Fletcher v. Phelps et al
MEMORANDUM OPINION - Signed by Judge Sue L. Robinson on 11/20/13. (rwc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
) Civ. No. 12-489-SLR
Timothy Fletcher, James T. Vaughn Correctional Center, Smyrna, Delaware. Pro se
Katisha D. Fortune, Deputy Attorney General, Delaware Department of Justice,
Wilmington, Delaware. Counsel for Defendant.
Dated: November.JO, 2013
Plaintiff Timothy Fletcher ("plaintiff'), an inmate at the James T. Vaughn
Correctional Center ("VCC"), Smyrna, Delaware, filed this lawsuit pursuant to 42 U.S.C.
§ 1983. (D.1. 3, 9, 24) He proceeds pro se and has been granted leave to proceed in
forma pauperis. Presently before the court are plaintiff's request for counsel (D.1. 103),
motions to compel (D.1. 104, 105), motion for an emergency ruling on pending motions
(D.1. 107), motion for partial summary judgment (D.1. 118), and motion for preliminary
injunction (D.1. 127), and defendant's motion for summary judgment (D.1. 121). The
court has jurisdiction pursuant to 28 U.S.C. § 1331. For the following reasons, the court
will deny plaintiff's motions and will grant defendant's motion for summary judgment.
II. PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff filed his complaint on April 17, 2012, and amended it on May 10, 2102
and December 3,2012. (D.I. 3, 9, 24) Defendant Gladys Little ("defendant") is the sole
remaining defendant, all other claims and defendants having been dismissed. (See D.1.
9, 10) Plaintiff alleges that defendant failed to protect him from an attempted rape by a
known sexual offender and that she discriminated against him based upon his sexual
orientation. (D.1. 24) Plaintiff further alleges that defendant's actions resulted in a
disciplinary write-up, a loss of Level III status, thirty days in isolation, a year in the
security housing unit ("SHU"), removal from a drug treatment program, and an increase
in classification points. He seeks expungement of the disciplinary report, as well as
compensatory and punitive damages.
Plaintiff was housed in a single-cell in SHU, Building 29. (0.1. 24 at 5) The latter
part of December 2011, he was moved to a double cell in Building 21. Id. Plaintiff was
housed there a short time before he was moved to a different cell due to his complaints
that his Muslim cellmate harassed and threatened him because he is a homosexual.
(0.1. 123 at A75) The first week of January 2012, plaintiff told defendant that his new
ce11mate , also a Muslim, was harassing him because of his homosexuality and that he
feared for his life. (ld.) Defendant told plaintiff that she had no authority to move him
and that he should make the request to move to a lieutenant. (Id. at A76) Defendant
suggested to plaintiff that he avoid taunting other inmates and to avoid hanging out in
the recreation yard's "blind spots" where staff could not see him. (ld.) Defendant
discussed plaintiffs complaints with her supervisor, Lieutenant Barry Burman
("Burman"), and asked if plaintiff could be moved. (Id.) She was told that a move was
not possible at that time. (/d.)
On January 2, 2012, plaintiff was moved to a different cell following his request
for mental health services. (ld. at A29) A protective custody investigation form
indicates that plaintiff had been double-celled with inmate Brandon Wallace ("Wallace")
and had made complaints that Wallace harassed and threatened him because he is
gay. (ld.) Wallace expressed his displeasure with having a gay cellmate. (Id. at A29)
Plaintiff and Wallace were separated and questioned. (Id. at A30) During the interview,
plaintiff indicated that he was afraid of Wallace and requested protective clJstody. (Id.)
Plaintiff was subsequently moved to protective custody and celled with inmate Kevin
Wilkerson ("Wilkerson"). (/d. at 30-31)
Defendant was off from work when plaintiff was moved. When she returned to
work on January 7,2012, she discovered that plaintiff had been moved to protective
custody and was celled with Wilkerson. (/d. at A76) Defendant worked a double shift
that day from 4:00 p.m. on January 7, 2012 until 8 a.m. on January 8, 2012. (/d. at A75)
Around 10:00 p.m., plaintiff complained to defendant that he did not like Wilkerson and
wanted to be moved. (/d. at A76) Plaintiff did not tell defendant that Wilkerson was
harassing him for sex, but stated that Wilkerson was making fun of him for being a
On January 7,2012 at 11 :00 p.m., plaintiff told Sergeant John H. Goldman
("Goldman") and Correctional Officer David Alston ("Alston") that he was having a
problem with Wilkerson. (/d. at A31) Plaintiff was cuffed and removed from the cell and
taken to the interview room. (/d.) Alston and Goldman informed defendant of the
complaint and told her that plaintiff and Wilkerson were "bickering." (/d. at A76) Both
inmates were spoken to separately and were advised that they needed to get along.
