Price v. Deloy

Filing 106

MEMORANDUM granting CMS' motion for summary judgment, denying plaintiff's request for counsel and motions to compel, and will allow further discovery. An appropriate order will be issued. Signed by Judge Gregory M. Sleet on 6/17/2011. (dlk)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

MILLARD E. PRICE,

)

)

Plaintiff,
)

)
v.
) Civ. Action No. 08-444-GMS
)
WARDEN MICHAEL E. DELOY and
)
CORRECTIONAL MEDICAL SERVICES, )
)
Defendants.
)

MEMORANDUM

I. INTRODUCTION
The plaintiff, Millard E. Price ("Price"), who proceeds pro se and has been granted leave
to proceed without prepayment of fees, filed this lawsuit pursuant to 42 U .S.c. § 1983 alleging
violations of his constitutional rights. Price is incarcerated at the James T. Vaughn Correctional
Center ("VCC"), Smyrna, Delaware. Before the court are several pending motions filed by the
parties as well as a motion for summary judgment flied by the defendant Correctional Medical
Services, Inc. ("CMS"). (D.1. 58,65,66, 75, 79, 83,93,94, 96.) For the reasons that follow, the
court will grant CMS' motion for summary judgment, will deny Price's motions to compel, will
grant the defendant Michael Deloy's ("Deloy") motion to strike, but give Price leave to propound
additional interrogatories to Deloy, and will deny Price's motion for depositions upon written
questions.

II. BACKGROUND
Price flied his complaint on July 17, 2008. He alleges violation of his right to due
process and equal protection because pretrial detainees at the Sussex Correctional Institution

("SCI") and the James T. Vaughn Correctional Center ("VCC") are housed in more burdensome
conditions than convicted inmates. More particularly, he alleges that pretrial detainees are: (1)
provided less medical and dental care than convicted inmates; (2) provided less visits per week
than convicted inmates; (3) denied the opportunity to order foods items via the commissary when
convicted inmates are provided full commissary rights; (4) not provided the same Christian
services, bible study programs, and prayer meeting as afforded convicted inmates; (5) placed in
lockdown status when convicted inmates are not; (6) denied yard/exercises privileges when
convicted inmates are assigned recreation time; (7) housed in overcrowded conditions; (8)
subjected to unhealthy conditions "via" the cafeteria; and (9) not provided the right to be tried by
an impartial tribunal during disciplinary proceedings. (D.I. 1O,-r,-r II. A- E., G., H., 1.- L.) He
also alleges that he was arbitrarily placed in segregation for no reason, that his grievances are
ignored or discarded and, as a form of punishment, he was deprived of dinner on two occasions.

(Id. at,-r,-r D., F., I.)
Upon screening, the court dismissed the grievance claims and all claims against the
defendants Carl Danberg and Perry Phelps pursuant to 28 U.S.C. § 1915(e)(2)(B) and §
1915A(b)(1). (D.1. 18.) Plaintiff was allowed to proceed against CMS and Warden Michael E.
Deloy ("Deloy") on the remaining claims.

III. MISCELLANEOUS MOTIONS
A. Request for Counsel
Price has filed a second request for counsel, opposed by CMS. (D.1. 58.) Price requests
counsel on the grounds that: (1) counsel will benefit both he and the court; (2) the issues can be
more clearly identified; (3) counsel will expedite the matter with a prehearing conference; (4)

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counsel will make better use of discovery procedures; (5) he lacks the ability to present his case,
is unskilled in the law, and cannot afford counsel; (6) he raises important constitutional questions
that should not be taken lightly; and (7) the interests ofjustice will be better served.
A pro se litigant proceeding in forma pauperis has no constitutional or statutory right to
representation by counsel. See Ray v. Robinson, 640 F.2d 474,477 (3d Cir. 1981); Parham v.

