DuPree v. Jane Doe 1 et al

Filing 59

MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 6/7/12. (dzs, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JOHN RANDOLPH DUPREE, SR.,
Plaintiff,
v.

Civ. No. 10-351-LPS

JANE DOE 1, et aI.,
Defendants.

John Randolph DuPree, James T. Vaughn Correctional Center, Smyrna, Delaware, Pro Se
Plaintiff.
Chad 1. Toms, Daniel A. Griffith, and Jarret P. Hitchings, Esquires, Whiteford, Taylor &
Preston, L.L.C., Wilmington, Delaware. Counsel for Defendant Correctional Medical Services,
Inc., now known as Corizon, Inc.

MEMORANDUM OPINION

June 7, 2012
Wilmington, Delaware

L~Y.t~iC~::/

I.

INTRODUCTION
Plaintiff John Randolph DuPree, Sr. ("Plaintiff") filed this action on April 27, 2010,

alleging constitutional violations pursuant to 42 U.S.C. § 1983. He also raises supplemental
State law claims. Presently before the Court are Defendant Correctional Medical Services, Inc.' s
("Defendant") Motion to Dismiss and Plaintiff s Demand to Convene a Medical Malpractice
Review Panel. (D.1. 30, 37) For the reasons that follow, the Court will grant Defendant's motion
and will deny Plaintiff s motion.

II.

BACKGROUND
Plaintiff alleges a medical needs claim as a result of a skin condition that resulted in

scarring and hospitalization. He was hospitalized in May 2009 for months, "nearly losing" his
life as a "direct result from the neglect in medical treatment." (D.1. 2.) At that time, he
underwent "operations to remove the highly infectious mass" from his chest and neck. ld.
Plaintiff alleges that Defendant's policies/customs of cost avoidance were the driving force
behind the indifference to his serious medical needs. (D.I. 7 at 3) In addition, he alleges that
Defendant provided the least efficacious medical care for the purpose of saving money. (D.1. 16
at,-r,-r 2,4) Plaintiff seeks treatment by a dermatologist, prospective relief, declaratory relief,
reimbursement for the preexisting medical condition, and compensatory and punitive damages.
Defendant moves for dismissal pursuant to Rule 12(b)(6) on the grounds that: (1) the
Complaint fails to allege or identify a policy or custom of deliberate indifference sufficient to
establish § 1983 liability, and (2) Plaintiff failed to provide an affidavit of merit to support his
claims under 18 Del. C. § 6853. Plaintiff did not file a response to the Motion. Instead, Plaintiff

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filed a demand for the Court to convene a medical malpractice review panel pursuant to
Delaware Superior Court Rule 71.2(b). Defendant opposes the Motion.

III.

MOTION TO DISMISS
A.

Le~al

Standards

Evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) requires
the Court to accept as true all material allegations of the complaint. See Spruill v. Gillis, 372
F .3d 218, 223 (3d Cir. 2004). "The issue is not whether a plaintiff will ultimately prevail but
whether the claimant is entitled to offer evidence to support the claims." In re Burlington Coat
Factory Sec. Litig., 114 F.3d 1410, 1420 (3d Cir. 1997) (internal quotation marks omitted).
Thus, the Court may grant such a motion to dismiss only if, after "accepting all well-pleaded
allegations in the complaint as true, and viewing them in the light most favorable to plaintiff,
plaintiff is not entitled to relief." Maio v. Aetna, Inc., 221 F .3d 472, 481-82 (3d Cir. 2000)
(internal quotation marks omitted).
However, "[t]o survive a motion to dismiss, a civil plaintiff must allege facts that 'raise a
right to relief above the speculative level on the assumption that the allegations in the complaint
are true (even if doubtful in fact). '" Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A claim is facially
plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S.
662, 129 S.Ct. 1937, 1949 (2009). At bottom, "[t]he complaint must state enough facts to raise a
reasonable expectation that discovery will reveal evidence of [each] necessary element" of a
plaintiffs claim. Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315,321 (3d Cir.

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2008) (internal quotation marks omitted). The Court is not obligated to accept as true "bald
assertions," Morse v. Lower Merion Sch. Dist., 132 F .3d 902, 906 (3d Cir. 1997) (internal
quotation marks omitted), "unsupported conclusions and unwarranted inferences," Schuylkill

Energy Res., Inc. v. Pennsylvania Power & Light Co., 113 F.3d 405, 417 (3d Cir. 1997), or
allegations that are "self-evidently false," Nami v. Fauver, 82 F.3d 63, 69 (3d Cir. 1996).
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. 89,94 (2007) (internal quotation marks
omitted).
B.

Discussion
1.

42 U.S.c. § 1983 Policy or Custom

Defendant moves for dismissal of the § 1983 claim on the basis that the Complaint fails
to allege or identify a policy or custom of deliberate indifference on its behalf sufficient to
establish liability. 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. See 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,
plaintiff "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. Camden County

Corr. Facility, 318 F.3d 575, 584 (3d Cir. 2003) (stating because respondeat superior or

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vicarious liability cannot be basis for liability under 42 U.S.C. § 1983, corporation under contract
with state cannot be held liable for acts of its employees and agents under those theories).
Assuming the acts of a defendant's employees have violated a person's constitutional
rights, those acts may be deemed the result of a policy or custom of the entity for whom the
employee works, thereby rendering the entity liable under § 1983, where the inadequacy of
existing practice is so likely to result in the violation of constitutional rights that the policymaker
can reasonably be said to have been deliberately indifferent to the need. See Natale, 318 F.3d at
584. "'Policy is made when a decisionmaker possess[ing] final authority to establish ... policy
with respect to the action issues an official proclamation, policy or edict.'" Miller v.

