of action: deliberate indifference, intentional infliction of pain and emotional duress, and
medical malpractice. After conducting its initial review of the Centurion Complaint as
required by the in forma pauperis statute,1 the Superior Court dismissed Price’s medical-
malpractice claim because it was not supported by an affidavit of merit.2 The first two
counts of the Centurion Complaint remain pending in the Superior Court.3
(3) On October 26, 2021, Price filed a pro se complaint—the complaint at issue
in this appeal—against Dr. Boulos, the surgeon who performed Price’s 2020 spinal surgery
(the “Boulos Complaint”). The Boulos Complaint cites substantively the same factual
background as the Centurion Complaint and also refers to several allegedly unanswered
letters that Price sent to Dr. Boulos asking for a certificate of merit “stating that Centurion
… should not have terminated [Price’s] pain medication”4 and medical records. The
Boulos Complaint advances three causes of action: deliberate indifference, failure to
provide medical records, and reckless infliction of pain and emotional duress. By way of
relief, Price asks the Superior Court for, among other things, (i) an order directing Dr.
Boulos to produce Price’s medical records and to opine as to Price’s prognosis and (ii) an
1 10 Del. C. § 8803(b) (“Upon establishing the amount of fees and costs to be paid, the court shall review the complaint. Upon such review, the complaint shall be dismissed if the court finds the action is factually frivolous, malicious or, upon a court’s finding that the action is legally frivolous and that even a pro se litigant, acting with due diligence, should have found well settled law disposing of the issue(s) raised. Any order of dismissal shall specifically identify whether the complaint was factually frivolous, legally frivolous and/or malicious. Service of process shall not issue unless and until the court grants leave following its review.”). 2 See 18 Del. C. § 6853(a) (providing that a medical-malpractice complaint cannot be filed in Delaware unless accompanied by an affidavit of merit signed by an expert witness). 3 Price v. Centurion of Delaware, LLC, C.A. No. N21C-05-160. 4 Compl. ¶ 10.
2 order directing Dr. Boulos to review Centurion’s approach to Price’s pain management
“for the purpose of [obtaining] a Certificate of Merit [under 18 Del. C.] § 6853.”5
(4) After conducting its initial review under the in forma pauperis statute, the
Superior Court dismissed the Boulos Complaint, finding that it is legally frivolous and that
it plainly appears from the face of the complaint that Price is not entitled to the relief he
seeks. The Superior Court noted that (i) to the extent that Price seeks medical records
related to the Centurion Complaint, he should seek them through discovery in that case;
(ii) Dr. Boulos’s conduct, as alleged, does not rise to the level of reckless infliction of pain
and emotional duress; (iii) Dr. Boulos is not duty-bound to provide Price with a certificate
of merit; and (iv) Price fails to allege that Dr. Boulos is a state actor. This appeal followed.
(5) On appeal, Price argues that the Superior Court abused its discretion by
dismissing the Boulos Complaint and that the Superior Court’s review of the complaint
exceeded the purpose of initial screening under 10 Del. C. § 8803(b). Price’s arguments
are unavailing.
(6) We review the dismissal of a complaint as legally frivolous under Section
8803(b) for abuse of discretion.6 Dismissal of an indigent plaintiff’s complaint as legally
frivolous is warranted in “those cases in which either it is readily apparent that the
5 Id. ¶ 27. 6 See Deputy v. Conlan, 2007 WL 3071424, at *1 (Del. Oct. 22, 2007).
3 plaintiff’s complaint lacks an arguable basis in law or that the defendants are clearly
entitled to immunity from suit.”7
(7) We conclude that the Superior Court did not abuse its discretion when it
dismissed the Boulos Complaint. As a preliminary matter, to the extent that Price cites to
“[f]acts not incorporated into the original complaint,”8 this Court will not consider evidence
not presented to the trial court in the first instance.9 Turning to the substance of the Boulos
Complaint, it is clear that Price’s injury, if any, caused by the alleged mis-management of
his pain is attributable to Centurion. The gist of the Boulos Complaint is the same as the
Centurion Complaint—that the prison has been deliberately indifferent toward Price’s need
for medical treatment. The records Price seeks to support his claim that his pain has not
been properly managed should be sought in discovery in Price’s lawsuit against
Centurion.10
7 Roman v. Jeffes, 904 F.2d 192, 194 (3d. Cir. 1990) (internal quotation marks and citation omitted). 8 Opening Br. at 5. 9 Del. Elec. Coop. v. Duphily, 703 A.2d 1202, 1206 (Del. 1997) (“It is a basic tenet of appellate practice that an appellate court reviews only matters considered in the first instance by the trial court.”). 10 We note that Price does have a right to obtain copies of his medical records. 24 Del. C. § 1761(d) (“Patients, on their own behalf, shall have the right to obtain a copy of their medical records from any person certified to practice medicine according to a payment schedule established by the Board of Medical Licensure and Discipline. The actual cost of postage or shipping may also be charged if the records are mailed.”). In the event that Price requests his medical records from Dr. Boulos, he should make an unequivocal request—without, as Price has done in the past, diluting the request with demands for pain medication or a “letter of merit.”
