Averill v. Celello et al

Filing 11

MEMORANDUM - Signed by Judge Gregory M. Sleet on 8/31/12. (rwc)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

WAYNE R. AVERILL,
Plaintiff,
v.
THOMAS F. CELELLO, et aL,
Defendants.

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) Civ. Action No. 12-599-GMS
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MEMORANDUM
The plaintiff, Wayne R. Averill ("Averill"), an inmate at the James T. Vaughn
Correctional Center ("VCC"), Smyrna, Delaware, filed this lawsuit on May 14,2012, pursuant to
42 U.S.C. § 1983. 1 (D.!.3.) He also raises supplemental State law claims. Averill appears pro

se and was granted permission to proceed inJorma pauperis pursuant to 28 U.S.C. § 1915. (D.L
7.) The court proceeds to review and screen the complaint pursuant to 28 U.S.c. § 1915 and

§ 1915A.2
I. BACKGROUND
Averill was housed at the Howard R. Young Correctional Institution ("HRYCI"),
Wilmington, Delaware and had a testicular condition that required surgery. The defendant Dr.
Christina Jones ("Dr. Jones"), an employee of the defendant Correctional Medical Services, Inc.
("CMS"), signed an order for Averill's surgery and, on May 18,2010, he was transported to the

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).
1When

Averill moves to amend his complaint to retitle the case because he does not have the
current address of one of the defendants. (D'!.9.) There is no need to amend the complaint and,
therefore, the court will deny as moot the motion to amend.
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Foulk Eye Care Center where hydrocel~ surgery was performed by the defendant Dr. Francis 1.
Schanne ("Dr. Schanne"). Averill questioned why the surgery was performed at an eye care
center and was told that many hydrocele surgeries were performed there and that he was in good
hands.
From May 16 to May 26, 2010, Averill was housed in the HRYCI infirmary to recover
from the procedure. The defendants Dr. Thomas F. Celello and Dr. Jones were the head and
supervising physicians for CMS.4 Dr. Celello and Dr. Jones monitored Averill's vital signs.
Averill alleges that they both disregarded his excessively high blood pressure readings and
elevated temperature readings. Averill alleges that on May 26, 2010, Dr. Jones discharged him
into general population despite an elevated temperature, a doubled heart rate, extremely high
blood pressure, swollen testicles the size of grapefruits, bruising from the knees to belly button,
and nurse entries that his condition was worsening.
The next day, Averill was transferred to the VCC. During receiving, Averill explained
his conditions to two correctional officers. They saw his condition, asked the defendant nurse
Robert Davenport ("Davenport") to check Averill, told Davenport that Averill needed to go to
the infirmary, and asked Davenport to examine him. Davenport refused to check Averill and said
the infirmary was full. The correctional officers spoke to an unknown person and indicated that
Averill needed to be in the infirmary, but Davenport insisted that Averill be sent to his assigned

3Hydrocele is defined as a pathological accumulation of serous fluid in a bodily cavity,
especially in the scrotal pouch. The American Heritage Stedman's Medical Dictionary 378 (2d
ed.2004).
4The court takes judicial notice of an obituary notice in the Delaware News Journal of
July 10, 2012, that Dr. Celello died on July 6, 2012, at his home in Wilmington, Delaware. See
Ieradi v. Mylan Laborities, Inc., 230 F.3d 594 n. 2 (3d Cir. 2000).
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housing. In addition, Davenport spoke to the defendant Dr. Dale Rogers ("Dr. Rogers") who
indicated that Averill should be sent to his housing assignment.
Averill made constant complaints regarding his condition to no avail. On June 2, 2010,
Averill spoke to Sgt. Boise ("Sgt. Boise") about his condition who arranged for Averill to see Dr.
Louis Desrosiers ("Dr. Desrosiers") who provided him medical treatment. On June 18,2010,
Averill was taken to the offices of the defendant Urologic Surgical Associates of Delaware
("Urologic Surgical"). On June 24, 2010, Averill underwent a second surgery at S1. Francis
Hospital in Wilmington, Delaware, again performed by Dr. Schanne. During post-operative
follow-up, Dr. Schanne told Averill that he wanted to remove the damaged testicle.
Averill alleges that his sex drive has decreased, he is incontinent, and has constant pain.
He seeks compensatory damages and injunctive relief

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 Averill proceeds pro se, his pleading is
liberally construed and his complaint, "however inartfully pleaded, must be held to less stringent

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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

§ 1915(e)(2)(B)(ii) and § 1915A(b)(I) 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 Averillieave to amend his 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.

