Warren v. Phelps et al

Filing 13

MEMORANDUM ORDER: Dismissing 1 Complaint as Frivolous and for failure to state a claim. Plaintiff is given leave to Amend. The amended Complaint shall be filed within thirty days from the date of this Order. If Plaintiff does not file an amended complaint within the time allowed the case will be closed. Plaintiff's 12 Letter/MOTION for Preliminary Injunction is DENIED, and 11 MOTION to Appoint Counsel is Denied with leave to renew. Signed by Judge Sue L. Robinson on 11xcv653. (nms)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

DWAYNE WARREN,
Plaintiff,

v.
PERRY PHELPS, et aI.,
Defendants.

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) Civ. No. 11-653-SLR
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MEMORANDUM ORDER

At Wilmington this

~ay of OvfobU""

,2011, having screened the case

pursuant to 28 U.S.C. § 1915 and § 1915A;
IT IS ORDERED that: (1) the complaint is dismissed as frivolous and for failure
to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915 and §
1915A, and plaintiff is given leave to amend; (2) plaintiff's request for counsel is denied
without prejudice to renew; and (3) plaintiff's motion for injunctive relief is denied, for the
reasons that follow:
1. Background. Plaintiff Dwayne Warren ("plaintiff'), an inmate at the James T.
Vaughn Correctional Center, Smyrna, Delaware, who proceeds pro se and has been
granted in forma pauperis status, filed this complaint pursuant to 42 U.S.C. § 1983
alleging deliberate indifference to serious medical needs. 1 (D.1. 1)
2. Standard of review. This court must dismiss, at the earliest practicable time,
certain in forma pauperis and prisoner actions that are frivolous, malicious, fail to state

1When bringing a § 1983 claim, a plaintiff must allege that some person has
deprived him of a federal right, and that the person who caused the deprivation acted
under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

a claim, or seek monetary relief from a defendant who is immune from such relief. See
28 U.S.C. § 1915(e)(2) (in forma pauperis actions); 28 U.S.C. § 1915A (actions in which
prisoner seeks redress from a governmental defendant); 42 U.S.C. § 1997e (prisoner
actions brought with respect to prison conditions). 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).
3. An action is frivolous if it "lacks an arguable basis either in law or in fact."
Neitzke v. Williams, 490 U.S. 319, 325 (1989). Under 28 U.S.C. § 1915(e)(2)(B)(i) and

§ 1915A(b)(1), a court may dismiss a complaint as frivolous if it is "based on an
indisputably meritless legal theory" or a "clearly baseless" or "fantastic or delusional"
factual scenario. Neitzke, 490 at 327-28; Wilson v. Rackmill, 878 F.2d 772,774 (3d Cir.
1989); see, e.g., Deutsch v. United States, 67 F.3d 1080, 1091-92 (3d Cir. 1995)
(holding frivolous a suit alleging that prison officials took an inmate's pen and refused to
give it back).
4. The legal standard for dismissing a complaint for failure to state a claim
pursuant to § 1915(e)(2)(B)(ii) and § 1915A(b)(1) is identical to the legal standard used
when ruling on Rule 12(b)(6) motions. Tourscher v. McCullough, 184 F.3d 236, 240 (3d
Cir. 1999)(applying Fed. R. Civ. P. 12(b)(6) standard to dismissal for failure to state a

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claim under § 1915(e)(2)(S». However, before dismissing a complaint or claims for
failure to state a claim upon which relief may be granted pursuant to the screening
provisions of 28 U.S.C. §§ 1915 and 1915A, the court must grant plaintiff leave to
amend his complaint unless amendment would be inequitable or futile. See Grayson v.

Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).
5. A well-pleaded complaint must contain more than mere labels and
conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937 (2009); Bell At!. Corp.

v. Twombly, 550 U.S. 544 (2007). 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. at 1949. 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."2 Id. at 211. In other words, the complaint must do
more than allege plaintiffs entitlement to relief; rather it must "show" such an
entitlement with its facts. 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

2A 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 (quoting Twombly, 550 U.S. at 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.
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not shown - that the pleader is entitled to relief." Iqbal, 129 S.Ct. at 1949 (quoting Fed.

R. Civ. P. 8(a)(2».
6. Discussion. Plaintiff has had a medical problem since 2004 that has
continually worsened. His litany of complaints include, but are not limited to, pain,
itching, numbness, dizziness, and the inability to exercise as he is accustomed. Plaintiff
alleges that defendants "seem to have given up on treatment plans" and he has been
told that his complaints are "nothing to worry about." Defendant Dr. Derosier ("Dr.
Derosier") told plaintiff that he was doing too much. 3 On one occasion (date unknown)
when plaintiff asked defendant Officer Hawn ("Hawn") to get a nurse after plaintiff
nearly collapsed, Hawn responded, "if he comes by." In addition, plaintiff was
scheduled to see mental health but, after a year, has yet to be seen.
7. Plaintiff alleges that defendant Warden Perry Phelps ("Phelps") changed the
chronic care criteria and, as a result, only "a few" inmates are considered chronic care.
This discourages other inmates from getting medical assistance because they are
"constantly charged for something with no end." Plaintiff alleges that defendants Carl
Danberg ("Danberg") and Phelps hired the contract health care providers Correctional
Medical Services ("CMS") and Correct Care Solutions ("CCS") knowing of their "records
of deliberate indifference and medical negligence."
8. Plaintiff alleges that cold air is being used as a weapon. On January 21 and
February 20, 2010, and on February 15 and March 2011, plaintiff and other inmates on
his tier were stripped and their cells checked to verify their clothing allotment. At the

