United States District Court, D. Delaware
DONALD D. PARKELL, Plaintiff,
DAVID PIERCE, et al., Defendants.
HONORABLE LEONARD P. STARK UNITED STATES DISTRICT JUDGE.
before the Court are Plaintiffs motion to certify a class
(D.L 49) and Defendants' motion for reargument (D.I. 54)
and motion to dismiss for failure to state a claim (D.L 59).
Having reviewed the parties' briefing (D.L 49, 54, 57,
59, 61, 62), IT IS HEREBY ORDERED that:
Plaintiff s motion to certify a class (D.L 49) is DENIED
without prejudice. Plaintiff is granted leave to refile the
motion at a time consistent with the parties'
stipulation. (See D.I. 55) (stipulating to extend
briefing "until such time as agreed by the parties
and/or ordered by the Court")
Defendants' motion for reargument (D.L 54) is DENIED as
moot; the Third Amended Complaint ("TAC") is no
longer the operative pleading.
Defendants' motion to dismiss (D.L 59) is GRANTED IN PART
and DENIED IN PART.
Defendants' motion is GRANTED with respect to Plaintiffs
Eighth Amendment medical care claim.
Court provided an extensive discussion of the state of
the case and Plaintiffs TAC in its June 22, 2018 Memorandum
Opinion ("Opinion"). (DJ. 50) In that Opinion, the
Court dismissed Plaintiffs Eighth Amendment medical care
claim because the TAC "failed to sufficiently allege
personal involvement by Pierce, Parker, Phelps, and
Coupe," and provided "no more than conclusory
allegations." (Id. at 10-11)
address the deficiencies of the TAC, Plaintiff filed a Fourth
Amended Complaint ("FAC"). (D.I. 56) The FAC
includes new allegations, including: (1) "numerous
medical personnel have confirmed that they were ordered not
to provide medical or mental health treatment to the Building
C inmates," (2) "[m]ultiple mental health workers
[and medical staff employees] told Parkell that Pierce
ordered that mental health care must be withheld," (3)
that, "[a]s a result of these orders, Parkell's
[separated ribs] were never treated [and his] mental health
deteriorated to the critical state requiring intervention in
order to likely save his life," and (4) once Parker was
appointed interim warden, "his action was to permit the
denials to continue." (D.I. 56 at ¶¶ 91-95) In
addition, Plaintiff replaces general recitations of
"Defendants" or "DOC" in the TAC with
"Pierce and Parker" in the FAC. (See,
e.g., D.I. 56-1 at ¶¶ 100, 103)
contend that these amendments are insufficient to overcome
the Court's prior Order (D.I. 59 at 3-4), and the Court
agrees. Naming Pierce and Parker may obviate the Court's
first conclusion - that Plaintiff failed to
'"identify an individual who allegedly committed the
wrongful act or who failed to take action.'" (D.I.
50 at 11) (quoting Restrepo v. Phelps, 2018 WL
1664972, at *4 (D. Del. Apr. 6, 2018)) However, Plaintiff did
not adequately address the Court's second conclusion -
that "there are no specific factual allegations in the
[Complaint] regarding any of those Defendants to support that
assertion or to suggest that Defendants were aware of the
denials of care yet did nothing to address them."
(Id.) (citing Stones v. McDonald, 7
F.Supp.3d 422, 436 (D. Del.), qff'd, 573
Fed.Appx. 236 (3d Cir. 2014) (requiring "allegations of
specific facts showing that a defendant expressly
directed the deprivation of a plaintiffs constitutional
rights") (emphasis added))
new allegations are too conclusory to be presumed true,
See Ashcroft v. Iqbal, 556 U.S. 662, 680-81 (2009)
(noting that bare allegations that defendant was
"principal architect" of a policy are
"conclusory and not entitled to be assumed true").
Plaintiff, for instance, does not plead any specific
facts concerning (1) DOC lockdown and medical policies, or
any departures from those policies, (2) who had the power to
create such policies or order such departures, (3) the names
of any medical workers who informed Plaintiff of Pierce's
alleged order (and/or when Plaintiff was informed), (4) sworn
statements from the James T. Vaughn Correction Center
("VCC") staff or medical workers that the order
existed, or other inmates identifying specific injuries from
the February 2017 uprising that also went untreated as a
result of the alleged policy or departure therefrom, and/or
(5) any other indication that Defendants directed or were
deliberately indifferent to the withholding of medical care.
As for Plaintiffs own alleged injury, he presents no specific
allegation as to when he requested medical attention for his
separated rib, that he was denied medical attention, who
denied the medical attention and when, and/or what
"intervention" was required to "likely save
his life." (See D.I. 56 at ¶¶ 94-95)
Without more, the Court's statements concerning the TAC
apply equally to the FAC: "Parkell's contention that
Pierce, Parker, Phelps, and Coupe ordered the withholding of
care amounts to no more than a conclusory allegation and is
insufficient to show personal involvement."
Defendants' motion is DENIED with respect to Plaintiff s
Eighth Amendment failure to protect claim.
allegations remain substantively similar and his FAC
addresses some deficiencies noted in the Court's prior
Opinion. (Compare D.I. 50 at 16, n.6 (refusing to
consider 2005 task force report and CLASI Order because they
were not integral to TAC) with D.I. 56 at
¶¶ 33, 47-49 (discussing with specificity 2005 task
force report and CLASI Order)) Plaintiffs amendments do not
require reconsideration of the Court's prior decision.
The FAC claim is at least as well-pled as the analogous TAC
also incorporate their motion for reargument regarding the
TAC into their motion to dismiss the FAC. (D.I. 59 at 5) In
particular, Defendants assert that the Court
must decide the issue of qualified
immunity at this time, and that Plaintiff had failed to
identify a clearly established right with the requisite
specificity to overcome such immunity. (D.I. 54 at 3-10) The
Court is not persuaded that its prior Opinion and Order were
incorrect, or that the outcome should be any different as to
courts are strongly encouraged to resolve the question of
qualified immunity as early as possible. See Barkes v.
First Correctional Med., Inc.,766 F.3d 307, 330 (3d
Cir. 2014), rev'd on other grounds, Taylor v.
Barkes,135 S.Ct. 2042 (2015). Often, the issue may be
resolved on a motion to dismiss, to best serve the policy
considerations underlying qualified immunity, see
generally Thomas v. Independence Tp., 463 F.3d 285 (3d
Cir. 2006), but this is not always required or possible.
While Defendants rely on the Third Circuit's statement in
Barkes that '"the determination of
qualified immunity must be made at
an early stage in the litigation, '" 766 F.3d at 330
(quoting Vaughn v. U.S. Small Bus. Admin., 65 F.3d
1322, 1326 (6th Cir. 1995)) (emphasis added), "an early
stage" does not necessarily equate to "a motion to
dismiss." Indeed, Barkes addressed qualified
immunity at summary judgment. See Id. The Court will
again "deny the motion to dismiss based on qualified
immunity without prejudice to renew on a fuller record."
(D.L 50 at 21; se ...