(/d. at A31) Both inmates agreed that they would and they were returned to their cells.
(/d. at A31, A76)
At 1:30 a.m. on January 8, 2012, defendant and Correctional Officer Keith Burns
("Burns") were conducting an area check, and plaintiff told defendant that Wilkerson
was harassing him for sex. (/d. at A6) Wilkerson told defendant that plaintiff was doing
the harassing. (/d.) Defendant told the inmates that if they continued to be disorderly,
she would move them to isolation. (/d.) The inmates indicated they would stop. (/d.)
Defendant did not report the incident to the area supervisor.1 (Id. at A70) During an
investigation by internal affairs, defendant stated that she felt plaintiff was using her to
go to SHU to be housed by himself. (Id.) She also indicated that she had not had
complaints about Wilkerson in the past. (Id.) She did not report the matter because she
did not see any reason to. (Id. at A70-A71) Defendant and Burns conducted a check
thirty minutes later and both inmates were asleep in their assigned beds. (Id. at A34)
At approximately 3:21 a.m., Correctional Officer Jeffrey Holcomb ("Holcomb")
noticed that Wilkerson had cut and scratch marks on his face. (Id. at A6, A37)
Wilkerson indicated that he injured himself when he fell off his top bunk. (Id. at A37)
Wilkerson was removed from the cell and examined by a prison nurse. (Id.) Wilkerson
had scratches on his face, chest and upper left eye. (Id.) Plaintiff underwent a presegregation health assessment on January 8, 2012 at 5:30 a.m. (Id. at A47) Upon
examination there were no contusions or bruises, and the physical examination was
basically normal. (Id.) His emotional state was described as anxious. (Id.) Plaintiff
was cleared for segregation. (Id.)
Wilkerson eventually admitted that he and plaintiff had been fighting. (D.I. 123 at
A77) Plaintiff indicated to internal affairs that no sexual contact took place. (Id. at A 11)
Both inmates were placed in isolation for pre-hearing detention, both were issued a
1Defendant received written discipline from Deputy Warden David Pierce
("Pierce") because she did not notify the area lieutenant verbally or in writing of the
action she took with respect to the conflict. Pierce concluded "that the alleged fight
between Wilkerson and Fletcher was not directly attributable to [defendant] because
even if she had contacted a supervisor when the inmates first complaint of harassment,
that supervisor may have determined that inmate relocation was not required." (Id. at
notice of disciplinary hearing due to fighting, and both inmates were found guilty of
assault, threatening or disorderly behavior and fighting. (Id. at A 11, A40) During
plaintiff's hearing, he indicated that he and Wilkerson were fighting, but he did not hit
him in the face. (Id. at A40) Both inmates were sanctioned and each sentenced to
thirty days in isolation. (Id. at A41) In addition, plaintiff received seven points for
fighting and was classified to SHU Level IV status. (Id. at A21) Plaintiff did not appeal
the sanction. (Id. at A40) The disciplinary report does not indicate that Wilkerson
attempted to rape plaintiff (Id. at A40) but, according to plaintiff, he informed Lieutenant
Brian Reynolds ("Reynolds"), the hearing officer on duty, that he was not guilty of
fighting "because he was defending himself against a possible rape." (0.1. 24 at 7)
Subsequent to the disciplinary hearing, plaintiff filed grievances and letters indicating
that Wilkerson attempted to rape him. (0.1. 123 at A43-A45) Plaintiff states in one of
his grievances that he told defendant of his issues with defendant. but she did nothing
and turned her back on him after she stated that plaintiff was gay, the guys here have
not been with a female and plaintiff should suck it up and stop coming to jail. (Id. at
A57) The same allegation was included in the amended complaint. (0.1. 24,113)
Defendant denies the allegations. (0.1. 27, 113)
III. MISCELLANEOUS MOTIONS
A. Request for Counsel
Plaintiff requests counsel on the grounds that he is indigent and unable to afford
counsel, his imprisonment greatly limits his ability to litigate the case, the issues are
complex, he has no physical access to the law library and is a novice to the rules of civil
procedure, a trial will involve conflicting testimony, and council will enable plaintiff to
better present evidence and cross-examine witnesses. (0.1. 103) A pro se litigant
proceeding in forma pauperis has no constitutional or statutory right to representation by
counsel. 2 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 plaintiff's 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 plaintiff's 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 plaintiff's 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 v. Johnson, 126 F.3d 454, 457 (3d Gir. 1997);
Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Gir. 2002).
To date, plaintiff's filings indicate that he possesses the ability to adequately
pursue his claims. Upon consideration of the record, the court is not persuaded that
representation by an attorney is warranted at this time. In addition, as discussed below,
the evidence of record indicates that plaintiff cannot prevail on his claim. Therefore, the
court will deny the request for counsel.