Johnson, 126 F.3d 454,456-57 (3d Cir. 1997). However, representation by counsel may be
appropriate under certain circumstances, if the court finds that Price's claims have arguable merit
in fact and law. Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993).
The court considers a number of factors when assessing a request for counsel, including:
(1) Price's ability to present his own case; (2) the difficulty of the particular legal issues; (3) the
degree to which factual investigation will be necessary and the ability of Price to pursue
investigation; (4) Price's capacity to retain counsel on his own behalf; (5) the extent to which a
case is likely to turn on credibility determinations; and (6) whether the case will require
testimony from expert witnesses. Tabron v. Grace, 6 F.3d at 155-57; accord Parham, 126 F.3d
at 457; Montgomery v. Pinchak, 294 F.3d 492,499 (3d Cir. 2002).
Upon consideration of the record, the court is not persuaded that the request for counsel is
warranted at this time. In reviewing the record, Price appears to have the ability to present his
claims and there is no evidence that prejudice will result in the absence of counsel. Indeed, Price
is a certified paralegal. (D.I. 55, Pl.'s answer to interrog. 9.) More importantly, should the need
for counsel arise later, the court may revisit the issue. Therefore, the court will deny without
prejudice the request for counsel. (D.!. 58.)

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B. Discovery Motions
1. Motions to Compel
Price moves to compel the defendants to respond to discovery served upon them. (D.I.
65,66.) He also seeks sanctions. The defendants oppose the motions.
Pursuant to Fed. R. Civ. P. 26, "[p]arties may obtain discovery regarding any
nonprivileged matter that is relevant to any party's claim or defense--including the existence,
description, nature, custody, condition, and location of any documents or other tangible things
and the identity and location of persons who know of any discoverable matter. For good cause,
the court may order discovery of any matter relevant to the subject matter involved in the action.
Relevant information need not be admissible at the trial if the discovery appears reasonably
calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1).
The court docket reflects that Price served discovery requests upon Deloy on February 2,
2010. (D.!. 51, 52.) Because Price did not receive timely responses to the discovery, he filed the
instant motion to compel. (D.I.65.) Deloy explains that he received a copy of the discovery
requests through the court's PACER system on February 2, 2010, but did not receive the paper
copy until several days later. (D'!.69.) The court docket indicates that Deloy responded to the
discovery requests on March 23,2010 and March 31, 2010. (D.!. 62, 67.) Price argues that the
responses were filed late and are insufficient. (D.I. 71.)
Counsel for Deloy explains that the responses were late because counsel was waiting for
verification from Deloy who was away from the prison for a time in March and to allow Deloy to
provide substantive responses. Had counsel adhered to the Federal Rules of Civil Procedure and
requested an extension of time to respond to discovery, the court's limited resources would not
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be wasted on this discovery motion. The court has reviewed the discovery responses by Deloy
and finds that he has adequately responded to the requests, albeit late, and, therefore, the court
will deny the motion to compel. (D.l. 65.)
The court docket further reflects that Price served discovery requests upon CMS. (D.l.
48,49.) CMS responded to the discovery requests, but Price claims its responses are "nothing
short of being evasive, and in reality amounted to no answer at all." (D.l. 54, 55, 66.) Hence, his
motion to compel against CMS. (D.l. 66.)
Price seeks documents regarding grievances he filed, but CMS advises the court that it
has no such documents in its possession. CMS cannot produce what it does not have. Finally,
while CMS objected to most of the discovery responses, it also responded to the requests and
answered the interrogatories. The court has reviewed all responses and finds the responses
adequate. For the above reasons, the court will deny the motion to compel. (D.l. 66.)

2. Interrogatories
On May 6, 2010, Price served upon Deloy a second set of interrogatories. (D.l. 74.)
Deloy moves to strike the second set of interrogatories inasmuch as they exceed the number
allowed by Fed. R. Civ. P. 33. (D.l. 79.) Price opposes the motion and filed a motion to submit
additional interrogatories and requests for admission to the defendants. (D.l. 82, 83.) Both CMS
and Deloy oppose Price's motion. (D.l. 87,89.)
Pursuant to Fed. R. Civ. P. 33(a)(I), "[u]nless otherwise stipulated or ordered by the
court, a party may serve on any other party no more than 25 written interrogatories, including all
discrete subparts." Leave to serve additional interrogatories may be granted to the extent
consistent with Rule 26(b)(2). Id The parties did not stipulate to interrogatories in excess of
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twenty-five, nor did the court grant leave to file additional interrogatories. Accordingly, the court
will grant Deloy's motion to strike Price's second set of interrogatories found at docket item 74.

