Jamison v. Dept. of Corrections et al

Filing 15

MEMORANDUM ORDER - that (1) plaintiffs motions for issuance of subpoena (D.I. 8 , 14 ) are denied without prejudice; (2) plaintiffs amended motion for leave to proceed in forma pauperis (D.I. 11 ) is granted; (3) plaintiffs request for counsel (D .I. 12 ) is denied without prejudice to renew; and (4) the complaint is dismissed as frivolous and for failure to state a claim upon which relief may be grant pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). Plaintiff is given leave to file an amended complaint within twenty-one (21) days from the date of this order. If an amended complaint is not timely filed, the court will direct the Clerk of Court to close the case. Signed by Judge Sue L. Robinson on 5/9/12. (rwc)

, I

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
CLARENCE JAMISON,
Plaintiff,

v.
DEPARTMENT OF CORRECTION,
et aI.,
Defendants.

)

)

)

)

) Civ. No. 12-132-SLR
)
)
)
)

)

MEMORANDUM ORDER
At Wilmington this

ctt" day of May, 2012, having screened the case pursuant to

28 U.S.C. § 1915 and § 1915A;
IT IS ORDERED that: (1) plaintiff's motions for issuance of subpoena (D.1. 8, 14)
are denied without prejudice; (2) plaintiff's amended motion for leave to proceed in
forma pauperis (D.1. 11) is granted; (3) plaintiff's request for counsel (D.1. 12) is denied
without prejudice to renew; (5) the complaint is dismissed for failure to state a claim
upon which relief may be grant pursuant to 28 U.S.C. § 1915(e)(2)(8) and

§ 1915A(b); and (6) plaintiff is given leave to file an amended complaint, for the reasons
that follow:
1. Background. Plaintiff Clarence Jamison ("plaintiff"), a former inmate at the
Sussex Correctional Institution ("SCI"), Georgetown, Delaware, now released, proceeds
pro se. Upon review, the court grants plaintiff's amended application to proceed in
district court without prepaying fees or costs. (D.1. 11) Plaintiff filed his complaint

I

I

pursuant to 42 U.S.C. § 1983 alleging that the medical provider at the SCI, defendant
CCS Medical ("CCS"), refused him medical care, including surgery.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
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 ofAllegheny, 515 F.3d 224, 229 (3d Cir. 2008); Erickson v.
Pardus, 551 U.S. 89, 93 (2007). 8ecause 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)(8)(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)

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).

2

i

I

(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)(8)(ii) and § 1915A(b)(1) is identical to the legal standard used
when ruling on Rule 12(b)(6) motions. Tourscherv. 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
claim under § 1915(e)(2)(8». 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 Hasp., 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 (2009); Bell Atl. 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 678. 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

3

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
not shown - that the pleader is entitled to relief." Iqbal, 556 U.S. at 678 (quoting Fed. R.
Civ. P. 8(a)(2».
6. Discussion. Plaintiff had broken bones in his left foot and an amputated
stump for over a year (dates are not provided). He alleges that CCS refused to provide
surgery and medical care while he was housed at the SCI. In addition, he alleges that
SCI refused to respond to his sick call requests and refused to refill certain
prescriptions for his amputated stump. Plaintiff seeks compensatory damages.
7. Eleventh Amendment Plaintiff names the Delaware Department of
Correction ("DOC") as a defendant. The Eleventh Amendment of the United States
Constitution protects an unconsenting state or state agency from a suit brought in
federal court by one of its own citizens, regardless of the relief sought. See Seminole
Tribe of Fla. v. Florida, 517 U.S. 44,54 (1996); Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89 (1984); Edelman v. Jordan, 415 U.S. 651 (1974). Hence, as

an agency of the State of Delaware, the Department of Correction is provided with
immunity under the Eleventh Amendment. See e.g. Evans v. Ford, 2004 WL 2009362,
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, 556
U.S. at 678 (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.

4

, I

*4 (D. Del. Aug. 25, 2004) (dismissing claim against DOC, because DOC is state
agency and DOC did not waive Eleventh Amendment immunity). The State of
Delaware has neither consented to plaintiff's suit nor waived its immunity. Therefore,
the claims against the DOC are dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) and

§ 1915A(b) as it is immune from suit.
8. Medical needs. Plaintiff alleges that CCS refused to provide him necessary
medical care. 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).
9. When a plaintiff relies on the theory of respondeat superior to hold a
corporation liable, he must allege a policy or custom that demonstrates such deliberate
indifference. Sample v. Diecks, 885 F.2d 1099, 1110 (3d Cir. 1989); Miller v. Corr.
Med. Sys., Inc., 802 F. Supp. 1126, 1132 (D. Del. 1992). In order to establish that CCS

is directly liable for the alleged constitutional violations, plaintiff "must provide evidence
that there was a relevant [CCS] 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) (because respondeat superior or vicarious liability cannot
be a basis for liability under 42 U.S.C. § 1983, a corporation under contract with the

5

state cannot be held liable for the acts of its employees and agents under those
theories).
10. Plaintiff has failed to assert facts supporting the conclusion that the failure of
a CCS policymaker to institute specific policies caused violations of his constitutional
rights. See Smith v. Merline, 719 F. Supp. 2d 438, 449 (D.N.J. 2010). The complaint,
as written, fails to state a claim for violation of the Eighth Amendment under § 1983
against CCS. Therefore, the court will dismiss the claims against CCS pursuant to 28
U.S.C. § 1915(e)(2)(8) and § 1915A(b)(1) for failure to state a claim upon which relief
may be grant. Since it appears plausible that plaintiff may be able to articulate a claim
against some present or as-yet-to-be-named defendants, he will be given an
opportunity to amend his pleading. See O'Oel/ v. United States Gov't, 256 F. App'x 444
(3d Cir. 2007) (not published) (leave to amend is proper where the plaintiffs claims do
not appear "patently meritless and beyond all hope of redemption").
11. Subpoenas. Plaintiffs requests for issuance of subpoenas are denied as
premature. (0.1. 8, 14)
12. Request for counsel. Plaintiffs request for counsel is denied without
prejudice to renew. (0.1. 12) Plaintiff requests counsel on the grounds that he is
protected under the Americans with Disability Act, he is uneducated, and takes
prescribed medication.
13. 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 Cir. 1981); Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997). It is within the

6

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).
14. 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 GiL 2002).
15. This case is in its early stages, and the complaint will be dismissed with
leave to amend. At present, plaintiffs filings indicate that he possesses t~e 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.
16. Conclusion. For the above reasons: (1) plaintiffs motions for issuance of
subpoena (D.1. 8, 14) are denied without prejudice; (2) plaintiffs amended motion for

7

, I

leave to proceed in forma pauperis (D.1. 11) is granted; (3) plaintiffs request for
counsel (0.1. 12) is denied without prejudice to renew; and (4) the complaint is

dismissed as frivolous and for failure to state a claim upon which relief may be grant
pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). Plaintiff is given leave to file an
amended complaint within twenty-one (21) days from the date of this order. If an
amended complaint is not timely filed, the court will direct the Clerk of Court to close the
case.

8