Wenzke v. Metzger et al

Filing 12

MEMORANDUM. Signed by Judge Gregory M. Sleet on 5/29/2018. (crb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ADAM WENZKE,
Plaintiff,
V.

WARDEN METZGER, et al. ,
Defendants.

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) Civ. Action No. 18-299-GMS
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MEMORANDUM
I.

INTRODUCTION
The plaintiff, Adam Wenzke ("Wenzke"), an inmate at the James T. Vaughn Correctional

Center ("VCC") in Smyrna, Delaware, filed this lawsuit pursuant to 42 U .S.C. § 1983 alleging
violations of his constitutional rights. (D.1. 3, 11.) He appears prose and was granted
permission to proceed informapauperis pursuant to 28 U.S.C. § 1915. He has also filed a
request for counsel. (D.I . 8.)

II.

BACKGROUND
The complaint alleges violations of the Eighth and Fourteenth Amendments as well as

breach of contract. Wenzke alleges that all defendants were deliberately indifferent to his
serious medical needs and he was denied his right to equal protection when he was refused
medical care, prison employment, and educational and computer classes.
Wenzke alleges that thirteen years ago he was diagnosed with bi-polar disorder,
depression, and anxiety. Over the years he has tried "just about every mental health medication"
so he knows first-hand what works for him and what does not work for him. (D.I. 3 at ,r 2.) On

March 29, 2016, Wenzke was transferred from Howard R. Young Correctional Institution to
VCC. When Wenzke arrived at VCC, he spoke to mental health and was told he would be seen
by a mental health physician because his medication was causing side effects.
Wenzke's main complaint is that each defendant mental health care provider will not
provide him the type of medication he requests. Instead he is prescribed medication the mental
health care providers believe is appropriate for Wenzke. The defendants include Dr. Tanya
Wilson ("Dr. Wilson"), Dr. August ("Dr. August"), Dr. Padrell ("Dr. Padrell"), Dr. Susan ("Dr.
Susan") and Dr. Moses ("Dr. Moses"). Wenzke alleges that the medication prescribed him cause
side-effects to a greater extent than the medication he used to take. At one point, Wenzke
stopped taking his medication due to the side-effects. He later resumed taking mental health
medication. In many instances, Wenzke submitted grievances complaining that he was not
provided with appropriate mental health treatment when he was not provided with medications
that had worked for him in the past. Wenzke alleges that the defendant Judith Caprio ("Caprio")
denied one of his grievances.
The complaint further alleges that the defendant mental health director Paola Munoz
("Munoz") failed to respond his letters complaining of his mental health treatment and asking for
help, although Munoz responded to Wenzke's request for an affidavit of merit. The complaint
also alleges that Wenzke wrote to the defendant Warden Metzger ("Metzger") on at least two
occasions explaining his situation, complaining that he was not receiving treatment, and asking
for help.
The complaint alleges that the defendant Connections ("Connections"), the contract
health care provider for VCC, failed to train and supervise Munoz, its mental health directors,

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and its mental health physicians, that it has a policy of refusing to prescribe certain medication
such as Wellbutrin, and has a custom, practice or policy of failing to provide a reasonable
diagnosis and/or treatment for mental health problems.
Wenzke alleges that he was refused employment in the prison kitchen after two
interviews and undergoing physicals. Following the second physical, Wenzke was told he
probably would not be hired due to a medical condition and because he was on the mental health
roster. Since then he has submitted numerous job applications, but has received no replies to his
applications. He also alleges that his requests for education have been refused. Finally, Wenzke
alleges breach of contract because the defendants refuse to let him see a list of alternative
medications and their side effects and refuse to discuss alternative treatment options.
The defendants are sued in their individual and official capacities. Wenzke seeks
compensatory and punitive damages, declaratory relief, and injunctive relief in the form of
proper mental health treatment.

III.