Correctional Med. Sys., Inc., 802 F. Supp. 1126, 1132 (D. Del. 1992) (alteration in original)
(quoting Andrews v. City ofPhiladelphia, 895 F.2d 1469, 1480 (3d Cir. 1990)). "Custom, on the
other hand, can be proven by showing that a given course of conduct, although not specifically
endorsed or authorized by law, is so well-settled and permanent as virtually to constitute law."

Id. (citing Andrews, 895 F.2d at 1480; Fletcher v. O'Donnell, 867 F.2d 791, 793-94 (3d Cir.
1989)).
Liberally construing the Complaint, as the Court must, Plaintiff has alleged that CMS had
a policy, custom, or practice of placing cost containment ahead of providing necessary medical
care. Thus, the Court concludes that Plaintiff has adequately alleged a § 1983 claim sufficient to
survive a motion to dismiss. Accordingly, the Court will deny Defendant's Motion to Dismiss
the § 1983 claim raised against CMS.

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2.

18 Del. C. § 6853 Affidavit of Merit

Defendant moves for dismissal of the State medical negligence claim on the basis that
Plaintiff failed to provide an affidavit of merit to support his claim, as is required pursuant to 18
Del. C. § 6853. Plaintiff responded by filing a demand to convene a medical malpractice review
panel.
In Delaware, medical malpractice is governed by the Delaware Health Care Negligence
Insurance and Litigation Act. 18 Del. C. §§ 6801-6865. When a party alleges medical
negligence, Delaware law requires the party to produce an affidavit of merit with expert medical
testimony detailing: (1) the applicable standard of care, (2) the alleged deviation from that
standard, and (3) the causal link between the deviation and the alleged injury. See Bonesmo v.

Nemours Found., 253 F. Supp. 2d 801, 804 (D. Del. 2003) (citing Green v. Weiner, 766 A.2d
492,494-95 (Del. 2001)); 18 Del. C. § 6853. Because Plaintiff alleges medical negligence, at the
time he filed the Complaint he was required to submit an affidavit of merit as to each defendant
signed by an expert witness. 18 Del. C. § 6853(a) (1 ). Plaintiff failed to accompany the
Complaint with the required affidavit of merit.
Plaintiff, however, demands that the Court convene a medical malpractice review panel
pursuant to Delaware Superior Court Civil Rule of Procedure 71.2. Under Rule 71.2(b), "a party
may file a demand to convene a malpractice review panel at any time subsequent to entry of
appearance by all defendants who have been served and after a reasonable time for discovery
unless otherwise stipulated to by the parties or ordered by the Court."
Section 6853(e) of the Delaware Health Care Negligence Insurance and Litigation Act
provides in pertinent part:

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No liability shall be based upon asserted negligence unless expert
medical testimony is presented as to the alleged deviation from the
applicable standard of care in the specific circumstances of the case
and as to the causation of the alleged personal injury or death,
except that such expert medical testimony shall not be required if a
medical negligence review panel has found negligence to have
occurred and to have caused the alleged personal injury or death
and the opinion of such panel is admitted into evidence ....

18 Del. C. § 6853(e). The Delaware Superior Court, reading § 6853(e) and Rule 71.2 together,
has held that no affidavit of merit is required under Section 6853 where a timely demand to
convene a medical malpractice review panel has been filed. See Miller v. Taylor, 2010 WL
3386580, at *2 (Del. Super. Aug. 19,2010).
Section 6814 of the Delaware Health Care Negligence Insurance and Litigation Act
provides that the Delaware Insurance Commissioner shall convene a medical negligence review
panel at the request of a Federal District Court Judge sitting in a civil action in the District of
Delaware alleging medical negligence, in the manner instructed by the federal court, but also in a
manner as consistent as possible with the process of selecting such panels provided for in
Superior Court actions. See 18 Del. C. § 6814. However, the Insurance Commissioner shall not
convene any such panels at the request of any such federal court "unless provisions are made for
the payment of the compensation and expenses of such panelists and the compensation and
expenses of all witnesses called by such panel out of the funds other than those of the General
Fund of the State." Id
The Court lacks authority to appoint a medical review panel for Plaintiff at the public's
expense. See e.g., Boring v. Kozakiewicz, 833 F.2d 468,474 (3d Cir. 1987) ("Congress has
authorized the courts to waive prepayment of such items as filing fees and transcripts if a party

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qualifies to proceed in forma pauperis. 28 U.S.C. § 1915. However, we have been directed to no
statutory authority nor to any appropriation to which the courts may look for payment of expert
witness fees in civil suits for damages. Provisions have been made for expert witness fees in
criminal cases, 18 U.S.C. § 3006A(e)(l), but not in civil damage suits."). Nor has Plaintiff, who
has been granted in forma pauperis status, indicated that he has the financial means for
compensation and expenses of the medical review panel.
Accordingly, the Court will deny without prejudice the Demand to Convene a Medical
Review Panel. The Court will reconsider the Demand upon a showing by Plaintiff of his
financial ability to pay the compensation and expenses of the medical review panel. Finally,
because Plaintiff failed to file an affidavit of merit as required by 18 Del. C. § 6853(a)(1), the
Court will grant the Motion to Dismiss the medical negligence claim. Dismissal will be without
prejudice.
IV.

CONCLUSION
For the above reasons, the Court will grant in part and deny in part the Motion to

Dismiss. (D.1. 31) The medical negligence claim will be dismissed without prejudice. The
Court will deny without prejudice to renew Plaintiff s Demand to Convene a Medical
Malpractice Review Panel. (D.1. 37)
An appropriate Order follows.

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