United States District Court, D. Delaware
MICHAEL L. JONES, Plaintiff,
WARDEN DAVID PIERCE, Defendant.
plaintiff Michael L. Jones ("Jones") is an inmate
who was incarcerated at the James T. Vaughn Correctional
Center ("VCC") in Smyrna, Delaware. In January
2018, he was transferred to the Pennsylvania Department of
Corrections, SCI Dallas in Dallas, Pennsylvania. (D.I. 79.)
On November 2, 2015, Jones filed this lawsuit alleging
violations of his civil rights pursuant to 42 U.S.C. §
1983 during the time he was housed at the VCC. (D.I. 3.) Before
the court is a motion to dismiss filed by the defendants
Christine Francis, R.N. ("Francis") and Laurie
Spraga ("Spraga") (together "the moving
defendants"). (D.I. 73.) Jones did not file a response
to the motion. He requests counsel and has filed a response
to the court's May 5, 2018 show cause order. (D.I. 77,
MOTION TO DISMISS
raises medical needs claims in violation of his
constitutional rights. The original complaint named Jane Doe,
Director of Connections. Jones later identified two Doe
defendants: Director of Connections Laurie Spraga
(see D.I. 9) and medical supervisor Christine
Francis (see D.I. 10). Spraga and Francis move for
dismissal pursuant to Fed. R Civ. P. 12(b) on the grounds
that the claims are raised against them in their supervisory
positions, the claims are not properly pled and, to the
extent Jones raises a medical negligence claim, he has not
complied with the Delaware Health Care Negligence Insurance
and Litigation Act. See 18 Del. C. §§
6801-6865. (D.I. 73.)
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 Jones 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 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." BellAtl. 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'lHosp., 765 F.3d 236, 241 (3d Cir.
2014) (quoting Twombly, 550 U.S. at 555). The court
is "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, ___U.S.___, 135 S.Ct. 346, 346 (2014).
complaint 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
claims raised against Spraga and Francis are deficiently pled
under the standards of Twombly and Iqbal.
In addition, it is evident that the moving defendants were
sued based upon their supervisory positions. However, there
is no respondeat superior liability under § 1983.
See Parkell v. Danberg, 833 F.3d 313, 330 (3d Cir.
2016). A defendant in a civil rights action "cannot be
held responsible for a constitutional violation which he [ ]
neither participated in nor approved"; personal
involvement in the alleged wrong is required. Baraka v.
McGreevey, 481 F.3d 187, 210 (3d Cir. 2007); see
also Polk County v. Dodson, 454 U.S. 312, 325, (1981)
(holding that liability in a § 1983 action must be based
on personal involvement, not respondeat superior). Such
involvement may be "shown through allegations of
personal direction or of actual knowledge and
acquiescence." Evancho v. Fisher, 423 F.3d 347,
353 (3d Cir. 2005).
to the extent Jones seeks to raise supplemental State claims
for medical negligence, he failed to comply with the Delaware
Health Care Negligence Insurance and Litigation Act. It
requires a party alleging medical negligence to produce an
affidavit of merit with expert medical testimony detailing:
(1) the applicable standard of care, (2) the alleged
deviation from that standard, and (3) the causal link between
the deviation and the alleged injury. Bonesmo v. Nemours
Foundation, 253 F.Supp.2d 801, 804 (D. Del. 2003)
(quoting Green v. Weiner, 766 A.2d 492, 494-95 (Del.
2001)) (internal quotations omitted); 18 Del. C. § 6853.
To the extent Jones alleges medical negligence, at the time
he filed the complaint he was required to submit an affidavit
of merit as to each defendant signed by an expert witness. 18
Del. C. § 6853(a)(1). He did not.
upon the foregoing, the court will grant the moving
defendants' motion to dismiss. (D.I. 73.) However, since
it appears plausible that Jones maybe able to articulate a 42
U.S.C. § 1983 claim against the defendants, he will be
given an opportunity to amend his pleading. See O
'Dell v. United States Gov't, 256 Fed.Appx. 444
(3d Cir. 2007) (leave to amend is proper where the plaintiffs
claims do not appear "patently meritless and beyond all
hope of redemption").
SHOW CAUSE ORDER
8, 2018, the court ordered Jones to show cause why the
defendants Dr. Gay ("Dr. Gay") and A. Neqoita
("Neqoita") should not be dismissed for failure to
service process pursuant to Fed.R.Civ.P. 4(m). (D.I. 74.) The
court took reasonable steps to assist Jones in serving Dr.
Gay and Neqoita, to no avail. Jones responds that when he was
transferred he lost all his legal materials and asks for
counsel to assist him. (D.I. 79.) Jones did not, however,
explain why the two unserved defendants should not be
court finds that Jones has failed to show cause why Dr. Gay
and Neqoita should not be dismissed for failure to effect
service pursuant to Fed.R.Civ.P. 4(m). Therefore, they will
be dismissed as defendants.