United States District Court, D. Delaware
Augustus Hebrew Evans, Jr., James T. Vaughn Correctional
Center, Smyrna, Delaware, Pro Se Plaintiff.
Spring Monzo, Esquire, and Roopa Sabesan, Esquire, White
& Williams, Wilmington, Delaware, Counsel for Defendants
Lezley Sexton, Christine Francis, and Dr. Herman Ellis.
Trocki Mantzavinos, Esquire, Marks, O'Neill, O'Brien,
Doherty & Kelly, P.C., Counsel for Defendants Debra
Muscarella and Dr. Anthony Cannulli.
ANDREWS, U.S. DISTRICT JUDGE
Augustus Hebrew Evans, Jr., an inmate at the James T. Vaughn
Correctional Center in Smyrna, Delaware, filed this action
pursuant to 42 U.S.C. § 1983 asserting constitutional
violations and raising supplemental state claims. He appears
pro se and has been granted leave to proceed in
forma pauperis. (D.I. 6). The Court screened the
Complaint on November 4, 2016, and identified cognizable and
non-frivolous claims. (See D.I. 10). Before the
Court are numerous motions filed by the parties including
Plaintiff's motions to compel and motions for leave to
file amended complaints, and Defendants' motions to
dismiss and, in the alternative, motion for summary judgment.
(D.I. 25, 28, 46, 48, 49, 51, 55, 58, 62).
filed two motions to compel prison administrators to allow
him reasonable access to controlled non-collect legal and
other telephone calls associated with this case. (D.I. 25,
28) "The exact nature of telephone service to be
provided to inmates is generally to be determined by prison
administrators, subject to court scrutiny for unreasonable
restrictions." Almahdi v. Ridge, 201 Fed.Appx.
865, 869 n.2 (3d Cir. 2006) (quoting Fillmore v.
Ordonez, 829 F.Supp. 1544, 1563-64 (D. Kan. 1993)). An
inmate's rights to communicate by telephone, even with
legal counsel, is not unlimited. Aswegan v. Henry,
981 F.2d 313, 314 (8th Cir. 1992). Prison officials can limit
communications, particularly telephone communications, to
ensure safety, security, and the orderly operations of their
institution. Griffin-El v. MCI Telecomm., 835
F.Supp. 1114, 1122-23 (E.D. Mo.1993), aff'd, 43
F.3d 1476 (8th Cir. 1994). Notably, courts have approved the
installation of collect-only telephone systems and, for
non-legal calls, some degree of monitoring to control
instances of inmate telephone fraud, harassment of crime
victims, or disputes among inmates over telephone use.
See, e.g., Wooden v. Norris, 637 F.Supp. 543 (M.D.
Plaintiff wants me to order VCC administrators to allow him
to make telephone calls (legal and non-legal) during regular
business hours to legal organizations, investigators, the
Delaware Medical Board, and physicians. Plaintiff states that
he wrote to prison officials regarding the issue "to no
avail." Regardless, prison officials may limit telephone
communications. In addition, Plaintiff has no entitlement to
make non-collect calls. Plaintiff has the option of writing
letters seeking the information he wishes to obtain.
Therefore, Plaintiff's motions will be denied. (D.I. 25,
TO DISMISS AND MOTIONS TO AMEND
Dr. Anthony Cannuli moves to dismiss pursuant to Rule
12(b)(6). (D.I. 46). Plaintiff opposes and filed a motion for
leave to file an amended complaint. (D.I. 47, 48, 49). Dr.
Cannulli then filed a motion to dismiss the amended
complaint. (D.I. 51). Plaintiff followed by filing another
motion to amend the complaint, and an opposition to Dr.
Cannulli's motion to dismiss. (D.I. 55, 64).
Defendant Deborah Muscarella filed a motion to dismiss the
amended complaint or, in the alternative, motion for summary
judgment. (D.I. 58). Plaintiff opposes the motion and filed
another motion to amend. (D.I. 61, 62). Defendants Lezley
Sexton, Christine Francis, and Dr. Herman Ellis do not oppose
Plaintiff's motion for leave to amend found at D.I. 62.
discussed, in response to the motions to dismiss, Plaintiff
filed motions for leave to amend to cure his pleading
defects. (D.I. 49, 55, 62). Plaintiff included an amended
complaint (found at D.I. 49) and a second amended complaint
(found at D.I. 62). Pursuant to Fed.R.Civ.P. 15(a)(2), courts
"should freely give leave [to amend] when justice so
requires." Accordingly, the motions to amend will be
granted. The Second Amended Complaint (D.I. 62) will be the
Court will dismiss as moot without prejudice to renew the
motions to dismiss filed by Dr. Cannulli and Muscarella.
(D.I. 46, 51, 58). Both Defendants seek dismissal on the
grounds that Plaintiff's claims are
time-barred. Plaintiff indicated in the original
Complaint and amendments that he discovered the side effects
of Risperdal on June 14, 2014. The discovery rule tolls the
statute of limitations until a plaintiff, exercising
reasonable diligence, actually discovers his injury. Lake
v. Arnold, 232 F.3d 360, 367 (3d Cir. 2000). Thereafter,
Plaintiff sought to exhaust his administrative remedies. It
appears that the claims are timely filed. The Prison
Litigation Reform Act (PLRA) requires a prisoner to exhaust
his administrative remedies prior to filing a civil rights
lawsuit. The PLRA is a "statutory prohibition" that
tolls the statute of limitations while a prisoner exhausts
administrative remedies. Pearson v. Secretary Dep't
of Corr., 775 F.3d 598, 603 (3d Cir. 2015); 42 U.S.C.