White v. Connections Community CSP Inc. et al

Filing 31

MEMORANDUM OPINION. Signed by Judge Maryellen Noreika on 2/17/2021. (nmg)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ANTHONY WHITE,
Plaintiff,
v.
CONNECTIONS COMMUNITY CSP,
INC., et al.,
Defendants.

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) C.A. No. 19-1541 (MN)
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MEMORANDUM OPINION
Anthony White, James T. Vaughn Correctional Center, Smyrna, DE – Pro Se Plaintiff
Kelly Elizabeth Rowe, Esquire, White & Williams, Wilmington, DE – Attorney for Defendant
Connections Community CSP Inc.
Allison Jean McCowan and Victoria R. Sweeney, Deputy Attorneys General, STATE OF
DELAWARE DEPARTMENT OF JUSTICE, Wilmington, DE – Attorneys for Defendants Perry Phelps
and Marc Richman

February 17, 2021
Wilmington, DE

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NOREIKA, U.S. DISTRICT JUDGE:
Plaintiff Anthony White (“Plaintiff” or “White”), an inmate at the James T. Vaughn
Correctional Center (“JTVCC”), filed this civil rights action on August 19, 2019, pursuant to
42 U.S.C. § 1983. (D.I. 1). He proceeds pro se and has paid the filing fee. Defendants Perry
Phelps (“Phelps”) and Marc Richman (“Richman”) (together “DOC Defendants”) move for
dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (D.I. 10) and
Defendant Connections Community Support Programs, Inc. (“Connections”) 1 moves for dismissal
pursuant to Rule 12(b)(5) (D.I. 25). Plaintiff opposes both motions. (D.I. 26, 27). 2
I.

BACKGROUND
Plaintiff raises claims concerning three distinct medical issues. Plaintiff injured his left

shoulder acromioclavicular joint on September 26, 2013. (D.I. 1 at 5). He alleges that “medical”
kept his arm in a sling for 8 ½ months, and he still receives weekly therapy. (Id.). Plaintiff alleges
that he has submitted multiple medical grievances, and he has suffered with pain from a protruding
bone from his left shoulder since 2013. (Id.). He alleges that for the past six years he has not been
given “minimum medical treatment like a[n] MRI,” and Defendants have deliberately withheld
treatment. (Id.). Plaintiff alleges that he registered multiple complaints with Phelps, Richman,
Bureau of Correction Healthcare Services (“BCHS”) board members, and Defendant Connections
Healthcare Administrator Matt Wolford (“Wolford”). (Id.).

1

Plaintiff names Connections and former Connections’ employees Misty May, Matt
Wolford, Samantha Hollis, Dr. Harewood, Dr. Pharqi, Christine Francis, and Dr. Laurie
Ann Spraga (together with Connections, “the Medicals Defendants”) as defendants in his
Complaint. Counsel for Connections does not presently represent the individual
Connections employees and, therefore, makes no assertions on their behalf in the motion
to dismiss. (See D.I. 25 at 5, n1).

2

Docket Item 26 is titled “motion for extension of time.” (D.I. 26). In reading the filing,
however, it is clear that it is an opposition to DOC Defendants’ motion to dismiss.
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Plaintiff’s second medical issue concerns an August 2017 broken right hand. (Id. at 6).
Plaintiff was seen by an outside specialist who purportedly opined that because of an untreated
fracture Plaintiff would have pain and a fusion would be required for relief. (Id.). Plaintiff alleges
that he informed Wolford of his pain and suffering while being denied medical treatment. (Id.).
Plaintiff’s third medical issue concerns a hernia which he alleges has been left untreated
since November 5, 2017. (Id. at 8). He states that two ultrasounds were performed and Defendants
refuse to approve an MRI because of cost. (Id.).
Plaintiff complains that Phelps and Richman continued to award the medical contract to
Connections despite the substandard care it provided inmates. (Id. at 6). Plaintiff alleges that the
BCHS was created for oversite of medical services, professional conduct, and medical care
provided inmates, that Phelps was supposed to review the minutes of the BCHS Committee and
this established supervisory liability of Phelps, Richman, and members of BCHS. (Id. at 6-7). For
relief Plaintiff seeks compensatory damages and injunctive relief. (Id. at 8-9).
DOC Defendants move to dismiss on the grounds that: (1) the Complaint fails to plead the
personal involvement of Phelps and Richman; (2) the September 26, 2013 claims are time-barred;
(3) the claims against them in their official capacities seeking monetary damages are barred by the
Eleventh Amendment; and (4) they are entitled to qualified immunity. Connection moves to
dismiss for insufficiency of service of process.
II.