STANDARD OF REVIEW
A federal court may properly dismiss an action sua sponte under the screening provisions

of 28 U.S .C. § 1915(e)(2)(8) 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) (informapauperis actions) ; 28 U.S .C. § 1915A (actions in which prisoner
seeks redress from a governmental defendant); 42 U.S.C. § l 997e (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. Phillips v. County ofAllegheny,

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515 F.3d 224,229 (3d Cir. 2008); Erickson v. Pardus, 551 U.S. 89, 93 (2007). Because Wenzke
proceeds prose, his pleading is liberally construed and his complaint, "however inartfully
pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers."

Erickson v. Pardus, 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)(l), 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 at 32728; Wilson v. Rackmill, 878 F.2d 772, 774 (3d Cir. 1989); see, e.g., Deutsch v. United States, 67
F.3d 1080, 1091-92 (3d 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)(l) is identical to the legal standard used when ruling on Rule
12(b)(6) motions. Tourscher v. McCullough, 184 F.3d 236,240 (3d Cir. 1999) (applying Fed. R.
Civ. P. 12(b)(6) standard to dismissal for failure to state a 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 of28 U.S.C. §§ 1915 and 1915A, the court
must grant Wenzke leave to amend his complaint unless amendment would be inequitable or
futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).
A well-pleaded complaint must contain more than mere labels and conclusions. See

Ashcroft v. Iqbal, 556 U.S . 662 (2009); Bell At!. Corp. v. Twombly, 550 U.S. 544 (2007). A
plaintiff must plead facts sufficient to show that a claim has substantive plausibility. See

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Johnson v. City of Shelby, _U.S._, 135 S.Ct. 346, 347 (2014). A complaint may not dismissed,
however, for imperfect statements of the legal theory supporting the claim asserted. See id. at
346.
Under the pleading regime established by Twombly 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. Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir.
2016) (internal citations and quotations omitted). Elements are sufficiently alleged when the
facts in the complaint "show" that the plaintiff is entitled to relief. Iqbal, 556 U.S. at 679
(quoting Fed. R. Civ. P. 8(a)(2)). Deciding whether a claim is plausible will be a "contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense." Id.

IV.

DISCUSSION
A.

Medical Needs

Wenzke alleges that the defendants violated his right to equal protection under the
Fourteenth Amendment by refusing medical care. In addition, he alleges the defendants have not
provided him appropriate mental health treatment and will not administer him the medication he
needs in violation of the Eighth Amendment.
A plaintiff may bring an equal protection claim under two legal theories: (1) by alleging
a defendant treated him differently from other similarly situated individuals because of his

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membership in an identifiable or protected class, such as race, religion, sex, or national origin,
Mack v. Warden Loretto FCI, 839 F.3d 286, 305, n.112 (3d Cir. 2016); or (2) in a "class of one",
by alleging a defendant treated him differently from others similarly situated for arbitrary or
irrational reasons, Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); Phillips v. County
ofAllegheny, 515 F.3d at 243. As pied, the conclusory allegations do not provide a basis to show
how the defendants violated Wenzke' s right to equal protection with regard to mental health
treatment. See e.g., Tindell v. Beard, 351 F. App'x 591 (3d Cir. 2009) (unpublished).
In addition, the medical needs claims under the Eighth Amendment are deficiently pied.
The Eighth Amendment proscription against cruel and unusual punishment requires that prison
officials provide inmates with adequate medical care. Estelle v. Gamble, 429 U.S. 97, 103-105
(1976). In order to set forth a cognizable claim, an inmate must allege (i) a serious medical need
and (ii) acts or omissions by prison officials that indicate deliberate indifference to that need.
Estelle v. Gamble, 429 U.S . 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. 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 v. Gamble, 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. Lasko v. Watts, 373 F. App ' x 196,203 (3d Cir. 2010)
(unpublished) (quoting Harrison v. Barkley, 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

