Morris v. Pierce et al

Filing 8

MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 7/8/16. (sar)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
TYRONE J. MORRIS,
Plaintiff,
: Civ. No. 16-261-RGA

v.
WARDEN DAVID PIERCE, et al.,
Defendants.

Tyrone J. Morris, James T. Vaughn Correctional Center, Smyrna, Delaware,
Pro Se Plaintiff.

MEMORANDUM OPINION

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, 2016
July
Wilmington, Delaware

~fro~
Plaintiff Tyrone J. Morris, an inmate at the James T. Vaughn Correctional Center
in Smyrna, Delaware, filed this action pursuant to 42 U.S.C. § 1983. He appears prose
and has been granted leave to proceed in forma pauperis. (D.I. 6). The Court
proceeds to review and screen the Complaint (D.I. 3) pursuant to 28 U.S.C.

§ 1915(e)(2)(B) and § 1915A(a). Plaintiff requests counsel. (D.I. 3).
BACKGROUND
Plaintiff alleges as follows. Plaintiff has suffered from severe "text-book"
psoriasis since the age of 15. Prior to his incarceration he was treated with light
therapy1 and HUMIRA2 injections. Upon his incarceration on August 28, 2013, his
psoriasis immediately began to break out. Plaintiff states that VCC medical was going
to order HUMIRA injections until it discovered that Plaintiff contracted Hepatitis B.
Plaintiff was sent to a physician who told him that the only available treatment was light
therapy. By November, Plaintiff's body was covered with psoriasis and very painful.
VCC medical kept sending Plaintiff to see a physician, knowing that he did not have
light therapy to offer Plaintiff. Plaintiff submitted numerous grievances for treatment
and ointments so he could shower and to help with pain. The grievance committee

1

Phototherapy, also known as light therapy, involves exposing the skin to
ultraviolet light on a regular basis and under medical supervision. Treatments are done
in a doctor's office or psoriasis clinic or at home with phototherapy unit. The key to
success with light therapy is consistency. See
https://www.psoriasis.org/about-psoriasis/treatments/phototherapy (July 5, 2016).
2

HUMIRA is a prescription medicine used to treat adults with moderate to severe
chronic plaque psoriasis who are ready for systemic therapy or phototherapy, and are
under the care of a doctor who will decide if other systemic therapies are less
appropriate. See https://www.humira.com/psoriasis/treatment?cid=ppc_ppd_ggl_
derm_brand_2015_humira_psoriasis_bmm_64Y1844709 (July 5, 2016).

kept telling Plaintiff that he was scheduled for treatment and "just sent" him to the
physician again.
Plaintiff was sent to the SHU (which I think is the Secure Housing Unit). Once
there, Plaintiff states that he was "forgotten about and left to rot away." Plaintiff states
that the pain was unbearable and he could barely move. He had open wounds. Blood
ran down his body. Dead skin peeled from his entire body. His legs were swollen and
he could stand for no more than fifteen minutes. His condition was so bad that the
HazMat team was called several times to clean his cell.
Finally, Lt. Dunn and other staff complained about his condition and Plaintiff was
moved to the infirmary in April 2015. Once there, Plaintiff discovered that he was never
scheduled for treatment. When Defendant medical director Richard Lynch saw his
condition, Plaintiff was finally approved for treatment. Plaintiff states that all that time,
the doctor and the grievance committee told him that he was approved for treatment,
when he was not.
Plaintiff received light therapy for several weeks, and his condition began to
improve. However, he was not approved for sufficient treatments for his skin to clear
up. Plaintiff was rescheduled to again start treatments in June or July 2015 but Dr.
Braithwaite (apparently an outside physician) denied Plaintiff treatment because the
Department of Correction medical had not paid any money since January 2015.
Plaintiff was also prescribed ointment, but he received little to no ointment.
Plaintiff seeks compensatory damages and injunctive relieve to receive proper
medical treatment.

