Evans v. Sexton et al

Filing 118

MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 7/11/2019. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
AUGUSTUS HEBREW EVANS , JR. ,
Plaintiff,
Civil Action No. 16-598-RGA

V.

LEZLEY SEXTON , et al. ,
Defendants.

Augustus Hebrew Evans , Jr., James T. Vaughn Correctional Center, Smyrna ,
Delaware , Pro Se Plaintiff.
Dana Spring Monzo, Esquire, and Karine Sarkisian , Esquire, White & Williams,
Wilmington , Delaware, Counsel for Defendants Lezley Sexton , Christine Francis , and
Dr. Herman Ellis.
Megan Trocki Mantzavinos, Esquire , Marks , O'Neill, O'Brien , Doherty & Kelly, P.C. ,
Counsel for Defendants Deborah Muscarella and Dr. Anthony Cannuli.

MEMORANDUM OPINION

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July 1 ' 2019
Wilmington , Delaware

/!i:r!o~'.~
Plaintiff Augustus Hebrew Evans , Jr., an inmate at the James T. Vaughn
Correctional Center in Smyrna , Delaware, filed this action pursuant to 42 U.S .C . § 1983
asserting constitutional violations and raising supplemental state claims . He appears

prose and has been granted leave to proceed in forma pauperis. (D.I. 6) . The Second
Amended Complaint is the operative pleading . (D .I. 77). Before the Court are
numerous motions filed by the parties , including motions to dismiss filed by Defendants
Deborah Muscarella , a Mental Health Administrator, and Dr. Anthony Cannuli , and
Plaintiffs renewed motion to appoint an expert or to authorize funds to hire same,
requests for counsel , request for a scheduling conference , and request for depositions
and subpoenas . (D .I. 79 , 80 , 101 , 102, 103, 106, 107, 114).

BACKGROUND
The Second Amended Complaint alleges that Plaintiff was housed at the Howard

R. Young Correctional Institution (also known as Gander Hill) in Wilmington , Delaware,
from 2006 through 2008 . (D .I. 77 at 5) . On March 30 , 2007, he was examined by Dr.
Robert G. Thompson , who made recommendations for Plaintiff's mental health care.

(Id.). In April 2007 , Plaintiff was seen by Muscarella who prescribed Plaintiff
psychotropic medication (i.e ., Risperdal). (Id.) . Plaintiff was transferred to the JTVCC
on April 16, 2008 , and seen by Dr. Cannuli who reordered the medication . (Id.) .
Plaintiff alleges he had weight gain and his chest started to look funny after he began
taking the medication . (Id. at 6) . Plaintiff was seen by a mental health clinician who told

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Plaintiff the medication had nothing to do with the changes he was experiencing . (/d.).
Plaintiff remained on the medication from April 2008 to July 25, 2013. (Id.) .
On June 14, 2014 , Plaintiff learned that Risperdal caused potentially dangerous
side effects including gynecomastia , and he submitted a sick call slip . (/d.) . When
Plaintiff was seen by a nurse , he was told that he needed to see a specialist. (/d.).
Plaintiff was seen by Dr. Sylvia Desrosiers on several occasions, and she ordered
various medical tests . (/d.).
Plaintiff alleges that he was prescribed Risperdal for an off label purpose and that
Defendants were deliberately indifferent to his mental health and medical needs. (/d. at
5-12). He further alleges that despite his long use of the medication , he has yet to be
seen by a specialist and has not been properly diagnosed . (Id. at 8). In addition ,
Plaintiff alleges that Defendants failed to monitor and/or establish policies to monitor
mental health staff and drugs prescribed to inmates. (/d. at 12). Finally, Plaintiff alleges
that he suffered a "serious risk of substantial harm" while under the care of Defendants.
(/d.). Plaintiff seeks compensatory and punitive damages.
Muscarella and Dr. Cannuli have both filed motions to dismiss. Muscarella
moves for summary judgment in the alternative. The Court will deny without prejudice
as premature the motion for summary judgment in the alternative. Both Defendants
move to dismiss the medical negligence claims raised by Plaintiff. In addition ,
Muscarella moves to dismiss any claims raised against her that are based upon
respondeatsuperio~

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MOTIONS TO DISMISS
Legal Standards . In reviewing a motion 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 'I Hosp ., 765 F.3d 236 , 241 (3d Cir. 2014)
(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.

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

City of Shelby, 574 U.S. 10 (2014).

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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 compla int.

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 .

