Evans v. Sexton et al

Filing 74

MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 3/1/18. (sar)

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 Roopa Sabesan, 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 Debra Muscarella and Dr. Anthony Cannulli.

MEMORANDUM OPINION

March 1, 2018
Wilmington, Delaware

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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. (0.1. 6). The Court
screened the Complaint on November 4, 2016, and identified cognizable and nonfrivolous claims. (See 0.1. 10). Before the Court are numerous motions filed by the
parties including Plaintiff's motions to compel and motions for leave to file amended
complaints, and Defendants' motions to dismiss and, in the alternative, motion for
summary judgment. (0.1. 25, 28, 46, 48, 49, 51, 55, 58, 62).

MOTIONS TO COMPEL
Plaintiff filed two motions to compel prison administrators to allow him reasonable
access to controlled non-collect legal and other telephone calls associated with this
case. (0.1. 25, 28) "The exact nature of telephone service to be provided to inmates is
generally to be determined by prison administrators, subject to court scrutiny for
unreasonable restrictions." Almahdi v. Ridge, 201 F. App'x 865, 869 n.2 (3d Cir. 2006)
(quoting Fillmore v. Ordonez, 829 F. Supp. 1544, 1563-64 (D. Kan. 1993)). An inmate's
rights to communicate by telephone, even with legal counsel, is not unlimited. Aswegan

v. Henry, 981 F.2d 313, 314 (8th Cir. 1992). Prison officials can limit communications,
particularly telephone communications, to ensure safety, security, and the orderly
operations of their institution. Griffin-El v. MCI Telecomm., 835 F. Supp. 1114, 1122-23
(E.D. Mo.1993), aff'd, 43 F.3d 1476 (8th Cir. 1994). Notably, courts have approved the

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installation of collect-only telephone systems and, for non-legal calls, some degree of
monitoring to control instances of inmate telephone fraud, harassment of crime victims,
or disputes among inmates over telephone use. See, e.g., Wooden v. Norris, 637 F.
Supp. 543 (M.D. Tenn. 1986).
Here, Plaintiff wants me to order VCC administrators to allow him to make
telephone calls (legal and non-legal) during regular business hours to legal
organizations, investigators, the Delaware Medical Board, and physicians. Plaintiff
states that he wrote to prison officials regarding the issue "to no avail." Regardless,
prison officials may limit telephone communications. In addition, Plaintiff has no
entitlement to make non-collect calls. Plaintiff has the option of writing letters seeking
the information he wishes to obtain. Therefore, Plaintiff's motions will be denied. (D.I.
25, 28).
MOTIONS TO DISMISS AND MOTIONS TO AMEND

Defendant Dr. Anthony Cannuli moves to dismiss pursuant to Rule 12(b)(6). (D.I.
46). Plaintiff opposes and filed a motion for leave to file an amended complaint. 1 (D.I.
47, 48, 49). Dr. Cannulli then filed a motion to dismiss the amended complaint. (D.I.
51 ). Plaintiff followed by filing another motion to amend the complaint, and an
opposition to Dr. Cannulli's motion to dismiss. (0.1. 55, 64).
Next, Defendant Deborah Muscarella filed a motion to dismiss the amended
complaint or, in the alternative, motion for summary judgment. (D.I. 58). Plaintiff

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In his opposition to the motions to dismiss Plaintiff asks the Court to appoint and/or
grant funds to hire an expert witness. The request is not considered at this time, and
the Court notes that there is no authority for permitting the request.
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opposes the motion and filed another motion to amend. (D.I. 61, 62). Defendants
Lezley Sexton, Christine Francis, and Dr. Herman Ellis do not oppose Plaintiff's motion
for leave to amend found at 0.1. 62. (0.1. 66).
As discussed, in response to the motions to dismiss, Plaintiff filed motions for
leave to amend to cure his pleading defects. (0.1. 49, 55, 62). Plaintiff included an
amended complaint (found at 0.1. 49) and a second amended complaint (found at 0.1.
62). Pursuant to Fed. R. Civ. P. 15(a)(2), courts "should freely give leave [to amend]
when justice so requires." Accordingly, the motions to amend will be granted. The
Second Amended Complaint (D.I. 62) will be the operative pleading.
The Court will dismiss as moot without prejudice to renew the motions to dismiss
filed by Dr. Cannulli and Muscarella. (D.I. 46, 51, 58). Both Defendants seek dismissal
on the grounds that Plaintiff's claims are time-barred. 2 Plaintiff indicated in the original
Complaint and amendments that he discovered the side effects of Risperdal on June
14, 2014. The discovery rule tolls the statute of limitations until a plaintiff, exercising
reasonable diligence, actually discovers his injury. Lake v. Arnold, 232 F.3d 360, 367
(3d Cir. 2000). Thereafter, Plaintiff sought to exhaust his administrative remedies. It
appears that the claims are timely filed. The Prison Litigation Reform Act (PLRA)
requires a prisoner to exhaust his administrative remedies prior to filing a civil rights
lawsuit. The PLRA is a "statutory prohibition" that tolls the statute of limitations while a

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They also seek dismissal of the State medical negligence claim.

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prisoner exhausts administrative remedies. Pearson v. Secretary Dep't of Corr., 775
F.3d 598, 603 (3d Cir. 2015); 42 U.S.C. § 1997e(a).

SHOW CAUSE
On January 12, 2018, the Court entered a show cause order why Dr. Richard
Lynch should not be dismissed as a defendant for failure to serve him pursuant to Fed.
R. Civ. P. 4(m). (0.1. 60). Plaintiff concedes that all avenues to locate Dr. Lynch have
been exhausted. (D.I. 65). Therefore, Defendant Dr. Lynch will be dismissed without
prejudice.

CONCLUSION
Based upon the above discussion, the Court will: (1) deny Plaintiffs motions to
compel (D.I. 25, 28); (2) dismiss as moot with leave to renew Defendants' motions to
dismiss (D.I. 46, 51, 58); (3) dismiss as moot Plaintiff's motion for an extension of time
to file an amended complaint (D.I. 48); (4) grant Plaintiff's motions to amend (D.I. 49,
55, 62); (5) direct the Clerk of Court to file Plaintiffs proposed amended complaint (D.I.
49-2, 49-3, 49-4) and proposed second amended complaint (D.I. 62-1, 62-3, 62-4); and
(6) dismiss Defendant Dr. Lynch. The Second Amended Complaint will be the operative
pleading.
An appropriate Order will be entered.

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