3Plaintiff has filed grievances regarding the issues.
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time there was snow on the ground and the air conditioner fan was on high. The
correctional officers wore coats and hats. Defendant correctional officer Burben
("Burben") made sure the vents were not blocked for warmth. Defendants correctional
officers Hawn and Rodocker ("Rodocker") were present.
9. Plaintiff filed a grievance and alleges that. as a result. discrimination occurred
when he was denied a change of clothing and denied access to the courts. Plaintiff
seeks injunctive relief. as well as compensatory and punitive damages.
1O. Pleading deficiencies. The complaint does not meet the pleading
requirements of Iqbal and Twombly. A civil rights complaint must state the conduct,
time. place. and persons responsible for the alleged civil rights violations. Evancho v.
Fisher. 423 F.3d 347,353 (3d Cir. 2005) (citing Boykins

V.

Ambridge Area Sch. Dist.•

621 F.2d 75. 80 (3d Cir. 1980»; Hall v. Pennsylvania State POlice, 570 F.2d 86, 89 (3d
Cir. 1978». It is not clear from the pleadings when most of the alleged violations
occurred, where they occurred. or the involvement (if any) of each defendant in the
alleged violation. Moreover. other than being listed as defendants, Michael Deloy,
Richard Kearney, Jenny Daniels, John Gill. Leanne Dunn, Rhonda Moor, Matthew
Dutton, Nurse Carol. and Nurse Betty are not mentioned in the complaint. Finally. it
appears that Phelps and Danberg are named as defendants based upon their
supervisory positions. It is well established 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)

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(not published) (citing Iqbal, 129 S.Ct. at 1948-49); Rode v. Dellarciprete, 845 F.2d
1195, 1207 (3d Cir. 1988». Accordingly, the claims against the foregoing defendants
are dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(8)(ii) and § 1915A(b)(1).
11. Medical needs. Plaintiff complains that defendants are not treating him and
discounting his complaints. The Eighth Amendment proscription against cruel and
unusual punishment requires that prison officials provide inmates with adequate
medical care. Estelle v. Gamble, 429 U.S. 97, 103-105 (1976). In order to setforth a
cognizable 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. Plantier, 182 F.3d 192, 197 (3d Cir. 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.
12. "[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). 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). Moreover, allegations of medical

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malpractice are not sufficient to establish a Constitutional violation. White v. Napoleon,
897 F.2d 103, 108-09 (3d Cir. 1990) (citations omitted); see also Daniels

V.

Williams,

474 U.S. 327, 332-34 (1986) (negligence is not compensable as a Constitutional
deprivation). 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
Cir. 2004) (citations omitted).
13. 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.
14. The complaint, as it now stands, fails to provide sufficient facts to apprise
defendants of their alleged acts and does not meet the pleading requirements of Iqbal
and Twombly. Moreover, it seems that plaintiff has named Phelps and Danberg as
defendants based upon their supervisory positions, despite the allegations that he
received medical care. Even when reading the complaint in the most favorable light to
plaintiff, he fails to state an actionable constitutional claim against defendants for

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deliberate indifference to a serious medical need. Therefore, the medical needs claim
is dismissed for failure to state a claim pursuant to pursuant to 28 U.S.C. §
1915(e)(2)(8)(ii) and § 1915A(b)(1). Plaintiff will be given leave to amend the medical
needs claim.
15. Conditions of confinement. Plaintiff alleges that, on four separate
occasions, cold air was used as a weapon. A condition of confinement violates the
Eighth Amendment only if it is so reprehensible as to be deemed inhumane under
contemporary standards or such that it deprives an inmate of minimal civilized measure
of the necessities of life. See Hudson v. McMillian, 503 U.S. 1,8 (1992); Wilson v.
Seiter, 501 U.S. 294, 298 (1991). When an Eighth Amendment claim is brought
against a prison official it must meet two requirements: (1) the deprivation alleged must
be, objectively, sufficiently serious; and (2) the prison official must have been
deliberately indifferent to the inmate's health or safety. Farmer v. Brennan, 511 U.S.
825, 834 (1994). Deliberate indifference is a subjective standard in that the prison
official must actually have known or been aware of the excessive risk to inmate safety.
Beers-Capitol v. Whetzel, 256 F.3d 120, 125 (3d Cir. 2001).
16. Plaintiff's allegations of cold air on four separate occasions, particularly
when correctional officers are conducting cell searches, are not sufficiently serious to
state a claim under the Eighth Amendment. See Burkholder v. Newton, 116 F. App'x
358, 363 (3d Cir. 2004) (not published) ("It is questionable if having a cold cell ... is
really an 'atypical and significant hardship ... in relation to the ordinary incidents of
prison life.'" (citation omitted). Notably, plaintiff does not allege that prison authorities

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acted with deliberate indifference to the cold condition. Rather, plaintiff states that
8urben checked to make sure the vents were not blocked. For theses reasons, the
conditions of confinement claim is disrnissed as frivolous pursuant to pursuant to 28
U.S.C. § 1915(e)(2)(8)(ii) and § 1915A(b)(1).
17. Retaliation. Plaintiff alleges that he was retaliated against after he
submitted a prison grievance. "Retaliation for the exercise of constitutionally protected
rights is itself a violation of rights secured by the Constitution actionable under § 1983."

