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McCardell v. Connections Community Support Programs, Inc.

United States District Court, D. Delaware

July 25, 2018

JAMES N. MCCARDELL, Plaintiff,
v.
CONNECTIONS COMMUNITY SUPPORT PROGRAMS, INC., Defendant.

          James N. McCardell, James T. Vaughn Correctional Center, Smyrna, Delaware. Pro Se Plaintiff.

          Roopa Sabesan, Esquire, White & Williams, Wilmington, Delaware, Counsel for Defendant.

          MEMORANDUM OPINION

          ANDREWS, U.S. DISTRICT JUDGE.

         Plaintiff James N. McCardell, an inmate at the James T. Vaughn Correctional Center in Smyrna, Delaware, filed this action pursuant to 42 U.S.C. § 1983.[1] (D.I. 1). Plaintiff filed an amended complaint on October 23, 2017, and it is the operative pleading. (D.I. 8). Plaintiff appears pro se and has been granted leave to proceed in forma pauperis. (D.I. 6). Before the Court is Defendant Connections Community Support Programs, Inc.'s motion to dismiss and Plaintiff's request for counsel. (D.I. 20, 34). Briefing is complete.

         BACKGROUND

         The Court screened the Amended Complaint on October 26, 2017 and identified cognizable and non-frivolous clams. (See D.I. 10, 11). Plaintiff named several defendants, all of whom have been dismissed except for Connections. Connections moves to dismiss pursuant to Rule 12(b)(6) on the grounds that the claims against it are insufficient to plausibly show Connections has a policy or practice to subject it to constitutional liability.

         MOTION TO DISMISS

         In 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).

         "Though '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).

         A 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 task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679.

         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). To establish that Defendant 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 Cty. 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). Assuming the acts of Defendant's employee have violated a person's constitutional rights, those acts may be deemed the result of a policy or custom of the entity for whom the employee works, thereby rendering the entity liable under § 1983, where the inadequacy of existing practice is so likely to result in the violation of constitutional rights that the policymaker can reasonably be said to have been deliberately indifferent to the need. See Natale, 318 F.3d at 584.

         "'Policy is made when a decision maker possess[ing] final authority to establish . . . policy with respect to the action issues an official proclamation, policy or edict.'" Miller v. Corr. Med. Sys., Inc., 802 F.Supp. at 1132 (alteration in original) (quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990)). "Custom, on the other hand, can be proven by showing that a given course of conduct, although not specifically endorsed or authorized by law, is so well-settled and permanent as virtually to constitute law." Id. (citing Andrews, 895 F.2d at 1480; Fletcher v. O'Donnell, 867 F.2d 791, 793-94(3dCir. 1989)).

         As noted above, Connections argues dismissal is appropriate because the Amended Complaint does not state it has a deficient policy or procedure. It contends that Plaintiff's vague allegations are insufficient to plead a policy or practices claim of Eighth Amendment deliberate indifference.

         The Amended Complaint alleges that Plaintiff sustained injuries that require him to use a colostomy bag and a suprapubic catheter. Plaintiff alleges Defendant has a regular practice of withholding necessary medical care and that he must constantly "fight" with Defendant to receive any type of medical treatment. The Amended Complaint alleges that Plaintiff has not seen a GI physician or urologist in over a year and suffers from constant urinary tract infections which result in the frequent administration of antibiotics. The Amended Complaint alleges it has been determined that surgery is ...


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