United States District Court, D. Delaware
MARLON D. WASHINGTON, Plaintiff,
MARK RICHMAN, et al., Defendants.
D. Washington, James T. Vaughn Correctional Center, Smyrna,
Delaware, Pro Se Plaintiff.
NOREIKA, U.S. DISTRICT JUDGE
Marlon D. Washington (“Plaintiff), an inmate at the
James T. Vaughn Correctional Center (“VCC”) in
Smyrna, Delaware, filed this action pursuant to 42 U.S.C.
§ 1983.(D.I. 3). He appears pro se and
has been granted leave to proceed in forma pauperis.
(D.I. 6). He also requests counsel. (D.I. 4). The Court
proceeds to review and screen the matter pursuant to 28
U.S.C. § 1915(e)(2)(b) and § 1915A(a).
was diagnosed with epilepsy after he suffered serious head
trauma. Upon his incarceration, he was processed and
interviewed by the VCC medical staff on August 3, 2011. At
that time, he informed them of his epilepsy diagnosis and
that a physician had prescribed medication for the condition.
The medical staff determined that Plaintiff should continue
to receive the medication and immediately issued him a daily
regimen of the prescribed medications.
1, 2012, Defendant Jones (“Jones”), a contract
medical provider, determined that Plaintiff did not need the
medication without examining Plaintiff or referring him to a
physician before terminating the medication. Before he left
medical, Plaintiff complained to Defendant Rodgers
(“Rodgers”), the head medical provider, who
agreed with Jones that Plaintiff did not need the medication.
The next day, May 2, 2012, Plaintiff suffered a grand mal
continued to suffer grand mal seizures and other related
symptoms and, on December 29, 2014, the necessary medication
was reinstated. In April 2015, Plaintiff was sent to an
outside neurologist for the seizures and symptoms he had been
suffering. The neurologist determined that Plaintiff should
take 750 mg of Keppra, an antiepileptic drug, twice daily.
See https://www.rxlist.com/keppra-drug.htm (last
visited April 22, 2019).
Plaintiff returned to the VCC, Defendant Lyneh Ray
(“Ray”) prescribed him 1500 mg of Keppra, twice
daily. When Plaintiff began taking the 1500 mg twice daily,
he began experiencing severe headaches, slurred speech,
blurred vision, sluggishness, and clumsiness. Plaintiff
submitted sick call slips and grievances complaining of his
symptoms. Nineteen months later (i.e., November
2016), Plaintiff was again seen by the outside neurologist
who found that Plaintiff had been receiving an incorrect dose
of Keppra. The neurologist again prescribed 750 mg of Keppra,
twice daily. Plaintiff alleges that he continues to suffer
repercussions from being over medicated.
claims raised are that: (1) Jones, Rodgers, and Ray were
deliberately indifferent to Plaintiff's serious medical
needs when they refused to provide him the prescribed
medication in violation of the Eighth Amendment; (2)
Defendant Connections Community Support Programs
(“Connections”) has a policy of restricting or
denying follow-up up care by a physician and Jones, Rodgers,
and Ray followed Connections' policy when they denied
Plaintiff any follow-up care; and (3) Connections failed to
take steps to ensure that Plaintiff received the needed
treatment. The Complaint also names as defendants Chief of
the Bureau of Correctional Health Care Services Mark Richman
(“Richman”), VCC Warden Dana Metzger
(“Metzger”), and Warden Pierce
(“Pierce”), although there are no factual
allegations raised against them.
relief, Plaintiff seeks declaratory and injunctive relief as
well as compensatory and punitive damages.
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 plaintiff. See 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, 551
U.S. at 94 (citations omitted).
action is frivolous if it “lacks an arguable basis
either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989). Under 28 U.S.C.
§ 1915(e)(2)(B)(i) and § 1915A(b)(1), a court may
dismiss a complaint as frivolous if it is “based on an
indisputably meritless legal theory” or a
“clearly baseless” or “fantastic or
delusional” factual scenario. Neitzke, 490
U.S. at 327-28; see also Wilson v. Rackmill, 878
F.2d 772, 774 (3d Cir. 1989); Deutsch v. United
States, 67 F.3d 1080, 1091-92 (3d Cir. 1995) (holding
frivolous a suit alleging that prison officials took an
inmate's pen and refused to give it back).
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
deciding Federal Rule of Civil Procedure 12(b)(6) motions.
See Tourscher v. McCullough, 184 F.3d 236, 240 (3d
Cir. 1999) (applying Fed.R.Civ.P. 12(b)(6) standard to
dismissal for failure to state a claim under §
1915(e)(2)(B)). 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, however, the Court must ...