Nash v. Connections CPS Inc. et al
MEMORANDUM. Signed by Judge Gregory M. Sleet on 4/26/2017. (nmg)
IN THE UNITED STATES DISTRJCT COURT
FOR THE DISTRJCT OF DELAWARE
ANTHONY A. NASH,
CONNECTIONS CSP, INC., et al.,
) Civ. Action No. 16-896-GMS
The plaintiff, Anthony A. Nash ("Nash"), an inmate at the Howard R. Young
Correctional Institution, Wilmington, Delaware, filed this lawsuit pursuant to 42 U.S.C. § 1983. 1
(D.I. 3.) Nash appears prose and has paid the filing fee. The operative fourth amended
complaint is found at D.I. 39. Presently before the Court are several motions filed by the parties.
(D.I. 56, 57, 58, 67, 69, 70, 71, 76.)
I. MOTIONS TO AMEND
Nash moves to amend to add supplemental state tort claims against the defendants
Connections CSP, Inc. ("Connections"), Taurance Bishop ("Dr. Bishop"), and proposed new
defendant Jason Justinson ("Dr. Justinson") related to dental treatment provided him. (D.I. 69.)
Nash provided a copy of the proposed supplemental state claims with his motion. He has also
filed a motion for clarification which seeks confirmation that the court will exercise jurisdiction
over the supplemental state claims. (D.I. 70.) The court will grant the motions. 2 (D.I. 69, 70.)
When bringing a§ 1983 claim, 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.
West v. Atkins, 487 U.S. 42, 48 (1988).
In Delaware, medical negligence is governed by the Delaware Health Care Negligence
Insurance and Litigation Act. See 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
Nash will be ordered to file a fifth amended complaint that contains all federal and state
claims in one pleading. Upon the filing of a fifth amended complaint, a second supplemental
service order will issue. Service will not take place on the federal and state claims until Nash
files a fifth amended complaint that contains all federal and state claims in one document.
Should Nash fail to file a fifth amended complaint within the time provided, then service will
proceed on the fourth amended complaint found at D.I. 39 as set forth in the March 20, 2017
supplemental service order (D.I. 53).
Nash has amended the complaint numerous times. He is placed on notice that the court
will not entertain further motions to amend until service packets have been forwarded to the
United States Marshals Service ("USMS") on either the fifth amended complaint, or the fourth
amended complaint should he fail to timely amend.
II. MOTIONS REGARDING SERVICE
Nash has filed several letters/motions seeking to amend the March 20, 2017 supplemental
service order and to give him additional time to comply with that order. (D.I. 56, 57, 58, 68.) 3
Nash had previously sought to serve the individual medical defendants at the Howard R. Young
Correctional Institution in Wilmington, Delaware, and Connections at an address in Newark,
Delaware, and the USMS calculated the service fees for seven defendants, totaling $467.84,
based upon the addresses Nash provided.
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. The statute
specifically excludes dentists from this requirement. See 18 Del. C. §6801 (5) ("health care
provider" means a person, corporation, facility or institution licensed by this State pursuant to
Title 24, excluding Chapter 11 (i.e., dentistry and dentistry hygiene).
D.I. 68 is identical to D.I. 56.
On April 10, 2017, Nash asked the court to issue eight summonses for the defendants:
Connections, Christine Claudio, Karen Lewis, Tracey Crews, Dr. Taurance Bishop, Mary Helen
Stewart ("Stewart"), 4 Mitchell A. White, and Dr. Phillips. (D.I. 72.) He also submitted USM285 forms for the foregoing defendants. Nash advises the court that he wishes to serve all
medical defendants upon Catherine D. McKay, Connections' CEO and President at Connections'
corporate address, 3821 Lancaster Pike, Wilmington, Delaware. It has come to the court's
attention that Steven Davis, Esquire, is the agent authorized to accept service on behalf of
Connections. Nash explains that he has learned that the HRYCI would not accept service for any
of the medical defendants.
The court will grant the motions to extend time to comply with the supplemental service
order and to amend the supplemental service order (to the extent that Nash does not file a fifth
amended complaint) so that service of the fourth amended complaint (D.I. 39) may be attempted
upon the eight listed defendants (including Stewart) at the Connections' address Nash has
provided. (D.I. 56, 57, 58.) The USMS informs the court that the cost of service totals $525.35
($65.00 x 8 defendants plus $5.35 mileage to 3821 Lancaster Pike, Wilmington, Delaware).
