Smith III v. Coupe et al
Filing
46
MEMORANDUM OPINION Signed by Judge Colm F. Connolly on 6/5/2020. (nmf)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
KENDALL MAURICE SMITH, Ill,
Plaintiff,
V.
LAURA BRACKETT, et al.,
Defendants.
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) Civ. Action No. 18-387-CFC
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Kendall Maurice Smith, Ill, SCI Smithfield, Huntingdon, Pennsylvania. Pro Se Plaintiff.
Dana Spring Monzo, Esquire, and Kelly Elizabeth Rowe, Esquire, White & Williams,
Wilmington, Delaware, Counsel for Defendants Laura Brackett, Stacie Collins-Young,
and Penny Davis-Wipf.
Ryan Patrick Connell, Deputy Attorney General, Delaware Department of Justice,
Wilmington, Delaware. Counsel for Defendant Katrina Burley.
MEMORANDUM OPINION
June 5, 2020
Wilmington, Delaware
Plaintiff Kendall Maurice Smith, Ill ("Plaintiff'), a former inmate at the James T.
Vaughn Correctional Center, now housed at SCI Smithfield in Huntingdon,
Pennsylvania, filed this lawsuit pursuant to 42 U.S.C. § 1983 alleging violations of his
constitutional rights. (0.1. 2, 10) He appears prose and was granted permission to
proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Pending are Plaintiffs
requests for counsel, a motion for Defendants to answer the Complaint (titled "motion to
compel"), and a request for entry of default, as well as a motion to dismiss filed by
Defendants Laura Brackett ("Brackett"), Stacie Collins-Young ("Collins-Young"), and
Penny Davis-Wipf ("Davis-Wipf') ("Connections Defendants"). (D. I. 19, 22, 38, 40, 41)
I.
BACKGROUND
Plaintiff alleges that he suffered for a number of years due to extreme delay and
denial of medical treatment related to his eyes, vision, and prescription glasses. (D.I. 2,
10) Upon screening, the Court liberally construed the allegations in Plaintiffs complaint
and allowed him to proceed on what appeared to be cognizable medical needs claims
related to Grievance 334538 submitted by Plaintiff on April 10, 2016. (See 0.1. 11, 12)
The claims are raised against grievance committee members Brackett, Collins-Young,
Davis-Wipf, and non-moving Defendant Katrina Burley ("Burley"). 1 The Court dismissed
all other claims including grievance claims, medical needs claims raised against the
December 2015 grievance committee members, and all claims raised against
Defendants Robert Coupe, Marc Richman, Jane/John Doe medical director, and
John/Jane Does investigators based upon lack of personal involvement and respondeat
1
Burley answered the complaint on April 15, 2019. (D.I. 15)
superior, and because the allegations did not rise to the level of constitutional violations.
(Id.)
Grievance 334538 complained that: (1) Plaintiff's Grievance 321826 was denied
in error on December 9, 2015; (2) Plaintiff was wrongfully charged a $4.00 medical visit
fee on March 29, 2016; and (3) as of April 10, 2016, the date he submitted the
grievance, Plaintiff had not yet seen an optometrist or been provided with new
prescription eyeglasses. (D.I. 2 at 7)
The grievance committee granted Plaintiff a $4.00 medical fee refund and denied
that portion of the grievance that sought an evaluation by an optometrist and new
eyeglasses. (Id.) Plaintiff appealed. While the appeal was pending, he was seen by an
optometrist on June 14, 2016 and a few weeks later he was provided new eyeglasses.
(Id. at 6, 8) The grievance appeal was resolved on June 22, 2016. (Id.)
Connections Defendants move to dismiss on the grounds that: (1) Plaintiff failed
to exhaust his administrative remedies; (2) the claims are time-barred; and (3) the
Complaint fails to state a claim upon which relief may be granted. The Court will not
address the arguments that seek to dismiss previously dismissed claims. 2 Plaintiff did
not file an opposition to the motion to dismiss. He has, however, filed requests for
2
The Court dismissed most claims for reasons other than exhaustion of administration
remedies or as barred by the applicable two-year limitation period. Regardless, it is
apparent from the face of the Complaint that all claims that occurred more than two
years prior to the March 12, 2018 filing of the Complaint (calculated using the prison
mailbox rule) are barred by the applicable two-year limitation period. See Randall v.
