Lane v. Doe et al
Filing
47
MEMORANDUM OPINION. Signed by Judge Sue L. Robinson on 8/4/2011. (lid)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
KENNARD LANE,
Plaintiff,
v.
WARDEN PERRY PHELPS, et aI.,
Defendants.
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) Civ. No. 09-939-SLR
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Kennard Lane, James T. Vaughn Correctional Center, Smyrna, Delaware. Pro Se
Plaintiff.
Ryan Patrick Connell, Deputy Attorney General, Delaware Department of Justice,
Wilmington, Delaware. Counsel for Defendants.
MEMORANDUM OPINION
Dated: August ~ ,2011
Wilmington, Delaware
I. INTRODUCTION
Plaintiff Kennard Lane ("plaintiff'), an inmate at the James T. Vaughn
Correctional Center ("VCC"), Smyrna, Delaware, filed this lawsuit pursuant to 42 U.S.C.
§ 1983. He proceeds pro se and was granted leave to proceed in forma pauperis.
Presently before the court is the motion to dismiss of State defendants Perry Phelps
("Phelps") and Carl Danberg ("Danberg") (together "defendants'/ and plaintiff's motions
to amend. 2 (0.1. 24, 29, 38) The court has jurisdiction pursuant to 28 U.S.C. § 1331.
For the reasons discussed, the court will grant the motion to dismiss and deny the
motions to amend.
II. BACKGROUND
Plaintiff alleges that from June 2008 until December 28, 2009, defendants "failed,
refused, and delayed to adequately treat" his hernias, causing him moderate to severe
chronic pain for which they also" failed, refused, and delayed adequate treatment or
medication." Plaintiff alleges that defendants were notified and fully aware of the need
for treatment and/or surgery. Plaintiff seeks injunctive relief and compensatory
damages. (0.1. 4)
Defendants filed a Rule 12(b)(6) motion to dismiss the claims and, in turn,
plaintiff filed duplicate motions for leave to amend. (0.1. 24, 29, 38) In addition, plaintiff
opposes the motion to dismiss. 3 (0.1. 30, 37)
1The complaint named several other defendants but only Phelps and Danberg
remain, the other defendants having been dismissed. (See 0.1. 17,41)
2The motions to amend are identical.
3Plaintiff filed duplicate responses to the motion to dismiss. (0.1. 30, 37)
III. MOTION TO DISMISS
A. Standard of Review
Rule 12(b)(6) permits a party to move to dismiss a complaint for failure to state a
claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). The court must accept
all factual allegations in a complaint as true and take them in the light most favorable to
a pro se plaintiff. Phillips v. County of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008);
Erickson v. Pardus, 551 U.S. 89, 93 (2007). Because plaintiff proceeds pro se, his
pleading is liberally construed and his complaint, "however inartfully pleaded, must be
held to less stringent standards than formal pleadings drafted by lawyers." Erickson v.
Pardus, 551 U.S. at 94 (citations omitted).
A well-pleaded complaint must contain more than mere labels and conclusions.
See Ashcroft v. Iqbal, _U.S._, 129 S.Ct. 1937 (2009); Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007). When determining whether dismissal is appropriate, the court
conducts a two-part analysis. Fowler v. UPMC Shadyside, 578 F.3d 203,210 (3d Cir.
2009). First, the factual and legal elements of a claim are separated. Id. The court
must accept all of the complaint's well-pleaded facts as true, but may disregard any
legal conclusions. Id. at 210-11. Second, the court must determine whether the facts
alleged in the complaint are sufficient to show that plaintiff has a "plausible claim for
relief." Id. at 211; see also Iqbal, 129 S.Ct. at 1949; Twombly, 550 U.S. at 570. In other
words, the complaint must do more than allege plaintiff's entitlement to relief; rather, it
must "show" such an entitlement with its facts. A claim is facially plausible when its
factual content allows the court to draw a reasonable inference that the defendant is
liable for the misconduct alleged. Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at
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570). The plausibility standard "asks for more than a sheer possibility that a defendant
has acted unlawfully." Id. "Where a complaint pleads facts that are 'merely consistent
with' a defendant's liability, it 'stops short of the line between possibility and plausibility
of 'entitlement to relief. ,,, Id. The assumption of truth is inapplicable to legal conclusions
or to "[t]hreadbare recitals of the elements of a cause of action supported by mere
conclusory statements." Id. "[Wjhere the well-pleaded facts do not permit the court to
infer more than a mere possibility of misconduct, the complaint has alleged - but it has
not shown - that the pleader is entitled to relief." Id. (quoting Fed. R. Civ. P. 8(a)(2)).
