Desmond v. Phelps et al

Filing 21

MEMORANDUM OPINION - Signed by Judge Leonard P. Stark on 9/1/15. (rwc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
CHRISTOPHER R. DESMOND,
Plaintiff,

v.

: Civ. No. 15-327-LPS

PERRY PHELPS, et al.,
Defendants.

Christopher R. Desmond, James T. Vaughn Correctional Center, Smyrna, Delaware, Pro Se Plaintiff.

MEMORANDUM OPINION

September 1, 2015
Wilmington, Delaware

I.

INtRODUCTION
Plaintiff Christopher R. Desmond ("Plaintiff'), an inmate at the James T. Vaughn

Correctional Center in Smyrna, Delaware, filed this action as an emergency motion for injunctive
relief, specifically for medical treatment. (D.L 1) Plaintiff appears pro se and has been granted leave

toproceedinformapauperis. (D.L 5) Plaintiff has filed numerous motions (D.L 5, 15, 16, 20), all of
which the Court addresses. In addition, the Court proceeds to review and screen the initial pleading
pursuant to 28 V.S.c. § 1915(e)(2)(b) and § 1915A(a).

II.

BACKGROUND
The Court construes the emergency motion for injunctive relief as a complaint alleging

deliberate indifference to Plaintiffs serious medical needs pursuant to 42 U.S.c. § 1983. 1 Plaintiff
alleges that he suffers from high blood pressure, his medication protocol is not working, and
Defendants (presumably former Delaware Bureau of Prisons Chief Perry Phelps ("Phelps,,)2 and
VCC Warden David Pierce ("Pierce"») are delaying outside treatment. He seeks immediate medical
care.
After the case was opened, Plaintiff contacted the Court and advised that he had not filed a
new civil action and had not authorized any new civil actions in his name. (Jee D.L 10) As
explained in the Court's June 23,2015 Order, although the instant pleading references Civ. No.
121120-SLR, it seeks medical treatment and is unrelated to Civ. No. 12-1120-SLR, which is a case
that alleges constitutional and statutory violations with regard to the practice of religion and, more

1

The Court will direct the Clerk of Court to indicate on the court docket that D.L 1 is a complaint.

2

Phelps currently hold the position of Delaware Department of Correction Deputy Commissioner.
1

particulMly, Catholicism. Because of the instant pleading's content seeking medical treatment, a new
case was opened, and Plaintiff was given leave to proceed informa pauperis so that his medical needs
claims could be addressed by the Court. (See D.l. 11) In the same order, Plaintiff was ordered to
advise the Court whether he wished to proceed with this action or have the pleading docketed in his
other pending case, Civ. No. 12-1120-SLR. Plaintiff did not comply with the order. Instead, he
filed a motion to file an amended complaint (D.l. 15), a motion to convene a medical malpractice
review panel (D.l. 16), and a motion to stay (D.l. 20).

III.

LEGAL STANDARDS
A federal court may properly dismiss an action sua sponte under the screening provisions of

28 U.S. C. § 1915 (e) (2) (B) and § 1915A(b) if "the action is frivolous or malicious, fails to state a claim.
upon which relief may be granted, or seeks monetary relief from a defendant who is immune from
such relief." Bali v. Famiglio, 726 F.3d 448,452 (3d Cir. 2013); see also 28 U.S.c. § 1915(e)(2) (in forma

pauperis actions); 28 U.S.c. § 1915A (actions in which prisoner seeks redress from 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. See Phillips v. Coun!y 0/Alieghe1!J, 515 F.3d 224, 229 (3d Cir. 2008);

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 foonal pleadings drafted by lawyers." Erickson, 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; see also Wilson
2

tf.

Rackmill, 878 F.2d 772, 774 (3d Cit. 1989); Deutsch tf. United States, 67 F.3d 1080, 1091-92 (3d Cit.

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) (1) is identical to the legal standard used when ruling on Rule

12(b)(6) motions. See Tourscherv. McCullough, 184 F.3d 236, 240 (3d Cit. 1999) (applymg Fed. R. Civ.
P. 12(b)(6) standard to dismissal for failure to state claim under § 1915(e)(2)(B». However, before
dismissing a complaint or claim 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 Grqyson v.

Mqyview State Hosp., 293 F.3d 103, 114 (3d Cit. 2002).
A complaint may be dismissed only if, accepting the well-pleaded allegations in the
complaint as true and viewing them in the light most favorable to the plaintiff, a court concludes
that those allegations «could not raise a claim of entidement to relief." BellAtl. Cotp. v. TwomblY, 550
U.S. 544, 558 (2007). Though "detailed factual allegations" are not required, a complaint must do
more than simply provide "labels and conclusions" or "a formulaic recitation of the elements of a
cause of action." Davis v. Abington Mem'l Hosp., 765 F.3d 236, 241 (3d Cit. 2014) (quoting TwomblY,
550 U.S. at 555). In addition, a plaintiff must plead facts sufficient to show that a claim has
substantive plausibility. See Johnson

tf.

