DeVary v. Derosiers et al

Filing 111

MEMORANDUM. Signed by Judge Gregory M. Sleet on 8/28/13. (mdb)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELA WARE

STEPHEN DEVARY,
Plaintiff,

v.
DR, DESROSIERS, et aI.,
Defendants.

)

)
)
)
) Civ. Action No. l2-150-GMS
)
)
)
)

MEMORANDUM
I. INTRODUCTION
The plaintiff, Stephen DeVary ("DeVary"), a prisoner housed at the James T. Vaughn
Correctional Center, Smyrna, Delaware filed this lawsuit pursuant to 42 U.S.C. § 1983. He
proceeds pro se and was granted leave to proceed in forma pauperis. (D.L 9.)
Before the court are the defendants' motions to dismiss the amended complaint (0.1.38,
57,61). In addition, DeVary has filed two motion to amend (0.1.68,97) and two motions to
compel (OJ. 71, 88). Finally, the defendant Sean Moore ("Moore") filed a motion to join (0.1.
69) a motion for protective order tolling the time to respond to plaintiff's discovery demands
filed by the defendants Correct Care Solutions, LLC ("Correct Care") and Dr. Desrosiers. 1

II. BACKGROUND
DeVary filed his complaint pursuant to 42 U.S.C. § 1983 raising medical needs claims
and a supplemental State claim for medical negligence. (OJ. 3.) On May 8, 2012, the court
screened the complaint (0.1. 3), amended page 2 (OJ. 6), and the amended complaint (OJ. 11)

lThe court docket does not contain a motion for protective order tolling the time to
respond to plaintiff's discovery demands filed by the defendants Correct Care and Dr. Desrosiers.
Accordingly, Moore's motion to join (0.1.69) will be denied as moot.

pursuant to 28 U.S.C. § 1915A and identified what appeared to be non-frivolous and cognizable
medical needs claims against the defendants, Dr. Desrosiers, Correct Care, and at that time
unnamed John Doe physical therapist, later identified as Sean Moore ("Moore"). (See D.1. 36,
41.) DeVary filed an amended complaint (D.1. 26) and, once again, the court screened the
amendment complaint pursuant to § 1915A finding that De Vary had identified what appeared to
be non-frivolous and cognizable medical needs claims against the defendants. Service packets
were forwarded to the U.S. Marshals Service on July 10,2012. The record reflects that Correct
Care executed a waiver of service (D.1. 70) and, although there is no indication that Moore
executed a waiver of service, he answered the complaint (D.1. 46).
The defendants Correct Care and Dr. Desrosiers have filed two motions to dismiss (D.1.
38,57) which are identical, and Moore filed a motion to join the motions to dismiss (D.1. 61).
On August 16, 2012, De Vary filed a motion to amend and attached a proposed amended
complaint in accordance with this court's instruction that "[s]hould DeVary seek to amend, he
shall provide the court with the entire amended pleading." (D.1. 52.) On March 18,2013,
DeVary filed a duplicate of the proposed amended complaint found at D.1. 52, without leave to
amend. (See D.1. 97.) DeVary has also filed two motions to compel (D.1. 71, 88).

III. MOTION TO AMEND
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

2

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
Chern. 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 Indern., 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." Fornan v. Davis, 371 U.S. 178, 182 (1962); See also
Gran v. Stafford, 226 F.3d 275,291 (3d Cir. 2000).

Here, DeVary seeks leave to amend to consolidate his claims into one pleading. His
claims have not changed. The motion for leave to amend (0.1.68) will be granted. Docket item
97 is improperly docketed as a motion. The pleading, however, is identical to the proposed
amendment complaint attached to the instant motion to amend. Therefore, the Clerk of Court
will be directed to correct the court docket to reflect that docket item 97 is a second amended
complaint and to file it instanter. The second amended complaint does not name as a defendant
physical therapist John Doe 4. Therefore, the Clerk of Court will be directed to terminate John
Doe 4 as a defendant on the court docket.

3

IV. 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 DeVary. 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 plaintiff's 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." Id. at 1965 (citations
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 DeVary 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).
The defendants move to dismiss on the grounds that DeVary has failed to allege the
elements of claims pursuant to 42 U .S.C. § 1983 and has failed to provide an affidavit merit
sufficient to support his State law claims under 18 Del. C. § 6853.

4

B. Discussion

The motions to dismiss will be granted in part and denied in part. This court screened the
complaints and its amendments on two occasions and identified non-frivolous and cognizable
medical needs claims. (SeeD.I. 36, 54 Nothing has changed since the screening ofthe
complaints and amendments. Therefore, the court will deny the motions to dismiss the claims
raised pursuant to 42 U.S.C. § 1983. In addition, the court has screened the second amended
complaint, discussed hereinabove and, once again, identifies non-frivolous and cognizable
medical needs claims raised against the defendants pursuant to 42 U.S.C. § 1983.
De Vary also raises State medical negligence claims. The defendants move for dismissal
of the claims on the grounds that De V ary has failed to comply with statutory requirements when
filing a medical negligence case. 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.
Bonesmo v. Nemours Found., 253 F. Supp. 2d 801,804 (D. Del. 2003) (quoting Green v. Weiner,
766 A.2d 492, 494-95 (Del. 2001)) (internal quotations omitted); 18 Del. C. § 6853.
Because De Vary 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. See 18
Del. C. § 6853(a)(1). The court has reviewed the record and finds that DeVary failed to
accompany the complaint with an affidavit of merit as required by 18 Del. C. § 6853(a)(I).

5

Therefore, the court will grant the defendants' motions to dismiss the State medical negligence
claims.

V. MOTIONS TO COMPEL
DeVary filed two motions (D.I. 71,88) to compel the defendants to respond to discovery.
However the motions contain no certificates of service showing proof of service upon the
defendants or their counsel as required by Fed. R. Civ. P. 5(d). Therefore, the court will deny the
motions without prejudice to renew.
In addition, the court will give the defendants additional time to respond to all
outstanding discovery and will enter a scheduling order.

VI. CONCLUSION
For the above reasons, the court will: (1) grant in part and deny in part the motions to
dismiss CD.I. 38, 57,61); (2) grant the motion to amend (D.I. 68); (3) deny as moot the motion to
join (D.I. 69); (4) deny the motions to compel (D.1. 71, 88); and (5) order the Clerk of Court to
correct the court docket to reflect that D.L 97, improperly docketed as a motion, is the second
amended complaint.
An appropriate order will be issued.

~ Delaware ,2013
14'
ington,

Wi

6