(D.I.79.)
Price does not need leave to serve additional requests for admission. While he seeks
leave to propound additional interrogatories, Price does not indicate the number of additional
interrogatories he seeks to propound. As will be discussed, the court will grant CMS' motion for
summary judgment. Therefore, with regard to CMS, the court will deny Price's motion to
propound additional interrogatories.
Many issues remain against Deloy including that pretrial detainees are: (1) provided less
visits per week than convicted inmates; (2) denied the opportunity to order foods items via the
commissary when convicted inmates are provided full commissary rights; (3) not provided the
same Christian services, bible study programs, and prayer meeting as afforded convicted inmates;
(4) placed in lockdown status when convicted inmates are not; (5) denied yard/exercises
privileges when convicted inmates are assigned recreation time; (6) housed in overcrowded
conditions; (7) subjected to unhealthy conditions "via" the cafeteria; and (8) not provided the
right to be tried by an impartial tribunal during disciplinary proceedings. Price also claims (9)
arbitrary placement in segregation for no reason, and (l0) the deprivation of meals on two
occasions as punishment.
Due to the numerous issues raised against Deloy, the court will grant Price's motion to
propound additional interrogatories upon Deloy. Price is given leave to propound five
interrogatories per issue, for a total offifty additional interrogatories (including supbarts).

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Finally, the court will enter a scheduling order containing discovery and dispositive motion
deadlines.

3. Motion to Take Deposition
Price moves the court to appoint a person before whom written depositions may be taken
pursuant to Fed. R Civ. P. 30. (D.1. 96.) Price seeks to depose thirteen individuals, most of
whom are non-parties and many of whom are medical personnel. The only party Price seeks to
depose is Deloy.
Because he seeks to depose non-parties, Price is required to subpoena them and pay
witness and mileage fees to compel their attendance. Fed. R Civ. P. 31; Fed. R Civ. P. 45. The
court has no authority to finance or pay for a party's discovery expenses. Badman v. Stark, 139
F.RD. 601, 605 (M.D. Pa. 1991) (Section 1915 does not require the government to advance
funds for deposition expenses); Doe v. United States, 112 F.RD. 183, 184-85 (S.D.N.Y. 1986)
(in forma pauperis statute does not require government to advance funds for deposition

expenses); Toliver v. Community Action Comm 'n to Help the Econ., 613 F. Supp. 1070, 1072
(S.D.N.Y. 1985) (no clear statutory authority for the repayment of discovery costs for pro sein
forma pauperis plaintiff); Ronson v. Commissioner ofCorr. for State ofNY., 106 F .RD. 253,

254 (S.D.N.Y. 1985) (indigent prisoner's motion to depose physician at corrections facility
denied); Sturdevant v. Deer, 69 F.RD. 17, 19 (E.D. Wis. 1975) (28 U.S.C. § 1915 "does not
extend to the cost of taking and transcribing a deposition."); Ebenhart v. Power, 309 F. Supp.
660,661 (S.D.N.Y. 1969) ("Grave doubts exist as to whether Section 1915 authorizes this court
to order the appropriation of Government funds in civil suits to aid private litigants in conducting
pre-trial discovery.").
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It is Price's responsibility to pay for the costs associated with discovery, particularly from
non-parties. In addition, as will be discussed, the court will grant CMS's motion for summary
judgment. As a result, there is no need to depose medical personnel. Finally, the court has given
Price leave to propound an additional fifty interrogatories upon Deloy. These additional
interrogatories should be more than adequate to fulfill Price's discovery needs. For these
reasons, the court will deny the motion to appoint a person before whom a deposition may be
taken. (D.I. 96.)

