Archy v. Connections CSP Inc. et al

Filing 20

MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 1/9/17. (sar)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
AARON ARCHY,
Plaintiff,
Civil Action No. 16-467-RGA

V.

CONNECTIONS CSP, INC. and
DR DEROSIERS, 1
Defendants.

Aaron Archy, James T. Vaughn Correctional Center, Smyrna, Delaware; Pro Se
Plaintiff.
Roopa Sabesan, Esquire, White & Williams, Wilmington, Delaware, Counsel for
Defendants.

MEMORANDUM OPINION

1.

2018
January
Wilmington, Delaware
1

The correct spelling is DesRosiers.

W:4li!!t~;;
Plaintiff Aaron Archy, an inmate at the James T. Vaughn Correctional Center,
filed this action pursuant to 42 U.S.C. § 1983. He proceeds prose and has been
granted leave to proceed in forma pauperis. The Court screened the complaint and
amended complaint on November 4, 2016, and identified cognizable and non-frivolous
clams. (See D.I. 9). Defendants move for dismissal. (D.I. 17). Plaintiff opposes. (D.I.
18). Briefing on the matter is complete

BACKGROUND
Plaintiff was injured on June 11, 2014, during a fight with another inmate. (D. I. 4
at ,r 9). His right hand was swollen, he had excruciating pain, and one of his knuckles
was not visible. (Id. at ,r,r 12, 13). After he used his left hand to feel his knuckle, he
concluded his knuckle was fractured. (Id. at ,r 13). That day he was examined by a
nurse who told him there was no fracture and then he was escorted to "the hole." (Id. at

,r,r 15-23).
The next morning, the pain had worsened and the hand was badly swollen. (Id.
at ,r 2). Plaintiff submitted a sick call slip on June 13, 2014 and, on June 14, 2014, was
seen by the same nurse who had examined him on the day he was injured. (Id. at ,r,r
25-26). Again, she told Plaintiff there was no fracture, but prescribed pain medication
for seven days. (Id. at ,r,r 27-28).
Plaintiff submitted another sick call slip on July 4, 2014 and, the next day, saw
the same nurse who granted Plaintiff's request for an x-ray. (Id. at ,r,r 30-32). Plaintiff's
hand was x-rayed one month after he was injured. (Id. at ,r 33). When Plaintiff had not

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been told the x-ray results by August 27, 2014, he submitted a sick call slip. (Id. at

,m

34-35). The next day, the same nurse told Plaintiff he would be seen by a physician the
next week to discuss the x-ray results. (Id.). He was not.
On September 6, 2014, Plaintiff submitted a medical grievance for proper
medical attention, and a hearing was held on September 25, 2014. (Id. at ,r,r 38-39).
The grievance investigation found that Dr. DesRosiers had reviewed the x-ray results on
August 21, 2014 and ordered that Plaintiff be seen by an outside medical provider. 2 (Id.
at ,r 42; Ex. C). Plaintiff was not seen by an outside medical provider. (Id.).
On September 26, 2014, a repeat x-ray was ordered (apparently as result of the
investigation) and Plaintiff was scheduled to see an outside medical provider. (Id.) The
repeat x-ray was taken on September 29, 2014, and at that time Plaintiff was told that
the first x-ray had been misplaced, but found, and the two x-rays would be compared.
(Id. at ,r,r 44, 45).
On October 9, 2014, Plaintiff was seen by Dr. DesRosiers who told him that,
based upon the x-rays, the knuckle was fractured and had healed wrong and out of
place, it would remain that way, and there was nothing she could do to fix the deformed
knuckle. (Id. at ,m 46-50). Dr. DesRosiers referred Plaintiff to an outside medical
specialist. Plaintiff saw the specialist on October 16, 2014, and was told that the
fracture had not healed properly, and the deformity and disfigurement would not have
resulted had Plaintiff been treated in a timely manner. (Id. at ,r,r 51-54 ).

2The

investigation does not indicate that Dr. DesRosiers examined Plaintiff or provided
any treatment upon review of the x-ray.
2

Defendants moves for dismissal (D.I. 9) pursuant to Fed. R. Civ. P. 12(b)(5) and
(6) on the grounds that: (1) Dr. DesRosiers was not timely and properly served; and
(2) Plaintiff fails to state claims upon which relief may be granted. (D.I. 17).