2

SCREENING OF COMPLAINT
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." Ball v. Famiglio, 726 F.3d 448,
452 (3d Cir. 2013). 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); Erickson v. Pardus, 551 U.S. 89, 93
(2007). Because Plaintiff proceeds prose, 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).
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 U.S. at 327-28; Wilson v. Rackmill, 878 F.2d 772, 774
(3d Cir. 1989). The complaint in this case is not frivolous.
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. Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir.
1999). 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. §§

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1915 and 1915A, the Court must grant Plaintiff leave 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 At/. Corp. v. Twombly, 550 U.S. 544
(2007). A plaintiff must plead facts sufficient to show that a claim has substantive
plausibility. See Johnson v. City of Shelby, _U.S._, 135 S.Ct. 346, 347 (2014). A
complaint may not dismissed, however, for imperfect statements of the legal theory
supporting the claim asserted. See id. at 346.
A court reviewing the sufficiency of a complaint must take three steps: (1) take
note of the elements the plaintiff must plead to state a claim; (2) identify allegations
that, because they are no more than conclusions, are not entitled to the assumption of
truth; and (3) when there are well-pleaded factual allegations, the court should assume
their veracity and then determine whether they plausibly give rise to an entitlement to
relief. Connelly v. Lane Constr. Corp., 809 F.3d 780, 787 (3d Cir. 2016) (internal
citations and quotations omitted). 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.
Lynch is the only defendant referred to in the body of the Complaint. The
allegations against him, however, do not rise to the level of a constitutional violation
because Plaintiff alleges that once Lynch became aware of Plaintiff's condition, Plaintiff

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began receiving medical treatment. The Eighth Amendment proscription against cruel
and unusual punishment requires that prison officials provide inmates with adequate
medical care. Estelle v. Gamble, 429 U.S. 97, 103-05 (1976). In order to set forth a
cognizable claim, an inmate must allege (i) a serious medical need and (ii) acts or
omissions by prison officials that indicate deliberate indifference to that need. Estelle v.
Gamble, 429 U.S. at 104. A prison official is deliberately indifferent if he knows that a
prisoner faces a substantial risk of serious harm and fails to take reasonable steps to
avoid the harm. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). The allegations
against Lynch do not rise to the level of deliberate indifference.
The Complaint contains no allegations against the remaining defendants, many
of whom appear to be supervisory officials. See Evancho v. Fisher, 423 F.3d 347, 353
(3d Cir. 2005) (individual government defendant in a civil rights action must have
personal involvement in the alleged wrongdoing; liability cannot be predicated solely on
the operation of respondeat superior.).
Accordingly, the Court will dismiss the complaint for failure to state a claim upon
which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and§
1915A(b )(1 ). However, since it appears plausible that Plaintiff may be able to articulate
a claim against the defendants (or name alternative defendants), he will be given an
opportunity to amend his pleading. See O'Dell v. United States Gov't, 256 F. App'x 444
(3d Cir. 2007) (leave to amend is proper where the plaintiff's claims do not appear
"patently meritless and beyond all hope of redemption").

5

REQUEST FOR COUNSEL
Plaintiff requests counsel on the grounds that he does not have the ability to
present his case, he is unskilled in the law, the case may turn on credibility
determinations, expert testimony will be necessary, he cannot afford counsel, providing
counsel would serve the best interests of justice, and his allegations if proved would
establish a constitutional violation. (D.I. 3).
A pro se litigant proceeding in forma pauperis has no constitutional or statutory
right to representation by counsel. 3 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. Factors to be considered by a court in
deciding whether to request a lawyer to represent an indigent plaintiff include: (1) the
merits of the plaintiff's claim; (2) the plaintiff's ability to present his or her case
considering his or her education, literacy, experience, and the restraints placed upon
him or her by incarceration; (3) the complexity of the legal issues; (4) the degree to
which factual investigation is required and the plaintiff's ability to pursue such
investigation; (5) the plaintiff's capacity to retain counsel on his or her own behalf; and
(6) the degree to which the case turns on credibility determinations or expert testimony.

3

See 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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See Montgomery v. Pinchak, 294 F.3d 492, 498-99 (3d Cir. 2002); Tabron, 6 F.3d at

155-56. The list is not exhaustive, nor is any one factor determinative. Tabron, 6 F.3d
at 157.
Assuming, solely for the purpose of deciding this motion, that Plaintiff's claims
have merit in fact and law, several of the Tabron factors weigh against granting his
request for counsel. The Court concludes that the case is not so factually or legally
complex that requesting an attorney is warranted. In addition, to date, the filings in this
case demonstrate Plaintiff's ability to articulate his claims and represent himself. Thus,
in these circumstances, the Court will deny, without prejudice to renew, Plaintiff's
request for counsel.
CONCLUSION
For the above reasons, the Court will: (1) deny without prejudice to renew
Plaintiff's request for counsel (D.I. 3); (2) dismiss the Complaint pursuant to 28 U.S.C.

§§ 1915(e)(2)(B)(ii) and 1915A(b)(1 ); and (3) give Plaintiff leave to amend.
An appropriate order will be entered.

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