Morris v. James T. Vaughn Correctional Center

Filing 80

MEMORANDUM. Signed by Judge Richard G. Andrews on 7/27/2020. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
TYRONE J. MORRIS,
Plaintiff,
v.
CARLA COOPER,
Defendant.

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Civil Action No. 18-252-RGA

MEMORANDUM
1.

Introduction. Plaintiff Tyrone J. Morris, an inmate at the James T.

Vaughn Correctional Center in Smyrna, Delaware, filed this action pursuant to 42
U.S.C. § 1983. (D.I. 1). He appears pro se and has been granted leave to proceed in
forma pauperis. (D.I. 7). The Second Amended Complaint, which alleges that
Defendant was deliberate indifferent to Plaintiff’s serious medical needs, is the operative
pleading. (D.I. 18). Before the Court are eight motions filed by Plaintiff. (D.I. 31, D.I.
33, D.I. 38, D.I. 40, D.I. 48, D.I. 60, D.I. 65, D.I. 66).
2.

Requests for Counsel. Plaintiff has renewed his request for counsel.

(D.I. 31, D.I. 38). The requests will be denied for the reasons set forth in the November
20, 2019 Memorandum Order. (See D.I. 27). As noted, the case is not so factually or
legally complex that requesting an attorney to represent Plaintiff is warranted. In
addition, Plaintiff has added a new ground to request counsel because he has “received
no information from his discovery.” (D.I. 38). This appears to have been the case at the
time Plaintiff made the request. However, since then Defendant has produced
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discovery requested by Plaintiff. In addition, the docket indicates that Plaintiff has been
able to navigate the Federal Rules of Civil Procedure in seeking and obtaining
discovery. Counsel is not necessary at this time. Accordingly, the Court will deny
without prejudice to renew Plaintiff’s requests for counsel. (D.I. 31, D.I. 38).
3.

Motion to Amend. Plaintiff moves to amend the Second Amended

Complaint to reinstate Connections as a defendant. Plaintiff seeks to add claims that
Connections is subject to liability under the theory of respondeat superior when it
selected an employee who performed negligently as well as that Defendant and
Connections were medically negligent. (D.I. 33). In the motion, Plaintiff also states that
Connections has a practice of saving money and retaining negligent employees who do
not follow procedures. 1 Defendant opposes the motion. (D.I. 37).
4.

Federal Rule of Civil Procedure 15(a)(2) provides that the Court “should

freely give leave [to amend] when justice so requires” and this includes “amendment to
cure defective allegations.” Shifflett v. Korszniak, 934 F.3d 356, 366-67 (3d Cir. 2019)
However, “undue delay, bad faith, dilatory motive, prejudice, [or] futility” could all “justify
a denial of leave to amend.” Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000).
5.

“‘Futility’ means that the complaint, as amended, would fail to state a claim

upon which relief could be granted” under the standard of Federal Rule of Civil
Procedure 12(b)(6).” Lejon-Twin El v. Marino, 722 F. App’x 262, 265 (3d Cir. 2018)

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Except for three pages of the proposed third amended complaint, the Second
Amended Complaint is almost identical to the proposed third amended complaint.
(Compare D.I. 18 to D.I. 33-1). The new allegations in the proposed third amended
complaint are found at Docket Item 33-1, pages 18-20.
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(quoting Shane, 213 F.3d at 115). In evaluating whether a plaintiff has stated a claim
upon which relief could be granted, the court accepts “all factual allegations as true,
construe[s] the complaint in the light most favorable to the plaintiff, and determine[s]
whether, under any reasonable reading of the complaint, the plaintiff may be entitled to
relief.” Bronowicz v. Allegheny Cty., 804 F.3d 338, 344 (3d Cir. 2015).
6.

Here, there is futility in amendment. The proposed third amended

complaint alleges that Plaintiff “needed assistance [and that] Connections should be
liable for negligence having a[n] incompetent medical staff.” (D.I. 33-1 at 19) Plaintiff
wants to keep Cooper in the lawsuit for medical malpractice and complete indifference
to his needs. (Id.). Plaintiff also alleges that Connections “show[ed] a practice of
overlooking and saving money [and] keeping [the] same people to work for them.” (Id.
at 18). Finally, the proposed third amended complaint states, “this lawsuit is for . . .
medical malpractice on Carla Cooper and her employer Connections.” (D.I. 33-1 at 20).
7.

The proposed amendment alleges negligence. Allegations of medical

malpractice are not sufficient to establish a Constitutional violation. White v. Napoleon,
897 F.2d 103, 108-09 (3d Cir. 1990); see also Daniels v. Williams, 474 U.S. 327, 332-34
(1986) (negligence is not compensable as a constitutional deprivation).
8.

