Turner v. Connections CSP et al

Filing 17

MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 2/27/17. (nmg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
LEE TURNER,
Plaintiff,
Civ. No. 16-667-LPS

v.

CONNECTIONS CSP, et al.,
Defendants.

Lee Turner, James T. Vaughn Correctional Center, Smyrna, Delaware, Pro Se Plaintiff.
Michael F. McTaggart, Deputy Attorney General Deputy, Delaware Department ofJustice,
Wilmington, Delaware. Counsel for Defendant Warden David Pierce.

MEMORANDUM OPINION

February 27,2017
Wilmington, Delaware

I.

INTRODUCTION
Plaintiff Lee Turner ("Plaintiff') filed this action pursuant to 42 V.S.c. § 1983, alleging

violations of his constitutional rights. 1 (D.L 2) Plaintiff is incarcerated at the James T. Vaughn
Correctional Center ("VCC") in Smyrna, Delaware. He appears pro se and has been granted leave to
proceed informa pauperis. (D.L 8) Plaintiff has filed a motion for injunctive relief and a request for
counsel. (D.L 6, 10) The Court proceeds to review and screen the Complaint pursuant to 28 U.S.c.

§ 1915(e)(2) and § 1915A(a).
II.

BACKGROUND
Plaintiff suffered three injuries to his shoulder and received surgery by an outside orthopedic

surgeon. Following the April 18, 2016 surgery, Plaintiff recovered in the VCC infirmary for
approximately 16 days. When Plaintiff was seen at his follow-up appointment, he was prescribed
pain medication and physical therapy was ordered to start immediately. Plaintiff alleges that
Defendant Connections CSP ("Connections") was given specific instructions that Plaintiff receive
physical therapy twice weekly.
Plaintiff was discharged from the infirmary on May 4, 2016, and was told by Defendant Dr.
Ellis ("Dr. Ellis") that he would be housed in SHU, that his medication would be changed due to his
housing assignment, and that he would have to do the physical therapy himself because "we have no
physical therapist." (D.L 2 at 3) Plaintiff was transferred to SHU and never received physical
therapy. He submitted grievances over the matter.

lPursuant to 42 U.S.c. § 1983, a plaintiff must allege that some person has deprived him of a
federal right, and that the person who caused the deprivation acted under color of state law. See
W'est v. Atkins, 487 U.S. 42,48 (1988).
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On June 20, 2016, Plaintiff presented to the Christiana Care Rehabilitation Center for a post­
op consult with extreme pain, lack of mobility, limited range of motion, stiffness and weakness.
Plaintiff was told that physical therapy was most important for a full recovery. Plaintiffalleges that
he must wear a brace due to the effects of the failure to receive rehabilitation.
He seeks injunctive relief and compensatory and punitive damages.

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." Bail v. Famiglio, 726 F.3d 448, 452 (3d Cit. 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 t'. County rifAllegheny, 515 F.3d 224, 229 (3d Cit. 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 formal pleadings drafted by la\\''Yers.'' 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 meridess legal theory" or a
"clearly baseless" or "fantastic or delusional" factual scenario. Neitzke, 490 at 327-28; see also Wilson

v. Rackmill, 878 F.2d 772, 774 (3d Cit. 1989); Deutsl'h v. United States, 67 F.3d 1080, 1091-92 (3d

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Cir. 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 deciding Rule
12(b)(6) motions. See Tourscberv. McCullougb, 184 F.3d 236, 240 (3d Cir. 1999) (applying 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 claims for failure to state a claim upon which relief may be granted
pursuant to the screening provisions of 28 U .S.c. §§ 1915 and 191 SA, the Court must grant a
plaintiff leave to amend his complaint, unless amendment would be inequitable or futile. See Grqyson
fl.

Mqyview State Hosp., 293 F.3d 103, 114 (3d Cir. 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 entitlement to relief." BellAtl. Corp. v. Twombly, 550

V.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 A1em'/ Hosp., 765 F.3d 236,241 (3d Cir. 2014) (internal quotation
marks omitted). In addition, a complaint must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face. See 117illiams v. BASF CatalYsts LLC, 765 F.3d 306,
315 (3d Cir. 2014) (citingAsbcrlijtv. Iqbal, 556 U.S. 662, 678 (2009) and TwomblY, 550 U.S. at 570).
Finally, a plaintiff must plead facts sufficient to show that a claim has substantive plausibility. See

Jobnson v.

Ciry ofSbelby, _U.S._, 135 S.Ct. 346, 347 (2014).

A complaint may not dismissed for

imperfect statements of the legal theory supporting the claim asserted. See id. at 346.

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Under the pleading regime established by Twomb!J and Iqbal, 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. See Connel!J v. Lane ConJt. Corp., 809 F.3d 780, 787 (3d Cir. 2016). Elements are
sufficiently alleged when the facts in the complaint "show" that the plaintiff is entitled to relief. See

Iqbal, 556 U.S. at 679 (citing 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.

