Martinez v. Correctional Medical Service et al

Filing 8

MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 3/19/2012. (lih)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
OSCAR MARTINEZ,
Plaintiff,

v.

Civ. No. 11-1065-LPS

CORRECTIONAL MEDICAL SERVICE,
et aL,
Defendants.

Oscar Martinez, James T. Vaughn Correctional Center, Smyrna, Delaware, Pro Se Plaintiff.

MEMORANDUM OPINION

March 19,2012
Wilmington, Delaware

(~~,tr

STARK, U.S. District Judge:
I.

INTRODUCTION
Plaintiff Oscar Martinez ("Plaintiff'), filed this action pursuant to 42 U.S.C. § 1983

alleging violations of his constitutional rights. I Plaintiff is incarcerated at the James T. Vaughn
Correctional Center ("VCC") in Smyrna, Delaware. He appears pro se and has been granted
leave to proceed in forma pauperis. (D.1. 5) The Court proceeds to review and screen the
Complaint pursuant to 28 U.S.C. § 1915 and § 1915A

II.

BACKGROUND
In 2002, Correctional Medical Services ("CMS") physicians diagnosed Plaintiff with bi­

polar disorder and prescribed Seroquel, Sinequan, Celexa, and Paxil to treat depression. Plaintiff
was diagnosed with type 2 diabetes in February 2011. In July 2011, he was told by Dr. Patricia
Braxton that the condition was a result of his long-term use of Seroquel. Plaintiff alleges that he
received no warnings from 2002 through 2011 regarding the long-term use of Seroquel or any
other drug prescribed him. Plaintiff seeks compensatory and punitive damages. (D.1. 3)

III.

LEGAL STANDARDS
This Court must dismiss, at the earliest practicable time, certain in forma pauperis and

prisoner actions that are frivolous, malicious, fail to state 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 governmental
defendant); 42 U.S.c. § 1997e (prisoner actions brought with respect to prison conditions). The

'Pursuant to 42 U.S.C. § 1983, 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.
See West v. Atkins, 487 U.S. 42, 48 (1988).
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Court must accept all factual allegations in a complaint as true and take them in the light most
favorable to a pro se plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93 (2007); Phillips v.

County ofAllegheny, 515 F .3d 224, 229 (3d Cir. 2008). 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, 551 U.S. at 94
(internal quotation marks omitted).

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)(l), 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; see also Wilson v. Rackmill, 878 F.2d 772, 774 (3d Cir. 1989); Deutsch v. United States, 67
F3d 1080, 1091-92 (3d Cir. 1995) (holding frivolous a suit alleging that prison officials took
inmate's pen and refused to give it back).
The legal standard for dismissing a complaint for failure to state a claim pursuant to §
1915(e)(2)(B)(ii) and § 1915A(b)(l) is identical to the legal standard used when ruling on Rule
12(b)(6) motions. See Tourscher v. McCullough, 184 F .3d 236, 240 (3d Cir. 1999). 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 1915 A, the Court must
grant Plaintiff leave to amend his complaint, unless amendment would be inequitable or futile.

See Grayson v. Mayview State Hosp., 293 F3d 103, 114 (3d Cir. 2002).
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 Atlantic Corp. v. Twombly, 550 U.S.

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544 (2007). When determining whether dismissal is appropriate, the Court conducts a two-part
analysis. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). First, the factual
and legal elements of a claim are separated. See id. The Court must accept all of the complaint's
well-pleaded facts as true, but may disregard any legal conclusions. See id. at 210-11. The
assumption oftruth is inapplicable to legal conclusions or to "[t]hreadbare recitals of the
elements of a cause of action supported by mere conclusory statements." Iqbal, 129 S.Ct. at
1949. Second, the Court must determine whether the facts alleged in the complaint are sufficient
to show that the plaintiff has a "plausible claim for relief." Fowler, 578 F.3d at 211. In other
words, the complaint must do more than allege the plaintiffs entitlement to relief; rather, it must
"show" such an entitlement with its facts. Id. 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. See Iqbal, 129 S.Ct. at 1949. 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. (quoting Twombly, 550 U.S. at 570).

IV.

