United States District Court, D. Delaware
PAUL A. FAHMY, Plaintiff,
DELAWARE DEPARTMENT OF CORRECTION, etal., Defendants.
A. Fahmy, James T. Vaughn Correctional Center, Smyrna,
Delaware. Pro Se Plaintiff.
ANDREWS, U.S. DISTRICT JUDGE
Paul A. Fahmy, 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). He appears pro se and
has been granted leave to proceed in forma pauperis.
(D.I. 9). Plaintiff requests counsel. (D.I. 3). He also
requests an extension of time. (D.I. 11) The Court screens and
reviews the Complaint pursuant to 28 U.S.C. § 1915(e)(2)
and § 1915A(a).
October 3, 2016, Plaintiff was scalded and then assaulted by
another inmate while he was talking on the phone. Plaintiff
was charged with fighting and sent to isolation. He has been
housed in maximum security since that time.
alleges that he suffered nerve damage and almost complete
deafness in his left ear due to medical neglect. Plaintiff
also alleges that he had a collapsed lung but did not receive
an x-ray until January 12, 2018 when he was then rushed to
the emergency room at Kent General Hospital after the x-ray
was read. The Complaint does not contain a prayer for relief.
Named Defendants are the Delaware Department of Correction
and DOC medical service contract provider Connections.
federal court may properly dismiss an action sua
sponte under the screening provisions of 28 U.S.C.
§ 1915(e)(2)(B) and § 1915A(b) if "the action
is frivolous or malicious, fails to state a claim upon which
relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief." Ball v.
Famiglio, 726 F.3d 448, 452 (3d Cir. 2013). See
also 28 U.S.C. § 1915(e)(2) (in forma
pauperis actions); 28 U.S.C. § 1915A (actions in
which prisoner seeks redress from a governmental defendant);
42 U.S.C. § 1997e (prisoner actions brought with respect
to prison conditions). The Court must accept all factual
allegations in a complaint as true and take them in the light
most favorable to a pro se plaintiff. Phillips
v. County of Allegheny, 515 F.3d 224, 229 (3d Cir.
2008); Erickson v. Pardus, 551 U.S. 89, 93 (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
v. Pardus, 551 U.S. at 94.
legal standard for dismissing a complaint for failure to
state a claim pursuant to § 1915(e)(2)(B)(ii) and §
1915A(b)(1) is identical to the legal standard used when
ruling on Rule 12(b)(6) motions. Tourscherv.
McCullough, 184 F.3d 236, 240 (3d Cir. 1999). However,
before dismissing a complaint or claims for failure to state
a claim upon which relief may be granted pursuant to the
screening provisions of 28 U.S.C. §§1915 and 1915A,
the Court must grant Plaintiff leave to amend his Complaint
unless amendment would be inequitable or futile. See
Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d
well-pleaded complaint must contain more than mere labels and
conclusions. See Ashcroft v. Iqbal, 556 U.S. 662
(2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544
(2007). A plaintiff must plead facts sufficient to show that
a claim has substantive plausibility. See Johnson v. City
of Shelby, ___ U.S. ___, 135 S.Ct. 346, 347 (2014). A
complaint may not be dismissed, however, for imperfect
statements of the legal theory supporting the claim asserted.
See Id. at 346.
reviewing the sufficiency of a complaint must take three
steps: (1) take note of the elements the plaintiff must plead
to state a claim; (2) identify allegations that, because they
are no more than conclusions, are not entitled to the
assumption of truth; and (3) when there are well-pleaded
factual allegations, assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.
Connelly v. Lane Const. Corp., 809 F.3d 780,787 (3d
Cir. 2016). Elements are sufficiently alleged when the facts
in the complaint "show" that the plaintiff is
entitled to relief. Iqbal, 556 U.S. at 679 (quoting
Fed. R. Civ. P. 8(a)(2)). 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.
Delaware Department of Correction is an agency of the State
of Delaware. The Eleventh Amendment protects states and their
agencies and departments from suit in federal court
regardless of the kind of relief sought. Pennhurst State
School & Hosp. v. Halderman, 465 U.S. 89, 100
(1984). "Absent a state's consent, the Eleventh
Amendment bars a civil rights suit in federal court that
names the state as a defendant." Laskaris v.
Thornburgh, 661 F.2d 23, 25 (3d Cir. 1981) (citing
Alabama v. Pugh, 438 U.S. 781 (1978)). Delaware has
not waived its immunity from suit in federal court; although
Congress can abrogate a state's sovereign immunity, it
did not do so through the enactment of 42 U.S.C. § 1983.
See Brooks-McCollum v. Delaware, 213 F. App'x
92, 94 (3d Cir. 2007). In addition, dismissal is proper
because the DOC is not a person for purposes of § 1983.
See Will v. Michigan Dep't of State Police, 491
U.S. 58, 71 (1989); Calhoun v. Young, 288 F.
App'x 47 (3d Cir. 2008).
Complaint also names Connections as a defendant. 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). In order to establish that Connections 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 County Corr.
Facility,318 F.3d 575, 584 (3d Cir. 2003) (because
respondeat superior or vicarious liability ...