Webb v. May

Filing 13

MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 1/8/2021. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
WILLIAM J. WEBB, JR. ,
Plaintiff,
: Civil Action No. 20-938-RGA

V.

WARDEN ROBERT MAY, et al. ,
Defendants.

William J. Webb , Jr. , James T. Vaughn Correctional Center, Smyrna, Delaware.
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Pro Se Plaintiff.

MEMORANDUM OPINION

January 8, 2021
Wilmington , Delaware

/s/ Richard G. Andrews
ANDREWS, U.S. District Judge:
Plaintiff William J. Webb, Jr., a pretrial detainee at the James T. Vaughn
Correctional Center in Smyrna , Delaware, filed this action pursuant to 42 U.S .C. § 1983.
(D .I. 1, 11). The Court considers Docket Items 1 and 11 as the operative pleading .
Plaintiff appears prose and has been granted leave to proceed in forma pauperis. (D .I.
6) . He has filed a request for counsel and a motion for injunctive relief. (D .I. 7, 8). The
Court proceeds to screen the Complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and
1915A(a).

BACKGROUND
Plaintiff is a pretrial detainee. Plaintiff was initially housed at Sussex
Correctional Institution and , at some point, he was transferred to JTVCC. The
Complaint raises a number of claims for acts beginning on June 4, 2019 and "still
ongoing " as of August 25 , 2020 . (D .I. 11 at 7) . Plaintiff alleges violations of his right to
due process, the Clean Air and Water Act, the Americans with Disabilities Act , and
claims brutality and assault, threats of assault, unconstitutional lighting , retaliation ,
physical and mental abuse, and deliberate indifference. (/d.). He seeks compensatory
and punitive damages as well as injunctive relief. (Id. at 13).

SCREENING OF COMPLAINT
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

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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 forma pauperis actions) ; 28
U.S.C. § 1915A (actions in which prisoner seeks redress from a governmental
defendant); 42 U.S.C. § 1997e (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 pro se plaintiff. Phillips v. County of
Allegheny, 515 F.3d 224 , 229 (3d Cir. 2008) ; Erickson v. Pardus, 551 U.S. 89, 93
(2007). 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. at 94 .
A complaint is not automatically frivolous because it fails to state a claim . See
Dooley v. Wetzel, 957 F.3d . 366 , 374 (3d Cir. 2020). "Rather, a claim is frivolous on ly
where it depends 'on an "indisputably meritless legal theory" or a "clearly baseless" or
"fantastic or delusional" factual scenario."' Id.
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
ruling on Rule 12(b)(6) motions. Tourscher v. McCullough, 184 F.3d 236 , 240 (3d Cir.
1999). 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 Plaintiff leave to amend his complaint unless

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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 Johnson v. City of Shelby, 574 U.S.10 (2014) . A complaint may not
dismissed , however, for imperfect statements of the legal theory supporting the claim
asserted . See id. at 11.
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, assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief. Connelly v. Lane

Constr. 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. Iqbal, 556 U.S . at
679 (quoting 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.

DISCUSSION
Eleventh Amendment Immunity . Three named defendants , the Delaware
D'epartment of Correction , Sussex Correctional Institute, and James T. Vaughn

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Correctional Center, are immune from suit. The Eleventh Amendment protects states
and their agencies and departments from suit in federal court regardless of the kind of
relief sought. Pennhurst State School & Hosp. v. Halderman , 465 U.S. 89, 100 (1984).
SCI and JTVCC fall under the umbrella of the DOC, and the DOC , as an agency of the
State of Delaware , is immune from suit. See Jones v. Sussex Corr. Inst. , 725 F. App 'x
157, 159 (3d Cir. 2017) . "Absent a state's consent, the Eleventh Amendment bars a
civil rights suit in federal court that names the state as a defendant. " Laskaris v.

