Andreasik v. Danberg et al

Filing 13

MEMORANDUM ORDER - Plaintiff's request for counsel is denied without requestto renew; 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; plaintiff is given leave to amend; and plaintiff shall submit IFP long form application or pay the filing fee balance. Failure to submit items within 30 days will result in dismissal of action without prejudice.( Notice of Compliance deadline set for 9/4/2012.). Signed by Judge Sue L. Robinson on 8/1/12. (dzb, )

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

LINDA MICHELLE ANDREASIK,

)

)
)
)

Plaintiff,
v.

) Civ. No. 12-206-SLR
)

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)

)

CARL DANBERG, et aI.,
Defendants.

MEMORANDUM ORDER
At Wilmington this \~ day of August, 2012, having screened the case pursuant to
28 U.S.C. § 1915 and § 1915A;
IT IS ORDERED that: (1) plaintiffs request for counsel is denied without request
to renew; (2) 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; (3) plaintiff is
given leave to amend; and (4) plaintiff shall either file a long form application to proceed
without prepayment of fees and affidavit or pay the balance of the filing fee owed, for
the reasons that follow:
1. Background. Plaintiff Linda Michelle Andreasik ("plaintiff'), is a former
inmate at the Delores J. Baylor Women's Correctional Institution, New Castle,
Delaware, who proceeds pro se and has been granted in forma pauperis status. She
filed this complaint pursuant to 42 U.S.C. § 1983 raising a medical needs claim.1 (0.1.
3)

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. 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). Because plaintiff proceeds pro se, her pleading is
liberally construed and her 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

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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 her 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 (2009); Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007). The assumption of truth is inapplicable to legal conclusions or to
U[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 plaintiff's entitlement to relief; rather it must "show" such an

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.
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entitlement with its facts. Id. "[W]here 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. On October 2,2011, plaintiff was hospitalized for lithium
intoxication due to an excessive dose of lithium. Plaintiff expected defendant Dr. Sacre
("Dr. Sacre") to follow proper procedure before placing her on the medication. She
alleges that unnamed prison staff and nurses were made aware of the side effects she
experienced and did nothing. Plaintiff seeks compensatory damages, release from
prison, proper medical care, and physical therapy. She also asks for a civil panel
attorney. (D.1. 3)
7. Personal involvement/respondeat superior. Although plaintiff names Carl
Danberg ("Danberg"), Thomas Carroll ("Carroll"), Mike Deloy ("Deloy"), Wendi Caple
("Caple"), Patrick Sheets ("Sheets"), Misty Little ("Little") , Lisa Shaffer ("Shaffer"), and
Dan'in Carter ("Carter") as defendants, there is no mention of them in the complaint. As
is well know, "[a] defendant in a civil rights action must have personal involvement in
the alleged wrongs; liability cannot be predicated solely on the operation of respondeat
superior." Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Even when
reading the complaint in the most favorable light to plaintiff, it fails to state actionable
constitutional claims against Carroll, Danberg, Deloy, Caple, Sheets, Little, Shaffer, and
Carter. Therefore, the claims against them will be dismissed as frivololJs pursuant to 28
U.S.C. § 1915(e)(2)(8) and § 1915A(b)(1).

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8. Medical needs. Plaintiff asserts that Dr. Sacre should have followed proper
procedures before placing her on medication. A grievance attached to the complaint
refers to Dr. Zacery as the physician who placed plaintiff on lithium. It is not clear from
the complaint if Dr. Zacery and Dr. Sacre are the same person. The complaint further
asserts that unnamed prison staff and nurses took no action despite being aware that
plaintiff suffered side effects from the medication.
9. 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 set forth a cognizable claim, an
inmate must allege (i) a serious medical need and Oi) 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).
10. "[A] prisoner has no right to choose a specific form of medical treatment," so
long as the treatment provided is reasonable. Lasko v. Watts, 373 F. App'x 196, 203
(3d Cir. 2010) (not reported) (quoting 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 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

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(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).
11. Even when reading the complaint in the most favorable light to plaintiff, she
fails to state an actionable constitutional claim for deliberate indifference to a serious
medical need. Rather, the complaint alleges that plaintiff received an improper dose of
medication. The allegations fall under the aegis of a medical malpractice/negligence
claim, rather than deliberate indifference. It is well-established that allegations of
medical 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). Therefore, as to the improper dose of medication issue, the
court will dismiss the medical needs claim as frivolous pursuant to 28 U.S.C.

