Cohee v. Coupe et al

Filing 49

MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 11/04/2016. (lmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DANIEL B. COHEE,
Plaintiff,

v.

Civ. No. 14-1476-RGA

COMMISSIONER ROBERT COUPE,
et aI.,
Defendants.

Daniel B. Cohee, James T. Vaughn Correctional Center, Smyrna, Delaware. Pro Se
Plaintiff.
Kenisha LaShelie Ringgold, Deputy Attorney General, Delaware Department of Justice,
Wilmington, Delaware. Counsel for Defendants Commissioner Robert Coupe, Warden
Steven Wesley, and Lt. Gibson.
Scott G. Wilcox, Esquire, Whiteford, Taylor & Preston L.L.C., Wilmington, Delaware.
Counsel for Defendant Correct Care Solutions.
Dana Spring Monzo, Esquire, White & Williams, Wilmington, Delaware. Counsel for
Defendants Michelle, Marcantuno, Tymira Wilson, and Connections Community Support
Programs, Inc.

MEMORANDUM OPINION

1'

2016
November
Wilmington, Delaware

A~iistrictJudge:--~
Plaintiff Daniel B. Cohee, an inmate at the James T. Vaughn Correctional Center
in Smyrna, Delaware, who appears pro se and was granted leave to proceed in forma
pauperis, filed this action pursuant to 42 U.S.C. § 1983. The Court has jurisdiction

pursuant to 28 U.S.C. § 1331. Plaintiff requests entry of default as to Defendants
Correct Care Solutions, Michelle M., 1 Tymira Wilson, and Connections Community
Support Programs, Inc. 2 (0.1. 35). Michelle M., Wilson, and Connections oppose and,
in turn, move for dismissal pursuant to Fed. R. Civ. P. 4(e) and 4(h). (D.1. 36). Correct
Care also opposes the request for entry of default and moves for dismissal on the
grounds of improper service, as time-barred, and for failure to exhaust administrative
remedies. Plaintiff opposes the motions to dismiss. Briefing is complete.

BACKGROUND
Plaintiff was incarcerated at the Howard R. Young Correctional Center in
Wilmington, Delaware when he commenced this action. After screening of the
Complaint and Amended Complaint, Plaintiff was allowed to proceed with: (a) mail
interference claims against Coupe and Wesley; (b) free exercise of religion claims
against Coupe, Wesley, and Gibson; (c) medical needs claims against Dr. L.
Desrosiers, Correct Care, and Nurse John Does; and (d) mental health claims against
psychiatrist Michelle M., Wilson, and Connections. (See 0.1. 12, 16).
A service Order was entered on November 2,2015. (See 0.1. 16). As set forth
in the order, Plaintiff provided the required USM-285 forms and service copies of the

1

Identified as Michelle Marcantuno. (See 0.1. 36).

2Named as Connections. (See 0.1. 15)

Complaint and Amended Complaint. The State Defendants were served via e-service
and service packets for medical Defendants were submitted to the United States
Marshals Service on November 17, 2015. None of the medical Defendants returned
the waiver of service forms. (See 0.1. 17 (Correct Care), 0.1. 18 (Dr. Desrosiers), 0.1.
19 (Michelle M.), 0.1. 20 (Wilson), 0.1. 21 (Connections». Subsequently, an order was
entered for the USMS to personally serve medical Defendants. (See 0.1. 24). Plaintiff
complied with the order, requested issuance of summonses, and submitted the required
USM-285 forms and copies of the complaint and amended complaint. The second set
of service packets for the medical Defendants was submitted to the USMS on May 16,
2016. The USMS submitted returns of service for Connections, Wilson, Michelle M.,
and Correct Care. (See 0.1. 27, 28, 29, 30). The USMS was informed that Dr.
Desrosiers no longer worked at the address provided. On June 15, 2016, counsel
appeared on behalf of Connections, Michelle M., and Wilson. (See 0.1. 32, 33). On
August 5, 2016, counsel for Correct Care filed a motion to dismiss and an opposition to
Plaintiffs request for default. (See 0.1. 40).

REQUEST FOR DEFAULT
Plaintiff seeks entry of default as to Correct Care, Connections, Michele M., and
Wilson. (0.1. 35). The Court will deny the request given that the foregoing Defendants
have appeared and seek dismissal.