IV. SUMMARY JUDGMENT
A. Standard of Review
A grant of summary judgment is appropriate only where "the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P.
56(c). The moving party bears the burden of demonstrating the absence of a genuine issue of
material fact. See Matsushita Elec. Indus. Co., Ltd v. Zenith Radio Corp., 475 U.S. 574, 586
n.l 0 (1986). "When considering whether there exist genuine issues of material fact, the court is
required to examine the evidence of record in the light most favorable to the party opposing
summary judgment, and resolve all reasonable inferences in that party's favor." Wishkin v.

Potter, 476 F.3d 180, 184 (3d Cir. 2007). The "mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported motion for summary
judgment;" a factual dispute is genuine only where "the evidence is such that a reasonable jury
could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986). If the moving party has carried its burden, the nonmovant must then "come

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forward with specific facts showing that there is a genuine issue for trial." Matsushita, 475 U.S.
at 587 (internal quotation marks omitted). Moreover, "the issue of material fact required by Rule
56(c) to be present to entitle a party to proceed to trial is not required to be resolved conclusively
in favor of the party asserting its existence; rather, all that is required is that sufficient evidence
supporting the claimed factual dispute be shown to require ajury or judge to resolve the parties'
differing versions of the truth at trial." Anderson, 477 U.S. at 248-49 (internal quotation marks
omitted).
CMS moves for summary judgment on the grounds that it did not enact any policy of
deliberate indifference and Price was not treated differently from other inmates. I (D.l. 89.)

B. Facts
Price's medical file indicates that he filed a sick call request on April 22, 2008, and was
seen on April 23, 2008 by Nurse M. Ward ("Ward"). At that time, Price refused to be scheduled
for a physical examination. 2 He was next seen by a nurse on June 20, 2008, who noted a right
inguinal hernia, which was reducible upon palpation. She noted positive bowel sounds in all four
quadrants and no complaints of bowel or bladder problems. A hernia belt was prescribed and
Price was referred for follow-up. (D.l. 76.)
Price was seen by Nurse Practitioner Chuks ("Chuks") on June 24, 2008, who took note
of the right inguinal hernia and indicated that Price had stable vital signs and no acute distress.

Iprice filed a sur-reply with out leave of court, CMS moved to strike the sur-reply, and
Price filed a motion for leave to file the sur-reply. (D.!. 90,93,94.) The court will deny the
motion to strike and will grant Price's motion for leave to file the sur-reply. (D.l. 93,94.)
2Price refused to schedule the examination because it would have been performed by
Nurse Ward. (D.l. 81, Pl.'s aff. ~ 13.)
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Price complained of increased pain with long standing, but denied abdominal pain, vomiting,
diarrhea, constipation, burning or pain with urination. The notes state that Price "wants
'operation'done." Chuks recommended a hernia belt (although Price was using one) and lab
work. The medical notes indicate that a physician assessed the finding and ordered a hernia belt
for Price. Price received and signed a receipt. Price presented at the clinic on December 5, 2008,
but left before he could be seen by a physician. (D.L 76.) According to Price, pretrial inmates
are escorted everywhere and he did not leave medical on his own volition, apparently having
been ordered to leave with an escort. (D.I. 81, PL's aff.

~

14.)

Price submitted a grievance on June 30, 2008, complaining that he has a hernia and
needed surgery, but was told by medical that he could not have surgery because he was not a
sentenced inmate. (D.I. 81, ex. B.) The investigator stated that Price, "will be here for awhile on
murder charges and we don't schedule appt. when you are in pretrial or B." (D.I. 66, grievance at
2.) Price appealed a "held" decision, stating that he received no written decision and was told to
file an appeaL (D.L 81, ex. D.) A hearing was held on October 21,2008 and the next day it was
recommended that medical check into an appointment for pretrial going for surgery and to
schedule the inmate with a physician. (Jd at ex. C.) Price was informed on November 6, 2008
that he would be scheduled with a physician to determine if surgery was necessary, but
subsequent to the hearing he had not been scheduled or seen by a physician to determine whether
a hernia repair was required. (D.L 66, grievance at 5.)
According to CMS, inmates with hernias are treated the same regardless of their status.
They are given conservative treatment unless there is incarceration of the bowel or a threat

