Thornton v. West et al

Filing 123

MEMORANDUM - Signed by Judge Gregory M. Sleet on 2/1/13. (rwc)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

RAYMOND

THORNTON,
Plaintiff,

v.
LT. WEST, et aL,
Defendants.

)

)
)
)
) Civ. Action No. 11-1024-GMS
)
)
)
)

MEMORANDUM

I. INTRODUCTION
The plaintiff, Raymond E. Thornton ("Thornton"), 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. Thornton is currently confined at the
James T. Vaughn Correctional Center ("VCC"), Smyrna, Delaware. Before the court are several
pending motions including Thornton's motion to amend, for reconsideration, for entry of default,
and to compel, and the defendants' motions to dismiss and motions to stay discovery. (D'!.50,
53,66, 76, 85, 92, 102, 105, 112, 113, 114, 115, 116, 117, 120, 121.) For the reasons that
follow, the court will grant the motions to dismiss, deny Thornton's motions to amend, for
reconsideration, for entry of default, and for injunctive relief, and deny as moot all remaining
pending motions.

II. BACKGROUND
The complaint and its amendments raise retaliation claims against the defendants Lauro

B. Diaz, Jr. ("Diaz"), Lt. West ("West"), Counselor Musser ("Musser"), and Warden G. R.
Johnson ("Johnson") as well as mental health needs claims against the VCC Mental Health Staff

("Mental Health Staff'), VCC Mental Health Psychiatrists ("Psychiatrists"), Lezley Sexton
("Sexton"),' Vinnie Fabber ("Fabber"), Krystal Chivington ("Chivington"),2 Peter Osinubi
("Osinubi"),3 Dr. Olu Faiola ("Dr. Falola"),4 an unidentified 8 to 4 shift intake nurse, and Dr.
Eric Cole ("Dr. Cole"). (See D.r. 2, 4, 14, 15, 16, 19,21,23,42.) The court dismissed all other
claims and defendants upon initial screening on March 6,2012. (See D.r. 24,25,46.)

III. MOTION FOR RECONSIDERATION
Thornton moves for reconsideration ofthe order screening his original complaint. (D.r.
116.) He contends that the original complaint stated a claim for failure to protect him from
inhumane conditions of confinement.
The purpose of a motion for reconsideration is to "correct manifest errors of law or fact or
to present newly discovered evidence." Max's Seafood Cafe ex reI. Lou-Ann, Inc. v. Quinteros,
176 F.3d 669, 677 (3d Cir. 1999). "A proper Rule 59(e) motion ... must rely on one of three
grounds: (1) an intervening change in controlling law; (2) the availability of new evidence; or (3)
the need to correct a clear error of law or fact or to prevent manifest injustice. Lazaridis v.
Wehmer, 591 F.3d 666, 669 (3d Cir. 2010) (citing North River Ins. Co. v. CIGNA Reinsurance
Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). A motion for reconsideration is not properly grounded

on a request that a court rethink a decision already made. See Glendon Energy Co. v. Borough of
Glendon, 836 F. Supp. 1109, 1122 (E.D. Pa. 1993).

'Improperly named as Leslie Sexton.

2Named as Krystal Mental Health Worker.

3Named as Peter Mental Health Worker.

4Improperly named as Dr. Fillola.

2

Having reviewed the complaint and the court's memorandum and order, the court finds
that Thornton has failed to demonstrate any of the necessary grounds to warrant reconsideration
of the screening order. Therefore, the court will deny the motion for reconsideration. (D.L 116.)

IV. INJUNCTIVE RELIEF
Thornton alleges that he is not receiving adequate mental health treatment and seeks a
transfer to a different correctional institution. On September 13, 2012, the court indicated that it
would again address the issue of Thornton's mental health treatment. It ordered the parties to
brief the issue and for the defendants to produce Thornton's mental health record. (See D.L 78,
79.) Thornton recently advised the court that he seeks only a transfer to a different institution
and does wish to waste anymore time that could be used for treatment. (See D.L 118.)
"[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). Finally, "mere
disagreement as to the proper medical treatment" is insufficient to state a constitutional violation.
See Spruillv. Gillis, 372 F.3d 218, 235 (3d Cir. 2004) (citations omitted).
Thornton clearly disagrees with his mental health treatment. Regardless, that does not
translate into the issuance of injunctive relief. Having reviewed Thornton's mental health
records, it is apparent that Thornton's mental health condition is monitored by mental health
professionals and that he has been seen on numerous occasions in response to his requests for

3

mental health treatment. (See D.I. 81.) The requisites for injunctive relief have not been met.
See Kos Pharmaceuticals, Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004) (A party
seeking a preliminary injunction must show: (l) a likelihood of success on the merits; (2) that it
will suffer irreparable harm if the injunction is denied; (3) that granting preliminary relief will
not result in even greater harm to the nonmoving party; and (4) that the public interest favors
such relief.). Accordingly, the court will deny the renewed motion for injunctive relief.

v.