Thornburgh , 661 F.2d 23 , 25 (3d Cir. 1981). Delaware has not waived its immunity from
suit in federal court; although Congress can abrogate a state's sovereign immunity, it
did not do so through the enactment of 42 U.S.C. § 1983. See Jones, 725 F. App 'x at
159-60); Brooks-McCollum v. Delaware, 213 F. App 'x 92 , 94 (3d Cir. 2007).
The DOC , SCI , and JTVCC are immune from suit and will be dism issed.

Due Process . Plaintiff alleges that his right to due process was violated when
he was written up and did not receive a hearing within seven days, but he does not
identify any responsible party. (0.1. 11 at 7) . Plaintiff was found guilty of the write-up .
'

He alleges that he received a 15-day sanction in "the hole" without due process . (Id. at
7, 9) . Plaintiff alleges that Major John Beck "simply denied the appeal. " (Id. at 9) .
"Generally, prisons may sanction a pretrial detainee for misconduct that he
commits while awaiting trial , as long as it is not a punishment for the 'underlying crime
of which he stands accused ."' Kanu v. Lindsey, 739 F. App 'x 111 , 116 (3d Cir. 2018)
(quoting Rapier v. Harris, 172 F.3d 999 , 1003-06 (7th Cir. 1999)). For pretrial

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detainees, "the imposition of disciplinary segregation for violation of prison rules and
regulations cannot be imposed without providing the due process protections set forth in

Wo/ff v. McDonnell, 418 U.S. 539 (1974) ." Kanu, 739 F. App'x at 116. Those
protections "include the right to receive written notice of the charges at least 24 hours
before the hearing , the opportunity to present witnesses and documentary evidence,
and a written statement of the reasons for the disciplinary action taken and the
supporting evidence." Id. (citing Wolff, 418 U.S. at 563-66); see also Stevenson v.

Carroll, 495 F.3d 62, 70 (3d Cir. 2007). However, a right to appeal disciplinary
convictions is not within the narrow set of due process rights delineated in Wolff.

Garfield v. Davis, 566 F. Supp. 1069, 1074 (E.D. Pa. 1983); Greerv. DeRobertis, 568 F.
Supp. 1370 (N .D. Ill. 1983).
As pied , it is unclear if Plaintiff was unconstitutionally punished when he was sent
to "the hole for 15 days. " See Parke/Iv. Morgan , 682 F. App 'x 155, 158 (3d Cir. 2017).
As noted , Plaintiff does not identify any individual who allegedly violated his
constitutional rights when he was punished. With regard to Beck and the denial of
Plaintiffs appeal , however, the claim fails as a matter of law.

Strip Search Video . Plaintiff alleges that when he was strip searched , Lt. Amos
Calloway "sexually" videotaped the search while correctional officers and an inmate
were present. (D. I. 11 at 11). When Plaintiff was told the strip search had been
videotaped, he reported it to the PREA hotline. (/d.) . Plaintiff alleges this was covered
up by Warden Robert May. (Id.).

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Plaintiff does not allege that the search itself violated his rights but, rather, it is
the recording of the search that he finds objectionable. Courts in our Circuit have not
found violations of a prisoner's constitutional rights by reason of the video recording of
strip searches within a prison. See Fatir v. Phelps , 2019 WL 2162720, at *7 (D . Del.
May 17, 2019) (finding that the presence of a camera does not render the strip search
unconstitutional) ; Watley v. Pike Cty. , 2018 WL 6018903, at *11 (M.D. Pa . Nov. 16,
2018) (finding that video recording of strip search was reasonable because it served
legitimate penological needs, such as "ensuring that the search was conducted in a
proper manner, deterring against misconduct and false accusations of misconduct, and
p'roviding an objective record of the events. ").
Indeed , using a camera to record a strip search in a prison does not, by itself,
amount to a constitutional violation. See, e.g. , Michenfelder v. Sumner, 860 F.2d at 330 ,
333 (9th Cir. 1988) (no constitutional violation when search was conducted in hallway in
view of other prisoners on the same tier and indirectly on video camera by opposite sex
prison staff) ; Daws v. Florence , 600 F. App'x 26 , 27 (2d Cir. 2015) ("defendants showed
that their practice of having a supervisory officer present during strip frisks and
recording strip frisks via wall-mounted video camera is reasonably related to the
legitimate interests in both inmate and staff security at Sullivan. "); Henderson v. Oats,
2018 WL 2054563 , at *2 (W.D. Ky. May 2, 2018) ("Plaintiffs allegation that he was strip
searched in a drunk tank with a camera fails to establish a violation of his constitutional
rights ."); Bellamy v. City of New York, 2017 WL 979064 , at *3 (S .D.N.Y. Mar. 13, 2017)