DISCUSSION
The Eighth Amendment proscription against cruel and unusual punishment requires that

prison officials provide inmates with adequate medical care. See Estelle v. Gamble, 429 U.S. 97,
103-105 (1976). In order to set forth 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. See Estelle, 429 U.S. at 104; Rouse v. Plan tier, 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

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serious harm and fails to take reasonable steps to avoid the harm. See 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, 429 U.S. at 104-05.
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 Cnty. Corr. Facility, 318 F.3d 575, 584 (3d Cir. 2003) (stating because respondeat
superior or 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).
Allegations of medical malpractice are not sufficient to establish a Constitutional
violation. See White v. Napoleon, 897 F.2d 103, 108-09 (3d Cir. 1990); see also Daniels v.

Williams, 474 U.S. 327,332-34 (1986) (negligence is not compensable as Constitutional
deprivation).
Even when reading the Complaint in the most favorable light to Plaintiff, he fails to state
an actionable constitutional claim against Defendants for deliberate indifference to a serious
medical need. Rather, the Complaint alleges that Plaintiff was prescribed medication and
subsequently developed diabetes because of long-term use, all while receiving no warnings
regarding such long-term use. These allegations constitute a medical malpractice/negligence

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claim, not a claim of deliberate indifference. In addition, the Complaint contains no allegations
of a custom or practice of CMS demonstrating deliberate indifference.
The Complaint, as it now stands, fails to state a claim upon which relief can be granted.
Therefore, the Court will dismiss the Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B).
However, since it appears plausible that Plaintiff may be able to articulate a claim against
Defendants (or name alternative defendants), he will be given an opportunity to amend his
pleading. See O'Dell v. United States Gov't, 256 F. App'x 444 (3d Cir. Dec. 6,2007) (not
published) (stating leave to amend is proper where claims do not appear "patently meritless and
beyond all hope of redemption").

v.

REQUEST FOR COUNSEL
Plaintiff requests counsel on the grounds that counsel will benefit both he and the court;

the issues can be more clearly identified with counsel; counsel will expedite an evidentiary
hearing or make it unnecessary; counsel will make better use of discovery procedures; he does
not have the ability to present his case and is unskilled in the law; he cannot afford counsel; and
appointing counsel would serve the best interests ofjustice. (D.1. 7)
Although a plaintiff does not have a constitutional or statutory right to an attorney,2 a
district court may seek legal representation by counsel for a plaintiff who demonstrates "special
circumstances indicating the likelihood of substantial prejudice to [the plaintiff] resulting ...
from [the plaintiffs] probable inability without such assistance to present the facts and legal

2See Mallard v. United States Dist. Court for the S. Dist. ofIowa, 490 U.S. 296 (1989)
(stating § 1915(d) - now § 1915(e)(1) - does not authorize federal court to require unwilling
attorney to represent indigent civil litigant); Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993) (no
right to counsel in civil suit).
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issues to the court in a complex but arguably meritorious case." Tabron, 6 F.3d at 154.
Factors to be considered by a court in deciding whether to request a lawyer to represent an
indigent plaintiff include: (l) the merits of the plaintiff's claim; (2) the plaintiff's ability to
present his or her case considering his or her education, literacy, experience, and the restraints
placed upon him or her by incarceration; (3) the complexity of the legal issues; (4) the degree to
which factual investigation is required and the plaintiff's ability to pursue such investigation;
(5) the plaintiff's capacity to retain counsel on his or her own behalf; and (5) the degree to which
the case turns on credibility determinations or expert testimony. See Montgomery v. Pinchak,
294 F.3d 492,498-99 (3d Cir. 2002); Tabron, 6 F.3d at 155-56.
After reviewing Plaintiff's request, the Court concludes that the case is not so factually or
legally complex that requesting an attorney is warranted. In addition, the instant Complaint fails
to state a claim and Defendants have yet to be served. This case is in its early stages and, should
the need for counsel arise later, the issue can be addressed at that time. Thus, in these
circumstances, the Court will deny without prejudice to renew Plaintiff's Request for Counsel.
(D.L 7)

VI.

CONCLUSION
For the above reasons, the Court will dismiss the Complaint for failure to state a claim

upon which relief may be granted pursuant to 28 u.S.C. § 1915(e)(2)(B). Plaintiff will be given
leave to file an amended complaint. Plaintiff's Request for Counsel will be denied without
prejudice to renew.
An appropriate Order follows.

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