DISCUSSION
Service on Dr. DesRosiers
Defendants move to dismiss the claims against Dr. DesRosiers for insufficiency
of service pursuant to Fed. R. Civ. P. 4(e) and Fed. R. Civ. P. 12(b)(5), on the grounds
that the service packets were delivered to a Connections' employee who is not an agent
authorized to accept service on behalf of Dr. DesRosiers.
A defendant may file a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(5)
when a plaintiff fails to properly serve him or her with the summons and complaint. See
Fed. R. Civ. P. 12(b)(5). A plaintiff "is responsible for having the summons and
complaint served within the time allowed by Rule 4(m)." Fed. R. Civ. P. 4(c)(1 ). Rule
4(m) imposes a 90-day time limit for perfection of service following the filing of a
complaint. Fed. R. Civ. P. 4(m). If service is not completed within that time, the action
is subject to dismissal without prejudice. Id. See also MCI Telecomms. Corp. v.
Teleconcepts, Inc., 71 F.3d 1086, 1098 (3d Cir. 1995).
First, the Court notes that it has been advised that it is the policy of Connections
CSP, Inc. ("Connections") that it, and its employees, will not waive service as set forth in
Fed. R. Civ. P. 4(d). As a result, Connection employees must be personally served with
a summons and complaint. The record reflects that when neither Defendant signed the
waiver of service of summons (D.I. 12, 13), summonses were issued so Defendants

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could be personally served by the United States Marshal Service. (D.I. 14). The Court
notes that in attempting to effect service, Plaintiff has complied with all court orders to
serve Defendants.
Plaintiff in an incarcerated individual. As an incarcerated individual, he must rely
upon the USMS to effectuate service. The USMS delivered the service packet for Dr.
DesRosiers (including summons) to Theo Gregory ("Gregory") an individual employed
by the defendant Connections. Defendants state that Gregory is not authorized to
accept service on behalf of Dr. DesRosiers. Defendants do not indicate why Gregory
accepted the service packet when he was not authorized to accept service.
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 prospect that service may yet be
obtained." Id. Given that instruction, the court will deny the motion to dismiss for
insufficient service of process.
Pursuant to Fed. R. Civ. P. 4(d), Defendants were required to waive service.
They have taken the position that they will not waive service despite the fact that Rule
4(d) affirmatively imposes the "duty to avoid unnecessary expenses of serving the
summons" upon the 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 (B) the
"reasonable expenses, including attorney's fees, of any motion required to collect those

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service expenses." See Fed. R. Civ. P. 4(d)(1 )(F), 4(d)(2)(A), 4(d)(2)(8). In light of the
foregoing, Plaintiff will be given another opportunity to personally serve Dr. DesRosiers.
Also, given both Defendants' failure to waive service of summons under Fed. R. Civ. P.
4(d) in the first instance, each served defendant will be assessed service fees as
allowed by the Federal Rules of Civil Procedure.
Finally, 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 a/so 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
affidavit containing name and address to assist prose plaintiff in service of process);

Garrett v. Miller, 2003 WL 1790954 (N.D. Ill. 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 correct address, Plaintiff cannot effect service.
Therefore, the Court will order Connections (who has been served and entered
its appearance) to provide to the court, under seal, the last known home and business

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addresses for Dr. Louise DesRosiers, 3 whether she remains employed by Connections,
and, if known, the correctional facility where she is now located, so that she may be
served.

Rule 12(b)(6)
In reviewing a motion to dismiss filed under Fed. R. Civ. P. 12(b)(6), the court
must accept all factual allegations in a complaint as true and take them in the light most
favorable to plaintiff. See Erickson v. Pardus, 551 U.S. 89, 94 (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, 551 U.S. at 94. A court may consider the pleadings,
public record, orders, exhibits attached to the complaint, and documents incorporated
into the complaint by reference. Tellabs, Inc. v. Makar Issues & Rights, Ltd., 551 U.S.
308, 322 (2007). A Rule 12(b )(6) motion maybe granted only if, accepting the wellpleaded allegations in the complaint as true and viewing them in the light most favorable
to the complainant, a court concludes that those allegations "could not raise a claim of
entitlement to relief." Bell At/. Corp. 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'/ Hosp., 765 F.3d 236, 241 (3d Cir. 2014)

3

It is obvious that Connections or its attorneys know the whereabouts of Dr.
DesRosiers given that she signed an affidavit that Gregory was not authorized to accept
service on her behalf. (See D.I. 17-1 at 2).
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(quoting Twombly, 550 U.S. at 555). I am "not required to credit bald assertions or legal
conclusions improperly alleged in the complaint." In re Rockefeller Ctr. Props., Inc. Sec.