City of Philadelphia LawDep't, 919 F.3d 196,199 (3d Cir. 2019); 10 Del. C. § 8119.
2
counsel, a motion for Defendants to file an answer, and a request for entry of default.
(0.1. 19, 22, 40, 41)
II.
MOTION TO DISMISS
A.
Legal Standards
Because Plaintiff proceeds pro se, 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. 89, 94 (2007). To
state a claim upon which relief can be granted a complaint must contain "a short and
plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ.
P. 8(a)(2). Detailed factual allegations are not required, but the complaint must set forth
enough factual matter, accepted as true, to "state a claim to relief that is plausible on its
face." Bell At/. Corp.
v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible
when the factual content allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). "Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice." Id.
When considering Rule 12(b)(6) motions to dismiss, the court must accept as
true all factual allegations in the complaint and view them in the light most favorable to
Plaintiff. Umland v. Planco Fin. Servs., 542 F.3d 59, 64 (3d Cir. 2008). The Court,
however, is "not bound to accept as true a legal conclusion couched as a factual
allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986) (citations omitted).
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B.
Discussion
1.
Exhaustion
Connections Defendants argue that Plaintiff did not exhaust his administrative
remedies as is required under the Prison Litigation Reform Act ("PLRA"), 42 U.S.C.
§ 1997e(a). More particularly, they argue that Grievance 334538 was not filed within
seven days as required by Delaware Department of Correction Policy A-10, Grievance
Process for Healthcare Complaints ("DOC Policy A-10"). (D.I. 39 at 12)
The PLRA provides that "[n]o action shall be brought with respect to prison
conditions under section 1983 or any other Federal law, by a prisoner confined in any
jail, prison, or other correctional facility until such administrative remedies as are
available are exhausted." 42 U.S.C. § 1997e(a); see Porter v. Nuss/e, 534 U.S. 516,
532 (2002) ("[T]he PLRA's exhaustion requirement applies to all inmate suits about
prison life, whether they involve general circumstances or particular episodes, and
whether they allege excessive force or some other wrong."). Proper exhaustion of
administrative remedies is required to satisfy the exhaustion requirements. See
Woodford v. Ngo, 548 U.S. 81, 84 (2006). To properly exhaust administrative remedies
an inmate "must complete the administrative review process in accordance with the
applicable procedural rules, rules that are defined not by the PLRA, but by the prison
grievance process itself." Jones v. Bock, 549 U.S. 199, 218 (2007); see also Johnson
v. Wireman,_ F. App'x_, 2020 WL 2116409 (3d Cir. May 4, 2020).
Because an inmate's failure to exhaust under PLRA is an affirmative defense, the
inmate is not required to specially plead or demonstrate exhaustion in his complaint.
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Jones v. Bock, 549 U.S. at 216. Failure to exhaust administrative remedies must be
pied and proved by the defendant. Ray
v.
Kertes, 285 F.3d 287, 295 (3d Cir. 2002).
Connections Defendants rely upon DOC Policy A-10 to support their position that
Plaintiff did not timely submit Grievance 334538 and, therefore, failed to exhaust his
administrative remedies. DOC Policy A-10 was not provided to the Court for review.
The current DOC Policy A-10, effective May 14, 2019, is available on the Delaware
Department of Correction web-site. DOC Policy A-10 states, 'This policy has changed
significantly and should be reviewed in its entirety." See doc.delaware.gov/assets/
documents/policies/policy_ 11-A-10.pdf (last visited May 15, 2020). Because the current
DOC Policy A-10 has been changed significantly, it cannot be relied upon by the Court
to determine whether Plaintiff's Grievance 334538, submitted on April 10, 2016, was
untimely. Consequently, Connection Defendants have failed to meet their burden to
show that Plaintiff failed to exhaust his administrative remedies for Grievance 334538
under the theory that it was not timely submitted. 3
Accordingly, the Court will deny the motion to dismiss insofar as it is based on
the contention that Plaintiff failed to exhaust his administrative remedies.