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("While he does mention that the search was conducted in a room with a security
camera , there is no basis to find that the presence of a camera, by itself, was
unreasonable. Indeed, the presence of cameras may assist prisoners by ensuring that
government officials do not abuse prisoners while conducting searches."); Sanchez v.
Bauer, 2015 WL 5026195 , at *6 (D . Colo. Aug . 26 , 2015) (allegation that the plaintiff

was "video recorded " while he was strip searched failed to state a Fourth Amendment
claim); Smith v. City of New York, 2015 WL 3929621, at *2 (S.D .N.Y. June 17, 2015)
("neither the presence of cameras nor the presence of other inmates and employees of
a correctional facility makes an otherwise constitutional strip search unconstitutional. ");
Peek v. City of New York, 2014 WL 4160229 , at *2 (S .D.N.Y. Aug . 18, 2014) ("Without

more, however, the presence of a camera at a strip search does not amount to a
constitutional violation .").
By itself, the video recording of the strip search is not a violation of Plaintiff's
constitutional rights and fails as a matter of law. The claims will be dismissed.

Excessive Lighting and Mental Health Care. Plaintiff alleges that excessive
lights bother him , both physically and mentally. (Id. at 9) . He alleges the lights are on
sixteen hours a day and hurt his eyes, cause headaches, cause sleep deprivation, and
cause other psychotic episodes. (D .I. 11 at 8) . He alleges that Warden May made
sure the lights were used to harm him and that he sent an official notice to May and
Centurion (the current DOC contract medical provider) both of whom denied Plaintiff
adequate mental health care. (Id. at 8-9). He further alleges that Nurse Jane Doe saw

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Plaintiff, lied to cover up the mental abuse caused by the lights , and told Plaintiff he
would not receive medical glasses or solar shields to keep the lights from harming him .

(Id. at 10).
Plaintiff goes on to allege that Connections (the former DOC contract medical
provider) and Centurion failed to properly train their staff; that May, Connections, and
Centurion were deliberately indifferent to Plaintiffs right to adequate medical and mental
health care and violated the Americans with Disabilities Act; and that Connections ,
Centurion , Kathleen Potter, and Dr. Yunis were deliberately indifferent to Plaintiff's right
to adequate mental health care in violation of the Eighth Amendment and the ADA. (Id.
at10 , 13).
"[B]right, constant illumination that causes 'grave sleeping problems and other
mental and psychological problems' can establish an Eighth Amendment deprivation ."

Mammana v. Federal Bureau of Prisons , 934 F.3d 368, 374 (3d Cir. 2019) . Plaintiff
alleges that the lights were illuminated sixteen hours a day. He does not allege
constant illumination . He does not allege anything approaching an "objective
deprivation of sufficient seriousness. " See id. at 373 . The allegations do not rise to the
level of a constitutional violation .
To the extent Plaintiff alleges deliberate indifference to serious medical and
mental health needs and that medical defendants failed to properly train staff, the
conclusory allegations are not supported by any facts and fail to state claims of
constitutional violations.