LEGAL STANDARDS
A.

Rule 12(b)(5)

A defendant may file a motion to dismiss pursuant to Rule 12(b)(5) when a plaintiff fails
to properly serve him or her with the summons and complaint. See Fed. R. Civ. P. 12(b)(5). A
plaintiff “is responsible for having the summons and complaint served within the time allowed by

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Rule 4(m).” Fed. R. Civ. P. 4(c)(1). Rule 4(m) imposes a 90-day time limit for perfection of
service following the filing of a complaint. Fed. R. Civ. P. 4(m). If service is not completed within
that time, the action is subject to dismissal without prejudice. Id. See also MCI Telecomms. Corp.
v. Teleconcepts, Inc., 71 F.3d 1086, 1098 (3d Cir. 1995).
B.

Rule 12(b)(6)

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). When presented with a motion to
dismiss for failure to state a claim pursuant to Rule 12(b)(6), district courts conduct a two-part
analysis. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). First, the Court separates
the factual and legal elements of a claim, accepting “all of the complaint’s well-pleaded facts as
true, but [disregarding] any legal conclusions.” Id. at 210-11. Second, the Court determines
“whether the facts alleged in the complaint are sufficient to show . . . a ‘plausible claim for relief.’”
Id. at 211 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).
“To survive a motion to dismiss, a civil plaintiff must allege facts that ‘raise a right to relief
above the speculative level on the assumption that the allegations in the complaint are true (even
if doubtful in fact).’” Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Dismissal under Rule 12(b)(6) is appropriate if a
complaint does not contain “sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570); see also
Fowler, 578 F.3d at 210. A claim is facially plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. The Court is not obligated to accept as true “bald assertions” or

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“unsupported conclusions and unwarranted inferences.” Morse v. Lower Merion Sch. Dist., 132
F.3d 902, 906 (3d Cir. 1997); Schuylkill Energy Res., Inc. v. Pennsylvania Power & Light Co., 113
F.3d 405, 417 (3d Cir. 1997). Instead, “[t]he complaint must state enough facts to raise a
reasonable expectation that discovery will reveal evidence of [each] necessary element” of a
plaintiff’s claim. Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315, 321 (3d Cir.
2008) (internal quotation marks omitted). In addition, 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).
III.

DISCUSSION
DOC Defendants move for dismissal for a number of reasons. The Complaint will be

dismissed for two of those reasons. Connections’ motion to dismiss will be denied.
A.

Personal Involvement/Respondeat Superior

DOC Defendants move for dismissal on the ground that the Complaint fails to state claims
upon which relief may be granted because it does not allege the requisite personal involvement of
each defendant as required for claims raised under 42 U.S.C. § 1983. Plaintiff contends that he
has established that the DOC Defendants had knowledge of his injury and Connections’
misconduct and failed to act or protect him from the wanton infliction of pain and suffering at the
hands of Connections.
Liability in a 42 U.S.C. § 1983 action is personal in nature, and to be liable, a defendant
must have been personally involved in the wrongful conduct. In other words, DOC Defendants
are “liable only for their own unconstitutional conduct.” Barkes v. First Corr. Med., Inc., 766 F.3d
307, 316 (3d Cir. 2014), rev’d on other grounds sub nom. Taylor v. Barkes, 575 U.S. 822 (2015).
This means that respondeat superior cannot form the basis of liability. Evancho v. Fisher, 423

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F.3d 347, 353 (3d Cir. 2005); see also Alexander v. Forr, 297 F. App’x 102, 104-05 (3d Cir. 2008)
(instructing that a constitutional deprivation cannot be premised merely on the fact that the
defendant was a prison supervisor when the incidents set forth in the complaint occurred).
“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each
Government-official defendant, through the official’s own individual actions, has violated the
Constitution.” Iqbal, 556 U.S. at 676. “‘[T]here are two theories of supervisory liability, one
under which supervisors can be liable if they established and maintained a policy, practice or
custom which directly caused the constitutional harm, and another under which they can be liable
if they participated in violating plaintiff’s rights, directed others to violate them, or, as the persons
in charge, had knowledge of and acquiesced in their subordinates’ violations.’” Parkell v.
Danberg, 833 F.3d 313, 330 (3d Cir. 2016) (quoting Santiago v. Warminster Twp., 629 F.3d 121,
129 n.5 (3d Cir. 2010)).
The allegations against the DOC are conclusory and with no facts to support the claims.
See Iqbal, 556 U.S. at 678 (stating that a complaint will not suffice if it “offers [merely] ‘labels
and conclusions’” or “ ‘naked assertion [s]’ devoid of ‘further factual enhancement’”) (quoting
Twombly, 550 U.S. at 555, 557). The Complaint does not show the personal involvement of either
DOC Defendant, and it is clear they are both named based upon their supervisory positions.
In addition, the Third Circuit has held that, prison administrators, like Commissioner
Phelps, 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). “If 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 218, 236 (3d Cir. 2004) (discussing Durmer, 991 F.2d at 69).

