Morris v. Correct Care et al

Filing 14

MEMORANDUM - Signed by Judge Gregory M. Sleet on 9/10/12. (rwc)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

CHEVELLE MORRIS,
Plaintiff,

v.
CORRECT CARE, et aI.,
Defendants.

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) Civ. Action No. 12-265-GMS
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MEMORANDUM
The plaintiff, Chevelle Morris ("Morris"), an inmate at the Delores J. Baylor Women's
Correctional Institution ("BWCI), New Castle, Delaware, filed this lawsuit on March 5, 2012.
(D.I. 3.) She proceeds pro se and has been granted leave to proceed in forma pauperis. The
court proceeds to review and screen the complaint pursuant to 28 U.S.C. § 1915 and § 1915A.

I. BACKGROUND
The complaint is filed pursuant to 42 U.S.c. § 1983, alleging violations of Morris'
constitutional rights and, more particularly, that she received inadequate medical care. (D.I. 3.)
Morris also requests counsel. (D'!.6.) On December 23,2011, Morris' hand was accidently
slammed in the shower door, resulting in injury. Morris alleges that the door is warped and hard
to close.
Following the injury, Morris was taken to the hospital for a partial amputation of her ring
finger. A grievance submitted by Morris complains that on January 10,2012, the physician on
duty refused to look at the injury while a duty nurse changed the bandages. Morris also claimed
that nurses changing her bandages did so in an unsanitary manner. Morris submitted another

grievance on January 12,2012, complained that medical refused to change her dressing and
stated, "1 need medical to stop denying me the proper medical treatment."

II. 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 apro se plaintiff. Phillips v. County ofAllegheny, 515 F.3d 224,229 (3d Cir. 2008);

Erickson v. Pardus, 551 U.S. 89,93 (2007). Because Morris 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).
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).
The legal standard for dismissing a complaint for failure to state a claim pursuant to

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§ 1915(e)(2)(B)(ii) and § 1915A(b)(1) is identical to the legal standard used when ruling on
12(b)(6) motions. Tourscher v. 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)(B)).
However, before dismissing a complaint or claims for failure to state a claim upon which relief
may be granted pursuant to the screening provisions of28 U.S.C. §§ 1915 and 1915A, the court
must grant Morris 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).
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 Morris has a "plausible
claim for relief."! /d. at 211. In other words, the complaint must do more than allege Morris's
entitlement to relief; rather it must "show" such an entitlement with its facts. Id. "[W]here the

!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. 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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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)).

III. DISCUSSION
A. Personal InvolvementIRespondeat Superior
Morris raises claims against the individual defendants based upon the supervisory
positions they hold. A defendant in a civil rights action must have personal involvement in the
alleged wrongs to be liable, and cannot be held responsible for a constitutional violation which
he or she neither participated in nor approved." Baraka v. McGreevey, 481 F.3d 187,210 (3d
Cir. 2007). "Personal involvement can be shown through allegations of personal direction or of
actual knowledge and acquiescence." Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).
The Third Circuit has reiterated that a § 1983 claim cannot be premised upon a theory of
respondeat superior and, that in order to establish liability for deprivation of a constitutional
right, a party must show personal involvement by each defendant. Brito v. United States Dep 't of
Justice, 392 F. App'x 11, 14 (3d Cir. 2010) (not published) (citing Iqbal, 556 U.S. at 675-77);
Rode v. Dellarciprete, 845 F.2d at 1207).
Morris provides no specific facts of any of the individual supervisory defendants'
personal involvement as is required to state a claim for violations of her constitutional rights.
Nor does the complaint contain facts that any defendant expressly directed the deprivation of her
constitutional rights, or created policies wherein subordinates had no discretion in applying them
in a fashion other than the one which actually produced the alleged deprivation.

