Biddle v. Morgan et al

Filing 167

MEMORANDUM OPINION regarding Motions To Dismiss (D.I. 85 and 87 ). Signed by Judge Richard G. Andrews on 9/4/2015. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
WAYNE BIDDLE,
Plaintiff;
V.

SECURITY CHIEF PHILIP D. PARKER,
WARDEN PHILIP MORGAN, JOHN
WATTS, TIMOTHY LOUISIGNAU,
THOMAS ROMANOWSKI, KING AYALA,
CHRISTOPHER THOMAS, AARON
TREHERNE, MATTHEW KREUTZ, KELLI
PAIGE, AND CORRECT CARE
SOLUTIONS, LLC,

Civil Action No. 13-343-RGA

Defendants.
MEMORANDUM OPINION
Frederick L. Cottrell, III, Esq. (argued), Katherine C. Lester, Esq. (argued), Arun J. Mahon, Esq.,
RICHARDS, LAYTON & FINGER, Wilmington, DE.
Attorneys for Plaintiff Wayne Biddle.
Joseph C. Handlon, Esq. (argued), Deputy Attorney General, STATE OF DELAWARE
DEPARTMENT OF JUSTICE, Wilmington, DE.
Attorney for Supervisor Defendants.
Daniel A. Griffith, Esq. (argued), Scott G. Wilcox, Esq., Kaan Ekiner, Esq., WHITEFORD
TAYLOR & PRESTON LLP, Wilmington, DE.
Attorneys for Defendant Correct Care Solutions, LLC.

September

1-,

2015

Before the Court is Security Chief Philip Parker, Former Warden Philip Morgan, and
Corporal John Watts's (collectively, "Supervisor Defendants") motion to dismiss Counts III and
IV of Plaintiffs complaint. (D.I. 85). Also before the Court is Correct Care Solutions, LLC's
("CCS") motion to dismiss Counts V, VI, and VII of Plaintiff's complaint. (D.I. 87). Both
motions have been fully briefed. (D.I. 86, 88, 93, 98, 102 & 109). The Court held oral
argument on May 13, 2015. (D.I. 138). 1 The parties also submitted supplemental letter briefs
in response to Plaintiff's second amended complaint. (D.I. 145, 147, 149 & 153). For the
reasons provided below, Supervisor Defendants' motion to dismiss Counts III and IV and CCS's
motion to dismiss Counts V, VI, and VII of the complaint are granted.

I.

BACKGROUND
The present case arises out of an incident occurring at the Howard R. Young Correctional

Institution ("HRYCI") on May 16, 2012. (D.I. 140 ~ 1). Plaintiff filed his original prose
complaint on March 1, 2013. (D.I. 2). The Court gave Plaintiff leave to file an amended
complaint on May 14, 2013. (D.I. 10). Plaintiff filed an amended prose complaint on June 5,
2013. (D.I. 17). On July 9, 2014, the Court granted Plaintiff's request for counsel. (D.I. 52).
The Court entered an order recognizing Plaintiff's counsel on September 19, 2014. (D.I. 56).
Plaintiff's counsel entered an appearance on September 23, 2014. (D.I. 57). Plaintiff filed a
first amended complaint on January 30, 2015, which named CCS as a defendant for the first

1

Plaintiff filed a notice of subsequent authority on June 4, 2015 (D.I. 141), informing the Court of the Supreme
Court's decision in Taylor v. Barkes, 135 S. Ct. 2042, 2045 (2015) (per curiam), which reversed the Third Circuit's
decision in Barkes v. First Corr. Med, Inc., 766 F.3d 307, 332 (3d Cir. 2014). Plaintiff filed another notice of
subsequent authority on June 30, 2015, informing the Court of the Supreme Court's decision in Kingsley v.
Hendrickson, 135 S. Ct. 2466, 2477 (2015).

1

time. (D.I. 81). Following oral argument, Plaintiff filed a second amended complaint on June
3, 2015. 2 (D.I. 140).

II.

Legal Standard
When reviewing a motion to dismiss pursuant to Federal Rule of Civil Procedure

12(b)(6), the Court must accept the complaint's factual allegations as true. See Bell At!. Corp. v.

