United States District Court, D. Delaware
JAMES N. MCCARDELL, Plaintiff,
CONNECTIONS COMMUNITY SUPPORT PROGRAMS, INC., Defendant.
N. McCardell, James T. Vaughn Correctional Center, Smyrna,
Delaware. Pro Se Plaintiff.
Sabesan, Esquire, White & Williams, Wilmington, Delaware,
Counsel for Defendant.
ANDREWS, U.S. DISTRICT JUDGE.
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. (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.
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
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
task that requires the reviewing court to draw on its
judicial experience and common sense." Id. at
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.
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)).
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
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