2.
Medical Needs
Connections Defendants seek dismissal on the grounds that the Complaint fails
to state a claim for violation of the Eighth Amendment. Connections Defendants argue
3
The Court reiterates that it previously dismissed all claims related to the two other
grievances discussed by Connections Defendants in the "Plaintiff failed to exhaust his
administrative remedies" and "Plaintiff's claims are barred by the statute of limitations"
sections. (D.I. 39 at 10-13).
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that: (1) the Complaint fails to allege the requisite state of mind required for an Eighth
Amendment claim; (2) the Complaint does not allege that any Connections Defendant
provided or otherwise denied Plaintiff medical treatment; and (3) Plaintiff has no
constitutional right to an effective grievance process. 4 (D.I. 39 at 17-19) As discussed
above, upon screening Plaintiff was allowed to proceed against Connections
Defendants on his medical needs claims related to Grievance 334538. The Court now
revisits the Eighth Amendment medical needs issue and considers Connections
Defendants' argument for dismissal.
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). 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). To state 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
4
The Court addressed and dismissed the issue of an ineffective grievance process in
its screening order to the extent Plaintiff intended to raise such a claim.
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manifest deliberate indifference by "intentionally denying or delaying access to medical
care." Estelle v. Gamble, 429 U.S. at 104-05.
To establish personal liability against a defendant in a section 1983 action, a
defendant must have personal involvement in the alleged wrongs; liability cannot be
predicated solely on the operation of respondeat superior. Rizzo v. Goode, 423 U.S.
362 (1976). Accordingly, individual liability can be imposed under section 1983 only if
the state actor played an "affirmative part" in the alleged misconduct. Rode v.
Dellarciprete, 845 F.2d 1195 1 1207 (3d Cir. 1988).
The Complaint alleges that on May 6, 2016, Plaintiff was seen by the grievance
committee comprised of the Connections Defendants and Burley. At that time the
grievance committee granted in part and denied in part Grievance 334538. This is the
only claim directed towards the Connections Defendants, all other allegations directed
towards the Connections Defendants having been dismissed. (See D.I. 11 at 8) ("[T]he
December 2015 committee members advised [Plaintiff] on the steps required to receive
treatment .... The allegations against the foregoing individuals do not rise to the level
of constitutional violations.").
Plaintiff attempts to raise medical needs claims against the Connections
Defendants despite the lack of allegations of their direct involvement in his medical
care. Deliberate indifference can be shown where prison authorities prevent an inmate
from receiving a recommended treatment. See Inmates of Allegheny County Jail v.
Pierce, 612 F.2d 754, 762 (3d Cir. 1979). Courts are divided, however, on whether an
official's review and denial of a grievance can establish personal involvement sufficient
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to state a medical needs claim. See e.g., Mazza v. Austin, 2018 WL 746409, at *9 (E.D.
Cal. Feb. 7, 2018) (recommending denial of motion for summary judgment on plaintiff's
claim challenging medical decisions reached by defendants, both as members of the
prison grievance committee and in directly assessing plaintiff's medical needs when
reviewing plaintiff's appeal); Battle v. Recktenwald, 2016 WL 698145, at *10 (S.D.N.Y.