Twombly, 550 U.S. 544, 555-56 (2007). Rule 8(a) requires "a short and plain statement of the
claim showing that the pleader is entitled to relief." Id at 555. The factual allegations do not
have to be detailed, but they must provide more than labels, conclusions, or a "formulaic
recitation" of the claim elements. Id ("Factual allegations must be enough to raise a right to
relief above the speculative level ... on the assumption that all the allegations in the complaint
are true (even if doubtful in fact)."). Moreover, there must be sufficient factual matter to state a
facially plausible claim to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The facial
plausibility standard is satisfied when the complaint's factual content "allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged." 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." (internal quotation marks
omitted)).

III.

DISCUSSION
A.

Supervisor Defendants

Supervisor Defendants argue that they are entitled to qualified immunity with respect to
Counts III and IV. (D.I. 86 at 16). "Qualified immunity shields government officials from

2

Plaintiffs "second amended complaint" (D.I. 140) is herein referred to as the "complaint."

2

civil damages liability unless the official violated a statutory or constitutional right that was
clearly established at the time of the challenged conduct." Taylor v. Barkes, 135 S. Ct. 2042,
2044 (2015) (per curiam). "To be clearly established, a right must be sufficiently clear that
every reasonable official would have understood that what he is doing violates that right." Id.
(quoting Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012)). "When properly applied,
[qualified immunity] protects all but the plainly incompetent or those who knowingly violate the
law." Id. (alteration in original). "We do not require a case directly on point, but existing
precedent must have placed the statutory or constitutional question beyond debate." Ashcroft v.

al-Kidd, 131 S. Ct. 2074, 2085 (2011). The Supreme Court has instructed courts "not to define
clearly established law at a high level of generality." City & Cnty. ofSan Francisco, Calif v.

Sheehan, 135 S. Ct. 1765, 1776 (2015).
Plaintiff relied heavily on the Third Circuit's decision in Barkes v. First Corr. Med., Inc.,
766 F.3d 307 (3d Cir. 2014) to support his supervisory claims. During oral argument, Plaintiff
referred to Barkes as the best case in support of his position. (D.I. 138 at 25:25-26:5). The
Supreme Court, however, recently reversed the Third Circuit's decision in Barkes on the ground
of qualified immunity. See Taylor, 135 S. Ct. at 2045. 3 In Taylor, the Supreme Court
addressed a § 1983 claim against the commissioner of the Delaware Department of Correction
and the warden ofHRYCI for failing to prevent an inmate's suicide by "failing to supervise and
monitor the private contractor that provided the medical treatment." Id. at 2043. The Supreme
Court held that "an incarcerated person's right to the proper implementation of adequate suicide
prevention protocols" was not a clearly established right at the time of the inmate's death. Id. at

3

The Supreme Court did not address the Third Circuit's supervisory liability decision. Taylor, 135 S. Ct. at 2043.

3

2044. The Supreme Court stated that "[n]o decision of this Court establishes a right to the
proper implementation of adequate suicide prevention protocols," and that no Supreme Court
decision "even discusses suicide screening or prevention protocols." Id

Further, the Supreme

Court stated that, at the time of the inmate's death, there was not a "robust consensus of cases of
persuasive authority." Id Thus, the Supreme Court found that "even if [HRYCI's] suicide
screening and prevention measures contained the shortcomings that respondents allege, no
precedent on the books [at the time of the inmate's death] would have made clear to petitioners
that they were overseeing a system that violated the Constitution." Id at 2045. Therefore, the
Supreme Court held that the commissioner and the warden were not violating a clearly
established law and were entitled to qualified immunity with respect to the supervisory claim
against them. Id The Supreme Court's Taylor decision addresses an issue almost identical to
the one presently before the Court. 4
Plaintiff argues that Supervisor Defendants violated the clearly established right "of a
person suffering [from] a known medical condition to be free from excessive force." (D.I. 147
at 1). During oral argument, Plaintiff also characterized his constitutional right as "the right to
have appropriate protocols in place to handle someone having a seizure." (D.I. 138 at 27: 1628:8). I find the latter characterization better defines the constitutional right at issue in Counts
III and IV. According to the complaint, Mr. Morgan and Mr. Parker "were responsible for
making sure that officers received adequate training and overseeing all officers at the prison" and

4

Supervisor Defendants also cite the Supreme Court's recent decision in City & Cnty. ofSan Francisco, Calif. v.
Sheehan, holding that two police officers were entitled to qualified immunity from excessive force claims arising
from an incident where the officers shot a person suffering from mental illness after the person had threatened them
with a knife. 135 S. Ct. 1765, 1775 (2015). Plaintiff cites the Supreme Court's recent decision in Kingsley v.
Hendrickson, holding that "a pretrial detainee must show only that the force purposely or knowingly used against
him was objectively unreasonable." 135 S. Ct. 2466, 2473 (2015). Both of these cases, however, address claims
against officers, not supervisors. Thus, neither case is on point for the purpose of this motion.