MOTION TO AMEND

Thornton filed a motion for leave to amend the complaint. (D.1. 105.) Pursuant to Fed.
R. Civ. P. 15(a), a party may amend its 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),
whichever is earlier. Otherwise, a party may amend its pleading only with the opposing party's
written 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 will be decided on the merits rather than on technicalities." Dole v. Arco
Chem. 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

4

Gran 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 legally 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).
Thornton's motion for leave to amend, filed on December 18,2012, seeks to add a
harassment claim. He alleges harassment in the form of the loss of his prison job and when
prison officials threw away "pay-to's" for legal supplies and general request forms used to order
research materials. It appears the alleged acts took place from October through December 2012.
Having reviewed the proposed amendment, the court finds that any attempt at amending
the complaint would be futile. The alleged acts speak to a different time-frame than that in the
original complaint and seek to add individuals not named in the original complaint. In addition,
Thornton, as a prisoner, has no entitlement to a specific job, or even to any job. James v.
Quinlan, 866 F.2d 627, 630 (3d Cir. 1989). Nor do his claims with regard to legal research state
a claim inasmuch as there are no allegations of actual injury as a result of the alleged denial of
access. The actual injury requirement is a constitutional prerequisite to suit. Lewis v. Casey, 518
U.S. 343, 351 (1996). For these reasons, the court will deny the motion to amend. (D.I. 105.)

VI. MOTION FOR DEFAULT JUDGMENT
Thornton requests entry of default against the defendants on the basis they have yet to
plead and/or defend themselves as to the accusations in the complaint. (D.!. 53, 76.) Entry of
default judgment is a two-step process. Fed. R. Civ. P. 55(a), (b). A party seeking to obtain a

5

default judgment must first request that the Clerk of the Court "enter ...the default" of the party
that has not answered the pleading or "otherwise defend[ed]," within the time required by the
rules or as extended by court order. Fed. R. Civ. P. 55(a). Timely serving and filing a motion to
dismiss under Fed. R. Civ. P. 12(b), precludes entry of default. See Francis v. Joint Force

Headquarters Nat 'I Guard, 2006 WL 2711459, (D.N.I. Sept. 19,2006), ajJ'd in part, 247 F.
App'x 387 (3d Cir. 2007) (unpublished). Even if default is properly entered, the entry of
judgment by default pursuant to Rule 55(b)(2) is within the discretion of the trial court. Hritz v.

Woma Corp., 732 F.2d 1178, 1180 (3d Cir. 1984).
Here, the defendants have appeared and filed motions to dismiss the complaint.
Therefore, the court will deny the requests for entry of default. (D.L 53, 76.)

VII. 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 Thornton.

Erickson v. Pardus, 551 U.S. 89,94 (2007); Christopher v. Harbury, 536 U.S. 403,406 (2002).
A complaint must contain "a short and plain statement of the claim showing that the pleader is
entitled to relief,' in order to 'give the defendant fair notice of what the ... claim is and the
grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A
complaint does not need detailed factual allegations, although, "a plaintiffs obligation to provide
the 'grounds' of his 'entitlement to relief requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do." ld. at 1965 (citations

6

omitted). The "[fJactual allegations must be enough to raise a right to relief above the
speculative level on the assumption that all of the complaint's allegations in the complaint are
true (even if doubtful in fact)." Id (citations omitted). Because Thornton 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).

In addition to the complaint, the court may consider matters of public record and other
matters of which a court may take judicial notice, court orders, and exhibits attached to the
complaint when adjudicating a motion to dismiss under Rule 12(b)(6). Oshiver v. Levin,

Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (citation omitted). Further,
the court may also consider indisputably authentic documents. See Spruill v. Gillis, 372 F.3d
218,223 (3d Cir. 2004).

B. Discussion
The defendants move for dismissal on the grounds that Thornton has failed to state a
claim upon which relief may be granted and that he failed to exhaust his administrative remedies
as is required by the Prison Litigation Reform Act ("PLRA"). (D. 1. 50,66.) The court turns to
the issue of failure to exhaust administrative remedies as it is dispositive of this case.
Johnson, West, Diaz, Musser and Fabber (collectively, "State defendants") and Cole,
Sexton, Osinubi, FaIola and Chivington (collectively, "medical defendants") move for dismissal
on the grounds that Thornton failed to exhaust his administrative remedies. (D.L 50, 51, 66, 67.)

In the complaint, Thornton states that he filed grievances and that he exhausted his
administrative remedies. (D.L 2,

~~

ILA-C.) With regard to the State defendants, Thornton

7

responds that his July 25,2011 grievance was the cause for his retaliatory transfer to the VCC,
but he makes no mention of submitting any grievances with regard to the retaliatory transfer.
(See 0.1. 55.) With regard to the medical defendants, Thornton concedes that he filed no medical

