Wood v. Department of Corrections et al

Filing 7

MEMORANDUM - Signed by Judge Sue L. Robinson on 8/26/14. (rwc)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

KENNETH E. WOOD, JR.,

)

)

Plaintiff,

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)

v.

) Civ. No. 14-476-SLR
)

DEPARTMENT OF CORRECTION,
et aI.,

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)
)

Defendants.

)

MEMORANDUM
1. Introduction. Plaintiff Kenneth E. Wood ("plaintiff"), an inmate at the Howard
R. Young Correctional Institution, Wilmington, Delaware, proceeds pro se and has been
granted in forma pauperis status. He filed this complaint pursuant to 42 U.S.C. § 1983
claiming violations of his constitutional rights. 1 (D.1. 3)
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 of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008);

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).

Erickson v. Pardus, 551 U.S. 89, 93 (2007). Because plaintiff proceeds pro se, his

pleading is liberally construed and his 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)(8)(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)(8)(ii) and § 1915A(b)(1) is identical to the legal standard used
when ruling on Rule 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)(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 his complaint unless amendment would be inequitable or futile. See Grayson
Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).

2

V.

5. A well-pleaded complaint must contain more than mere labels and
conclusions. See Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell At!. 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." Iqbal, 556 U.S. at 678. When determining whether dismissal
is appropriate, the court must take three steps: "(1) identify[J the elements of the claim,
(2) review[] the complaint to strike conclusory allegations, and then (3) 100k[J at the
well-pleaded components of the complaint and evaluat[eJ whether all of the elements
identified in part one of the inquiry are sufficiently alleged." Malleus v. George, 641
F.3d 560, 563 (3d Cir. 2011). Elements are sufficiently alleged when the facts in the
complaint "show" that the plaintiff is entitled to relief. Iqbal, 556 U.S. at 679 (quoting
Fed. R. Civ. P. 8(a)(2)). Deciding whether a claim is plausible will be a "context-specific
task that requires the reviewing court to draw on its judicial experience and common
sense." Id.
6. Discussion. According to plaintiff, he was charged with two counts of rape in
the third degree. A condition of his sentence provides that he was to have no contact
with the victim or the victim's family and no contact with anyone under the age of 18.
Plaintiff began a level four work-release sentence on May 24, 2012 at defendant Morris
Community Correction Center (UMCCC")2 in Dover, Delaware. During the latter part of
June 2012, Brad ("Brad"), an uncle of plaintiff's victim, was moved onto the C-tier where
plaintiff was housed. Plaintiff immediately notified defendant Shift Sergeant John Doe

21mproperly named Morris Correctional Institution.

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("Sgt. Doe") that a "no contact" order precluded him from having any contact with his
victim or the victim's family. Sgt. Doe did nothing and left both parties on C-tier. On
July 8, 2012, plaintiff was accosted by two individuals. One person called plaintiff a
child molester and the other stated, "this is from Brad." The inmates hit plaintiff in the
face with a lock and stomped on his ankle and left foot.
7. Plaintiff received treatment at the prison infirmary and was transferred to Kent
General Hospital. He ultimately underwent an open reduction on his left foot and, on
July 20,2012, was transferred from the VCC to defendant Sussex Work Release
Center ("SWR")3 in Georgetown, Delaware. Plaintiff arrived on crutches and with orders
from Dr. DuShuttle to undergo physical therapy for his foot. Plaintiff was not provided
with physical therapy and was cleared by the SWR medical department. Plaintiff
underwent a second surgery on August 11,2012 to have pins removed from his left
foot. Dr. DuShuttie informed plaintiff that his foot will never be the same. Plaintiff
returned to the SWR infirmary and 24 hours later, was transferred to the work release
unit. Plaintiff found employment and was continually threatened with termination due to
his condition.
8. Plaintiff alleges that the negligence and malfeasance of the defendant
Delaware Department of Correction ("DOC") caused him permanent injury. He also
alleges that he informed Sgt. Doe of the no contact order, and it was the obligation of
the DOC to perform due diligence and not place offenders who are forbidden to have
contact with each other on the same housing unit. In addition, plaintiff names as

3The SWR is a component of the Sussex Community Corrections Center. See
http://www.doc.delaware.gov/BOCC/BOCC_CCC_sussex.shtml (Aug. 14, 2014).
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defendants the MCCC warden ("MCCC warden")4 and Attorney General of the State of
Delaware Joseph R. Biden, III ("Biden"). Plaintiff seeks compensatory and punitive
damages.
9. Negligence. Plaintiff alleges defendants were negligent in this matter and
this is the direct cause of his permanent injury. 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)); see also Walkerv. Reed, 104 F.3d 156, 158 (8 th Cir.
1997) (holding that prison officials' simple negligence does not amount to violation of
the Eighth Amendment prohibition against cruel and unusual punishment for inhuman
conditions of confinement). Consequently, plaintiff's claims that rest solely upon
negligence will be dismissed as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i) and
1915A(b)(1).
10. Failure to Protect. Plaintiff also appears to allege that defendants failed to
protect him from harm. 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; 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). See Farmer V. Brennan, 511 U.S. 825, 833-34 (1994); see
also Griffin v. DeRosa, 153 F. App'x 851 (3d Cir. 2005) (unpublished). Liberally
construing the complaint as the court must, plaintiff has alleged a failure to protect claim

4Jim Hutchins is the current warden at MCCC.

