Martinez v. Marcanteino et al

Filing 28

MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 3/13/19. (sar)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
OSCAR :MARTINEZ,
Plaintiff,

v.

: Civ. No. 17-922-LPS

MICHELLE :MARCANTUNO, et al.,
Defendants.

Oscar Martinez, Newark, Delaware, Pro Se Plaintiff.

MEMORANDUM OPINION

March 13, 2019
Wilmington, Delaware

I.

INTRODUCTION
Plaintiff Oscar Martinez ("Plaintiff"), a former inmate at the James T. Vaughn Correctional

Center in Smyrna, Delaware, now released, filed this action pursuant to 42 U.S.C. § 1983. 1 (D.I. 2, 6)
He appears prose and has been granted leave to proceed informa pauperis. (D.I. 8, 26) He seeks
injunctive relief and requests counsel. (D.I. 13, 20) The Court proceeds to review and screen the
matter pursuant to 28 U.S.C. § 1915(e)(2)(b) and§ 1915A(a).

II.

BACKGROUND
Plaintiff was placed on suicide watch in 2016. He alleges that following the 2016 dismissal

of a complaint he had filed in the Delaware Superior Court against Defendant Connections C.S.P.
("Connections"), medical and mental health care providers retaliated against him for his continued
complaints about the lack of care.
Specifically, Plaintiff alleges that in April 2017, Defendant Michelle Marcantuno
("Marcantuno") retaliated against him when she took him off all mental health medication. He
alleges that Marcantuno told Plaintiff that if he continued to complain, she would take him off the
medication for two months. Plaintiff alleges that as of July 2017, Marcantuno and the entire mental
health staff refuse to meet with him. He further alleges that medical staff and mental health
practitioners are under-prescribing his medications. He constantly complains to seek an increase in
dosage, but medical and mental health refuse to help. Plaintiff alleges that he personally told
Defendant Peter Osinibi ("Osinibi") he would kill someone when he is released if his issues are not
addressed.

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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. See
West v. Atkins, 487 U.S. 42, 48 (1988).

1

Plaintiff alleges that Connections fails to promptly acknowledge and provide the minimum
appropriate care for mentally ill inmates. He alleges that inmates are retaliated against for being
outspoken when requests for legal calls are not scheduled and sick call requests are not honored.
Plaintiff alleges that he does not receive treatment in a confidential setting and the rounds in
restrictive housing consist of a contractor who looks in the window without engaging in any
conversation. Plaintiff alleges that Connections fails to address his mental health status and
continues to threaten him with PCO (psychiatric close observation) status by placing him on suicide
watch without clothing. Plaintiff feels he is in imminent danger of harm to himself and others and is
frustrated with the level of care.
Plaintiff filed his complaint on July 10, 2017. (D.I. 1) He filed an Amended Complaint
("Complaint") on July 24, 2017. (D.I. 6) For relief, Plaintiff seeks a court-ordered medical opinion
by an outside medical provider, an evaluation by Rockford or MeadowWood Hospital, and
compensatory damages. On March 28, 2018, Plaintiff filed a motion for injunctive relief to receive
treatment for his mental illness. (D.I. 13) He also requests counsel. (D.I. 20)

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." Ball v. Famiglio, 726 F.3d 448, 452 (3d Cir. 2013); see also 28 U.S.C. § 1915(e)(2) (in jof7l2a

pauperis actions); 28 U.S.C. § 1915A (actions in which prisoner seeks redress from governmental
defendant); 42 U.S.C. § 1997 e (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 prose plaintiff. See Phillips v. County ofAlleghef!J, 515 F.3d 224, 229 (3d Cir. 2008).
Because Plaintiff proceeds pro se, his pleading is liberally construed and his Complaint, "however
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inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by
lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (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 meritless legal theory" or a
"clearly baseless" or "fantastic or delusional" factual scenario. Neitzke, 490 U.S. at 327-28; see also

Wilson v. &ckmzll, 878 F.2d 772, 774 (3d Cir. 1989); Deutsch v. United States, 67 F.3d 1080, 1091-92 (3d
Cir. 1995) (holding frivolous a suit alleging that prison officials took 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(6)(6) motions. See Tourscher v. McCullough, 184 F.3d 236,240 (3d Cir. 1999) (applying Fed. R. Civ.
P. 12(6)(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 1915A, the Court must grant a
plaintiff leave to amend his complaint unless amendment would be inequitable or futile. See Grqyson

v. 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." Be!IAtL Cop. v. Twomb!J, 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) (internal quotation
marks omitted). In addition, a complaint must contain sufficient factual matter, accepted as true, to

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state a claim to relief that is plausible on its face. See Williams v. BASF Cata!Jsts l.LC, 765 F.3d 306,
315 (3d Cir. 2014) (citing Ashcrl!ft v. Iqbal, 556 U.S. 662, 678 (2009) and Twomb!J, 550 U.S. at 570).
Finally, a plaintiff must plead facts sufficient to show that a claim has substantive plausibility. See

Johnson v. Ci!J of Shelly, _U.S._, 135 S.Ct. 346,347 (2014). A complaint may not be dismissed for
imperfect statements of the legal theory supporting the claim asserted. See id. at 346.
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 Const. 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
A

Personal Involvement.

