REPORT AND RECOMMENDATION
MARY PAT THYNGE, Magistrate Judge.
Before the court is a motion, filed by defendant MHM Services, Inc. ("MHM"), to partially dismiss plaintiff's amended complaint for failing to state a claim upon which relief can be granted pursuant to FED. R. CIV. P. 12 (b)(6). Specifically, MHM moves for dismissal of Count VII which alleges respondeat superior liability against MHM for all claims raised against defendant Jason Amaral ("Amaral"), and Count XIII for civil rights violations as asserted in Count XII against defendant Joyce Johnson ("Johnson"). Plaintiff seeks leave to amend the amended complaint to plead a civil rights claim against MHM.
For the reasons that follow, the court grants MHM's motion to partially dismiss Count XIII of the amended complaint. Therefore, Count XIII, to the extent that it asserts a claim for respondeat superior against MHM for civil rights violations committed by Johnson, is dismissed. MHM's motion to dismiss Count VII of the amended complaint, to the extent that it asserts respondeat superior liability against MHM for civil rights violations by Amaral, is also granted. Plaintiff's request to amend his amended complaint to assert a civil rights claim against MHM is granted.
a. Procedural History
This action arises from claims by prison inmate Korrie Smyre ("plaintiff"), that he was sexually abused by a drug treatment counselor during his incarceration at the Sussex Correctional Institute in Georgetown, Delaware ("SCI"). Plaintiff filed his original complaint on January 24, 2013 in the Superior Court for the State of Delaware,  which he subsequently amended on February 4, 2013, to assert claims against MHM, as well as three individually named employees of MHM working as treatment counselors at SCI.
As this matter involves claims in which this court has original jurisdiction, MHM removed the matter pursuant to 28 U.S.C. 1441. Removal in this case was proper because plaintiff's amended complaint asserts claims pursuant to 42 U.S.C. § 1983 against defendants Amaral, Johnson, and through the doctrine of respondeat superior against MHM.
b. Relevant Facts
1. Abuse by Amaral
Because this matter involves a Rule 12(b)(6) motion to dismiss, the properly pled facts come from the amended complaint. For the purposes MHM's motion, all reasonably pled facts asserted are assumed true. At all relevant times, plaintiff was incarcerated with the Delaware Department of Corrections ("DOC"). MHM had contracted with DOC to provide mental health, substance abuse, and sex offender treatment to Delaware inmates. One such service involved the KEY Program, which provides substance abuse treatment. Amaral, Johnson and Leroy Williams ("Williams") were employed by MHM as treatment counselors in that program.
In late 2010, plaintiff applied to the KEY Program, and when accepted, was transferred to SCI. Around January 25, 2011, plaintiff entered Phase I of that program. Amaral was a counselor and/or administrator for Phase III of the Program.
Plaintiff learned in January 2011 that his foster mother had been diagnosed with cancer, and sought counseling with Johnson to address his concerns regarding the diagnosis. During their discussion, Amaral entered the office that he shared with Johnson and observed plaintiff crying. He informally offered to provide counseling services. Amaral subsequently learned personal information about plaintiff which he allegedly used to "gain [his] trust." Plaintiff continued to use Amaral as a counsel unaware of Amaral's alleged sinister intentions.
Although Williams was plaintiff's primary counselor, Amaral took significant interest in plaintiff. In late January or early February 2011, Amaral began introducing sexually provocative conversation during their sessions, and invited plaintiff to engage in sexual activity with him. In February 2011, Amaral instructed plaintiff to write a letter containing sexually provocative language to Amaral,  and threatened administrative segregation to ensure plaintiff's compliance. Thereafter, Amaral's sexually provocative and suggestive comments intensified, which ultimately resulted in demands by him for plaintiff to engage in sexual activity. The majority of the sexual conduct occurred in the office used by Johnson, Williams and Amaral when plaintiff and Amaral were alone. According to plaintiff, Amaral "seemed to know where to stand in the office to avoid being seen by passers by, " which "led [plaintiff] to believe he was not Amaral's first victim." Plaintiff's foster mother died from cancer on March 15, 2011.