2See Mallard v. United States Dist. Court 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
B. Motions to Compel
Plaintiff filed two motions to compel defendant to produce certain discovery. (0.1.
104, 105) Plaintiff has also filed a motion for the court to enter an emergency ruling on
his pending motions to compel and request for counsel. (0.1. 107) The court has
reviewed the pending motions and the discovery provided plaintiff. The court finds that
defendant has adequately provided plaintiff discovery. Therefore, the court will deny the
motions to compel. In addition, the court will deny as moot the motion for an emergency
C. Motion for Injunctive Relief
On October 22, 2013, plaintiff filed a motion for injunctive relief seeking access to
the law library. (0.1. 127) Plaintiff contends that the
vee administration is denying him
access to the law library and retaliating against him. Plaintiff has filed grievances
regarding the matter and states that the grievance chairperson refuses to process them.
Persons convicted of serious crimes and confined to penal institutions retain the
right of meaningful access to the courts. Bounds v. Smith, 430 U.S. 817 (1977). This
access "requires prison authorities to assist inmates in the preparation and filing of
meaningful legal papers by providing prisoners with adequate law libraries or adequate
assistance from persons trained in the law." Id. at 828. This right "must be exercised
with due regard for the 'inordinately difficult undertaking' that is modern prison
administration." Thornburgh v. Abbott, 490 U.S. 401,407 (1989) (quoting Turner v.
Safley, 482 U.S. 78, 85 (1987)). Thus, courts have been called upon to review the
balance struck by prison officials between the penal institution's need to maintain
security within its walls and the rights of prisoners. Howard v. Snyder, 389 F.Supp.2d
589, 593 (D. Del. 2005).
All that is required is that plaintiff at least have access to a prison paralegal or
paging system by which to obtain legal materials. Abdul-Akbar v. Watson, 4 F.3d 195,
203 (3d Cir. 1993) (holding that segregated prisoners who do not have access to an
institution's main law library must have some means by which documents and materials
can be identified by and furnished to them in a timely fashion).
In addition, a violation
of the First Amendment right of access to the courts is only established where a litigant
shows that he was actually injured by the alleged denial of access. Lewis v. Casey, 518
U.S. 343, 351 (1996); Christopher v. Harbury, 536 U.S. 403, 415 (2002)
Defendant opposes the motion on the grounds that plaintiff has been afforded
law library access and provided documentation in support of his position. In addition,
defendant contends that plaintiff failed to plead sufficient facts to establish a retaliation
claim. Finally, defendant argues that plaintiff's grievance claim fails to state a claim.
Having considered the positions of the parties and the evidence of record, the
court concludes that plaintiff has failed to make a showing that injunctive relief is
appropriate. Therefore, the court will deny the motion for injunctive relief.
IV. MOTION FOR SUMMARY JUDGMENT
A. Legal Standard
"The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law." Fed. R. Civ. P. 56(a). The moving party bears the burden of
demonstrating the absence of a genuine issue of material fact. Matsushita Elee. Indus.
Plaintiff moves for partial summary judgment on the grounds that he has
established a clear violation of the Eighth Amendment. Defendant moves for summary
judgment on the grounds that: (1) the evidence of record could not lead a reasonable
jury to conclude that she failed to protect defendant; and (2) plaintiff fails to establish a
sufficient evidentiary basis on which a reasonable jury could rule in his favor.
1. Failure to Protect
Plaintiff contends that defendant's conduct constituted cruel and unusual
punishment in violation of the Eighth Amendment when she failed to comply with DOG
regulations and failed to protect him from an attempted rape.
Prison officials have a duty to protect inmates from violence by other inmates.
See Farmer v. Brennan, 511 U.S. 825, 833 (1994). "The restriction on cruel and
unusual punishment contained in the Eighth Amendment reaches non-intervention just
as readily as it reaches the more demonstrable brutality of those who unjustifiably and
excessively employ fists, boots or clubs." Smith v. Mensinger, 293 F.3d 641, 651 (3d
Gir. 2002). To prevail on an Eighth Amendment failure to protect claim, a plaintiff is
required to show that: (1) he is incarcerated under conditions posing a substantial risk
of serious harm (the objective element); and (2) prison officials acted with deliberate
indifference, i.e., that prison officials knew of and disregarded an excessive risk to
inmate health or safety (the subjective element). See Farmer v. Brennan, 511 U.S. at
833-34; see also Evans v. Cameron, 443 F. App'x 704, 706 (3d Gir. 2011)
(unpublished). U[T]he official must actually be aware of the existence of the excessive
risk; it is not sufficient that the official should have been aware." Beers-Capitol v.
