United States District Court, D. Delaware
GREGORY M. SLEET, District Judge.
The plaintiff, Robert Saunders ("Saunders"), an inmate at the James T. Vaughn Correctional Center ("VCC"), Smyrna, Delaware, filed this lawsuit pursuant to 42 U.S.C. § 1983. (D.I. 3.) Saunders appears prose and was granted permission to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (D.I. 9.) Since the filing of the complaint, Saunders has filed an amended complaint (D.I. 11) and motions for leave to file an amended complaint (D.I. 10, 25). He also requests counsel (D.I. 12) and moves for reconsideration of an order that recently denied him injunctive relief. ( See D.I. 33, 34.) The court proceeds to review and screen the complaint and amended complaint and considers the pending motions.
The original complaint (D.I. 3) raises claims against former Delaware Department of Correction ("DOC") Commissioner Carl Danberg ("Danberg"), DOC Healthcare Director Dr. Vincent Carr ("Dr. Carr"), former VCC Warden Perry Phelps ("Phelps"), Bureau Chief of Correctional Healthcare Services James Welch ("Welch"), VCC Deputy Warden James Scarborough ("Scarborough"), and VCC Director of Nursing Michelle Swell-Jones ("Jones"). The amended complaint (D.I. 11) adds VCC Warden David Pierce ("Pierce"), Dr. Laurie Spraga ("Dr. Spraga"), Major John Bernnan ("Bernnan"), Major Jeffery Carrothers ("Carrothers"), and Captain Marcello T. Rispol ("Rispol").
The complaint alleges that a September 2007 sonogram indicated that Saunders has a lesion in the left kidney. When Saunders was seen in December 2007, he was told the mass is a complex cyst. The condition was left untreated until 2011 when Saunders had constant complaints of pain, passing blood in his urine, and urination issues. Beginning in 2011, Saunders met with nephrologist Dr. Michael Yosin ("Dr. Yosin") and consultation orders were written on three different occasions for Saunders to see a urologist.
On February 18, 2013, Saunders was approached by a correctional officer for transport to see a physician off-site who was either an eye specialist or dermatologist. Saunders advised the correctional officer he had previously seen both and, because he was in the law library working on a post conviction issue, he signed a refusal for treatment not knowing that the appointment was with a urologist. Saunders met with Dr. Yosin on July 12, 2013, and he gave Saunders the results of blood tests from June 2012 through July 2013. The testing indicated that Saunders had sustained 16 percent loss of kidney function. While not clear, it appears that a written consultation referral to see a urologist on an urgent basis was issued. Saunders alleges that as of the date of the complaint, he had yet to see medical personnel regarding his kidney issue.
Saunders alleges that the turnover of physicians and nurses has resulted in lack of follow-through with consulting physician orders. In addition, he alleges that over-population in the pretrial section requires inmates to sleep three to a cell with one sleeping on the floor, and this creates condition of an unreasonable risk of future harm.
Danberg, Dr. Carr, Welch, Phelps, Scarborough, and Jones are named as defendants based upon their supervisory positions and their responsibility to inmates to provide safe and secure housing and medical care. In addition, Saunders alleges that Phelps and Jones failed to adequately train their respective and staff.
The amended complaint added the defendants Pierce, Dr. Spraga, Bernnan, Carrothers, and Rispol. (D.I. 11.) It contains no allegations, but states that a memorandum of law will layout the culpability of each new defendant. Saunders' motion seeking additional time to file an amended complaint indicates that the claim is a retaliation claim that occurred after Saunders contacted the FBI on October 22, 2013. Saunders seeks compensatory and punitive damages and injunctive relief.
A. Standard of Review
This court must dismiss, at the earliest practicable time, certain in forma pauperis and prisoner actions that are frivolous, malicious, fail to state a claim, or seek monetary relief from a defendant who is immune from such relief. See 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 Saunders 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 (citations omitted).
An action is frivolous if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). Under 28 U.S.C. § 1915(e)(2)(B)(i) and § 1915A(b)(1), a court may dismiss a complaint as frivolous if it is "based on an indisputably meritless legal theory" or a "clearly baseless" or "fantastic or delusional" factual scenario. Neitzke, 490 at 327-28; Wilson v. Rackmill, 878 F.2d 772, 774 (3d Cir. 1989); see, e.g., Deutsch v. United States, 67 F.3d 1080, 1091-92 (3d Cir. 1995) (holding frivolous a suit alleging that prison officials took an inmate's pen and refused to give it back).
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 12(b)(6) motions. Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999) (applying Fed.R.Civ.P. 12(b)(6) standard to dismissal for failure to state a claim under§ 1915(e)(2)(B)). 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 Saunders ...