Utig., 311 F.3d 198,216 (3d Cir. 2002). A complaint may not be dismissed, however,
"for imperfect statement of the legal theory supporting the claim asserted." Johnson v.

City of Shelby, 135 S. Ct. 346, 346 (2014).
A complainant must plead facts sufficient to show that a claim has "substantive
plausibility." Id. at 347. That plausibility must be found on the face of the complaint.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "A claim has facial plausibility when the
[complainant] pleads factual content that allows the court to draw the reasonable
inference that the [accused] is liable for the misconduct alleged." Id. 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. at 679.
Defendants seek dismissal on the grounds that Plaintiff received medical care
and, at best, has a claim for medical negligence, not a claim of a constitutional violation.
They also contend that dismissal is appropriate because Plaintiff does not allege that
Connections maintained a policy, custom, or practice that resulted in Plaintiff's alleged
harm. Finally, Defendants seek dismissal of any proposed medical negligence claim.
The legal standard when ruling on Rule 12(b)(6) motions is identical to the
standard used when screening a complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

See 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)(B)).

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I previously reviewed Plaintiff's allegations and found that he stated what appear to be
cognizable and non-frivolous claims. (See D.I. 9). Nothing has changed since the
court's ruling.
Without belaboring the point, the allegations are that Plaintiff's hand was
fractured (a fracture can be considered a serious medical need), it was not x-rayed until
a month after his injury when during that time he received minimal treatment, he was
told repeatedly he would see a physician but did not see one until October 9, 2014
some four months after the injury and not until he submitted a medical grievance, and
Dr. DesRosiers was aware as of at least August 21, 2014, when she read the first x-ray,
that Plaintiff had sustained a fracture.
The Court has revisited the allegations, liberally construed them, as it must, and
finds that Plaintiff adequately raises medical needs claims. With regard to Dr.
DesRosiers, a prison official may manifest deliberate indifference by "intentionally
denying or delaying access to medical care." Estelle v. Gamble, 429 U.S. 97, 104-05
(1976). Plaintiff's allegations are sufficient.
With regard to Connections, in order to hold it liable, Plaintiff must allege a policy
or custom that demonstrates such deliberate indifference. Sample v. Diecks, 885 F.2d

1099, 1110 (3d Cir. 1989). "Custom ... can be proven by showing that a given course
of conduct, although not specifically endorsed or authorized by law, is so well-settled
and permanent as virtually to constitute law." Miller v. Correctional Med. Sys., Inc., 802
F. Supp. 1126, 1132 (D. Del. 1992) (alteration in original) (citing Andrews v. City of
Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990); Fletcher v. O'Donnell, 867 F.2d 791,

8

793-94 (3d Cir. 1989)). Plaintiff's allegations are that care was repeatedly delayed by
Connections personnel. It was not until Plaintiff submitted a medical grievance that he
was provided care for the fracture. Construed liberally, the alleged conduct although
not specifically endorsed or authorized, could be so well-settled and permanent to
constitute a Connections policy, custom, or practice. Accordingly, the Court will deny
the motion to dismiss for failure to state a claim upon which relief may be granted.
While there is no indication that Plaintiff raises a medical negligence claim, I will,
nevertheless, grant that portion of the motion to dismiss since Plaintiff has not complied
Delaware's Delaware Health Care Negligence Insurance and Litigation Act. See 18
Del. C. §§ 6801-6865.

CONCLUSION
Based upon the above discussion, the Court will grant in part and deny
Defendants' motion to dismiss (D.I. 17) and will order Connections to provide the last
known address for Dr. DesRosiers so that she may be served.
An appropriate order will be entered

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