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The foregoing claims will be dismissed for failure to state claims upon which relief
may be granted .
Deficiently Pied . Many other claims are deficiently pied , are not supported by
the facts, or are conclusory. See Iqbal, 566 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). Merely
reciting an element of a cause of action or making a bare conclusory statement is
insufficient to state a claim . See Iqbal, 566 U.S. at 578 .
In certain instances the Complaint does not name the person who allegedly
committed the wrongdoing . For example , Plaintiff alleges retaliation when he was
transferred to a housing unit with restrictive recreation periods , but does not name the
person responsible for the transfer. (D.I. 11 at 7). Plaintiff, a pretrial detainee, alleges
he has been treated like a sentenced inmate since November 2019 , but does not direct
this allegation towards any defendant. (Id. at 12).
Plaintiff alleges that JTVCC refuses to transfer him and that he served Warden
Robert May with "Legal Notice. " (/d.) . The Delaware Supreme Court has recognized
that prison officials have discretion to house inmates at the facilities they choose. Walls
v. Taylor, 856 A.2d 1067, 2004 WL 906550 (Del. 2004) (table) (citing Brathwaite v.
State, No. 169, 2003 (Del. Dec. 29 , 2003). Furthermore, the United States Supreme

Court has held that an inmate has no due process right to be incarcerated in a particular

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institution whether it be inside the state of conviction , or outside that state. O/im v.
Wakinekona , 461 U.S. 238 , 251 (1983).

Plaintiff alleges that on June 11 , 2019 , he was threatened by Lt. Matthew Long
while Sgt. Hubbs was present and Hubbs failed in this duty to protect Plaintiff from
Long 's threat to break Plaintiff's jaw. (Id. at 7, 12). Plaintiff does not allege Lt. Long did
anything more than make a threat. Plaintiff alleges that Corporal Kirk Neal harassed
him and intentionally deprived him of recreation .1 (Id. at 9). He alleges that Neal told
Lt. Calloway that he was going to harm Plaintiff, and Calloway did nothing. (Id. at 9) .

Allegations that prison personnel have used threatening language and gestures are not
cognizable claims under§ 1983. Collins v. Cundy, 603 F.2d 825 (10th Cir. 1979)
(defendant laughed at prisoner and threatened to hang him) ; McBride v. Deer, 240 F.3d
1287, 1291 (10th Cir. 2001) (taunts and threats are not an Eighth Amendment violation) ;
Prisoners' Legal Ass'n v. Roberson , 822 F. Supp . 185, 189 (D .N.J. 1993) (verbal

harassment does not violate inmate's constitutional rights) . Plaintiff's claims of
harassment and threatening behavior do not state constitutional claims . To the extent
Plaintiff attempts to raise a failure to protect claim , the Complaint does not contain
sufficient facts to support the claim .

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The denial of exercise or recreation can result in a constitutional violation.
"[M]eaningful recreation 'is extremely important to the psychological and physical wellbeing of the inmates."' Peterkin v. Jeffes, 855 F.2d 1021 , 1031 (3d Cir. 1988) (quoting
Spain v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979)). However, the lack of exercise
can only rise to a constitutional level "where movement is denied and muscles are
allowed to atrophy, [and] the health of the individual is threatened ." Spain , 600 F.2d at
199. Plaintiff's single statement that he was deprived of recreation fails to state a cla im.
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Plaintiff alleges that when he requested an investigation , Long was given a
promotion. (Id. at 9) . This is not a constitutional violation.
Plaintiff alleges that "other write-ups" were done without regard for due process
concerning disciplinary hearings and appeals that were denied . (Id. at 11 ). The
Complaint provides no facts to support this conclusory claim .
Plaintiff alleges that he has been housed in SHU in violation of his right to be
presumed innocent until proven guilty. (Id. at 8) . Because an inmate does not possess
a liberty interest arising from the Due Process Clause in assignment to a particular
custody level or security classification or a place of confinement, the claim fails . See
Wilkinson v. Austin , 545 U.S. 209, 221-22 (2005) (Constitution does not give rise to

liberty interest in avoiding transfer to more adverse conditions of confinement.
Plaintiff seems to allege unlawful conditions of confinement in stating "building
18-D is inhumane and is in violation on the Clean Ai r and Water Act. " (Id. at 8) . The
Complaint does not provide facts to support this claim .
Finally, Plaintiff alleges that DOC Commissioner Claire DeMatteis failed in her
obligation to properly handle the COVID-19 pandemic when she did not train staff or
deep clean DOC facilities and thus placed Plaintiffs life in imminent danger.· (Id. at 12).
There are no facts to support this claim . Plaintiff does not allege he was exposed to
COVID-19 or that he has COVID-19 symptoms , or that he was not provided treatment
for COVID-19 .