In addition, when a plaintiff relies upon a theory of respondeat superior to

hold a corporation liable, he must allege a policy or custom that demonstrates such
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). In order to
establish that Connections is directly liable for the alleged constitutional violations,
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Plaintiff must allege that there was a relevant Connections policy or custom, and that
the policy caused the constitutional violation Plaintiff alleges. Because respondeat
superior or vicarious liability cannot be a basis for liability under 42 U.S.C. § 1983, a
corporation under contract with the state cannot be held liable for the acts of its
employees and agents under those theories. See Natale v. Camden Cty. Corr. Facility,
318 F.3d 575, 584 (3d Cir. 2003). Here, Plaintiff attempts to allege a Connections
policy. However, the allegations do not allege deliberate indifference; they allege
negligence, which does not rise to the level of a constitutional violation. Therefore, the
motion to amend will be denied. (D.I. 33).
9.

Motions to Compel. Plaintiff has filed several motions to compel. The

first, filed March 13, 2020, seeks to compel responses to discovery served on
Defendant on January 21, 2020 and particularly all medical records and other
information Plaintiff requested. (See D.I. 35, 36, 40). On March 31, 2020, Defendant
produced Plaintiff’s medical records totaling 377 pages. (See D.I. 42, D.I. 43). The first
motion to compel will be denied. (D.I. 40).
10.

The second motion to compel, filed June 5, 2020, seeks the names and

addresses of witnesses that Plaintiff requested in his original discovery. (D.I. 60). The
motion will be denied without prejudice to renew should the parties be unable to resolve
their discovery dispute. In reading the third and fourth motions to compel, filed June 8,
2020, it is apparent that they are both discovery requests and not motions. Therefore,
the third and fourth motions to compel will be dismissed as moot. (D.I. 65, D.I. 66).

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11.

On June 11, 2020, Defendant indicated that she has responded to all of

Plaintiff’s discovery requests, that she had written to Plaintiff to identify what discovery
Plaintiff believed to be outstanding, and that she would respond to any motions once
Plaintiff responded. (D.I. 72). Plaintiff provided the Court a courtesy copy of his
response, and it indicates that he does not have witnesses, reports or statements from
the DOC or witnesses, rules, regulations, and policies regarding treatment for psoriasis.
(D.I. 73). The parties will be ordered to advise the Court if the discovery Plaintiff
requested has been produced, whether the discovery sought is within Defendant’s
possession or control, or if objections have been lodged to any of the requests for
discovery that has not been produced.
12.

Motion for Court Appointed Expert. Plaintiff moves for a court

appointed expert witness pursuant to Rule 706 to help him understand his medical
records. (D.I. 48). Federal Rule of Evidence 706 provides that a District Court may
“order the parties to show cause why expert witnesses should not be appointed.” Fed.
R. Evid. 706(a).
13.

“[A] court does not have the power to tilt the scales in favor of one litigant

by funding its expert witnesses under [Rule 706].” Young v. Martin, 801 F.3d 172, 185
(3d Cir. 2015) As explained by the Third Circuit, “the District Court could appoint an
expert for the purpose of assisting the Court, and the rule is clear that an expert so
appointed should be paid either from ‘funds provided by law’ or ‘by the parties in such
proportion and at such time as the court directs, and thereafter charged in like manner
as other costs.’” Young, 801 F.3d at 185. In addition, were I to use Rule 706 to appoint
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an expert witness, the exercise of such authority would be in my discretion. Born v.
Monmouth Cty. Correct. Inst., 458 F. App’x 193, 198 (3d Cir. 2012) (citing Hannah v.
United States, 523 F.3d 597, 601 n.2 (5th Cir. 2008)).
14.

Plaintiff does not present any evidence that an expert is necessary for the

Court’s benefit at this stage of the litigation. Instead, Plaintiff moves for an expert to
help him understand his medical records. Assuming I have the power to do so, I do not
think that would be a good use of a court-appointed expert. Therefore, the motion to
appoint an expert will be denied. (D.I. 48).
15.

Conclusion. Based upon the above discussion, the Court will: (1) deny

without prejudice to renew Plaintiff’s requests for counsel (D.I. 31, 38); (2) deny
Plaintiff’s motion to amend (D.I. 33); (3) deny Plaintiff’s first motion to compel (D.I. 40);
(4) deny without prejudice to renew Plaintiff’s second motion to compel (D.I. 60);
(5) dismiss as moot Plaintiff’s third motion to compel (D.I. 65); (6) dismiss as moot
Plaintiff’s fourth motion to compel (D.I. 66); and (7) deny Plaintiff’s motion for a court
appointment expert (D.I. 48). A separate order shall issue.

__/s/ Richard G. Andrews________________
UNITED STATES DISTRICT JUDGE

July 27, 2020
Wilmington, Delaware

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