White v. Napoleon, 897 F.2d 103, 111-12 (3d Cir. 1990). It has long been established
that the First Amendment bars retaliation for protected speech. See Crawford-EI v.

Britton, 523 U.S. 574, 592 (1998); Milhouse v. Carlson, 652 F.2d 371, 373-74 (3d Cir.
1981). Proof of a retaliation claim requires that plaintiff demonstrate (1) he engaged in
protected activity; (2) he was subjected to adverse actions by a state actor; and (3) the
protected activity was a sUbstantial motivating factor in the state actor's decision to take
adverse action. Rauser v. Hom, 241 F.3d 330, 333 (3d Cir. 2001) (quoting Mt. Healthy

Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). While plaintiff alleges retaliation as a
result of submitting a grievance, the complaint does not identify the state actor who
allegedly took the adverse actions. Therefore, the retaliation claim is dismissed
pursuant to pursuant to pursuant to 28 U.S.C. § 1915(e)(2)(8)(ii) and § 1915A(b)(1).
Plaintiff will be given leave to amend the retaliation claim.
18. Request for counsel. Plaintiffs request for counsel is denied without
prejudice to renew. (D.1. 11) Plaintiff requests counsel on the grounds that he has
limited knowledge of the law, he has comprehension, physical, and anxiety problems,

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the case involves medical issues and will involve cross-examination of medical
professionals, he needs assistance with discovery, and his case has merit. (D.1. 11)
19. 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 Gir. 1981); Parham v. Johnson, 126 F.3d 454,456-57 (3d Gir. 1997). It is within the
court's discretion to seek representation by counsel for plaintiff, and this effort is made
only "upon a showing of special circumstances indicating the likelihood of substantial
prejudice to [plaintiff] resulting ... from [plaintiffs] probable inability without such
assistance to present the facts and legal issues to the court in a complex but arguably
meritorious case." Smith-Bey v. Petsock, 741 F.2d 22, 26 (3d Gir. 1984); accord
Tabron v. Grace, 6 F.3d 147,155 (3d Gir. 1993) (representation by counsel may be
appropriate under certain circumstances, after a finding that a plaintiffs claim has
arguable merit in fact and law).
20. After passing this threshold inquiry, the court should consider a number of
factors when assessing a request for counsel, including:
(1) the plaintiffs ability to present his or her own case;
(2) the difficulty of the particular legal issues; (3) the degree

to which factual investigation will be necessary and the ability

of the plaintiff to pursue investigation; (4) the plaintiffs 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, 6 F.3d at 155-57; accord Parham, 126 F.3d at 457; Montgomery v. Pinchak,
294 F.3d 492,499 (3d Gir. 2002).

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21. This case is in its early stages. The original complaint fails to meet the
pleading requirements of Iqbal and Twombly, and no defendants have been served. In
addition, to date, plaintiffs filings indicate that he possesses the ability to adequately
pursue his claims. Upon consideration of the record, the court is not persuaded that
appointment of counsel is warranted at this time.
22. Letter/motion for injunctive relief. Plaintiffs letter/motion for injunctive
relief is denied. (D.I. 12) Plaintiff seeks assistance from the court in obtaining USM­
285 forms for service of process "to get this case moving." The motion addresses
plaintiffs medical condition and his need for further diagnostic testing. A service order
has not been entered at this juncture of the case. Therefore, plaintiff has no need for
the USM-285 forms. In addition, it is the court's understanding that, once a service
order is entered, plaintiff may obtain the required USM-285 forms from the prison law
library.
23. Conclusion. For the above reasons, the request for counsel is denied
without prejudice to renew and the motion for injunctive relief is denied. (D.1. 11, 12)
The complaint is dismissed as frivolous and for failure to state a claim upon which relief
may be granted pursuant to 28 U.S.C. § 1915(e)(2)(8)(ii) and § 1915A(b)(1). However,
since it appears plausible that plaintiff may be able to articulate a claim against a
defendant or name alternative defendants, he will be given an opportunity to amend his
pleading only as to the medical needs and retaliation claims. See O'Oel/ v. United
States Gov't, 256 F. App'x 444 (3d Cir. 2007) (not published) (leave to amend is proper

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where the plaintiffs claims do not appear "patently meritless and beyond all hope of
redemption").
24. Plaintiff is given leave to amend the complaint. The amended complaint
shall be filed within thirty (30) days from the date of this order. If plaintiff does not file
an amended complaint within the time allowed, then the case will be closed.

UNITED STA

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S DISTRICT JUDGE