4 (8) Deliberate indifference to a prisoner’s serious medical needs violates the
Eighth Amendment’s prohibition against cruel and unusual punishment.11 To plead a claim
of deliberate indifference, the prisoner must plead that prison officials were subjectively
aware of a substantial risk of serious harm to the prisoner and failed to take reasonable
measures to abate that risk.12 Deliberate indifference may be shown when prison officials
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IN THE SUPREME COURT OF THE STATE OF DELAWARE
MILLARD E. PRICE, § § Plaintiff Below, § No. 390, 2021 Appellant, § § v. § Court Below–Superior Court § of the State of Delaware P. TYMOUR BOULOS, M.D., § § Defendant Below, § C.A. No. N21C-10-206 Appellee. § §
Submitted: May 27, 2022 Decided: August 9, 2022
Before SEITZ, Chief Justice; VALIHURA and VAUGHN, Justices.
ORDER
After consideration of the parties’ briefs and the record on appeal, it appears to the
Court that:
(1) The appellant, Millard E. Price, appeals the Superior Court’s dismissal of the
civil complaint that he filed against the appellee, P. Tymour Boulos, M.D. We find no
merit to the appeal and affirm the Superior Court’s judgment.
(2) On May 20, 2021, Price filed a pro se complaint in the Superior Court against
Centurion of Delaware, LLC, an entity providing medical services to the Delaware prison
system, and four of its employees (together, “Centurion”) (the “Centurion Complaint”).
Price alleged that Centurion deliberately deprived Price, an inmate incarcerated at Howard
R. Young Correctional Institution in Wilmington, of access to medical care following an
operation on his spine in June 2020. The Centurion Complaint advanced three causes of action: deliberate indifference, intentional infliction of pain and emotional duress, and
medical malpractice. After conducting its initial review of the Centurion Complaint as
required by the in forma pauperis statute,1 the Superior Court dismissed Price’s medical-
malpractice claim because it was not supported by an affidavit of merit.2 The first two
counts of the Centurion Complaint remain pending in the Superior Court.3
(3) On October 26, 2021, Price filed a pro se complaint—the complaint at issue
in this appeal—against Dr. Boulos, the surgeon who performed Price’s 2020 spinal surgery
(the “Boulos Complaint”). The Boulos Complaint cites substantively the same factual
background as the Centurion Complaint and also refers to several allegedly unanswered
letters that Price sent to Dr. Boulos asking for a certificate of merit “stating that Centurion
… should not have terminated [Price’s] pain medication”4 and medical records. The
Boulos Complaint advances three causes of action: deliberate indifference, failure to
provide medical records, and reckless infliction of pain and emotional duress. By way of
relief, Price asks the Superior Court for, among other things, (i) an order directing Dr.
Boulos to produce Price’s medical records and to opine as to Price’s prognosis and (ii) an
1 10 Del. C. § 8803(b) (“Upon establishing the amount of fees and costs to be paid, the court shall review the complaint. Upon such review, the complaint shall be dismissed if the court finds the action is factually frivolous, malicious or, upon a court’s finding that the action is legally frivolous and that even a pro se litigant, acting with due diligence, should have found well settled law disposing of the issue(s) raised. Any order of dismissal shall specifically identify whether the complaint was factually frivolous, legally frivolous and/or malicious. Service of process shall not issue unless and until the court grants leave following its review.”). 2 See 18 Del. C. § 6853(a) (providing that a medical-malpractice complaint cannot be filed in Delaware unless accompanied by an affidavit of merit signed by an expert witness). 3 Price v. Centurion of Delaware, LLC, C.A. No. N21C-05-160. 4 Compl. ¶ 10.
2 order directing Dr. Boulos to review Centurion’s approach to Price’s pain management
“for the purpose of [obtaining] a Certificate of Merit [under 18 Del. C.] § 6853.”5
(4) After conducting its initial review under the in forma pauperis statute, the
Superior Court dismissed the Boulos Complaint, finding that it is legally frivolous and that
it plainly appears from the face of the complaint that Price is not entitled to the relief he
seeks. The Superior Court noted that (i) to the extent that Price seeks medical records
related to the Centurion Complaint, he should seek them through discovery in that case;
(ii) Dr. Boulos’s conduct, as alleged, does not rise to the level of reckless infliction of pain
and emotional duress; (iii) Dr. Boulos is not duty-bound to provide Price with a certificate
of merit; and (iv) Price fails to allege that Dr. Boulos is a state actor. This appeal followed.