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thereof. Both pretrial and sentenced inmates have the same access to healthcare. Price did not
get surgery because it was not medically indicated. (D.1. 54, CMS answer to interrog. 4.)
According to Price, he has never been examined by a physician for his hernia condition.
Price was told by unnamed CMS personnel between April 9, 2008 and June 16,2008 that he
needed hernia surgery, but could not receive it because he was not a sentenced inmate. After
Price submitted medical grievances, when an informal resolution was sought, Price was advised
that he could not have surgery because policy prohibited it. Medical was to check into an
appointment for pretrial going for surgery and to schedule Price to see a physician, but he was
not scheduled to see a physician. (D.1. 81, PI. 's aff.)
CMS medical director, Dr. Lawrence McDonald ("Dr. McDonald") opines that Price's
hernia is non-emergent and was treated appropriately with a hernia belt. He further opines that, if
and when it becomes medically necessary, surgery will be performed. (D.1. 78, McDonald aff.)
Price submitted sick call slips and was seen by medical personnel subsequent to filing his
complaint. Other than those discussed above, the records do not reflect that Price submitted sick
call slips for treatment of the hernia or that he complained of the condition when he was seen by
medical personnel. (D.!. 76, 85.)
Price's dental records indicate that he filed a sick call request on April 14, 2008,
complaining that a lower left jaw tooth was bleeding and that he had sharp pain when eating or
drinking. Price was seen and evaluated by dental assistant McMillan ("McMillan") on April
30, 2008, who referred Price to a dentist. On May 2, 2008, Price was seen by Christopher C.
Forten, DDS ("Dr. Forten"). Dr. Forten diagnosed "gingivitis with mild gingival recession.
Sensitivity will resolve over time. Bleeding gums means inflammation and means brush better."
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(D.l. 76.) On June 13,2008, Price complained to Deloy that he was told by dental that, as a
pretrial detainee, he could not have a cavity filled but that dental would extract the tooth. 3 (D.l.
81, ex. A.) No other dental records were submitted to the court.
CMS director of dental services, Arnold Mann, D.D.S. ("Dr. Mann") states that CMS'
dental policies with respect to the treatment of dental cavities do not distinguish between pre-trial
detainees and sentenced inmates. He further states that cavities are not treated with permanent
fillings until an inmate has been incarcerated for at least six months, regardless of whether the
inmate has been sentenced. (D.l. 78, Mann aff.)

C. Discussion
1. MedicaIlDental Needs for Pretrial Detainees
CMS argues that it did not enact any policy of deliberate indifference to Price's medical
needs. Price argues that there is insufficient discovery for the court "to make an intelligible
decision." In addition to his affidavit, Price relies upon grievances he filed to support his
position that CMS violated his constitutional rights.
When a plaintiff relies upon a theory of respondeat superior to hold a corporation liable,
he must allege a policy or custom that demonstrates such deliberate indifference. Sample v.
Diecks, 885 F.2d 1099, 1110 (3d Cir. 1989); Miller v. Correctional Med. Sys., Inc., 802 F.Supp.
1126, 1132 (D. Del. 1992). In order to establish that CMS is directly liable for the alleged
constitutional violations, Price "must provide evidence that there was a relevant [CMS] policy or
custom, and that the policy caused the constitutional violation[s] [plaintiff] allege[s]." Natale v.