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“[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.
The Complaint states that Plaintiff still receives weekly therapy for his shoulder, he has
seen an outside specialist for his right hand, and two ultrasounds were performed for his hernia.
The Complaint fails to provide facts to support a claim that Phelps, a non-medical prison official,
was deliberately indifferent to Plaintiff’s serious medical needs.
As pled, the Complaint fails to state a constitutional claim against either individual DOC
Defendant. Accordingly, DOC Defendants’ motion to dismiss will be granted. Because it is
possible that Plaintiff may be able to state a viable claim upon amendment, he will be given leave
to amend the claims against the DOC Defendants. 3
B.

Eleventh Amendment

DOC Defendants move to dismiss the claims raised against them in their official capacities
that seek monetary damages. The Eleventh Amendment of the United States Constitution protects
an unconsenting state or state agency from a suit brought in federal court by one of its own citizens,
regardless of the relief sought. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996);
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984); Edelman v. Jordan, 415 U.S.
651 (1974). “[A] suit against a state official in his or her official capacity is not a suit against the
official but rather is a suit against the official’s office. As such, it is no different from a suit against
the State itself.” Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989) (internal citations

3

This Court does not address the limitations period as the Complaint alleges a continuing
violation. In addition, at this juncture, the issue of qualified immunity is premature. This
Court will consider both issues to the extent necessary upon after the filing of any amended
complaint.
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omitted); Ali v Howard, 353 F. App’x 667, 672 (3d Cir. 2009). Accordingly, § 1983 claims for
monetary damages against a state official in his official capacity are barred by the Eleventh
Amendment. See id.
The official capacities claims will be dismissed to the extent that Plaintiff seeks monetary
damages from DOC Defendants in their official capacities.
C.

Service

Connections seeks dismissal on the ground that Plaintiff failed to perfect service because
the executed USM 285 forms reflect service on an unknown person at Connections’ corporate
address and the individuals who were alleged to have been served are no longer Connections
employees. (See supra note 1). Plaintiff responds that Defendants and counsel were aware of the
lawsuit and defense counsel had an obligation to make service available, and defense counsel
represents the same Medical Defendants in other cases.
“Upon determining that process has not been properly served on a defendant, district courts
possess broad discretion to either dismiss the plaintiff’s complaint for failure to effect service or
to simply quash service of process.” Umbenhauer v. Woog, 969 F.2d 25, 30 (3d Cir. 1992). This
Court must grant an extension if good cause is present. See Daniels v. Correctional Med. Services,
Inc., 380 F. Supp. 2d 379, 384 (D. Del. 2005) (citing Fed. R. Civ. P. 4(m)). Even if the court finds
ineffective service of process without good cause, however, it may allow Plaintiff another
opportunity to attempt service. See Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1305 (3d
Cir. 1995). A determination of good cause relies on three factors: (1) whether the plaintiff has
reasonably attempted to effect service; (2) whether the defendant is prejudiced by the absence of
timely service; and (3) whether the plaintiff moved for an extension of time for effective service.
See United States v. Nuttall, 122 F.R.D. 163, 166–67 (D. Del. 1988).

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Plaintiff, an incarcerated individual, relies upon the United States Marshals Service to
effect service. Therefore, this Court exercises its discretion and will give Plaintiff an additional
opportunity to serve the Medical Defendants. Plaintiff, as an incarcerated individual, does not
have the ability to obtain the addresses of former Connections employees or the name of the agent
authorized to accept service on behalf of Connections. Connections will be ordered to provide the
Clerk of Court, under seal, the last known addresses of the Medical Defendants as well as the name
of the agent authorized to accept service on behalf of Connections and the correct corporate address
for Connections. Once this information is provided an appropriate service order will be entered.
Therefore, Connections’ motion to dismiss for insufficiency of service of process will be
denied.
IV.

CONCLUSION
For the above reasons, the Court will: (1) grant DOC Defendants’ motion to dismiss

(D.I. 10); (2) give Plaintiff leave to amend the claims against the DOC Defendants; (3) deny
Connections’ motion to dismiss (D.I. 25); and (4) give Plaintiff additional time to serve the
Medical Defendants. An appropriate order will be entered.

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