Ciry tif Shelf?y, _U.S._, 135 S.Ct. 346, 347 (2014); see also

Ashcroft tf. Iqbal, 556 U.S. 662, 678 (2009). A complaint may not dismissed, however, for imperfect
statements of the legal theory supporting the claim asserted. See Johnson, 135 S.Ct. at 346.
To determine whether a complaint meets the pleading standard as set forth in TwomblY and

Iqbal, the Court must (1) oudine the elements a plaintiff must plead to a state a claim for relief;
3

(2) peel away those allegations that are no more than conclusions and thus not entided to the
assumption of truth; and (3) look for well-pled factual allegations, assume their veracity, and then
"determine whether they plausibly give rise to an entidement to relief." Bistrian 11. Levi, 696 F.3d 352,
365 (3d Cir. 2012) (internal citations omitted) (citing Iqbal, 556 U.S. at 679; Ar;gueta v. United States

Immigration and Customs Enforcement, 643 F.3d 60, 73 (3d Cir. 2011». The last step is "a context­
specific task that requires the reviewing court to draw on its judicial experience and common sense."

Iqbal, 556 U.S. at 679.

IV.

DISCUSSION
Phelps and Pierce are named defendants. A civil rights complaint must state the conduct,

time, place, and persons responsible for the alleged civil rights violations. See Evancho v. Fisher, 423
F.3d 347,353 (3d Cir. 2005) (citing Bqykins v. Ambridge Area Sch. Dis!., 621 F.2d 75,80 (3d Cir. 1980);

Hall v. Penn.rylvania State Police, 570 F.2d 86, 89 (3d Cir. 1978». There are no allegations in the
complaint directed toward either Defendant. Therefore, the complaint will be dismissed pursuant to
28 USc. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1) for failure to state a claim upon which relief may be
granted. However, since it appears plausible that Plaintiff may be able to articulate a claim against
Defendants (or name alternative defendants), he will be given an opportunity to amend his pleading.

See 0 'Dell v. United States Gov't, 256

App'x 444 (3d Cir. Dec. 6, 2007) O-eave to amend is proper

where plaintiffs claims do not appear "patendy meridess and beyond all hope of redemption").

V.

MOTIONS
A.

Motion for Reversionary Interest in Filing Fee

Plaintiff, along with Joseph M. Walls (''Walls''), filed Civ. No. 12-1120-SLR, pursuant to 42
U.S.c. § 1983 and the Religious Land Use and Institutionalized Persons Act. The filing fee was paid
by Constance W. Scott-Conley on behalf of Abdul Madfidh as Salafi and later in the proceedings,
4

Walls was granted leave to proceed in forma pauperis. Plaintiff filed the instant pleading in Civ. No.
12-1120-SLR and, as discussed above, on April 22, 2015, a new case was opened because the issue in
the instant pleading is unrelated to the issues raised in Civ. No. 12-1120-SLR. Plaintiff argues that

this case and Civ. No. 12-1120-SLR are the same, that he has a property interest in the filing fee that
was paid in Civ. No. 12-1120-SLR, and that due process dictates that the Court not confiscate his
filing fee twice to file the same civil action. He asks the Court to withdraw its May 6, 2015 order

(D.I. 3) that requires him to submit an application to proceed in forma pauperis and his prison trust
account statement. (D.I. 5)
Since the filing of the motion, Plaintiff has submitted his prison trust account statement and
an application to proceed informa pauperis that has been granted. In addition, Plaintiff opted to file
this pleading and was given the option of not proceeding with the case. He is required by statute to
pay the filing fee. See 28 U.S.c. § 1914; 28 U.S.c. § 1915. Therefore, the Court will deny the
motion. (D.I. 5)

B.

Motion to Amend

Plaintiff moves to amend pursuant to Fed. R. Civ. P. 15. (D.I. 15) The proposed
amendment adds a plaintiff, defendants, and raises claims unrelated to Plaintiffs medical needs
claim regarding treatment for his hypertensive condition.
Pursuant to Fed. R. Civ. P. 15(a), a party may amend its pleading once as a matter of course
within twenty-one days after serving it or, if the pleading is one to which a responsive pleading is
required, twenty-one days after service of a responsive pleading or twenty-one days after service of a
Rule 12(b) motion, whichever is earlier. Otherwise, a party may amend its pleading only with the
opposing party's written consent or the court's leave. Rule 15 provides that courts should freely give
leave to amend when justice so requires.

5

The Third Circuit has adopted a liberal approach to the amendment of pleadings in an effort
to ensure that "a particular claim will be decided on the merits rather than on technicalities." Dole v.