3In his sur-reply, Price states that he had teeth filled on September 29, October 27, and
November 30, 2009. In addition, his teeth were cleaned on October 30, 2009. (D.l. 90.)
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Camden Cnty. Carr. Facility, 318 F.3d 575,584 (3d Cir. 2003) (because respondeat superior or
vicarious liability cannot be a basis for liability under 42 U.S.C. § 1983, a corporation under
contract with the state cannot be held liable for the acts of its employees and agents under those
theories).
When a pretrial detainee challenges the conditions of confinement in a state detention
facility, the claim is analyzed under the Due Process Clause of the Fourteenth Amendment. See

Hubbard v. Taylor, 399 F.3d 150, 157-58 (3d Cir. 2005). Courts have concluded that the
Fourteenth Amendment affords pretrial detainees protections that are "at least as great as the
Eighth Amendment protections afforded to a convicted prisoner." Natale v. Camden County

Carr. Facility, 318 F.3d 575,581 (3d Cir. 2003) (quoting City ofRevere v. Massachusetts Gen.
Hasp., 463 U.S. 239, 244 (1983». Hence, when assessing medical claims by pretrial detainees,
courts may apply the deliberate indifference standard established under the Eighth Amendment
but must view the inquiry in the context of the Bell v. Wolfish standard, which applies Fourteenth
Amendment due process principles and not the cruel and unusual punishment standard to pretrial
detainees. 4 See Hubbard v. Taylor, 399 F.3d at 165-66. The deliberate indifference standard
requires a finding of a serious medical need and acts or omissions by prison officials that
indicate deliberate indifference to that need." Natale, 318 F.3d at 582. A prison official may

4The Third Circuit has observed that nowhere in Bell v. Wolfish, 441 U.S. 520 (1979),
did the Supreme Court suggest that if detainees are treated differently or worse than convicted
inmates, they are ipso facto being "punished" in violation of the Due Process Clause. Hubbard v.
Taylor, 558 F.3d 229,236 (3d Cir. 2008). Rather, the issue is whether "a particular condition or
restriction of pretrial detention is reasonably related to a legitimate governmental objective;" if
so, it is irrelevant whether or not that condition is also imposed upon convicted inmates. ld.
(internal citation omitted). Therefore, "conditions that are 'comparatively worse' or 'less
comfortable' for pretrial detainees than for convicted inmates are not by themselves tantamount
to punishment. ld
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manifest deliberate indifference by "intentionally denying or delaying access to medical care."

Estelle v. Gamble, 429 U.S. 97,104-05 (1976). An inmate's claims against members ofa prison
medical department are not viable under § 1983 where the inmate receives continuing care, but
believes that more should be done by way of diagnosis and treatment and maintains that options
available to medical personnel were not pursued on the inmate's behalf. Estelle v. Gamble, 429
U.S. 97, 107 (1976). Moreover, "a prisoner has no right to choose a specific form of medical
treatment," so long as the treatment provided is reasonable. Harrison v. Barkley, 219 F .3d 132,
138-140 (2d Cir. 2000). Finally, "mere disagreement as to the proper medical treatment" is
insufficient to state a constitutional violation. See Spruill v. Gillis, 372 FJd 218, 235 (3d Cir.
2004) (citations omitted).
With regard to the hernia condition, the grievances seem to indicate a somewhat vague
policy of no surgery for pretrial inmates. Regardless, the medical records indicate that it was
Price, not medical personnel, who stated that he needed a hernia operation. Indeed, the medical
records do not recommend surgery. While Price claims he was not seen by a physician, he was
seen by a nurse practitioner whose notes do not indicate surgery was necessary. Moreover, Price
did not refute Dr. McDonald's expert opinion that hernia surgery was not medically necessary.
Price cannot survive the motion for summary judgment absent expert testimony that would
dispute Dr. McDonald's opinion. See Aruanno v. Glazman, 316 F. App'x 194 (3d Cir. 2009).
There is scant evidence with regard to the dental issue but, what evidence there is,
indicates that Price was given the option of having a tooth extracted, but not filled. Price did not
opt for the extraction, but he does not have the right to choose the type of treatment he desires.