4

"for enacting and monitoring the policies that existed regarding treatment of inmates." (D.I. 140
~~

153 & 167). Mr. Watts, in his capacity as supervisor, "was responsible for overseeing the

members of the PQRT and making sure they received adequate training and supervision" and
"for monitoring the policies that existed regarding the treatment of inmates by subordinate
officers." 5 (Id. ~~ 154 & 168). Based on these responsibilities, Count III alleges that
Supervisor Defendants "failed to adequately train, supervise, and monitor the activities of their
subordinates in a manner sufficient to ensure the proper responses to inmates with medical
emergencies, such as epileptic seizures." (Id.

~

155). Count IV alleges that Supervisor

Defendants "were aware that the DOC and/or HRYCI had inadequate policies in place to address
the response of correctional officers to inmates experiencing seizure episodes." (Id.

~

170).

Similar to the claim at issue in Taylor, Counts III and IV assert Plaintiffs right to the
proper implementation of training, supervision, and policies for handling individuals who suffer
from seizures. As of May 16, 2012-the date of the challenged conduct-there was no
Supreme Court decision establishing such a right. Further, there was not a "robust consensus of
cases of persuasive authority" suggesting that such a right existed. Plaintiff fails to cite a single
case suggesting the existence of an inmate's right to the implementation of adequate training and
policies for handling inmates with seizures. 6 (D.I. 147 at 2). As the Supreme Court held in

Taylor, even if HRYCI's training and policies regarding seizures were as deficient as Counts III

5

The complaint alleges that Mr. Watts was directly involved in the May 16, 2012 incident as well. (D.1. 140 iii!
153-54).
6
Plaintiff cites the following cases: "Pritzker v. City of Hudson, 26 F. Supp. 2d 433, 444 (N.D.N.Y. 1998) (denying
qualified immunity to officers that applied restraints to a pre-trial detainee with injured wrists because restraining 'a
non-threatening individual in the face of a known medical condition violates clearly established constitutional
rights'); Walton v. City ofSouthfield, 995 F.2d 1331, 1342 (6th Cir. 1993) (denying qualified immunity to an officer
that restrained an arrestee with an injured shoulder); Howard v. Dickerson, 34 F.3d 978, 981 (10th Cir. 1994)
(denying qualified immunity to an officer that restrained an arrestee with a neck injury)." (D.1. 147 at 2).

5

and IV allege, there was no precedent in May 2012 that would have made clear to Supervisor
Defendants "that they were overseeing a system that violated the Constitution." Taylor, 135 S.
Ct. at 2045. Thus, Counts III and IV do not allege a "statutory or constitutional right that was
clearly established at the time of the challenged conduct." Therefore, Supervisor Defendants are
entitled to qualified immunity with respect to Counts III and IV. This decision does not impact
any other claims asserted against Mr. Watts.

B.

CCS

CCS argues that Counts V, VI, and VII of the complaint are barred under Delaware's
two-year statute of limitations for personal injury actions. (D.I. 88 at 5). "Although federal
law provides no statute oflimitations for actions brought under§ 1983, state law may provide a
limitations period 'if it is not inconsistent with federal law or policy to do so."' Tearpock-

Martini v. Borough ofShickshinny, 756 F.3d 232, 235 (3d Cir. 2014). "A section 1983 claim is
characterized as a personal-injury claim and thus is governed by the applicable state's statute of
limitations for personal-injury claims." Dique v. NJ. State Police, 603 F.3d 181, 185 (3d Cir.
2010). "Because Delaware's statute of limitations for personal injury claims is two years,
Plaintiffs Section 1983 claims are subject to a two-year statute oflimitations." Lamb-Bowman

v. Del. State Univ., 1999 WL 1250889, at *8 (D. Del. Dec. 10, 1999) (citing 10 Del. C. § 8119).
"The date of the claim's accrual, however, continues to be governed by federal law, although
state law generally governs tolling and its effects." Tearpock-Martini, 756 F.3d at 235. "A
section 1983 claim accrues when the plaintiff knows or has reason to know of the injury that
forms the basis of his cause of action." Carr v. Town of Dewey Beach, 730 F. Supp. 591, 603
(D. Del. 1990) (citing Deary v. Three Un-named Police Officers, 746 F.2d 185, 197 n.16 (3d Cir.
1984)).
6