Medical Negligence. Plaintiff states that his claims are not medical negligence
claims or medical malpractice claims. To the extent Plaintiff attempts to raise medical
negligence claims under Delaware law, the claims fail. In Delaware, medical
malpractice is governed by the Delaware Health Care Negligence Insurance and
Litigation Act, 18 Del. C. §§ 6801-6865 . When a party alleges medical negligence ,
Delaware law requires the party to produce an affidavit of merit with expert medical
testimony detailing : (1) the applicable standard of care , (2) the alleged deviation from
that standard , and (3) the causal link between the deviation and the alleged injury.

Bonesmo v. Nemours Found. , 253 F. Supp . 2d 801 , 804 (D . Del. 2003) (quoting Green
v. Weiner, 766 A.2d 492 , 494-95 (Del. 2001 )) (internal quotations omitted) ; 18 Del. C. §
6853 . If it was Plaintiffs intent to allege medical negligence , he was required to submit
an affidavit of merit as to each defendant signed by an expert witness . 18 Del. C. §
6853(a)(1 ). Plaintiff did not do that. Therefore , the motions to dismiss the medical
negligence claim filed by both Muscarella and Cannuli 1 will be granted . (D .I. 79 , 80).

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The medical negligence claim is the only claim that Cannuli moved to dismiss.
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Respondeat Superior. Muscarella moves to dismiss those claims raised

against her based upon her supervisory position . As she notes in her motion to dismiss,
in addition to the allegations that Muscarella directly prescribed Risperdal to Plaintiff, the
Second Amended Complaint also alleges that Muscarella "had a duty to assure her staff
was not dispensing psychotropic drugs for off-label uses in which the drug had neither
been tested nor approved by the FDA. " (0.1. 77 at 1[ 46) . The Second Amended
Complaint also alleges that Muscarella "breached the duty of care owed to Plaintiff to
assure the drugs he was being prescribed were safe for the intended purposes. " (Id. at
1148).
As is well known , there is no respondeat superior liability under§ 1983. See
Parke/Iv. Danberg, 833 F.3d 313, 330 (3d Cir. 2016) . A defendant in a civil rights
action "cannot be held responsible for a constitutional violation which he or she neither
participated in nor approved. " Baraka v. McGreevey, 481 F.3d 187, 210 (3d Cir. 2007) .
The requisite personal involvement may be "shown through allegations of personal
direction or of actual knowledge and acquiescence ." Evancho v. Fisher, 423 F.3d 347,
353 (3d Cir. 2005) .
Liberally construing the allegations as the Court must, the allegations suffice to
allege the personal direction and/or actual knowledge and acquiescence by Muscarella
in the dispensing and administering the medication at issue given that the Second
Amended Complaint indicates that Muscarella knew Plaintiff was prescribed Risperdal.
Accordingly, the Court will deny Muscarella's motion to dismiss based upon the theory
of respondeat superior. (0 .1. 79) .

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RENEWED MOTION TO APPOINT AN EXPERT OR FUNDS TO HIRE SAME
Plaintiff asks the Court to appoint an expert or grant the funds to hire an expert
"to cure the absolute prejudice suffered in his ability to obtain expert services." (D .I.
101 ). Plaintiff contends that this case hinges upon the facts and somewhat complex
matters of science and medicine as to the residual effects of Risperdal. (Id.) . Plaintiff
argues that compelling circumstances warrant granting his motion.
Federal Rule of Evidence 706 provides that a District Court may "order the
parties to show cause why expert witnesses should not be appointed ." Fed . R. Evid .
706(a) . A court-appointed expert is entitled to compensation either "from any funds that
are provided by law," or from "the parties in the proportion and at the time that the court
directs -- and the compensation is then charged like other costs ." Fed. R. Evid . 706(c).
As explained by the Third Circuit, "[w]e understand that some courts have held
that Rule 706 can be used to appoint an expert for an indigent civil litigant and apportion
the costs of such expert to the other side ." Born v. Monmouth Cty. Correct. Inst., 458 F.
App'x 193, 197-98 (3d Cir. 2012) (citing Ledford v. Sullivan, 105 F.3d 354 , 360 (7th Cir.
1997); Steele v. Shah , 87 F.3d 1266, 1271 (11th Cir. 1996); McKinney v. Anderson , 924
F.2d 1500, 1511 (9th Cir. 1991 ), vacated and remanded on other grounds sub nom.