Whetzel, 256 F.3d 120, 133 (3d Cir. 2001). Subjective knowledge on the part of the
official can be proved by circumstantial evidence to the effect that the excessive risk
was so obvious that the official must have known of the risk. See Farmer, 511 U.S. at
842. Finally, a defendant can rebut a prima facie demonstration of deliberate
indifference either by establishing that he did not have the requisite level of knowledge
or awareness of the risk or that, although he did know of the risk, he took reasonable
steps to prevent the harm from occurring. See id. at 844.
It is undisputed that prior to January 7,2013, defendant was aware that plaintiff
had concerns he would be assaulted because of his homosexuality, that she provided
advice to him regarding his fears, and unsuccessfully sought to have him moved. It is
also undisputed that when defendant returned to work on January 7, 2013, she
discovered that, although plaintiff had been moved to a new cell, he continued to fear an
assault by his new cellmate because of his sexual orientation. Hence, a reasonable jury
could conclude that defendant was subjectively aware of a substantial risk of harm to
The record reflects that defendant did not ignore plaintiff's concern. Instead,
plaintiff and his cellmate were removed from their cell and separately interviewed. Each
inmate reported they feared the other. Defendant instructed both inmates to "stop
bickering" or face time in isolation, they agreed to stop, and were returned to their cell.
Defendant conducted a check thirty minutes later and both defendants were asleep in
their beds. The record reflects that defendant had no prior complaints about plaintiff's
cellmate. The record further reflects that defendant made a judgment call in returning
plaintiff to his cell based upon her belief that plaintiff was using her for a transfer to SHU
in a single cell and her observation that plaintiff did not seem to be afraid. Finally, the
record reflects that, although defendant knew of the risk, she took reasonable steps to
prevent the harm from occurring. Based upon the foregoing, no reasonable jury could
find that defendant violated plaintiff's rights under the Eighth Amendment to the United
Therefore, the court will deny plaintiff's motion for partial summary judgment and
will grant defendant's motion for summary judgment.
2. Sex Discrimination
Plaintiff alleges that defendant "discriminated on him because of his sexual
orientation." (D.1. 24,
3) More particularly, he alleges that if he were a straight man,
defendant would have stepped in without hesitation. (Id. at ~ 4) Plaintiff rests his claim
on alleged statements made by defendant including, "you are a gay man, these men
have not been with a woman in a long time. you should expect that, man-up and stop
coming to jail." (Id. at ~ 3)
To state a claim under the Equal Protection Clause, plaintiff must allege that
he is a member of a protected class and he was treated differently from similarly
situated inmates. See City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439
(1985) (noting that the Equal Protection Clause "is essentially a direction that all
persons similarly situated should be treated alike"). If the litigant does not claim
membership in a protected class, he must allege arbitrary and intentional discrimination
in order to state an equal protection claim. See Vii/age of Willowbrook v. Olech, 528
U.S. 562, 564 (2000). Plaintiff must state facts showing that: "(1) the defendant treated
him differently from others similarly situated, (2) the defendant did so intentionally, and
(3) there was no rational basis for the difference in treatment." Hill v. Borough of
Kutztown, 455 F.3d 225, 239 (3d Cir. 2006).
The Supreme Court has not recognized sexual orientation as a suspect class,
and federal courts across the country have declined to identify homosexuals as a
protected class. See Price-Cornelison v. Brooks, 524 F.3d 1103, 1113 n.9 (10th Cir.
2008) (collecting cases). Notably, plaintiff did not plead, and there is no evidence of
record, that plaintiff was treated differently from similarly situated individuals and, even if
he had, that there was no rational basis for any difference in treatment. Finally, no
matter how offensive and derogatory the language that defendant allegedly used with
respect to plaintiffs sexual orientation, that alone does not give rise to a constitutional
claim. See Aleem-X v. Westcott, 347 F. App'x 731 (3d Cir. 2009) (unpublished) (verbal
abuse of a prisoner, even of the lewd variety, is not actionable under 42 U.S.C. § 1983).
Plaintiff fails to plead a facially plausible equal protection claim. Therefore, the
court will dismiss the claim as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(8)(ii) and
3. Prison Rules/Regulation
The record reflects that defendant was reprimanded for failing to notify the area
lieutenant verbally or in writing of the action she took with respect to the conflict
between plaintiff and his cellmate. To the extent plaintiff alleges that defendant violated
his constitutional rights by failing to following prison rules and regulations, the claim
fails. The mere failure of prison officials to follow their own regulations alone is not a
constitutional violation. See Crist v. Phelps, 810 F. Supp. 2d 703, 708 n.4 (D. Del.
2011) (citations omitted).
For the above reasons, the court will deny plaintiff's motions (D.1. 103, 104, 105,
107,118, 127) and will grant defendant's motion for summary judgment (D.1. 121). The
court will dismiss the equal protection claim as frivolous.
An appropriate order will issue.
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