Plaintiff's cause of action arises out of an incident that occurred on May 16, 2012, which
is when the two-year limitations period began to run. (D.I. 140 ~ 1). The amended complaint
naming CCS as a defendant was filed on January 30, 2015-well outside the two-year
limitations period. (D.I. 81). Plaintiff argues, however, that the May 2012 incident was part of
a series of conduct by CCS that constituted a "continuing violation" of Plaintiff's constitutional
rights. (D.I. 98 at 10). "Under the continuing violation doctrine, a plaintiff can pursue his
Section 1983 claims based on conduct that began prior to the limitations period, ifthe plaintiff
can show that the conduct is part of an ongoing practice." Eaton v. Corr. Med Sys., Inc., 2007
WL 2727154, at *2 (D. Del. Sept. 17, 2007). "To determine whether the continuing violations
doctrine can be applied, the Court must consider: (1) whether the complaint alleges any
violations within the limitations period, and (2) whether the conduct is reasonably related to
conduct that occurred within the limitations period." Id. (citing West v. Phila. Elec. Co., 45
F.3d 744, 754-55 (3d Cir. 1995)). "To establish the second prong of this test, a plaintiff must
demonstrate that the action is not an isolated occurrence, but part of a consistent, on-going
pattern." Id (citing West, 45 F.3d at 755 ("The relevant distinction is between the occurrence of
isolated, intermittent acts of discrimination and a persistent, on-going pattern.")).
Counts V, VI, and VII allege that CCS failed to provide adequate medical treatment,
training, and policies, and thus contributed to the May 16, 2012 incident and Plaintiffs resulting
injuries. ·(DJ. 140 ~~ 180-223). The complaint alleges three additional incidents that occurred
within the two-year limitations period that amounted to "continuing mistreatment."

(Id~~

92-

97). On July 14, 2012, Plaintiff filled out a "Sick Call Form," stating that he needed snacks
after dinner in order to take his seizure medication. (Id

~

94). On November 2, 2013, Plaintiff

completed a "Medical Grievance" form, claiming that he was not receiving his medication and
7

that he was afraid he would have a seizure. (Id ~ 95). On July 27, 2014, Plaintiff had a seizure
in the "chow hall" and officers tackled him to the floor, handcuffed him, and one officer shoved
a foot in his face. (Id

~

96).

The July 2014 incident is not relevant to the claims against CCS because it occurred after
CCS's contract with the Delaware Department of Corrections (DOC) ended on June 30, 2014.
(D.I. 166 at 2).

Thu~,

the only issue is whether the July 2012 and November 2013 incidents are

"reasonably related" to the May 2012 incident. I find they are not. The claims against CCS
arise from the use of excessive force on Plaintiff while he was having a seizure. The July 2012
and November 2013 incidents were grievances filed by Plaintiff about his seizure medication.
Even assuming that CCS ignored these grievances, neither incident involved the use of excessive
force on Plaintiff while he was having a seizure. The July 2012 and November 2013 incidents
are "isolated, intermittent acts" that do not amount to a "persistent, on-going pattern." Thus, the
July 2012 and November 2013 incidents are not reasonably related to the May 2012 incident.
Therefore, Plaintiff has failed to allege a continuing violation.
Plaintiff also argues that his amended complaint filed on January 30, 2015 relates back to
his original complaint filed on March 1, 2013. (D.I. 98 at 12). Under Rule 15(c)(l)(C) of the
Federal Rules of Civil Procedure, for an amendment that names a new party to relate back to the
original complaint: "(1) the claim in the amended pleading must arise out of the 'conduct,
transaction, or occurrence' set forth in the original pleading; (2) within 120 days of institution of
the action, the party to be brought in by amendment must have received 'such notice of the ...
action that the party will not be prejudiced in maintaining a defense on the merits'; and, (3)
within 120 days of institution of the action, the party to be brought in by amendment must have
known or should have known that, 'but for a mistake concerning the identity of the proper party,'
8

