Fahmy v. D.O.C. et al, No. 1:2018cv01042 - Document 16 (D. Del. 2018)
Court Description: MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 10/22/2018. (nms)
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Fahmy v. D.O.C. et al Doc. 16 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE PAUL A. FAHMY, Plaintiff, : Civil Action No. 18-1042-RGA V. DELAWARE DEPARTMENT OF CORRECTION , et al. , Defendants. Paul A. Fahmy, James T. Vaughn Correctional Center, Smyrna, Delaware. Pro Se Plaintiff. MEMORANDUM OPINION rho 18 October Wilmington, Delaware Dockets.Justia.com . District Judge: Plaintiff Paul A. Fahmy, an inmate at the James T. Vaughn Correctional Center in Smyrna , Delaware, filed this action pursuant to 42 U.S.C. § 1983.1 (0 .1. 1). He appears prose and has been granted leave to proceed in forma pauperis. (0.1. 9) . Plaintiff requests counsel. (D .I. 3) . He also requests an extension of time .2 (D.I. 11) The Court screens and reviews the Complaint pursuant to 28 U.S.C . § 1915(e)(2) and § 1915A(a). BACKGROUND On October 3, 2016 , Plaintiff was scalded and then assaulted by another inmate while he was talking on the phone . Plaintiff was charged with fighting and sent to isolation. He has been housed in maximum security since that time . Plaintiff alleges that he suffered nerve damage and almost complete deafness in his left ear due to medical neglect. Plaintiff also alleges that he had a collapsed lung but did not receive an x-ray until January 12, 2018 when he was then rushed to the emergency room at Kent General Hospital after the x-ray was read . The Complaint does not contain a prayer for relief. Named Defendants are the Delaware Department of Correction and DOC medical service contract provider Connections . 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 1 When bringing a§ 1983 claim , a plaintiff must allege that some person has deprived him of a federal right, and the person who caused the deprivation acted under color of state law. West v. Atkins, 487 U.S. 42 , 48 (1988). 2 There is no need for an extension . Therefore , the motion will be dismissed as moot. 1 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) (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 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. 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 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, _ U.S._, 135 S.Ct. 346 , 347 (2014) . A 2 complaint may not be dismissed , however, for imperfect statements of the legal theory supporting the claim asserted . See id. at 346 . 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 Const. 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 The Delaware Department of Correction is an agency of the State of Delaware. 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) . "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) (citing Alabama v. Pugh , 438 U.S. 781 (1978)). 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 Brooks-McCollum v. Delaware, 213 F. App'x 92 , 94 (3d Cir. 2007) . In addition , dismissal is proper because the DOC is not a person 3 for purposes of§ 1983. See Will v. Michigan Dep 't of State Police, 491 U.S. 58 , 71 (1989) ; Calhoun v. Young, 288 F. App'x 47 (3d Cir. 2008) . The Complaint also names Connections as a defendant. 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, Plaintiff "must provide evidence that there was a relevant [Connections] policy or custom , and that the policy caused the constitutional violation[s] [plaintiff] allege[s]." Natale v. Camden County Corr. Facility, 318 F.3d 575 , 584 (3d Cir. 2003) (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) . The Complaint fails to allege that Connections had a policy or custom that caused constitutional violations to Plaintiff. It, therefore, fails to state a claim upon which relief may be granted . Accordingly, the Court will dismiss the Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and (iii) and§ 1915A(b)(1) and (2) as the DOC is immune from suit and the Complaint fails to state a claim upon which relief may be granted. Since it appears plausible that Plaintiff may be able to articulate a claim against Connections or name alternative defendants, he will be given an opportunity to amend his pleading . See O'Dell v. United States Gov't, 256 F. App'x 444 (3d Cir. 2007) (leave to amend is proper 4 where the plaintiff's claims do not appear "patently meritless and beyond all hope of redemption "). REQUEST FOR COUNSEL Plaintiff seeks counsel on the grounds that he does not have the ability to present his case , he is unskilled in the law and the issues are complex, the case may turn on cred ibility 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 proved would establish a constitutional violation . (D.I. 3) . A pro se litigant proceeding in forma pauperis has no constitutional or statutory right to representation by counsel. 3 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 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 See Mallard v. United States Dist. Court for the S. Dist. of Iowa , 490 U.S. 296 (1989) (§ 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. "). 3 5 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. At this point, Plaintiff's claim has not been shown to have any arguable merit. Thus, I do not need to make a Tabron analysis at this time . The Court will deny Plaintiff's request for counsel without prejudice to renew. Should the need for counsel arise later, one can be sought at that time. CONCLUSION For the above reasons , the Court will: (1) deny the request for counsel (D .I. 3) without prejud ice to renew; (2) dismiss as moot the request for an extension of time (D .I. 11); and (3) dism iss the Complaint pursuant to U.S.C. §§ 1915(e)(2)(B)(ii) and (iii) and 1915A(b)(1) and (2). Plaintiff will be given leave to file an amended complaint. An appropriate Order will be entered . 6
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