Arco Chem. Co., 921 F.2d 484, 486-87 (3d Cir. 1990) (citations omitted). Amendment, however, is
not automatic. See Dover Steel Co., Inc. v. HarifordAccident and Indem., 151 F.R.D. 570, 574 (ED. Pa.
1993). Leave to amend should be granted absent a showing of "undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of the allowance of the amendment, futility
of amendment, etc." Foman v. Davis, 371 U.S. 178, 182 (1962); see also Oran v. Sttifford, 226 F.3d 275,
291 (3d Cir. 2000). Futility of amendment occurs when the complaint, as amended, does not state a
claim upon which relief can be granted. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410,
1434 (3d Cir. 1997). If the proposed amendment "is frivolous or advances a claim or defense that is
legally insufficient on its face, the court may deny leave to amend." Hamson Beverage Co. v. Dribeck

Importers, Inc., 133 F.R.D. 463, 468 (D.N.J. 1990).
Plaintiff attempts to add new defendants and claims that are unrelated to the original
complaint. In viewing the proposed amendment, the new claims do not appear to be logically or
factually related to the original filings. Therefore, the motion will be denied. Plaintiffs remedy is to
file a new complaint.

C.

Motion to Convene Medical Malpractice Review Panel

Plaintiff moves the Court to convene a medical malpractice review panel pursuant to Fed. R.
Civ. P. 35 and Delaware Superior Court Civ. R. 71.2-71.2(b) to review his medical malpractice
claims. (D.l. 16) Rule 35 of the Federal Rules of Civil Procedure does not provide for a medical
review panel.

6

With regard to Ru1e 71.2(b), a "a party may file a demand to convene a malpractice review
panel at any time subsequent to entry of appearance by all defendants who have been served and
after a reasonable time for discovery unless otherwise stipulated to by the parties or ordered by the
Court." Section 6853(e) of the Delaware Health Care Negligence Insurance and Litigation Act
provides in pertinent part:
No liability shall be based upon asserted negligence unless expert medical testimony
is presented as to the alleged deviation from the applicable standard of care in the
specific circumstances of the case and as to the causation of the alleged personal
injury or death, except that such expert medical testimony shall not be required if a
medical negligence review panel has found negligence to have occurred and to have
caused the alleged personal injury or death and the opinion of such panel is admitted
into evidence....
18 Del. C. § 6853(e). The Delaware Superior Court, reading § 6853(e) and Ru1e 71.2 together, has
held that no affidavit of merit is required under Section 6853 where a timely demand to convene a
medical malpractice review panel has been filed. See Miflerv. T qylor, 2010 WI.. 3386580, at *2 (Del.
Super. Aug. 19,2010).
Section 6814 of the Delaware Health Care Negligence Insurance and Litigation Act provides
that the Delaware Insurance Commissioner shall convene a medical negligence review panel at the
request of a Federal District Court Judge sitting in a civil action in the District of Delaware alleging
medical negligence, in the manner instructed by the federal court, but also in a manner as consistent
as possible with the process of selecting such panels provided for in Superior Court actions. See 18
Del. C. § 6814. However, the Insurance Commissioner shall not convene any such panels at the
request of any such federal court "unless provisions are made for the payment of the compensation
and expenses of such panelists and the compensation and expenses of all witnesses called by such
panel out of the funds other than those of the General Fund of the State." Id.

7

The Court lacks authority to appoint a medical review panel for Plaintiff at the public's
expense. See e.g., Boring v.

Kozakiewic~

833 F.2d 468, 474 (3d Cit. 1987) ("Congress has authorized

the courts to waive prepayment of such items as filing fees and transcripts if a party qualifies to
proceed in forma pauperis. 28 U.S.c. § 1915. However, we have been directed to no statutory
authority nor to any appropriation to which the courts may look for payment of expert witness fees
in civil suits for damages. Provisions have been made for expert witness fees in criminal cases, 18
U.S.c. § 3006A(e) (1 ), but not in civil damage suits."). Nor has Plaintiff, who has been granted in

forma pauperis status, indicated that he has the financial means for compensation and expenses of the
medical review panel.
Accordingly, the Court will deny without prejudice the motion to convene a medical
malpractice review panel. The Court will reconsider the motion upon a showing by Plaintiff of his
financial ability to pay the compensation and expenses of the medical review panel.

D.

Motion to Stay

Plaintiff moves to stay or for an abeyance while he awaits a decision from the Superior Court
of the State of Delaware interpreting 11 Del. C. § 6536 regarding medical care for inmates. (D.I. 20)
It does not appear that Plaintiff has a case pending in the Delaware courts. Regardless, an
interpretation of 11 DeL C. § 6536 is unnecessary for the disposition of this case. Therefore, the
motion will be denied.

VI.

CONCLUSION
For the above reasons, the court will dismiss the Complaint for failure to state a claim upon

which relief may be granted. Plaintiff will be given leave to amend his complaint. In addition, the
Court will deny the remalnlng motions (D.I. 5, 15, 16,20).

An appropriate order will be entered.
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