IV.

DISCUSSION
Having reviewed the allegations in the complaint, the Court concludes that Plaintiff has

alleged cognizable and non-frivolous claims against Defendants.

A.

Request for Counsel

Plaintiff proceeds pro Je and has been granted leave to proceed informapallperiJ. He requests
counsel on the grounds that he is unable to afford counsel, the issues are complex, he has no access
to the law library, he has no legal training or knowledge, is dependent upon jailhouse lawyers, and
the merits of his case are legitimate. (D.I. 6)
A pro Je litigant proceeding informa pallperiJ has no constitutional or statutory right to
representation by counse1. 2 See Brightwell v. Lehman, 637 F.3d 187, 192 (3d Cir. 2011); Tabron tJ• Grace,
6 F.3d 147, 153 (3d Cir. 1993). However, representation by counsel may be appropriate under

2 See Mallard v. United StateJ DiJt. COllrtfor the S. DiJt. ~!Iowa, 490 U.S. 296 (1989) (§ 1915(d)
(now § 1915(e)(1)) does not authorize federal court to require un\villing attorney to represent
indigent civil litigant, as operative word in statute is "request").

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certain circumstances, after a fineling 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, inclueling: (1) the plaintiff's ability to present his or her o\,vn case;
(2) the difficulty of the particular legal issues; (3) the degree to which factual investigation will be
necessary and the ability of the plaintiff to pursue investigation; (4) the plaintiff's capacity to retain
counsel on his own behalf; (5) the extent to which a case is likely to turn on credibility
determinations; and (6) whether the case will require testimony from expert witnesses. See Tabron, 6
F.3d at 155-57; accord Parham v. John.fon, 126 F.3d 454, 457 (3d Cir. 1997); Montgomery v. Pinchak, 294
F.3d 492, 499 (3d Cir. 2002).
Assuming, solely for the purpose of decieling this motion, that Plaintiff's claims have merit in
fact and law, several of the Tabron factors militate against granting his request for counsel. To date,
Plaintiff's filings indicate that he possesses the ability to adequately pursue his claims, the issues are
not complex, and this case is in its very early stages. Upon consideration of the record, the Court is
not persuaded that representation by an attorney is warranted at this time. Therefore, the Court will
deny the request for counsel. (D.L 6) The Court can address the issue at a later date should counsel
become necessary.

B.

Motion for Injunctive Relief

Plaintiff seeks injunctive relief that requires Defendants "to carry out the plan of treatment
set forth by the physical therapist in full." (D.I. 10) Warden Pierce opposes. (D.L 13)
A preliminary injunction is "an extraorelinary remedy tbat should be granted only if (1) the
plaintiff is likely to succeed on the merits; (2) denial will result in irreparable harm to the plaintiff;

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(3) granting the injunction will not result in irreparable harm to the defendant; and (4) granting the
injunction is in the public interest." NtltraSweet Co. v. Vit-Mar Enterprises, Inc., 176 F.3d 151, 153 (3d
Cir. 1999). "[F)ailure to establish any element in [a plaintiffs] favor renders a preliminary injunction
inappropriate." NtltraSweei 11, 176 F.3d at 153. Because of the intractable problems of prison
administration, a request for injunctive relief in the prison context must be viewed with considerable
caution. See Abraham v. Danberg, 322 F. App'x 169, 170 (3d Cir. Apr. 24, 2009) (citing GofIv. Harper,
60 F.3d 518, 520 (8th Cir. 1995»).
Plaintiffs motion indicates that he started physical therapy nearly two months after it was
prescribed on June 26, 2016. The motion further states, however, that Plaintiff is currently
transported and escorted by officers to Christiana Care Rehab Center twice a week, while a walk

to

the gym would take him five minutes. It appears that Plaintiff wishes to use the exercise equipment
as a means of rehabilitation. Dr. Vincent Carr ("Dr. Carr") reviewed Plaintiffs medical records and
states that he does "not believe that [plaintiff] has been denied any medical care that has impacted
his condition," nor does he believe that Plaintiff is "subject to harm based on his present medical
condition." (D.I. 13 Ex. 1)
Given the representations made by Plaintiff in his motion, as well as Dr. Carr's statement,
the record does not demonstrate the likelihood of success on the merits. Nor is there any indication
that, at the present rime, Plaintiff is in danger of suffering irreparable harm. Because Plaintiff has
neither demonstrated the likelihood of success on the merits, nor demonstrated irreparable harm to
justify the issuance of immediate injunctive relief, the Court 'will deny his motion.

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V.

CONCLUSION
For the above reasons, the Court will: (1) deny without prejudice to renew the request for

counsel (D.I. 6); (2) deny the motion for injunctive relief (D.I. 10); and (3) allow Plaintiff to proceed
with the claims raised against Defendants.
An appropriate Order follows.

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