(5) On appeal, Price argues that the Superior Court abused its discretion by
dismissing the Boulos Complaint and that the Superior Court’s review of the complaint
exceeded the purpose of initial screening under 10 Del. C. § 8803(b). Price’s arguments
are unavailing.
(6) We review the dismissal of a complaint as legally frivolous under Section
8803(b) for abuse of discretion.6 Dismissal of an indigent plaintiff’s complaint as legally
frivolous is warranted in “those cases in which either it is readily apparent that the
5 Id. ¶ 27. 6 See Deputy v. Conlan, 2007 WL 3071424, at *1 (Del. Oct. 22, 2007).
3 plaintiff’s complaint lacks an arguable basis in law or that the defendants are clearly
entitled to immunity from suit.”7
(7) We conclude that the Superior Court did not abuse its discretion when it
dismissed the Boulos Complaint. As a preliminary matter, to the extent that Price cites to
“[f]acts not incorporated into the original complaint,”8 this Court will not consider evidence
not presented to the trial court in the first instance.9 Turning to the substance of the Boulos
Complaint, it is clear that Price’s injury, if any, caused by the alleged mis-management of
his pain is attributable to Centurion. The gist of the Boulos Complaint is the same as the
Centurion Complaint—that the prison has been deliberately indifferent toward Price’s need
for medical treatment. The records Price seeks to support his claim that his pain has not
been properly managed should be sought in discovery in Price’s lawsuit against
Centurion.10
7 Roman v. Jeffes, 904 F.2d 192, 194 (3d. Cir. 1990) (internal quotation marks and citation omitted). 8 Opening Br. at 5. 9 Del. Elec. Coop. v. Duphily, 703 A.2d 1202, 1206 (Del. 1997) (“It is a basic tenet of appellate practice that an appellate court reviews only matters considered in the first instance by the trial court.”). 10 We note that Price does have a right to obtain copies of his medical records. 24 Del. C. § 1761(d) (“Patients, on their own behalf, shall have the right to obtain a copy of their medical records from any person certified to practice medicine according to a payment schedule established by the Board of Medical Licensure and Discipline. The actual cost of postage or shipping may also be charged if the records are mailed.”). In the event that Price requests his medical records from Dr. Boulos, he should make an unequivocal request—without, as Price has done in the past, diluting the request with demands for pain medication or a “letter of merit.”
4 (8) Deliberate indifference to a prisoner’s serious medical needs violates the
Eighth Amendment’s prohibition against cruel and unusual punishment.11 To plead a claim
of deliberate indifference, the prisoner must plead that prison officials were subjectively
aware of a substantial risk of serious harm to the prisoner and failed to take reasonable
measures to abate that risk.12 Deliberate indifference may be shown when prison officials
deny, delay, or intentionally interfere with medical treatment; it may also be shown in the
way in which prison officials provide medical care.13 Even assuming that Dr. Boulos, who
is neither an employee of the prison nor of Centurion, is a state actor for purposes of
pleading an Eighth Amendment violation, the claims against Dr. Boulos are based solely
on several unanswered letters Price sent to Dr. Boulos asking for a certificate of merit and
medical records. But Centurion—not Dr. Boulos—is responsible for Price’s pain
management and terminated his pain medication. And, as Price acknowledges in the
Boulos Complaint, Dr. Boulos advised Centurion that, contrary to Centurion’s view, long-
term-pain management was the appropriate treatment for Price’s pain.14 Simply put,
Price’s deliberate-indifference claim is (and has been) properly brought against Centurion.
(9) We also conclude that the Superior Court did not abuse its discretion when it
dismissed of Price’s reckless-infliction-of-emotional-distress claim after its initial review.
The Boulos Complaint—which alleges that Dr. Boulos “ignored” four letters Price sent to
11 Deputy, 2007 WL 3071424, at *2 (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). 12 Deputy, 2007 WL 3071424, at *2. 13 Id. 14 Compl. ¶ 8 (“A doctor visit materialized on March 4, 2021 at defendant’s office and defendant wrote to Centurion that ‘long term pain management’ was the appropriate course of action.”).
5 him over a two-month period—utterly fails to allege facts that support a claim that Dr.
Boulos’s actions rise to the level of “extreme or outrageous” behavior.15 As a final matter
and as the Superior Court noted, Price has no right to a “certificate of merit.”
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is
AFFIRMED.
BY THE COURT:
/s/ Karen L. Valihura Justice
15 See Barker v. Huang, 610 A.2d 1341, 1351 (Del. 1992).