B. Discussion
Plaintiff alleges that he wrote to Danberg and Phelps informing him of his medical
condition and lack of treatment, to no avail. Attachments to the amended complaint
indicate that plaintiff believed hernia surgery was necessary to stop his chronic pain and
that he believed Correctional Medical Services, Inc. ("CMS") ignored his need for
surgery. Defendants move for dismissal on the grounds that the amended complaint
does not contain sufficient facts to show they caused plaintiff harm in violation of the
Eighth Amendment. More specifically, they argue that, although plaintiff does not
explicitly plead the basis for his cause of action against defendants, it appears the claim
is based upon a failure to supervise.
1. Respondeat superior
Defendants argue that the complaint fails to allege the requisite personal
involvement for a § 1983 claim and is based upon a respondeat superior theory. A
defendant in a civil rights action must have personal involvement in the alleged wrongs
to be liable, and cannot be held responsible for a constitutional violation which he or she
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neither participated in nor approved." Baraka v. McGreevey, 481 F.3d 187,210 (3d Cir.
2007). "Personal involvement can be shown through allegations of personal direction or
of actual knowledge and acquiescence." Rode
V.
Dellarciprete, 845 F.2d 1195, 1207
(3d Cir. 1988). The Third Circuit has reiterated that a § 1983 claim cannot be premised
upon a theory of respondeat superior and, that in order to establish liability for
deprivation of a constitutional right, a party must show personal involvement by each
defendant. Brito
V.
United States Dep't of Justice, 392 F. App'x 11, 14 (3d Cir. 2010)
(not published) (citing Iqbal, 129 S.Ct. at 1948-49); Rode
V.
Dellarciprete, 845 F.2d at
1207).
"Because vicarious liability is inapplicable to § 1983 suits, a plaintiff must plead
that each Government-official defendant, through the official's own individual actions,
has violated the Constitution." Iqbal, 129 S.Ct. at 1948 (2009). In Iqbal, the Supreme
Court emphasized that "[i]n a § 1983 suit - here masters do not answer for the torts of
their servants - the term 'supervisory liability' is a misnomer. Absent vicarious liability,
each Government official, his or her title notwithstanding, is only liable for his or her own
misconduct." Iqbal, 129 S.Ct. at 1949. "Thus, when a plaintiff sues an official under §
1983 for conduct 'arising from his or her superintendent responsibilities,' the plaintiff
must plausibly plead and eventually prove not only that the official's subordinates
violated the Constitution, but that the official by virtue of his own conduct and state of
mind did so as well." Dodds
V.
Richardson, 614 F.3d 1185, 1198 (10 th Cir. 2010), cert.
denied, _U.S._, 131 S.Ct. 2150 (2011) (quoting Iqbal 129 S.Ct. at 1949). The factors
necessary to establish a § 1983 violation will vary with the constitutional provision at
issue. Id.
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Under pre-Iqbal Third Circuit precedent, "[t]here are two theories of supervisory
liability," one under which supervisors can be liable if they "established and maintained
a policy, practice or custom which directly caused [the] constitutional harm," and
another under which they can be liable if they "participated in violating plaintiffs rights,
directed others to violate them, or, as the person[s] in charge, had knowledge of and
acquiesced in [their] subordinates' violations." Santiago v. Warminster Twp., 629 F.3d
121, 129 n.5 (3d Cir. 2010) (quoting A.M. ex rei. J.M.K.
V.
Luzerne Cnty. Juvenile Del.
Ctr., 372 F.3d 572, 586 (3d Cir. 2004)) (second alteration in original)). "Particularly after
Iqbal, the connection between the supervisor's directions and the constitutional
deprivation must be sufficient to demonstrate a plausible nexus or affirmative link
between the directions and the specific deprivation of constitutional rights at issue." Id.
at 130.
The Third Circuit has recognized the potential effect that Iqbal might have in
altering the standard for supervisory liability in a § 1983 suit but, to date, has declined to
decide whether Iqbal requires narrowing of the scope of the test. Santiago, 629 F.3d at
130 n.8; see, e.g., Argueta
V.