2

STATUTE OF LIMITATIONS

Correct Care moves for dismissal on the grounds that it was improperly served,
the claims against it are time-barred, and Plaintiff failed to exhaust his administrative
remedies as required by the Prison Litigation Reform Act. (0.1. 40). The Court
addresses the statute of limitations issue as it is dispositive of the claims against
Correct Care.
Plaintiff filed his original Complaint on December 3,2014. 3 The Court takes
judicial notice that Correct Care was the medical service provider from July 1, 2010 to
June 30, 2014. See Biggins v. Correct Care So/s., Inc., 2016 WL 158500, n.1 at *1 (D.
Del. Jan. 13,2016). In the Amended Complaint, Plaintiff alleges that he was denied
surgery from 2011 to July 2014, and reiterates this allegation in his opposition to
Correct Care's motion to dismiss. Plaintiff specifically alleges that his requests for
surgery were denied in 2011 and 2012. He alleges that, upon his incarceration in April
2010, Correct Care was advised of a medical recommendation that Plaintiff undergo
right shoulder surgery, but the surgery was not performed. (0.1. 151[ 5). Plaintiff was
advised by Dr. Desrosiers on November 8, 2011, that right shoulder x-rays were
normal, that Plaintiff did not need surgery, and that the request for surgery was denied.

3The computation of time for complaints filed by pro se inmates is determined
according to the "mailbox rule" that deems a petition or complaint "filed" as of the date it
was delivered to prison officials for mailing to the court. See Houston v. Lack, 487 U.S.
266 (1988); Burns v. Morion, 134 F.3d 109, 112 (3d Cir. 1998); Gibbs v. Decker, 234 F.
Supp. 2d 458, 463 (D. Del. 2002). Plaintiff's complaint was signed on December 3,
2014, and the envelope it was mailed in is post-marked December 11, 2014. Giving
Plaintiff the benefit of the doubt, the Court concludes that Plaintiff's Complaint was filed
on December 3, 2014, the date it was signed, and the earliest date that it possibly could
have been delivered to prison officials for mailing.

3

(Id.) Plaintiff was injured on November 11,2011, and was seen by Dr. Desrosiers. (Id.
at,-r 6). Plaintiff submitted a grievance on December 17, 2011, complaining that he
needed surgery. (Id. at ex.). March 19,2012 x-rays were normal, and Dr. Desrosiers
again told Plaintiff that surgery was not needed. (Id.) Plaintiff submitted another
grievance on March 21,2012, again complaining that he needed shoulder surgery. (Id.
at ex.). October 2014 is the next time-frame wherein Plaintiff complains of inadequate
medical care. By this time, Correct Care was no longer the medical service provider.
For purposes of the statute of limitations, § 1983 claims are characterized as
personal injury actions. Wilson v. Garcia, 471 U.S. 261,275 (1983). In Delaware,

§ 1983 claims are subject to a two-year limitations period. See 10 Del. C. § 8119;
Johnson v. Cullen, 925 F. Supp. 244, 248 (D. Del. 1996). Section 1983 claims accrue

"when the plaintiff knew or should have known of the injury upon which its action is
based." Sameric Corp. v. City ofPhiladeJphia, 142 F.3d 582, 599 (3d Cir. 1998).
Plaintiff specifically alleges that he was denied surgery in November 2011 and
March 2012. It is obvious from his allegations, therefore, that he was aware of his
claims against Correct Care on those dates. Yet, he did not commence this action until
December 3, 2014, more than two years past the acts of which he complains. Plaintiff's
claims against Correct Care are time-barred. 4 Therefore, the Court will grant its motion
to dismiss. 5

4Many of the time-barred claims raised against Correct Care are the same as
those raised against Dr. Desrosiers.
5The Court sees no need to address Correct Care's other grounds for dismissal.

4

SERVICE
Connections, Michelle M., and Wilson move for dismissal pursuant to Fed. R.
Civ. P. 4(e) and 4(h) on the grounds that service was made upon an individual who was
not an authorized agent to accept service on their behalf.s (D. I. 36). As previously
discussed, Plaintiff complied with the Court's service Orders and supplied the required
service documents. Personal service by the USMS was taken only after each medical
Defendant failed to waive service of summons. Defendants seek dismissal arguing that
there was not proper service. Plaintiff opposes. (0.1.46).
"An indigent prisoner representing himself is entitled to rely on the Marshal to
achieve service of process." Hankins v. Pennsylvania, 526 F. App'x 164,167 (3d Cir.
2013) (quoting Sellers v. United States, 902 F.2d 598, 602 (7th Cir. 1990». As
Defendants' attorneys are aware, Plaintiff proceeds in forma pauperis and, therefore,
must rely upon the Court to issue a service order and the USMS to effect proper service
of the summons and complaint. See 28 U.S.C. § 1915(d) (stating that where a plaintiff
is proceeding in forma pauperis, "the officers of the court shall issue and serve all
process, and perform all duties in such cases"). Under Rule 12(b)(5), the Court has
"broad discretion" in deciding whether to dismiss the complaint for insufficient service.
See Umbenhauer v. Woog, 969 F.2d 25,30 (3d Cir. 1992). The Third Circuit has
instructed that "dismissal of a complaint is inappropriate when there exists a reasonable