grievances. He states that he was "constantly in direct contact with the mental health worker
from 9-6-11 to date .... If you say and/or believe that the filing of a grievance would of [sic]
made a difference, you'll confirm for the plaintiff that 'all' the mental health workers are and
have been unreliable liars. Plaintiff contends that because of the direct contact with numerous
workers for the mental health dept. that the PLRA doesn't come into play, nor was it meant for
that purpose." (OJ. 68.)
The PLRA provides that "[n]o action shall be brought with respect to prison conditions
under section 1983 or any other Federal law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are available are exhausted." 42
U.S.C. § 1997e(a); see Porter v. Nussle, 534 U.S. 516,532 (2002) ("[T]he PLRA's exhaustion
requirement applies to all inmate suits about prison life, whether they involve general
circumstances or particular episodes, and whether they allege excessive force or some other
wrong."). The defendants have the burden of pleading and proving failure to exhaust
administrative remedies as an affirmative defense in a § 1983 action. Ray v. Kertes, 285 F.3d
287,295-96 (3d Cir. 2002).
Under § 1997e(a), "an inmate must exhaust [administrative remedies] irrespective of the
forms of relief sought and offered through administrative avenues." Booth v. Churner, 532 U.S.
731, 741 n.6 (2001). Exhaustion means proper exhaustion, that is, "a prisoner must complete the
administrative review process in accordance with the applicable procedural rules, including

8

deadlines, as a precondition to bringing suit in federal court." Woodford v. Ngo, 548 U.S. 81,88
(2006).
'''[P]rison grievance procedures supply the yardstick' for determining what steps are
required for exhaustion." Williams v. Beard, 482 F.3d 637,639 (3d Cir. 2007) (quoting Spruill v.
Gillis, 372 F.3d 218,231 (3d Cir. 2004». A prisoner must complete the administrative review
process in accordance with the applicable procedural rules in order to satisfy the exhaustion
requirement of the PLRA. Nickens v. Department ofCorr., 277 F. App'x 148, 152 (3d Cir.
2008) (unpublished) (citing Williams, 482 F.3d at 639; Spruill, 372 F.3d at 228,231). Perfect
overlap between the grievance and a amended complaint is not required by the PLRA as long as
there is a shared factual basis between the two. Jackson v. Ivans, 244 F. App'x 508,513 (3d Cir.
2007) (unpublished) (citing Woodford, 548 U.S. at 95 ("The benefits of exhaustion can be
realized only if the prison grievance system is given a fair opportunity to consider the
grievance."). A futility exception to the PLRA's mandatory exhaustion requirement is
completely precluded. Banks v. Roberts, 251 F. App'x 774, 776 (3d Cir. 2007) (unpublished)
(citing Nyhuis v. Reno, 204 F.3d 65, 71 (3d Cir. 2000). The exhaustion requirement is absolute,
absent circumstances where no administrative remedy is available. See Spruill, 372 F.3d at 227­
28; Nyhuis, 204 F.3d at 67. A grievance procedure is not available, even if one exists on paper, if
the defendant prison officials somehow prevent a prisoner from using it. Mitchell v. Horn, 318
F.3d 523 (3d Cir. 2003). If prison authorities thwart the inmate's efforts to pursue the grievance,
administrative remedies may be presumed exhausted, as no further remedies are "available" to
him. Brown v. Croak, 312 F.3d 109,112-13 (3d Cir. 2002).

9

Thornton has failed to exhaust his administrative remedies. The July 25,2011 grievance
upon which Thornton relies with regard to his retaliation claims against the State defendants does
not allege retaliatory conduct by any individual. Rather, it complains of computer use by
corrections staff.5 See Wright v. State Corr. lnst. at Greene, 2009 WL 2581665, at *6 (W.D. Pa.
Aug. 20, 2009) (recognizing that retaliation is a distinct claim that must be explicitly grieved).
Thornton did not submit grievances against the State defendants complaining of retaliation, and
the time to file a grievance has long passed.
Recently, on December 26,2012, Thornton claimed that he was "never afforded the
opportunity to place a grievance as was stated that they don't have any on hand." (See D.L 109.)
Thornton does not indicate when this statement was made to him. The record reflects that
Thornton was transferred to the vee in September 2011 and, on September 25,2011, he
submitted a grievance complaining that he was not provided a pillow. (See D.L 66, ex. e.)
Hence, it is apparent that the grievance process was available to him shortly after his transfer to
the

vee yet, he failed to submit any grievances regarding the alleged retaliatory transfer.
With regard to the medical defendants, Thornton concedes that he did not exhaust his

administrative remedies. Indeed, he incorrectly contends that the PLRA is inapplicable as to
those claims.
It is clear, upon review of the record, that Thornton did not fully exhaust his

administrative remedies prior to filing suit as is required by the PLRA. Therefore, the court will
grant the defendants' motions to dismiss. (D.L 50,66.)

5Thornton alleges that the submission ofthe July 25, 2011 grievance resulted in
retaliation yet he did not follow through by submitting a grievance that complained of the alleged
retaliation.
10

VIII. CONCLUSION
For the above reasons, the court will grant the defendants' motions to dismiss (D.!. 50,

66) and will close the case. In addition, the court will deny Thornton's motions to amend (D.!.

105), for reconsideration (D.I. 116), for entry of default (D.!. 53, 76), and for injunctive relief

(see D.!. 78, 79), and will deny as moot all remaining pending motions (D.!. 85,92, 102, 112,

113,114,115,117,120,121).

An appropriate order will be issued.

-J

_----'-t_~_----'- ___, 2013

Wilmington, Delaware

11