United States Immigration and Customs Enforcement, 643
F.3d 60, 70 (3d Cir. 2011) ("To date, we have refrained from answering the question of
whether Iqbal eliminated - or at least narrowed the scope of - supervisory liability
because it was ultimately unnecessary to do so in order to dispose of the appeal then
before us."); Bayer V. Monroe County Children and Youth Servs.,577 F.3d 186, 190 n.5
(3d Cir. 2009) (In light of Iqbal, it is uncertain whether proof of personal knowledge, with
nothing more, provides a sufficient basis to impose liability upon a supervisory official.)
Hence, it appears that, under a supervisory theory of liability, and even in light of Iqbal,
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personal involvement by a defendant remains the touchstone for establishing liability for
the violation of a plaintiff's constitutional right. 4 Williams v. Lackawanna County Prison,
Civ. No. 07-1137,2010 WL 1491132, at *5 (M.D. Pa. Apr. 13,2010).
Facts showing personal involvement of the defendant must be asserted; such
assertions may be made through allegations of specific facts showing that a defendant
expressly directed the deprivation of a plaintiff's constitutional rights or created such
policies where the subordinates had no discretion in applying the policies in a fashion
other than the one which actually produced the alleged deprivation; e.g., supervisory
liability may attach if the plaintiff asserts facts showing that the supervisor's actions
were "the moving force" behind the harm suffered by the plaintiff. See Sample v.
Diecks, 885 F.2d 1099, 1117-118 (3d Cir. 1989); see also Iqbal, 129 S.Ct. at 1949-54;
City of Canton
V.
Harris, 489 U.S. 378 (1989); Heggenmiller V. Edna Mahan Corr. Inst.
for Women, 128 F. App'x 240 (3d Cir. 2005) (not published).
Plaintiff provides no specific facts how defendants violated his constitutional
rights, that they expressly directed the deprivation of his constitutional rights, or that
they created policies wherein subordinates had no discretion in applying them in a
fashion other than the one which actually produced the alleged deprivation. The
allegations in the amended complaint do not satisfy the Iqbal requirement.
For the above reasons, the court will grant defendants' motion to dismiss.
4"'Supervision' entails, among other things, training, defining expected
performance by promulgating rules or otherwise, monitoring adherence to performance
standards, and responding to unacceptable performance whether through individualized
discipline or further rulemaking." Sample V. Diecks, 885 F.2d 1099, 1116 (3d Cir. 1989).
"For the purpose of defining the standard for liability of a supervisor under § 1983, the
characterization of a particular aspect of supervision is unimportant." Id. at 1116-17.
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2. Medical needs
In addition, defendants argue that the amended complaint fails to identify with
any particularity deliberate indifference on their behalf. They further argue that plaintiff
seems to allege they are responsible for medical treatment, or the lack thereof, for
matters not under their control.
In order to set forth a cognizable medical needs claim, an inmate must allege (i)
a serious medical need and (ii) acts or omissions by prison officials that indicate
deliberate indifference to that need. Estelle v. Gamble, 429 U.S. at 104; Rouse v.
Plan tier, 182 F.3d 192, 197 (3d Gir. 1999). A prison official is deliberately indifferent if
he knows that a prisoner faces a substantial risk of serious harm and fails to take
reasonable steps to avoid the harm. Farmer v. Brennan, 511 U.S. 825, 837 (1994). A
prison official may manifest deliberate indifference by "intentionally denying or delaying
access to medical care." Estelle v. Gamble, 429 U.S. at 104-05.
"[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 Gir. 2000). An inmate's claims against members of a 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). Finally, "mere disagreement as to the proper medical
treatment" is insufficient to state a constitutional violation. See Spruill v. Gillis, 372 F.3d
218,235 (3d Gir. 2004) (citations omitted).
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Prison administrators cannot be deliberately indifferent "simply because they
failed to respond directly to the medical complaints of a prisoner who was already being
treated by the prison doctor." Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993). "If a
prisoner is under the care of medical experts ... a non-medical prison official will
generally be justified in believing that the prisoner is in capable hands." Spruill v. Gillis,
372 F.3d 218, 236 (3d Cir. 2004) (discussing Durmer, 991 F.2d at 69). U[A]bsent a
reason to believe (or actual knowledge) that prison doctors or their assistants are
mistreating (or not treating) a prisoner, a non-medical prison official ... will not be
chargeable with the Eighth Amendment scienter requirement of deliberate indifference."
Id. at 236.