Rule 12(b)(5) provides that a defendant may file a motion to dismiss when a
plaintiff fails to properly serve him or her with the summons and complaint. See Fed. R.
Civ. P. 12(b)(5).
S

5

prospect that service may yet be obtained." Id. Given that instruction, the Court will not
dismiss the Complaint pursuant to Rule 12(b)(5).
Pursuant to Fed. R. Civ. P. 4(d), the medical Defendants were required to waive
service. Rule 4(d) rule affirmatively imposes the "duty to avoid unnecessary expenses
of serving the summons" upon defendants. Id. If defendant "fails, without good cause,
to sign and return [the] waiver" requested by plaintiff within a "reasonable time," the
court "must impose on [defendant)": (A) the "expenses later incurred in making
service"; and (8) the "reasonable expenses, including attorney's fees, of any motion
required to collect those service expenses." See Fed. R. Civ. P. 4(d)(1)(F), 4(d)(2)(A),
4(d)(2)(8).
There is no indication that the service packets mailed to Connections, Michelle
M., and Wilson were not received. Indeed, the service packets were not returned as
undeliverable. After these Defendants failed to return the waiver of service, the USMS
proceeded to personally serve them. At least for Michelle M. and Wilson, service was
accepted on their behalf at the same address the USMS used when it mailed the
service packets to them.
In light of the foregoing, Plaintiff will be given another opportunity to personally
serve medical Defendants. Counsel for medical Defendants will be ordered to advise
the Court of the correct name and address of Connections' agent authorized by law to
accept service of process on its behalf. Also, Michelle M. and Wilson will be ordered to
provide the Court with an address where each may be served. Further, given medical
Defendants' failure to waive service of summons under Fed. R. Civ. P. 4(d) in the first
instance, each foregoing Defendant will be ordered to show good cause for the failure

6

to sign and return the waiver of service. Medical Defendants may avoid costs of a
second attempt at personal service should they opt to execute a waiver service of
summons.
Given Plaintiff's reliance on the USMS to effect service and the fact that each
medical Defendants did not waive service of summons, the Court will deny the motion
to dismiss for improper service. (0.1. 36).
UNSERVED DEFENDANT

Attempts by the USMS to serve Dr. Desrosiers have been unsuccessful. She did
not return the waiver of service form (D.1. 18) and, when personal service was
attempted, the USMS was informed that she "Does not work there anymore" (D.1. 31).
It appears from the allegations, that during the relevant time-frame Dr. Desrosiers was
employed by Correct Care and Connections, both of whom have and filed motions to
dismiss.
As discussed above, Correct Care will be dismissed as a defendant. Service will
once again be attempted with regard to the remaining medical Defendants, including
Connections. The Court has a responsibility to assist pro se plaintiffs in the service of
process. See Murray v. Pataki, 378 F. App'x 50,52 (2d Cir. 2010). This Court has
entered orders to assist pro se plaintiffs in obtaining addresses of defendants so that
service may be effected. See also In Re Johnson, 2001 WL 1286254 (D.C. Cir. Sept.
28, 2001) (district court ordered individual to indicate where and when he was available
for service of process or to provide district court with name and address of individual
authorized to accept service of process on his behalf); Palmer v. Stewart, 2003 WL
21279440 (S.D.N.Y June 4,2003) (court ordered counsel for New York City to file an

7

affidavit containing name and address to assist pro se plaintiff in service of process);
Garrett v. Miller, 2003 WL 1790954 (N.D. III. Apr. 1,2003) (counsel for defendants

ordered to provide address to court to assist pro se plaintiff in obtaining service of
process). Additionally, the Court's inherent power allows it to enter orders to manage
its own affairs "so as to achieve the orderly and expeditious disposition of cases." Hritz
v. Woma Corp., 732 F.2d 1178,1180 (3d Cir. 1984) (citing Link v. Wabash R.R. Co.,

370 U.S. 626, 629-31 (1962)). Without the address of Dr. L. Desrosiers, Plaintiff cannot
effect service upon her. Therefore, Connections, as Dr. Desrosiers' former employer,
will be ordered to provide the last known address for Dr. Desrosiers.
CONCLUSION
For the above reasons, the Court will: (1) deny Plaintiff's request for entry of
default (0.1. 35); (2) deny the motion to dismiss filed by Connections, Michelle M., and
Wilson (0.1. 36); (3) grant Correct Care's motion to dismiss on the grounds that the
claims against it are time-barred (0.1. 40); (4) order counsel for Connections to provide
the correct name and address of the individual or entity authorized to accept service on
Connections' behalf; (5) order Michelle M. and Wilson to provide, under seal, an
address where they may be served; and (6) order counsel for Connections to provide,
under seal, the last known address for Dr. Desrosiers.
An appropriate order will be entered.

8