Hardwick v. Nurse, et al

Filing 29

MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 8/2/2018. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JAMES HARDWICK,
Plaintiff,
: Civil Action No. 17-668-RGA

V.

CONNECTIONS COMMUNITY
SUPPORT PROGRAMS, INC.,
Defendant.

James Hardwick, James T. Vaughn Correctional Center, Smyrna, Delaware.
Pro Se Plaintiff.
Dana Spring Monzo and Roopa Sabesan, White & Williams, Wilmington, Delaware,
Counsel for Defendant.

MEMORANDUM OPINION

?,-,

August
2018
Wilmington, Delaware

Plaintiff James Hardwick, an inmate at the James T. Vaughn Correctional Center
in Smyrna, Delaware, filed a Complaint pursuant to 42 U.S.C. § 1983, followed by an
Amended Complaint. 1 (D.I. 2, 8). Plaintiff appears prose and has been granted leave
to proceed in forma pauperis. (D.I. 6). Before the Court is Defendant Connections
Community Support Programs, lnc.'s motion to dismiss (D.I. 20) and Plaintiff's motion
for discovery. (D.I. 28). Briefing is complete on the motion to dismiss. (D.I. 20, 23, 24,
25, 26, 27).

BACKGROUND
The Court screened the Complaint and Amended Complaint on October 10, 2017
and identified cognizable and non-frivolous claims. (See D.I. 9, 10). Plaintiff named
several defendants, all of whom have been dismissed except for Connections. (D.I. 9).
Connections moves to dismiss pursuant to Rule 12(b)(6) on the grounds that the claims
against it are insufficient to plausibly show Connections has a policy or practice that
subjects it to constitutional liability.

MOTION TO DISMISS
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
pro se, his pleading is liberally construed and his complaint, "however inartfully pleaded,

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When bringing a § 1983 claim, a plaintiff must allege that some person has
deprived him of a federal right, and the person who caused the deprivation acted under
color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
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must be held to less stringent standards than formal pleadings drafted by lawyers." Id.
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.

Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). A Rule 12(b)(6) motion maybe
granted only if, accepting the well-pleaded 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 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 defendant 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.
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When a plaintiff relies upon a theory of respondeat superior to hold a corporation
liable, he must allege a policy or custom that demonstrates "deliberate indifference."
Sample v. Diecks, 885 F.2d 1099, 1110 (3d Cir. 1989); Miller v. Correctional Med. Sys.,
Inc., 802 F. Supp. 1126, 1132 (D. Del. 1992). To establish that Defendant is directly
liable for the alleged constitutional violations, Plaintiff "must provide evidence that there
was a relevant [Connections] policy or custom, and that the policy caused the
constitutional violation [plaintiff] allege[s]." Natale v. Camden Cty. Correctional Facility,
318 F.3d 575, 584 (3d Cir. 2003). Respondeat superior or vicarious liability cannot be a
basis for corporate liability under 42 U.S.C. § 1983, as a corporation under contract with
the state cannot be held liable for the acts of its employees and agents under those
theories. Id. at 583. Assuming the acts of Defendant's employee have violated a
person's constitutional rights, those acts may be deemed the result of a policy or
custom of the entity for whom the employee works, thereby rendering the entity liable
under§ 1983, where "the inadequacy of existing practice [is] so likely to result in the
violation of constitutional rights, that the policymaker can reasonably be said to have
been deliberately indifferent to the need." Natale, 318 F.3d at 584.
"'Policy is made when a decision maker possess[ing] final authority to establish
... policy with respect to the action issues an official proclamation, policy or edict."'
Miller v. Corr. Med. Sys., Inc., 802 F. Supp. at 1132 (alteration in original) (quoting
Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990)). "Custom, on the
other hand, 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

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to constitute law." Miller, 802 F.Supp. at 1132 (citing Andrews, 895 F.2d at 1480;

Fletcher v. O'Donnell, 867 F.2d 791, 793-94 (3d Cir. 1989)).
Connections argues dismissal is appropriate because Plaintiff has not pied facts
sufficient to demonstrate it has a deficient policy or procedure. It contends that the
allegations also do not state a claim for negligence under Delaware law.
As is well-established, 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).

The Court 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 that ruling. Nonetheless, the Court has revisited the allegations, liberally
construing them, as I must. I hold that Plaintiff adequately raises medical needs claims
under the Eighth Amendment.
The allegations are that on June 4, 2015, Plaintiff sustained a muscle injury while
exercising, that he was told repeatedly that he would be seen by a physician, that a
grievance he submitted for medical care was upheld and "specifically that contracted
provider ensures grievant is seen in a timely fashion by a provider with a welldocumented treatment plan in place" (0.1. 9 at 2), and that it was not until sometime
after April 4, 2016 that he was finally seen by an outside orthopedist.
There is no dispute that Connections is responsible for inmate care at VCC. It is
alleged that Plaintiff has a serious medical condition, that his condition requires
treatment by specialists, and that it was more than a year before he was seen by one.
Plaintiff is not required to recite the specific text or official policy that leads to this lack of
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treatment. He must only place Defendant on notice as to its alleged improper conduct
and the policy in place that created such conduct.
Liberally construing the allegations as I must, Plaintiff adequately states a claim
against Defendant. The Amended Complaint pleads facts that Plaintiff has not received
outside medical care for some time despite the necessity for it and that Defendant has a
policy to restrict access to medical care due to cost considerations (i.e., "trying to save
money"). (See D.I. 2 at 7). While discovery may show that Defendant acted properly,
at this early stage of the litigation, Plaintiff has pied sufficient facts to proceed against it.
Therefore, the Court will deny the motion to dismiss as to claims raised pursuant to 42

u.s.c. § 1983.
To the extent Plaintiff seeks to raise a medical negligence claim, he must comply
with the requisites of Delaware's Health Care Negligence Insurance and Litigation Act.
18 Del. C. §§ 6801-65. 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 Foundation, 253 F. Supp. 2d_ 801, 804 (D. Del. 2003) (quoting
_Green v. Weiner, 766 A.2d 492, 494-95 (Del. 2001 )); 18 Del. C. § 6853. To the extent

Plaintiff alleges medical negligence, at the time he filed his Complaint he was required
to submit an affidavit of merit as to each defendant signed by an expert witness. 18
Del. C. § 6853(a)(1 ). He did not.

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Plaintiff failed to accompany the Complaint with an affidavit of merit as required
by 18 Del. C. § 6853(a)(1 ). Therefore, the Court will grant Defendant's motion to
dismiss any medical negligence claims Plaintiff is attempting to assert.

MOTION FOR DISCOVERY
Plaintiff filed a document titled, "Motion for Discovery." (0.1. 28) It is a request
for production of documents. The motion will be dismissed as premature. Discovery
may commence upon entry of the Court's scheduling order, which will follow once ·
Defendant has answered the Amended Complaint..

CONCLUSION
For the above reasons, the Court will: (1) grant in part and deny Defendant's
motion to dismiss (D.I. 20); and (2) dismiss as premature Plaintiff's motion for discovery.

(0.1. 28).
An appropriate order will be entered.

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