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Because the foregoing claims do not meet the pleading requirements of Iqbal
and Twombly, the Court will dismiss them pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and
§ 1915A(b)(1).

Excessive Force. Plaintiff has alleged what appear to be cognizable excessive
force claims against C/O Kirk Neal and C/O Verde. (Id. at 9, 11 ). He will be allowed to
proceed against these defendants.

Amendment. As pied, the Complaint fails to state claims upon which relief may
be granted and raises claims against three Defendants who are immune from suit.
Therefore, I will dismiss all claims , except the excessive force claims against Neal and
Verde , pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i), (ii) , and (iii) and 1915A(b)(1) and (2),
and will give Plaintiff leave to amend since it is possible that he may be able to state
claims upon amendment.

Request for Counsel. Plaintiffs request for counsel will be denied without
prejudice to renew. (D.I. 7) . Plaintiff requests counsel on the grounds that he has
unsuccessfully sought to retain counsel , he is denied psychiatric medication to keep his
clinical depression and ADHD under control , counsel is better able to conduct
discovery, and counsel will boost the economy in the legal sector.
A pro se litigant proceeding in forma pauperis has no constitutional or statutory
right to representation by counsel.

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

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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 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.
This case is in its early stages and no defendant has been served. Most of the
claims will be dismissed and Plaintiff has been given leave to amend to cure pleading
defects. The excessive force claims do not involve complex legal theories and it
remains to be seen if other claims will have arguable merit in fact and law. Upon
consideration , I have concluded that counsel is not necessary at this point. Therefore,
the Court will deny Plaintiffs request for counsel without prejudice to renew .

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Motion for Injunctive Relief. Plaintiff's motion for injunctive relief will be denied

without prejudice . (D.I. 8) . Plaintiff asks the Court to order OSHA and the EPA to test
the quality of air and water at the prison where Plaintiff is housed . (Id. at 3). He also
asks the Court to order a deep cleaning of JTVCC to stop the spread of infectious
diseases and to enjoin JTVCC from lighting the prison sixteen hours per day. (Id.).
Finally, Plaintiff asks the Court to "vindicate" his rights and order "4½ hours rec. per day,
a tablet with apps and games in his cell, a basketball court and basketball, a hand ball ,
[and] a table ." (Id. at 4).
A party seeking a preliminary injunction must show: "(1) a likelihood of success
on the merits; (2) that it will suffer irreparable harm if the injunction is denied ; (3) that
granting preliminary relief will not result in even greater harm to the nonmoving party;
and (4) that the public interest favors such relief." Kos Pharm., Inc. v. Andrx Corp. , 369
F.3d 700 , 708 (3d Cir. 2004). "Preliminary injunctive relief is 'an extraordinary remedy'
and 'should be granted only in limited circumstances. "' Id. (citations omitted) . Because
of the intractable problems of prison administration, a request for injunctive relief in the
prison context must be viewed with considerable caution. Abraham v. Danberg, 322 F.
~pp'x 169, 170 (3d Cir. 2009) (citing Goff v. Harper, 60 F.3d 518, 520 (8th Cir. 1995)).
Plaintiff has not met his burden for injunctive relief. He has not demonstrated a
likelihood of success on the merits or irreparable harm. Nor has he proven that
immediate injunctive relief is justified. Therefore , the motion for injunctive relief will be
denied without prejudice .

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CONCLUSION
For the above reasons , the Court will: (1) deny without prejudice to renew
Plaintiff's request for counsel; (2) deny without prejudice Plaintiff's motion for injunctive
relief; (3) dismiss Delaware Department of Correction , Sussex Correctional Institution,
and James T. Vaughn Correctional Center as they are immune from suit and, with the
exception of the excessive force claims against Kirk Neal and C/0 Verde, dismiss all
defendants and claims as frivolous and/or 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)(1 ). Plaintiff will be given leave to file an amended complaint.
An appropriate Order will be entered .

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