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The record does not support a finding of deliberate indifference to a serious medical or
dental need. The surgery Price wants is not medically necessary.s Moreover, he was offered
dental care, albeit not the care he wanted. 6 Inasmuch as the record does not support a finding of
deliberate indifference, CMS cannot be liable based on the theory that it established or
maintained an unconstitutional policy or custom responsible for violating Price's rights. See
Goodrich v. Clinton Cnty. Prison, 214 F. App'x 105, 113 (3d Cir. 2007) (not published) (policy

makers not liable in prison medical staffs alleged deliberate indifference to prisoner's serious
medical needs, where, given that there was no underlying violation of prisoner's rights, policy
makers did not establish or maintain an unconstitutional policy or custom responsible for
violating prisoner's rights). A reasonable jury could not find that CMS' violated Price's
constitutional rights with regard to medical or dental care.
For the above reasons, the court will grant CMS' motion for summary judgment on the
issue of deliberate indifference to Price's medical and dental needs.

2. Equal Protection
CMS also moves for summary judgment on the grounds that Price was not treated
differently than other inmates. Price argues that pretrial detainees are treated differently than
sentenced inmates.
To the extent Price alleges a violation of the Equal Protection Clause, it states that no
State shall "deny to any person within its jurisdiction the equal protection of the laws," which is
essentially a direction that all persons similarly situated should be treated alike. City of

5There is no indication that Price underwent hernia surgery at a later time.

6Price received several fillings in 2009.

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Cleburne, Texas v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing Plyler v. Doe, 457
U.S. 202, 216 (1982)); Artway v. Attorney Gen. o/New Jersey, 81 F.3d 1235, 1267 (3d Cir. 996).
"The Equal Protection Clause does not forbid classifications. It simply keeps governmental
decisionmakers from treating differently persons who are in all relevant respects alike."

Nordlinger v. Hahn, 505 U.S. 1, 10 (1992).
To succeed on the equal protection claim, Price must demonstrate that he "received
different treatment from that received by other individuals similarly situated." Chambers ex reI.

Chambers v. School Dist. o/Philadelphia Ed

0/Educ., 587 F.3d 176, 196 (3d Cir. 2009).

He

must also show an intentional or purposeful discrimination. Wilson v. Schillinger, 761 F.2d 921,
929 (3d Cir. 1985). Once this intentional disparity in treatment is shown, the court will proceed
to determine whether the disparity can be justified under the requisite level of scrutiny. See City

o/Cleburne, 473 U.S. 432, 439-40 (1985); Plyler v. Doe, 457 U.S. 202,216-17 (1982); Price v.
Cohen, 715 F.2d 87, 91-92 (3d Cir. 1983). Courts have consistently held that, in the absence of a
fundamental right or a protected class, equal protection only requires that a regulation which
results in unequal treatment of an inmate bear some rational relationship to a legitimate
penological interest. See McGinnis v. Royster, 410 U.S. 263 (1973); Hodges v. Klein, 562 F.2d
276 (3d Cir. 1977); see also Shaw v. Murphy, 532 U.S. 223,225 (2001).
Here, the record does not support a finding of a violation of Price's right to equal
protection. There is no evidence of record that Price was treated differently than others who were
similarly situated and that the alleged unequal treatment was the result of intentional or
purposeful discrimination. Price, as a pre-trial detainee, avers that he was treated differently than
sentenced inmates. However, Price offered no evidence that he has been treated differently than

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similarly situated persons, that is other pretrial detainees. See Slade v. Hampton Roads Reg '1

Jail, 303 F. Supp. 2d 779 (E.D. Va. 2004) (detainee is not "similarly situated" to convicted
inmates); Moss v. Clark, 886 F.2d 686,691 (4th Cir .1989) (the class to which an inmate belongs
consists of the persons confined as he is confined, and subject to the same conditions to which he
is subject). Nor does the evidence of record suggest discriminatory intent.
No reasonable jury could find in favor of Price on the equal protection issue. Therefore,
the court will grant CMS' motion for summary judgment on the issue of equal protection.

V. CONCLUSION
For the above reasons, the court will grant CMS' motion for summary judgment, deny
plaintiff s request for counsel and motions to compel, and will allow further discovery. The
court will enter a scheduling order.

An appropriate order will be issued.

r.--­

\)~

17

Wiliitington, Delaware

,2011