the action would have been brought against that party." Arthur v. Maersk, Inc., 434 F.3d 196,
207 (3d Cir. 2006) (citing Fed. R. Civ. P. 15(c)).
Plaintiffs claims against CCS arise out of the May 16, 2012 incident-the same
"conduct, transaction, or occurrence" that gave rise to the original complaint. Thus, the only
two issues are whether, within 120 days of March 1, 2013, CCS: (1) received notice of the
action; and (2) knew or should have known that the action would have been brought against it
but for a mistake concerning its identity. Plaintiff concedes that he did not name CCS as a
defendant until he filed his first amended complaint on January 30, 2015. (D.I. 153 at 3). CCS
submitted a declaration stating, "The first time CCS became aware of any legal action filed by
Mr. Biddle was in or around December 2014 when it was served with a third party subpoena
from Plaintiff," and "CCS did not become aware of the claims against it until its registered agent
was served with the Amended Complaint in February 2015." (D.1. 166 at 3). Plaintiff argues,
however, that it is reasonable to infer that CCS was made aware of Plaintiffs original and
amended prose complaints before December 2014. (D.I. 153 at 3). Plaintiff argues that CCS
was aware of Plaintiffs injuries because CCS employees treated Plaintiff on May 20, 2012, and
because Plaintiff filed a "Sick Call Form" on June 12, 2012, requesting x-rays of his hands for
"injuries suffered by staff when a seizur[e] occur[r]ed on 5-15-2012." (D.I. 140 ifif 86-89).
Neither of these instances provided CCS notice of Plaintiffs original or amended prose
complaint. Thus, CCS did not receive notice of Plaintiffs action within 120 days of the filing
of the original complaint.
Even if CCS had received notice of Plaintiffs action within 120 days, it would not have
expected to be a defendant. The original and amended pro se complaints did not allege any
improper conduct by CCS employees and did not suggest that CCS failed to provide adequate
9

medical treatment, training, or policies. Further, Plaintiff made no indication in the original or
amended pro se complaint that he was unaware of or mistaken as to CCS' s identity. Plaintiff
even noted that the medical professional on duty during the May 16, 2012 incident told the
officers multiple times, "He's having a seizure, not fighting." (D.I. 2 at 5; D.I. 17 at 1). Thus,
Plaintiff did not fail to include claims against CCS because he was mistaken about its identity.
Therefore, Plaintiffs claims against CCS do not relate back to the original complaint.
Plaintiff argues that the two-year statute of limitations should have been tolled under the
federal doctrine of equitable tolling. (D.I. 153 at 4). "Federal courts may toll statutes of
limitations for federal laws where the plaintiff in some extraordinary way has been prevented
from asserting his or her rights." Lake v. Arnold, 232 F.3d 360, 370 (3d Cir. 2000) (internal
quotation marks omitted). "Equitable tolling stops the statute of limitations from running when
the date on which the claim accrued has already passed." Id.

"Equitable tolling can be applied

to suits brought under the federal civil rights statutes when the state statute of limitations would
otherwise frustrate federal policy .... '" Id. (citations omitted). "Equitable tolling is
appropriate in three general scenarios: (1) where a defendant actively misleads a plaintiff with
respect to her cause of action; (2) where the plaintiff has been prevented from asserting her claim
as a result of other extraordinary circumstances; or (3) where the plaintiff asserts her claims in a
timely manner but has done so in the wrong forum." Id. at 370 n.9.
Plaintiff argues that the two-year statute of limitations on his claims against CCS should
have been tolled until he was represented by counsel. (D.I. 153 at 4). Plaintiff argues that his
lack of access to records and the DOC's failure to give him a grievance hearing were
"extraordinary circumstances." (Id.). I disagree. Plaintiff had enough information when he
filed the original complaint to file a claim against CCS, but chose not to do so. CCS did not
10

actively mislead Plaintiff and Plaintiff did not assert his claims in the wrong forum. Thus,
Plaintiff is not entitled to equitable tolling. Therefore, Counts V, VI, and VII against CCS are
barred by Delaware's two-year statute oflimitations.
IV.

CONCLUSION
For the reasons provided above, Supervisor Defendants' motion to dismiss Counts III and

IV and CCS 's motion to dismiss Counts V, VI, and VII are granted. Counts III, IV, V, VI, and
VII are dismissed with prejudice. An appropriate order will be entered.

11