Even when liberally construing Plaintiff's allegations, the facts do not indicate any violations
of Plaintiff's constitutional rights. Plaintiff names a number of defendants, but only Marcantuno
and Osinibi are specifically referred to in the Complaint. As a result, the claims are facially deficient.

See Ashcrl!ft, 556 U.S. at 676-77; see also Solan v. Ranck, 326 F. App'x 97, 100-01 (3d Cir. May 8, 2009)
("A defendant in a civil rights action must have personal involvement in the alleged wrongs."). The
Complaint does not allege any direct or personal involvement by Defendants David Yunis,
Stephanie 1fachell, Paulo Munoz, Carla Miller, or Kathleen Gustafenson. In addition, Plaintiff's

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allegation that he told Osinibi he would kill someone when released from prison falls far short from
raising a constitutional violation claim.

B.

Retaliation.

The retaliation claim is also deficiently pled. "Retaliation for the exercise of constitutionally
protected rights is itself a violation of rights secured by the Constitution actionable under § 1983."

White v. Napoleon, 897 F.2d 103, 111-12 (3d Cir. 1990). Proof of a retaliation claim requires Plaintiff
to demonstrate that: (1) he engaged in protected activity; (2) he was subjected to adverse actions by a
state actor; and (3) the protected activity was a substantial motivating factor in the state actor's
decision to take adverse action. See Carter v. McGrar!_y, 292 F.3d 152, 158 (3d Cir. 2002) (citing Mt.

Healtf?y Bd. of Educ. v. Dqyle, 429 U.S. 274, 287 (1977)); see also Allah v. Seiverling, 229 F.3d 220 (3d Cir.
2000) (factfinder could conclude that retaliatory placement in administrative confinement would
"deter a person of ordinary firmness from exercising his First Amendment rights") (internal citations
omitted). The causation element requires a plaintiff to prove either: (1) an unusually suggestive
temporal proximity between the protected activity and the allegedly retaliatory action, or (2) a
pattern of antagonism coupled with timing to establish a causal link. See Lauren W ex rel. Jean W v.

DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007); Krouse v. American Sterilizer Co., 126 F.3d 494, 503-04
(3d Cir. 1997).
Plaintiff has met the first element of a retaliation claim. However, the Complaint does not
allege the second and third prongs of a prima facie case.
The retaliation claim against Connections is pled in a conclusory manner.
With regard to the claim against Marcantuno, the Complaint does not allege adverse
treatment; the allegations that he constantly complains to have his dosages increased indicates he
receives medication. Further, Plaintiff has not alleged causation through the suggestive timing of the
alleged withholding of medication or a pattern of antagonism coupled with timing. The Delaware

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Superior Court complaint was dismissed in June 2016, yet the alleged actions by Marcantuno did not
take place until April 2017, some nine months later. See Keeling v. Barrager, 666 F. App'x 153, 155 (3d
Cir. Nov. 18, 2016) (no causal connection because several months passed between filing of
grievance and alleged retaliatory conduct). The claims will be dismissed as frivolous.

C.

Medical/Mental Health Needs.

Plaintiff's attempts to raise medical/mental health needs claims also fail. The Eighth
Amendment proscription against cruel and unusual punishment requires that prison officials provide
inmates with adequate medical care. See Estelle v. Gamble, 429 U.S. 97, 103-05 (1976). In order to set
forth a cognizable claim of a violation of this right, an inmate must allege (i) a serious medical need
and (ii) acts or omissions by prison officials that indicate deliberate indifference to that need. See id.
at 104; Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). A prison official is deliberately indifferent
if he knows that a prisoner faces a substantial risk of serious harm and fails to take reasonable steps
to avoid the harm. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). A prison official may manifest
deliberate indifference by "intentionally denying or delaying access to medical care." Estelle, 429 U.S.
at 104-05.
"[A] prisoner has no right to choose a specific form of medical treatment," so long as the
treatment provided is reasonable. Lisko v. Watts, 3 73 F. App'x 196, 203 (3d Cir. Apr. 12, 2010)
(quoting Harrison v. Barklry, 219 F.3d 132, 138-140 (2d Cir. 2000)). An inmate's claims against
members of a prison medical department are not viable under § 1983 where the inmate receives
continuing care, but believes that more should be done by way of diagnosis and treatment and
maintains that options available to medical personnel were not pursued on the inmate's behalf. See

Estelle, 429 U.S. at 107. Finally, "mere disagreement as to the proper medical treatment" is
insufficient to state a constitutional violation. Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004)
(internal citations omitted).