Helling v. McKinney, 502 U.S . 903 (1991) ; Websterv. Sowders, 846 F.2d 1032, 103839 (6th Cir. 1988); United States Marshals Serv. v. Means, 741 F.2d 1053, 1058 (8th
Cir. 1984)). However, the Third Circuit has never joined in these holdings. Born, 458 F.
App'x at 198 (citing Boring v. Kozakiewicz, 833 F.2d 468 , 474 (3d Cir. 1987) and
describing it as "finding no statutory authority for courts to pay expert witness fees of

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indigent civil litigants; not mentioning Fed. R. Evid. 706"). In addition , were I to use Rule
706 to appoint an expert witness , the exercise of such authority is in my discretion .
Born , 458 F. App 'x at 198 (citing Hannah v. United States, 523 F.3d 597 , 601 n.2 (5th
Cir. 2008) ; United States Marshals Serv. v. Means , 741 F.2d 1053, 1059 (8 th Cir. 1984)
(noting that litigants should be tasked with paying expert fees for their indigent
opponents only in "compelling circumstances")) .
After reviewing his filings , I again determine that Plaintiff has failed to make a
sufficient showing to warrant funds for an expert or appointment of an expert witness .
Therefore, the motion will be denied. (D.I. 101).
REQUESTS FOR COUNSEL
Plaintiff renews his request for counsel. (D.I. 103, 114). Plaintiff asserts counsel
is warranted because he has a newly established action against Defendant Dr. Herman
Ellis by reason of a March 29 , 2018 shoulder injury. (D.I. 103). Plaintiff attempts to tie
this injury to the instant action . He also seeks counsel to overcome the obstacles he
will encounter in prosecuting his case . (D .I. 114).
A prose litigant proceeding in forma pauperis has no constitutional or statutory
right to representation by counsel. 2 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

2 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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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.

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 militate against granting his
request for counse l. After reviewing Plaintiff's cla ims , I note that Plaintiff is a frequent
litigator, has much experience , and has ably represented himself to date. When I
previously obtained lawyers for Plaintiff in Evans v. Johnson & Johnson , Civ. No. 141316-RGA, after what the docket reflects was a rocky relationship , he eventually
decided that he would proceed prose. Pro bona lawyers are a scarce resource , and , at
this point, early in this case , it would on ly disserve justice to attempt to obtain counsel

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for Plaintiff. This case is not very advanced ; a scheduling and discovery order has not
yet been entered . Therefore , the Court will deny Plaintiff's requests for counsel without
prejudice to renew. (0 .1. 103, 114). Should the need for counsel arise later, when I can
do more than assume arguable merit in fact and in law, one can be sought at that time .

DISCOVERY
Plaintiff asks the Court to hold a scheduling conference "to enable him to pursue
his case and damages ." (0 .1. 102). While not clear, Plaintiff seems to be requesting a
scheduling and discovery order. The request will be denied . I will enter this order after
all Defendants have answered the Second Amended Complaint.
Plaintiff asks the Court to allow Defendants' depositions in this case so that he
may use their testimony as evidence for dispositive motions in another case he has filed
in this Court, Evans v. Johnson & Johnson , Civ. No . 14-1316-RGA. (0 .1. 106). In
addition , Plaintiff asks the Court to issue subpoenas for Defendants in this action to
appear and testify at a summary judgment hearing "in the intertwined case" of Evans v.

Johnson & Johnson , Civ. No. 14-1316-RGA, and to respond to written deposition
questions and interrogatories within twenty-one days. (0.1. 107). Defendants Lezley
Sexton , Christine Francis, Herman Ellis, and Cannuli oppose the requests . (0.1. 112,
117).
Plaintiff's requests are , at minimum , premature , and will be denied. Unless
otherwise ordered , discovery shall be conducted in each case , separately and apart
from any other case Plaintiff has filed that is currently pending in this Court. The

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Federal Rules of Civil Procedure do not contemplate parties conducting discovery in
one case for use in another. Each case typically stands alone .
CONCLUSION

Based upon the above discussion , the Court will : (1) grant in part and deny in
part Muscarella's motion to dismiss (D .I. 79) ; (2) deny without prejudice to renew as
premature Muscarella's motion for summary judgment in the alternative (D .I. 79) ;
(3) grant Cannuli's motion to dismiss (D .I. 80) ; (4) deny Plaintiffs renewed motion to
appoint an expert or funds to hire same (D. I. 101 ); (5) deny without prejudice to renew
Plaintiffs requests for counsel (D.I. 103, 114); and (6) deny Plaintiffs discovery
requests (D .I. 102, 106, 107).
An appropriate Order will be entered .

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