§ 1915{e)(2)(8) and § 1915A(b)(1).
12. Plaintiff, however, has raised allegations that unnamed prison personnel and
nurses were aware of the side effects she experienced, did nothing, and waited until
plaintiff was unable to walk or write. At present, the claims are deficiently pled as they
are not directed against any individual. Therefore, they will be dismissed for failure to
state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2){8)
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, she will be given
an opportunity to amend the claim. See O'Dell v. United States Gov't, 256 F. App'x 444

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(3d Gir. 2007) (not published) (leave to amend is proper where the plaintiffs claims do
not appear "patently meritless and beyond all hope of redemption").
13. Request for counsel. Plaintiff seeks counsel in the complaint's prayer for
relief. She provides no grounds for counsel but states, "civil panel attorney to be
assigned for representation." (0.1. 3 at 4) A pro se litigant proceeding in forma
pauperis has no constitutional or statutory right to representation by counsel. 3 See

Brightwell v. Lehman, 637 F.3d 187, 192 (3d Gir. 2011); Tabron v. Grace, 6 F.3d 147,
153 (3d Gir. 1993). However, representation by counsel may be appropriate under
certain circumstances, after a finding that a plaintiffs claim has arguable merit in fact
and law. Tabron, 6 F.3d at 155.
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.

See Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Gir. 2002); Tabron, 6 F.3d at 155­
57. The list is not exhaustive, nor is anyone factor determinative. Tabron, 6 F.3d at
157.

3See Mallard v. United States Dist. Goult for the S. Dist. of Iowa, 490 U.S. 296
(1989) (§ 1915(d) (now § 1915(e)(1» does not authorize a federal court to require an
unwilling attorney to represent an indigent civil litigant, the operative word in the statute
being "request.").

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15. This case is in its early stages, and the operative complaint is deficiently
pled. While plaintiff has been given leave to amend, service has not yet taken place.
At present, plaintiffs filings indicate that she possesses the ability to adequately pursue
her claims. Upon consideration of the record, the court is not persuaded that
representation by counsel is warranted at this time. The court can address the issue at
a later date should counsel become necessary.
16. Release from prison. Plaintiff was incarcerated at the BWCI when she
filed her complaint, along with an application to proceed in forma pauperis pursuant to
28 U.S.C. § 1915. On March 1,2012, the court granted plaintiff leave to proceed in
forma pauperis, and on April 3,2012, assessed a filing fee of $350.00, as well as an
initial partial filing fee of $10.81. (0.1. 7, 10) On July 19, 2012, the court was advised
that plaintiff had been released from prison. (See 0.1. 12) Prior to her release, plaintiff
paid the $10.81 initial partial filing fee.
17. Under the Prison Litigation Reform Act, release does not eliminate the
obligation of payment of a filing fee that could and should have been met from the trust
account while imprisonment continued. Robbins v. Switzer, 104 F.3d 895, 899 (7th Cir.
1997); see also Drayer v. Attorney General, 81 F. App'x 429 (3d Cir. 2003) (not

reported). Therefore, within thirty (30) days from the date of this order, plaintiff shall
either file a long form application to proceed without prepayment of fees and affidavit so
that the court may determine whether she is still eligible to proceed without prepayment
of the balance of the $350.00 filing fee or pay the balance of the filing fee owed (Le.,
$339.19).

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18. Conclusion. For the above reasons plaintiffs request for counsel is denied
without prejudice to renew and 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)(S)(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 on the claim that
no action was taken by medical personnel after being made aware that plaintiff was
suffering side effects from medication, she will be given an opportunity to amend her
pleading as to this claim only. All other claims are dismissed with prejudice. 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.
19. In addition, plaintiff is placed on notice that her failure to timely comply with
this order to either file a long form application to proceed without prepayment of fees
and affidavit or to pay the balance of the filing fee owed shall result in dismissal of this
case without prejudice.

UNITED STAT S DIS rRICT JUDGE

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