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When a plaintiff relies on respondeat superior to hold a corporation liable, he must allege a
policy or custom that demonstrates deliberate indifference. See 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). Hence, in
order to establish that Connections is directly liable for alleged constitutional violations, Plaintiff
"must provide evidence that there was a relevant [Connections] policy or custom, and that the policy
caused the constitutional violation[s] [plaintiff] allege[s]." Natale v. Camden Cry. Co!T. Faciliry, 318
F.3d 575, 584 (3d Cir. 2003) (because respondeat superior or vicarious liability cannot be basis for
liability under 42 U.S.C. § 1983, corporation under contract with state cannot be held liable for acts
of its employees and agents under those theories).
Even when reading the Complaint in the light most favorable to Plaintiff, he fails to state
actionable constitutional claims against Defendants for deliberate indifference to a serious medical
need. Rather, the Complaint alleges that Plaintiff is receiving mental health treatment, albeit not to
his liking. In addition, the Complaint does not allege a policy, custom, or practice by Connections
that amounts to deliberate indifference. Therefore, the claims will be dismissed as frivolous.

V.

REQUEST FOR COUNSEL
In his Complaint, Plaintiff requests counsel on the grounds that the issues are complex, and

he has unsuccessfully sought counsel. (D.I. 6) He provides a list of his medications to support his
request. (D.I. 20) The Court will dismiss the Complaint as frivolous and, therefore, Plaintiff's
request for counsel will be denied as moot

VI.

INJUNCTIVE RELIEF
Plaintiff seeks injunctive relief on the grounds that he is being denied mental health

treatment. (D.l. 13) Plaintiff was released from prison on May 31, 2018. (See D.l. 22) Because
Plaintiff is no longer incarcerated, the request is moot, and injunctive relief may not issue. "The
relevant inquiry is whether the movant is in danger of suffering irreparable harm at the time the
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preliminary injunction is to be issued." SI Handling Sys., Inc. v. Heislry, 753 F.2d 1244, 1264 (3d Cir.
1985).
In the alternative, even were the motion not moot, Plaintiff has not demonstrated either the

likelihood of success on the merits, nor irreparable harm to justify the issuance of immediate
injunctive relief. Plaintiff states that he will be released in May 2018 and he is not mentally
prepared. 2 He asks to be placed in mental health housing to alleviate his fears of doing something
he will regret upon his release.
A preliminary injunction is "an extraordinary remedy that 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;
(3) granting the injunction will not result in irreparable harm to the defendant; and (4) granting the
injunction is in the public interest." NutraSweet Co. v. Vit-Mar Ente,prises, Inc., 176 F.3d 151, 153 (3d
Cir. 1999) ("NutraSweet II"). The elements also apply to temporary restraining orders. See NutriSweet

Co. v. Vit-Mar Ente,prises., Inc., 112 F.3d 689,693 (3d Cir. 1997) ("NutraSweet I"). "[F]ailure to
establish any element in [a plaintiffs] favor renders a preliminary injunction inappropriate."

NutraSweet II, 176 F.3d at 153. Furthermore, because of the intractable problems of prison
administration, a request for injunctive relief in the prison context must be viewed with considerable
caution. See R.ush v. Correctional Med. Services, Inc., 287 F. App'x 142, 144 (3d Cir. July 31, 2008) (citing

Gojf v. Ha,per, 60 F.3d 518,520 (8th Cir. 1995)).
In opposition to the motion, VCC Warden Dana Metzger ("Metzger") provides the

declaration of Vincent F. Carr, D.O. ("Dr. Carr"), Medical Director of the Bureau of Correctional
Health Care Services for the Delaware Department of Correction ("DOC"). (D .I. 17-1) Dr. Carr
reviewed Plaintiff's medical records. The records indicate that since at least December 2015,
Plaintiff received, and (through the date of the declaration) continued to receive, mental health

2

Plaintiff subsequently advised the Court that he was released from prison. (See D.I. 22)
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treatment through the DOC's medical provider. He is seen by mental health professionals at least
once per month and receives more frequent mental health segregation rounds. He has been
prescribed several medication for his condition. He was seen as late as April 4, 2018 and was
expected to continue to be seen and treated until his release from prison, unless the treatment plan
were to dictate otherwise.
The record indicates that, contrary to the position in his motion, Plaintiff received, and
continued to receive, mental health treatment. In addition, his condition was regularly monitored by
mental health professionals. In light of the foregoing, the Court finds that Plaintiff has not
demonstrated either the likelihood of success on the merits, nor irreparable harm to justify the
issuance of immediate injunctive relief. Therefore, the motion for injunctive relief will be denied.

(D.I. 13)

VII.

CONCLUSION
For the above reasons, the Court will: (1) dismiss the Complaint as frivolous pursuant 28

U.S.C. §§ 191S(e)(2)(B)(i) and 191SA(b)(1); (2) deny as moot Plaintiff's request for counsel (D.I. 6,
20); and (3) deny Plaintiff's motion for injunctive relief (D.I. 13). The Court finds amendment futile.
An appropriate Order will be entered.

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