In April 2011, Amaral physically forced himself on plaintiff, and on three separate occasions touched plaintiff's penis. Amaral would also "rub on" plaintiff's body, and asked plaintiff to place his penis in Amaral's mouth; plaintiff refused. During this time Amaral committed numerous inappropriate acts, including showing plaintiff his thong underwear, claiming he and plaintiff were "friends with benefits, " and forcing plaintiff to touch his penis on three occasions, and to kiss him on the neck and mouth. Amaral also provide his phone number so plaintiff could be his "secret sex lover" once plaintiff was released from prison. In May or June 2011, plaintiff, along with 60 other inmates, was moved from the building in which Amaral's office was located to a different building.
Around this time, Amaral, Williams and mental health counselor "Mr. Mike" met with MHM supervisor Deneen Smith ("Smith"), who had observed Amaral spending considerable time with plaintiff. While the amended complaint is unclear about this meeting,  Smith purportedly instructed that plaintiff was to remain in his new location, H1, and was not to return to his previous housing in H2, near Amaral's office. Amaral, however, allegedly had another inmate removed from the KEY Program and had plaintiff rehoused to an area near Amaral's office. Angered by Amaral's disregard of her directive, Smith confronted and informed him that he needed to "keep his relation with [plaintiff] professional." Smith was released from her employment or fired by MHM in June 2011.
On one occasion, Amaral punished plaintiff after he commented about Amaral's actions. On July 5, 2011, Amaral gave plaintiff a "KEY-Crest Learning Experience Form" for disrespecting program staff, which restricted plaintiff from television, telephone, visits, recreation or gym privileges. These restrictions were the alleged "hammer Amaral used to force [plaintiff] to engage in the sexual harassment and abuse."
Around July 12, 2011, plaintiff reported the abuse to Johnson. Johnson purportedly responded that she believed Amaral was sexually abusing an inmate, but was unaware it was plaintiff. Johnson took no action in response to plaintiff's allegations. Thereafter, Amaral stopped physically touching and sexually molesting plaintiff, but continued counseling him.
Plaintiff further alleges that "employees of MHM were aware that the office used by Amaral had a blind spot, '" and that "some employees used that office to engage in sexual relations with inmates in prior years;" He further contends "another MHM employee resigned or was fired in May 2011 for engaging in sexual relations with a patient-inmate." He also claims employees of MHM and/or employees of DOC suspected Amaral initiated inappropriate sexual relations with another inmate at SCI,  and contacted or attempted to contact this inmate after his release.
In mid-August 2011, plaintiff reported the abuse to Williams. Around August 19, 2011, plaintiff met with Sergeants Hubbs, Breedlove and Santini of the DOC regarding his encounters with Amaral,  and later with Staff Lieutenant Hickman. Allegedly some or all of those individuals met with the warden and/or deputy warden of SCI. Plaintiff remained out of the Key Program on that day until Amaral's shift ended later that afternoon. Thereafter, Plaintiff had no further contact with Amaral.
Mike Tigue, Esq. of DOC's Internal Affairs met with plaintiff on August 30, 2011, and advised he "would talk to Johnson and Williams." Plaintiff was also instructed by another individual from Internal Affairs not to discuss "this incident with Amaral" with anyone else, which he interpreted as not filing a grievance. Plaintiff did, however, talk to mental health treatment providers about his experience.
2. Plaintiff's Mental Health
Plaintiff was diagnosed with paranoid schizophrenia in 2008. While at SCI, he was prescribed Seroquel, Depakote and Risperdal. Plaintiff understood his mental health diagnosis and treatment were included in his medical records. While under counseling, Amaral required plaintiff execute a release to allow him access to plaintiff's medical and/or mental health records.
3. Plaintiff's Alleged Injuries
As a result of Amaral's misconduct, plaintiff alleges he suffers from the following: post-traumatic stress disorder ("PTSD"), including flashbacks of the abuse; hypertension, which requires medication; a fear of people; aggravation of his pre-existing paranoid schizophrenia; depression; a desire not to be touched and to seclude himself; problems with trust, including mental health professionals; emotional humiliation; sleeplessness; and loss of enjoyment in hobbies, such as sports, which require medical and/or psychiatric treatment.
4. Plaintiff's Claims
In his amended complaint, plaintiff alleges fifteen counts against defendants. Plaintiff asserts the following causes of action against Amaral: Count I - Assault and Battery; Count II - Civil Rights Violation; Count III - Intentional Infliction of Emotional Distress; Count IV - Medical Malpractice; Count V - Negligent Infliction of Emotional Distress; and Count VI - Invasion of Privacy. Plaintiff ...