Feb. 19, 2016) (agreeing that defendant's denial of an administrative grievance or a
refusal to override the medical advice of medical personnel is insufficient to establish
liability for an Eighth Amendment violation); Ward v. Kentucky State Reformatory, 2009
WL 2342724, at *5 (W.D. Ky. July 28, 2009) (holding that where the only allegation
against a defendant relates to the denial of a grievance, a plaintiff fails to allege any
personal involvement by the defendant in the alleged denial of medical treatment);
Henryv. Wilson, 2008 WL 131164, at *4-5 n.1 (W.D. Pa. Jan. 9, 2008) (noting that
plaintiff cannot allege personal involvement by any defendant merely by virtue of his or
her involvement in reviewing inmate grievances); Madison v. Mazzuca, 2004 WL
3037730, at *10 (S.D.N.Y. Dec. 30, 2004) (noting that personal involvement is present
where a supervisor reviewed a prisoner's grievance with respect to a constitutional
violation and decides against taking any corrective action).
The scant allegations here do not indicate whether Plaintiff challenges the
grievance process because of an adverse outcome or whether he challenges the
medical decisions reached by the Connections Defendants in their roles in assessing
Plaintiff's medical needs when reviewing his grievance. See Martin v. Harvey, 14 F.
App'x 307, 309 (6th Cir. 2001) ("The denial of the grievance is not the same as the
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denial of a request to receive medical care."). Nor do the facts describe the personal
involvement, if any, of each defendant. As pleaded, the medical needs claim fails to
state a claim upon which relief may be granted against the Connections Defendants.
Therefore, the motion to dismiss will be granted. Plaintiff, however, will be given leave
to amend the claim.
Ill.
REQUEST FOR COUNSEL
Plaintiff is now housed in the Pennsylvania prison system. He explains that this
is his first experience in civil court proceedings. (D.I. 23) Plaintiff seeks counsel on the
grounds that he is disadvantaged in both accessing and receiving Delaware legal
materials. (D.I. 19) He indicates that it takes approximately a month to receive a
response to a request when using the Delaware Law Library request form system. (Id.)
He asks for an attorney or an immediate transfer to the Delaware Department of
Correction. (Id.)
He also seeks counsel on the grounds that he cannot afford counsel;
he is unable to present his case due to his transfer; he lacks the education, prior work
experience, and prior litigation experience to present his case; he does not have
adequate access to Delaware's law library system; the issues are complex; an
investigation will be required; and the case may turn on the credibility of those involved.
(D. I. 22)
A pro se litigant proceeding in forma pauperis has no constitutional or statutory
right to representation by counsel. 5 See Brightwell v. Lehman, 637 F.3d 187, 192 (3d
5
See Mallard v. United States Dist. Courl for the S. Dist. of Iowa, 490 U.S. 296 (1989)
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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
plaintiff's 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 plaintiff's claim; (2) the plaintiff's 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 plaintiff's ability to pursue such
investigation; (5) the plaintiff's 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 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.
Several of the Tabron factors militate against granting Plaintiff's requests for
counsel at this time. To date, Plaintiff has ably represented himself and presented his
claims. Also, Plaintiff's requests indicate that he receives law library assistance,
although not as quickly as he would like. Finally, this case remains in its early stage,
(§ 1915(d) (now§ 1915(e)(1)) 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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discovery not having yet commenced and Plaintiff having been granted leave to file an
amended complaint. Accordingly, the Court finds that counsel is not necessary at this
time. Therefore, the requests will be denied without prejudice to renew. (D.I. 19, 22)
IV.
MOTION TO ANSWER/REQUEST FOR ENTRY OF DEFAULT
Plaintiff's motion to compel (D.I. 40), construed as a motion to answer, and his
request for entry of default (D.I. 41) will be denied because Burley filed an answer to the
Complaint and the Connections Defendants filed a motion to dismiss. (See D.I. 15, 38)
V.
CONCLUSION
For the above reasons, the Court will: (1) deny without prejudice to renew
Plaintiff's requests for counsel (D.I. 19, 22); (2) grant Connections Defendants' motion
to dismiss (D.I. 38); (3) deny Plaintiff's motion to answer (D.I. 40); and (4) deny
Plaintiff's request for entry of default (D.I. 41). Plaintiff will be given leave to file an
amended complaint on the medical needs (i.e. vision/eyeglasses) claim against the
Connections Defendants.
An appropriate order will be entered.
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