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UPMe 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 ofthe 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 Averill has a "plausible
claim for relief."s Id. at 211. In other words, the complaint must do more than allege Averill's
entitlement to relief; rather it must "show" such an 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)).

III. DISCUSSION
A. Personal InvolvementlRespondeat Superior
Averill names as defendants Victor Jackson ("Jackson"), Correct Care Solutions
("CCS"), Carl Danberg ("Danberg"), Michael Deloy ("Deloy"), and Perry Phelps ("Phelps").
The complaint, however, contains no allegations directed to these defendants and it appears that
most of them are sued based upon their supervisory positions. In addition, the court takes
judicial notice that CCS was not the medical care provider for the Delaware Department of
Correction ("DOC") during the time-frame of the allegations. CCS became the medical services
provider for DOC institutions on July 1,2010.

SA 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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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 ofJustice, 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).
Averill provides no specific facts of any of the foregoing defendants' personal
involvement required to state a claim for violations of his constitutional rights. Nor does the
complaint contain facts that any defendant expressly directed the deprivation of his 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. For the above reasons, the
court will dismiss all claims against Jackson, CCS, Danberg, Deloy, and Phelps as frivolous
pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)(1).

B. Medical Negligence
Averill raises medical negligence claims. 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

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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 Averill 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. 18 Del.
C. § 6853(a)(I). His failure to do so, dooms his state medical negligence claims. See, e.g.,

Washington v. Grace, 445 F. App'x 611, 616 (3d Cir. 2011) (not published).
In addition, to the extent that Averill raises § 1983 claims against Dr. Schanne and
Urologic Surgical, they will be dismissed as they are not state actors. See West v. Atkins, 487
U.S. at 48. To act under "color of state law" a defendant must be "clothed with the

authority of state law." Id., 487 U.S. at 49. The complaint alleges that Dr. Schanne is
employed as a surgeon at Urologic Surgical, an outside medical provider to whom Averill
was sent to receive medical care. The facts, as alleged, indicate that neither of these two
defendants are "clothed with the authority of state law." See Reichley v. Pennsylvania
Dep't ofAgric., 427 F.3d 236,244-45 (3d Cir. 2005); Biener v. Calio, 361 F.3d 206,216­
17 (3d. Cir. 2004). The § 1983 claims against them have no arguable basis in law or in
fact and, therefore will be dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)
and § 1915(A)(b)(l).
C. Request for Counsel
Averill requests counsel on the grounds that he is unable to afford counsel, his
imprisonment greatly limits his ability to litigate, the issues are complex, he has limited access to

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the law library and limited knowledge of the law, a trial will likely involve conflicting testimony
and counsel will better enable him to present evidence and cross-examine witnesses, and he has
made repeated efforts to obtain a lawyer. (D.I. 5.)
A pro se litigant proceeding in fonna 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 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
[plaintiff's] 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
Cir. 1984); accord Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993) (representation by counsel
may be appropriate under certain circumstances, after a finding that a plaintiff's claim has
arguable merit in fact and law).
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 detenninations; 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 Cir. 2002).
To date, Averill has ably represent himself. In addition, this case is in its early stages and
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service has not yet taken place. Notably, should the need for counsel arise later, one can be
appointed at that time. Upon consideration of the record, the court is not persuaded that
appointment of counsel is warranted at this time. Accordingly, Averill's request for counsel will
be denied without prejudice to renew. (D.L 5.)

IV. CONCLUSION
For the above reasons, the court will deny without prejudice to renew the plaintiff's
request for counsel and will deny as moot the motion to amend. (D.L 5,9) In addition, the court
will dismiss the defendants Victor Jackson, Correct Care Solutions, Dr. Francis 1. Schanne,
Urologic Surgical Associates of Delaware, Carl Danberg, Michael Deloy, and Perry Phelps, and
all medical negligence claims as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B) and
§ 1915A(b)(1). The plaintiff will be allowed to proceed against the defendants Dr. Celello, Dr.
Christina Jones, Robert Davenport, Dr. Dale Rogers, and Correctional Medical Services.
An appropriate order will be entered.

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