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To the extent that Morris alleges the supervisory defendants denied her medical care, the

u.s. Court of Appeals for the Third Circuit has concluded that prison administrators cannot be
deliberately indifferent "simply because they failed to respond directly to the medical complaints
of a prisoner who was already being treated by the prison doctor." Durmer v. 0 'Carroll, 991
F .2d 64, 69 (3d Cir. 1993). The Third Circuit clarified that "[i]f a prisoner is under the care of
medical experts ... a non-medical prison official will generally be justified in believing that the
prisoner is in capable hands." Spruill v. Gillis, 372 F.3d 218,236 (3d Cir. 2004) (discussing
Durmer, 991 F.2d at 69). "[A]bsent a reason to believe (or actual knowledge) that prison doctors

or their assistants are mistreating (or not treating) a prisoner, a non-medical prison official ...
will not be chargeable with the Eighth Amendment scienter requirement of deliberate
indifference." Id. at 236.
F or the above reasons, the court will dismiss all claims against the defendants Warden
Wendi Caple, Commissioner Carl Danberg, Deputy Commissioner Thomas Carter, and Bureau
Chief Mike DeLoy as frivolous pursuant to 28 U.S.c. § 191 5(e)(2)(B) and § 1915A(b)(1)?

B. Medical Needs
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 (ii) acts or omissions by prison officials that indicate deliberate indifference to

2To the extent that Morris raises a claim based upon her difficulty in closing the warped
shower door, the claim fails as it sounds in negligence. The Supreme Court has held that prison
authorities' mere negligence in and of itself does not violate prisoners' constitutional rights. See
Daniels v. Williams, 474 U.S. 327,330-30 (1986).

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that need. Estelle v. Gamble, 429 U.S. at 104; Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.
1999).
"[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
published) (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 (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).
Correct Care ("CC") is the only named medical defendant. It is the contract medical
provider for the Delaware Department of Correction. When a plaintiff relies upon a theory of
respondeat superior to hold a corporation liable, she must allege a policy or custom that
demonstrates such deliberate indifference. 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 CC is directly liable for the alleged constitutional violations,
Morris "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.

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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 state
cannot be held liable for the acts of its employees and agents under those theories).
Even when reading the complaint in the most favorable light to Morris, she fails to state
an actionable constitutional claim for deliberate indifference to a serious medical need. At
present, the claims are deficiently pled as they are not directed against any individual. Nor has
Morris alleged a policy or custom by CC that caused the alleged constitutional violations.
Therefore, the medical needs claims will be dismissed for failure to state a claim upon which
relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)(1). However, since
it appears plausible that Morris may be able to articulate a claim against a defendant or name
alternative defendants, she will be given an opportunity to amend as to this claim. See O'Dell v.

United States Gov't, 256 F. App'x 444 (3d Cir. 2007) (not published) (leave to amend is proper
where the plaintiff's claims do not appear "patently meritless and beyond all hope of
redemption").

C. Request for Counsel
Morris requests counsel on the grounds that she cannot afford to retain counsel, her
imprisonment greatly limits her ability to litigate the case, the case will involve substantial
investigation and discovery, the issues are complex, and a trial will likely involve conflicting
testimony. (D. I. 6.) A pro se litigant proceeding in forma pauperis has no constitutional or
statutory right to representation by counsel? See Brightwell v. Lehman, 637 F.3d 187, 192 (3d

3See Mallard v. United States Dist. Court for the S. Dist. ofIowa, 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."; Tabron, 6

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Cir. 2011); Tabron v. Grace, 6 F.3d 147, 143. 156-18 (3d Cir. 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.
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

ofthe 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 tum on credibility determinations; and

(6) whether the case will require testimony from expert witnesses.

See Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002); Tabron, 6 F.3d at 155-57. The
list is not exhaustive, nor is anyone factor determinative. Tabron, 6 F.3d at 157.
After reviewing Morris' request, the court concludes that the case is not so factually or
legally complex that requesting an attorney is warranted. To date, the filings in this case
demonstrate Morris"s ability to articulate her claims and represent herself. Thus, in these
circumstances, the court will deny without prejudice to renew Morris' request for counsel. (D.L
6.) Should the need for counsel arise later. the issue can be addressed at that time.

IV. CONCLUSION
For the above reasons, the court will deny the request for counsel without prejudice to
renew and will dismiss the complaint as frivolous and for failure to state a claim upon which
relief may be granted pursuant to pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)(1).

F.3d at 153 (no right to counsel in a civil suit).

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Morris will be given leave to amend only as to the medical needs claim.
An appropriate order will be entered.

GE

-~"'f+--f-..lI!':---' 2012

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