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against Sgt. Doe. He will be allowed to proceed against Sgt. Doe on the failure to
protect claim.
11. Immunity. Plaintiff names as defendants the DOC, MCCC, and SWR.
"Absent a state's consent, the Eleventh Amendment bars a civil rights suit in federal
court that names the state as a defendant." Laskaris v. Thornburgh, 661 F.2d 23,25
(3d Cir. 1981) (citing Alabama v. Pugh, 438 U.S. 781 (1978)). The MCCC and SWR
fall under the umbrella of the DOC, an agency of the State of Delaware. The Eleventh
Amendment protects states and their agencies and departments from suit in federal
court regardless of the kind of relief sought. Pennhurst State Sch. & Hosp. v.

Halderman, 465 U.S. 89, 100 (1984). Moreover, state correctional institutions are arms
of the state and are not persons subject to liability under § 1983. See Green v. Howard

R. Young Corr. Inst. , 229 F.R.D. 99, 102 (D. Del. 2005). The State of Delaware has not
waived its sovereign immunity under the Eleventh Amendment. See Ospina

V.

DepartmentofCorr., 749 F. Supp. 572, 579 (D. Del. 1991).
12. The DOC (a n agency of the State of Delaware) and the MCCC and SWR
(which fall under the umbrella of the DOC) are entitled to immunity under the Eleventh
Amendment. The claims against the DOC, MCCC and SWR fail are they are immune
from suit. They will be dismissed as defendants pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii)
and § 1915A(b)(2}.
13. Respondeat Superior. The MCCC warden and Biden appear to be named
as defendants based upon their supervisory positions. 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

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personal involvement by each defendant. Brito v. United States Dep't of Justice, 392 F.
App'x 11, 14 (3d Cir. 2010) (unpublished) (citing Ashcroft V. Iqbal, 556 U.S. 662, 677
(2009); Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998)). Personal
involvement is an essential element of a civil rights action. Sutton v. Rasheed, 323 F.3d
236, 249-250 (3d Cir. 2003). Individual liability can only be imposed if the state actor
played an "affirmative part" in the conduct complained of. Chinchello

V.

Fenton, 805

F.2d 126, 133 (3d Cir. 1986). "Personal involvement can be shown through allegations
of personal direction or of actual knowledge and acquiescence" in the challenged
practice. Argueta v. United States Immigration and Customs Enforcement, 643 F.3d
60,72 (3d Cir. 2011) (quoting Rode, 845 F.2d at 1207). "In a § 1983 suit ... masters
do not answer for the torts of their servants." Iqbal, 556 U.S. at 676-77. The mere
assertion "that the constitutionally cognizable injury would not have occurred if the
superior had done more than he or she did" is insufficient to establish liability. Sample
v. Diecks, 885 F.2d 1099, 1118 (3d cir. 1989).
14. The complaint contains no allegations directed towards the MCCC warden
or Biden. The only mention of them is to list them as defendants. For the above
reasons, the court finds that the claims against the MCCC warden and Biden are
frivolous. However, sua sponte dismissal of the MCCC warden would make it very
difficult or impossible for plaintiff to discover the identity of defendant Sgt. Doe.
Therefore, in the interests of justice, the court will direct service upon the MCCC
warden for identification purposes of Sgt. Doe, discussed hereinabove at paragraph
eleven. See Borges v. Administrator for Strong Mem'l Hosp., 2002 WL 31194558, at *1
n.1 (W.D.N.Y. Sept. 30, 2002). See also Searcy

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V.

Dallas Police Dep't, 2001 WL

611169 (N.D. Tex. May 31,2001) (plaintiff sued two unnamed City of Dallas police
officers, claiming excessive force, and magistrate judge ordered that service be
completed on the defendants through the City of Dallas Police Department). The court
will dismiss the claims against Biden pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and §
1915A(b)(1 ).
15. Request for counsel. Plaintiff seeks counsel on the grounds that he is
unable to afford counsel, his imprisonment greatly limits his ability to litigate, the issues
are complex and will require significant research and investigation, he has limited law
library access, limited knowledge of the law, limited education, the case will likely
involve conflicting testimony, counsel will better enable plaintiff to present evidence and
cross-examine witnesses, he does not have contact information to seek retained
counsel, and counsel would assist in discovery. (See D.1. 6)
16. A pro se litigant proceeding in forma pauperis has no constitutional or
statutory right to representation by counsel. 5 See Brightwell v. Lehman, 637 F.3d 187,
192 (3d Cir. 2011); Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 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;

5S ee 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
being "request".
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(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 Cir.
1997); Montgomery V. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002).
17. At present, 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. The court can
address the issue at a later date should counsel become necessary. Therefore, the
court will deny the request without prejudice to renew.
18. Conclusion. For the above reasons, the court will deny without prejudice to
renew plaintiff's request for counsel. (0.1. 6) Plaintiff may to proceed with the failure to
protect claim against Sgt. Doe, and the court will direct service upon the MCCC warden
for purposes of identifying Sft. Doe. The remaining claims and defendants will be
dismissed as certain defendants are immune from suit and as frivolous pursuant to 28
U.S.C. § 1915(e)(2)(8)(i) and (iii) and § 1915A(b)(1) and (2). A separate order shall
issue.

UNlt~~JUDGE
Date: August cJ.lD ,2014

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