On several occasions, plaintiff sent defendants copies of correspondence to
others complaining about his medical treatment. Copies sent to defendants were also
sent to medical and to Correctional Medical Services, Inc. ("CMS") administration. 5
Exhibits to the amended complaint indicate that, as recently as one month prior to filing
the complaint, plaintiff underwent a scan and saw a physician for evaluation. The
exhibits indicate that plaintiff received continual, but what he considered unsatisfactory,
medical treatment from CMS. Based upon the alleged facts and the law, the complaint
fails to state a cognizable claim against defendants.
Further, exhibits to the amended complaint indicate that, while plaintiff submitted
numerous medical grievances and sick call requests, the grievance committee
responded to such. Any alleged failure by defendants to respond to plaintiffs
5CMS a named defendant, was dismissed for plaintiffs failure to effect its service.
(See 0.1. 41)
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complaints does not rise to the level of a constitutional violation. See Brooks v. Beard,
167 F. App'x 923,925 (3d Cir. 2006) (not published) (allegations that prison officials and
administrators responded inappropriately to inmate's later-filed grievances do not
establish the involvement of those officials and administrators in the underlying
deprivation); Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir.1993) (summary judgment
properly granted to prison warden and state commissioner of corrections, the only
allegation against whom was that they failed to respond to letters from prisoner
complaining of prison doctor's treatment decisions).
The amended complaint fails to allege that defendants violated plaintiff's
constitutional rights. Therefore, the court will grant the motion to dismiss.
IV. MOTION TO AMEND
Plaintiff moves to amend and provided to the court a copy of his proposed
second amended complaint. (0.1. 29, 38) Defendants oppose the motion and argue
that the proposed amendment has little bearing on the pending motion to dismiss. They
contend that it fails to identify with any particularity any sort of deliberate indifference on
the part of defendants. Finally, they note that plaintiff has been under, and continues to
be under, the care of trained medical professionals.
Pursuant to Fed. R. Civ. P. 15(a), a party may amend his pleading once as a
matter of course within twenty-one days after serving it or, if the pleading is one to
which a responsive pleading is required, twenty-one days after service of a responsive
pleading or twenty-one days after service of a Rule 12(b) motion, whichever is earlier.
Otherwise, a party may amend his pleading only with the opposing party's written
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consent or the court's leave. Rule 15 provides that court should freely give leave to
amend when justice so requires.
The Third Circuit has adopted a liberal approach to the amendment of pleadings
to ensure that "a particular claim wi" be decided on the merits rather than on
technicalities." Dole v. Arco Chern. Co., 921 F.2d 484,486-87 (3d Cir. 1990) (citations
omitted). Amendment, however, is not automatic. See Dover Steel Co., Inc. v. Hartford
Accident and Indem., 151 F.R.D. 570, 574 (E.D. Pa. 1993). Leave to amend should be
granted absent a showing of "undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of the allowance of the amendment, futility of
amendment, etc." Foman v. Davis, 371 U.S. 178, 182 (1962); See also Oran v.
Stafford, 226 F.3d 275, 291 (3d Cir. 2000). Futility of amendment occurs when the
complaint, as amended, does not state a claim upon which relief can be granted. See
In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997). If the
proposed amendment "is frivolous or advances a claim or defense that is lega"y
insufficient on its face, the court may deny leave to amend." Harrison Beverage Co. v.
Dribeck Importers, Inc., 133 F.R.D. 463, 468 (D.N.J. 1990).
The proposed second amended complaint provides more detail than the original
complaint and amended complaint. It alleges that, during a" relevant times, defendants
refused to act appropriately, even though they were aware that plaintiff was receiving
inadequate medical care, following their receipt of letters from the American Civil
Liberties Union because of an investigation by the United States Department of Justice
into medical service provided to Delaware Department of Correction inmates. The
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proposed amended complaint provides a chronology of plaintiff's medical condition and
treatment that includes examinations by physicians and surgeries on April 8, 2008, July
31, 2008, and in February 2010 following plaintiff's continual complaints of pain.
Despite the added facts, the proposed second amended complaint fails to state a
claim against defendants. The allegations indicate that plaintiff received medical
treatment for his condition, and fail to allege that defendants had any personal
involvement or were deliberately indifferent to plaintiff's medical needs. After reviewing
the proposed second amended complaint, the court concludes that amendment is futile.
For the above reasons, the court will deny plaintiff's motions to amend.
V. CONCLUSION
For the reasons discussed above, the court will grant defendant's motion to
dismiss and will deny plaintiff's motions to amend. (0.1. 24, 29, 38) An appropriate
order will be entered.
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