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treatment and maintains that options avai lable to medical personnel were not pursued on the
inmate's behalf. Estelle v. Gamble, 429 U.S. at 107. Moreover, allegations of medical
malpractice are not sufficient to establish a Constitutional violation. White v. Napoleon , 897
F.2d 103, 108-09 (1990) (citations omitted); see also Daniels v. Williams, 474 U.S. 327, 332-34
(1986) (negligence is not compensable as a Constitutional deprivation). Finally, "mere
disagreement as to the proper medical treatment" is insufficient to state a constitutional violation.
See Spruill v. Gillis, 372 F.3d 218,235 (3d Cir. 2004) (citations omitted).
In addition, the U.S. Court of Appeals for the Third Circuit has concluded that prison
administrators cannot be deliberately indifferent "simply because they failed to respond directly
to the medical complaints of a prisoner who was already being treated by the prison doctor.'
Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993). The Third Circuit clarified that "[i]f a
prisoner is under the care of medical experts .. . a non-medical prison official will generally be
justified in believing that the prisoner is in capable hands." Spruill v. Gillis, 372 F.3d at 236
(discussing Durmer, 991 F.2d at 69). "[A]bsent a reason to believe (or actual knowledge) that
prison doctors or their assistants are mistreating (or not treating) a prisoner, a non-medical prison
official . . . will not be chargeable with the Eighth Amendment scienter requirement of deliberate
indifference." Id. at 236.
Even when reading the complaint in the most favorable light to Wenzke, he fails to state
an actionable constitutional claim against the individual named defendants for deliberate
indifference to a serious medical need. His claims speak to dissatisfaction with the treatment
provided, while indicating that he receives treatment. He alleges that all medication
administered him causes side effects, but the medication currently provided him causes side

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effects to a greater extent than the medication he has taken in the past and wishes to take. As
currently pled, the complaint contains frivolous allegations and fails to state claims for deliberate
indifference to serious mental health/medical needs.
Further, because the complaint currently fails to state claims that the individual mental
health medical defendants violated Wenzke's constitutional rights under the Eighth Amendment,
it follows that, as pied, Connections, cannot be liable based on the theory that it established or
maintained an unconstitutional policy or custom responsible for violating Wenzke's rights. See

Goodrich v. Clinton Cnty. Prison, 214 F. App'x 105, 113 (3d Cir. 2007) (unpublished) (policy
makers not liable in prison medical staffs alleged deliberate indifference to prisoner's serious
medical needs, where, given that there was no underlying violation of prisoner's rights, policy
makers did not establish or maintain an unconstitutional policy or custom responsible for
violating prisoner' s rights).
Accordingly, the medical/mental health claims will be dismissed pursuant to 28 U.S.C.
§§ 1915(e)(2)(B)(i) and (ii) and 1915A(b)(l). However, since it appears plausible that Wenzke
may be able to articulate a claim or claims against the defendants or alternative defendants, he
will be given an opportunity to amend the claims.
B.

Prison Employment

Wenzke complains that he is denied prison employment. Prisoners, however, have no
entitlement to a specific job, or even to any job. James v. Quinlan, 866 F.2d 627, 630 (3d Cir.
1989); see also Flittie v. Solem, 827 F.2d 276, 279 (8th Cir. 1987) (inmates have no
constitutional right to be assigned a particular job). Therefore, the Court will dismiss the claim as
frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and § l 915A(b )(1 ).

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C.

Education

Wenzke complains that he is not provided educational or computer classes. However,
prisoners have no constitutional right to an education. See Flanyak v. Ross, 153 F. App'x 810,
812 (3d Cir. Oct. 13, 2005); Canterino v. Wilson, 869 F.2d 948, 952-54 (6 th Cir. 1989); Risso v.
Dawson, 778 F.2d 527, 530-31 (9 th Cir. 1985); Garza v. Miller, 688 F.2d 480, 486 (7 th Cir.
1982); Longendorfer v. Roth, 1992 WL 95919, at* 1 (E.D. Pa. April 23 , 1992). The claims will
be dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B) and§ 1915A(b)(l).
D.

