United States District Court, D. Delaware
DANIEL B. COHEE, Plaintiff,
CARL C. DANBERG, et al., Defendants.
S. Murphy, Esquire, Alexandra Rogin, Esquire, and Justin M.
Forcier, Esquire, Eckert Seamans Cherin & Mellott, LLC,
Wilmington, Delaware. Counsel for Plaintiff.
Kenisha LaShelle Ringgold, Deputy Attorney General, Delaware
Department of Justice, Wilmington, Delaware. Counsel for
Defendants Carl Danberg, Perry Phelps, Cpt. Rispoli, Lt.
Baynard, Sgt. Jones, Jason Russell, C/O Mitchell, C/O Boone,
Ernest A. Kemp, Jr., James J. Janusiewicz, and Delaware
Department of Correction.
A. Griffith, Esquire, and Kaan Ekiner, Esquire, Whiteford,
Taylor & Preston, L.L.C., Wilmington, Delaware. Counsel
for Defendant Correct Care Solutions, LLC.
ANDREWS, U.S. DISTRICT JUDGE
Daniel B. Cohee commenced this action in July 2013 while
proceeding pro se. (D.I. 3). He is now represented
by counsel, who filed an Amended Complaint on April 25, 2017,
adding the Delaware Department of Correction as a defendant.
(D.I. 148). Before the Court is the DOC's motion to
dismiss, opposed by Plaintiff. (D.I. 153, 155). Briefing on
the matter is complete.
Amended Complaint alleges that Plaintiff was attacked and
injured by his cellmate on February 23, 2012. Plaintiff lost
a substantial amount of blood and received stitches to both
cheeks and a severed tendon that required twenty-seven
stitches. At the time, he was incarcerated at the James T.
Vaughn Correctional Center in Smyrna, Delaware. The Amended
Complaint alleges that, prior to the attack, Plaintiff had
informed correctional officers about his cellmate making
threatening and violent statements. Plaintiff had asked for a
transfer. Plaintiff alleges that the correctional officers
ignored his concerns and his request for a transfer.
was not named as a defendant in the original Complaint,
although individual DOC defendants were named in their
individual and official capacities. Count III of the Amended
Complaint alleges the DOC failed to train and/or maintained
wrongful customs, practices, and policies regarding inmate
safety, all of which caused serious harm to Plaintiff. (D.I.
148 at ¶¶ 50-56).
moves for dismissal pursuant to Fed.R.Civ.P. 12(b)(6) on the
grounds that the claims are time-barred. (D.I. 153).
reviewing a motion filed under Fed.R.Civ.P. 12(b)(6), the
Court must accept all factual allegations in a complaint as
true and take them in the light most favorable to plaintiff.
See Erickson v. Pardus, 551 U.S. 89, 94 (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, 551 U.S. at 94. 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). A Rule 12(b)(6) motion
maybe granted only if, accepting the well-pleaded allegations
in the complaint as true and viewing them in the light most
favorable to the complainant, a court concludes that those
allegations "could not raise a claim of entitlement to
relief." Bell Atl. Corp. v. Twombly, 550 U.S.
544, 558 (2007).
'detailed factual allegations' are not required, a
complaint must do more than simply provide 'labels and
conclusions' or 'a formulaic recitation of the
elements of a cause of action.'" Davis v.
Abington Mem'l Hosp., 765 F.3d 236, 241 (3d Cir.
2014) (quoting Twombly, 550 U.S. at 555). I am
"not required to credit bald assertions or legal
conclusions improperly alleged in the complaint." In
re Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d
198, 216 (3d Cir. 2002). A complaint may not be dismissed,
however, "for imperfect statement of the legal theory
supporting the claim asserted." Johnson v. City of
Shelby, 135 S.Ct. 346, 346 (2014).
complainant must plead facts sufficient to show that a claim
has "substantive plausibility." Id. at
347. That plausibility must be found on the face of the
complaint. Ashcroft v. Iqbal,556 U.S. 662, 678
(2009). "A claim has facial plausibility when the
[complainant] pleads factual content that allows the court to
draw the reasonable inference that the [accused] is liable
for the misconduct alleged." Id. Deciding
whether a claim is plausible will be a "context-specific