Nash previously remitted $467.84 before moving to amend the supplemental service order.
Therefore, he must submit the difference $57.51 ($525.35 less $467.84) before service packets
with the fourth amended complaint will be forwarded to the USMS.
To the extent that Nash proceeds on a newly filed fifth amended complaint which
includes added defendant Dr. Justinson, plus the eight defendants listed above, the cost of service
The court had not been notified that Stewart had failed to return the waiver of service
form at the time it issued the March 20, 2017 supplemental service order. (See D.I. 53, 55.)
Hence, the order did not provide for her personal service.
totals $590.35 ($65.00 x 9 defendants plus $5.35 mileage to 3821 Lancaster Pike, Wilmington,
Delaware). As noted, Nash previously remitted $467.84. Therefore, for service of the fifth
amended complaint, he must submit the difference $122.51 ($590.35 less $467.84) before service
packets with the fifth amended complaint will be forwarded to the USMS.
III. MOTION FOR SANCTIONS
Nash seeks sanctions against the defendant C/O Clark ("Clark") on the grounds that Clark
failed to respond to the court's October 28, 2016 service order. (D.I. 67.) Nash has failed to set
forth adequate grounds for the imposition of sanctions. In addition, Clark responded to the order
at issue on the same day that Nash filed his motion for sanction. (D.I. 59:) Accordingly, the
court will deny Nash's motion for sanctions. (D.I. 67.)
IV. MOTION TO SET ASIDE ENTRY OF DEFAULT
On March 31, 2017, the court granted Nash's request for entry of default as to Clark and,
on April 4, 2017, Clark's entry of default was docketed. (D.I. 62, 66.) Clark filed a waiver of
service returned executed and answered the amended complaint on March 30, 2017, one day
prior to the day that the court granted Nash's request and several days prior to the docketing of
the entry of default. (D.I. 59, 60.)
Clark moves to set aside entry of default pursuant to Fed. R. Civ. P. 55(c) and, in turn,
Nash moves for default judgment. (D.I. 71, 73.) Given the timing of events, the court will grant
Clark's motion to set aside entry of default. 5 (D.I. 71.) In addition, default judgment is not
Clark contends there was improper service and engages in a discussion regarding receipt
ofUSM-285 forms, service upon the Attorney General of the State of Delaware, and payment of
service fees with regard to Clark (given that Nash has paid the filing fee); none of which are
required in this case. The service of process of Clark falls under the ambit of the February 8,
2016 standing order that incorporates a memorandum of understanding among the court, the
Delaware Department of Correction ("DOC"), and the Delaware Department of Justice, for e4
appropriate and, therefore, the court will deny Nash's motion for default judgment. (D .I. 73.)
See Fed. R. Civ. P. 55(a), (b); Hritz v. Woma Corp., 732 F.2d 1178, 1180 (3d Cir. 1984) (entry of
judgment by default pursuant to Rule 55(b)(2) is within the discretion of the trial court); Animal
Sci. Prods., Inc. v. China Nat'l Metals & Minerals Imp. & Exp. Corp., 596 F. Supp. 2d 842, 847
(D.N.J. 2008) (entry of default judgment is disfavored as decisions on the merits are preferred.).
Plaintiff has filed several discovery requests that are directed to served and unserved
defendants. (See D.I. 63, 64, 65.) He now moves to amend his request for production of
documents. (D.I. 76.) The court will deny the motion without prejudice as premature. The
defendants have yet to be served and a scheduling and discovery has not yet been entered.
For the above reasons, the court will: (1) grant Nash's letters/motions to amend the
supplemental service order (D.I. 56, 57); (2) grant Nash's motion to extend time to comply with
supplemental service order (D.I. 58); (3) deny Nash's motion for sanctions (D.I. 67); (4) grant
Nash's motions to amend (D.I. 69, 70); (5) grant Clark's motion to set aside entry of default (D.I.
71); (6) deny Nash's motion for default judgment (D.I. 73); and (7) deny without prejudice
Nash's motion to amend request for production of documents (D.I. 76).
An appropriate order will be entered.
Wil' gton, Delaware
service of pro se complaints filed by individuals against the DOC and/or its current or former
employees. See http://www.ded.uscourts.gov/sites/default/:files/general-orders/E-Service (last
visited Apr. 21, 2017).
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