Grievances

To the extent Wenzke attempts to raise claims regarding the grievances he submitted, the
claims are not cognizable. The filing of prison grievances is a constitutionally protected activity.
Robinson v. Taylor, 204 F. App'x 155, 157 (3d Cir. 2006) (unpublished). To the extent that
Wenzke bases his claims upon his dissatisfaction with the grievance procedure or denial of his
grievances, the claims fail because an inmate does not have a "free-standing constitutionally
right to an effective grievance process." Woods v. First Corr. Med. , Inc. , 446 F. App'x 400,403
(3d Cir. 2011) (unpublished) (citing Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991)). Notably,
the denial of grievance appeals does not in itself give rise to a constitutional claim as Wenzke is
free to bring a civil rights claim in District Court. Winn v. Department of Corr., 340 F. App'x
757, 759 (3d Cir. 2009) (unpublished) (citing Flick v. Alba, 932 F.2d at 729).
Wenzke cannot maintain a constitutional claim based upon his perception that his
grievances were not properly processed, that they were denied, or that the grievance process is
inadequate. Therefore, the Court will dismiss the claims as frivolous pursuant to 28 U.S .C.
§ 1915(e)(2)(B)(i) and§ 1915A(b)(l).

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E.

Request for Counsel

Wenzke seeks counsel on the grounds that he does not have the ability to present his own
case, is unskilled in the law and the issues are complex, the case may tum on credibility
determinations, expert witnesses will be necessary, he cannot attain and afford counsel on his
own behalf, counsel would serve the best interest of justice, and his allegations if proven would
establish a constitutional violation. (D.I. 8.) A prose litigant proceeding informapauperis has
no constitutional or statutory right to representation by counsel. 1 See Brightwell v. Lehman, 637
F.3d 187, 192 (3d Cir. 2011); Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993). However,
representation by counsel may be appropriate under certain circumstances, after a finding that a
plaintiffs 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. Factors to be considered by a court in deciding whether to
request a lawyer to represent an indigent plaintiff include: ( 1) the merits of the plaintiffs claim;
(2) the plaintiffs ability to present his or her case considering his or her education, literacy,
experience, and the restraints placed upon him or her by incarceration; (3) the complexity of the
legal issues; (4) the degree to which factual investigation is required and the plaintiffs ability to
pursue such investigation; (5) the plaintiffs capacity to retain counsel on his or her own behalf;
and (6) the degree to which the case turns on credibility determinations or expert testimony. See

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See Mallard v. United States Dist. Court for the S. Dist. of Iowa, 490 U.S . 296 (1989)
(§ 1915(d) (now§ 1915(e)(l)) does not authorize a federal court to require an unwilling attorney
to represent an indigent civil litigant, the operative word in the statute being "request.").
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Montgomery v. Pinchak, 294 F.3d 492, 498-99 (3d Cir. 2002); Tabron, 6 F.3d at 155-56. The
list is not exhaustive, nor is any one factor determinative. Tabron, 6 F.3d at 157.
After reviewing the plaintiffs request, the court concludes that the case is not so factually
or legally complex that requesting an attorney is warranted. To date, the filings in this case
demonstrate the plaintiffs ability to articulate his claims and represent himself. In addition, the
complaint as currently pled, fails to state cognizable claims. Thus, in these circumstances, the
court will deny without prejudice to renew the plaintiffs request for counsel. (D.I. 8.) Should
the need for counsel arise later, one can be appointed at that time.

V.

CONCLUSION
For the above reasons, the court will dismiss all defendants and the complaint as

frivolous and for failure to state claims upon which relief may be granted pursuant to 28 U.S .C.
§§ 1915(e)(2)(B)(i) and (ii), and 1915A(b)(l). Wenzke will be given leave to amend the mental
health/medical needs claims. His request for counsel will be denied without prejudice to renew.
(D.I. 8.)
An appropriate order will be entered.

t1 :l 'l-:'1

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2018
Wilmingt n, Delaware

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