United States District Court, D. Delaware
Howard, James T. Vaughn Correctional Center, Smyrna,
Delaware. Pro Se Plaintiff.
Anne Kingery Jarosz, Deputy Attorney General, Delaware
Department of Justice, Wilmington, Delaware. Counsel for
Defendants Robert Coupe, David Pierce, Ronald Hosterman,
Michael Little, Perry Phelps, Dana Metzger, and Jim Simms.
ANDREWS, U.JB. DISTRICT JUDGE
Kevin Howard, an inmate at the James T. Vaughn Correctional
Center in Smyrna, Delaware commenced this action pursuant to
42 U.S.C. § 1983. (D.I. 2). He proceeds pro se
and has been granted leave to proceed in forma
pauperis. (D.I. 4, 9). Before the Court is a motion to
dismiss the Amended Complaint filed by Defendants Robert
Coupe, Ronald Hosterman, Dana Metzger, Perry Phelps, David
Pierce, and Jim Simms (collectively "Defendants"),
Plaintiff's request for counsel, and Plaintiff's
motion for leave to file a second amended complaint. (D.I.
23, 25, 30). Briefing is complete.
Amended Complaint (D.I. 22) contains two counts. Count I is
raised against legal services administrator Michael Little
and alleges retaliation. (Id. at ¶¶ 28-43).
Count II alleges "municipal liability" against
former JTVCC Warden David Pierce, former JTVCC treatment
administrator Ronald Hosterman, and former Delaware
Department of Correction Commissioner Robert Coupe.
(Id. at ¶¶ 44-46, 49-53, 57-61). With the
exception of Defendant "New Castle County, the
Municipality of Vaughn," described as being sued under
municipal liability, all individual defendants are sued in
their individual and official capacities. (Id. at
Amended Complaint alleges that In February 2013, Plaintiff
complained to Hosterman that he was not being assigned jobs
and, even though the hiring and firing of inmates is a
classification function, correctional offices were performing
those functions. (Id. at¶ 24). During a
February 18, 2013 classification hearing, Plaintiff asked Lt.
Richard Porter to recommend Plaintiffs requests for
classification to a commissary job or the law library, and
Porter replied, "they don't do that anymore."
(Id. at ¶ 25).
wrote to Little in September 2013 and requested a job in the
JTVCC law library. (Id. at¶ 15). On September
24, 2013, Little responded that, at the time, he would not
consider hiring Plaintiff, and, for consideration of prison
employment, Plaintiff must be infraction-free for one year
and either have current employment or possess the requisite
education or experience to be hired immediately.
(Id. at ¶ 16).
April 25, 2014, Plaintiff spoke to Deputy Warden
Parker and complained of discrimination and
retaliation because he had not received a job assignment.
(Id. at ¶ 26). Parker instructed Plaintiff to
write him a letter. Plaintiff wrote to Parker twice, but
received no response. (Id.).
18, 2014, Howard spoke with Warden Pierce about retaliation,
discrimination because he was overlooked for a job, and the
hiring process of inmates by correctional officers and not by
classification. (Id. at ¶ 27). Plaintiff
alleges that Pierce responded that he would not force a
supervisor to give him a job and instructed Plaintiff to
speak to the head person on the job site where Plaintiff
wished to work. Id.
November 3, 2014, Plaintiff, along with other inmates, filed
an action in the Court of Chancery in and for New Castle
County, Delaware, against Coupe, Phelps, and Pierce, C.A. No.
10307-VCN. (Id. at ¶ 22); see Hall v.
Coupe, 2016 WL 3094406 (Del. Ch. May 25, 2016).
wrote to Little on July 9, 2015, and advised Little that he
had obtained a certificate of completion as a paralegal and
was resubmitting his name for a job in the law library.
[Id. at ¶ 17). In September 2015, Plaintiff
spoke to paralegal Maria Lyons about a position that had
become available at the JTVCC law library, and she told
Plaintiff the criteria for employment in the law library was
the inmate: (1) must be computer literate; (2) have filed no
litigation against the DOC; and (3) had no disciplinary
write-ups within one year. (Id. at ¶¶ 18,
October 27, 2015, Plaintiff asked Little why he was not hired
for the law library job and was told that he was not
considered because of his pending litigation against the DOC.
(Id. at ¶¶ 20, 21). Plaintiff submitted a
grievance on November 2, 2015, and alleged that Little had
retaliated when he did not employ him in the law library
because Plaintiff had filed suit against the DOC.
(Id. at ¶ 23). On May 24, 2016, the Chancery
Court dismissed the lawsuit filed by Plaintiff and other
inmates. See Hall v. Coupe, 2016 WL 3094406 at *1.
alleges that Pierce: (1) had actual or constructive knowledge
of non-classification personnel hiring and firing inmates and
acquiesced in the complained of conduct as evidenced by his
July 18, 2014 response to Plaintiff; (2) had full knowledge
of the statutory requirements regarding the classification of
inmates and the inmate classification board and condoned the
practice of correctional officers and employees hiring and
firing inmates; (3) had actual or constructive knowledge of
the practice of non-classification personnel hiring and
firing inmates; and (4) allowed the custom to continue, which
resulted in retaliation by Little. (D.I. 22 at ¶¶
alleges that Hosterman: (1) had actual or constructive
knowledge of non-classification personnel hiring and firing
inmates as evidenced by a May 1992 memo coupled with
Plaintiffs complaint to him more than twenty years later, in
February 2013; (2) had full knowledge of the statutory
requirements regarding the classification of inmates and the
inmate classification board and condoned the practice of
correctional officers and employees hiring and firing
inmates; (3) allowed the custom to continue, despite
complaints, and did nothing; (4) had a duty to comply with
state law; and (5) allowed the custom to continue, which
resulted in retaliation by Little. (D.I. 22 at ¶¶
alleges that Coupe: (1) had actual or constructive knowledge
of non-classification personnel hiring and firing inmates
from a complaint Plaintiff sent to Coupe on April 7, 2015
describing discrimination in work programs; and (2) did
nothing to end the practices after Plaintiff outlined a
pattern or custom of non-classification employees hiring and
firing inmates. (Id. at ¶¶ 58-61).
commenced this action on October 31, 2017. He seeks
compensatory damages as well as declaratory and injunctive
relief. (Id. at 2).
move to dismiss pursuant to Rule 12(b)(6) on the grounds
that: (1) the Amended Complaint fails to state a claim for
retaliation; (2) the claims against Coupe, Pierce, and
Hosterman are barred by the doctrine of sovereign immunity;
(3) the claims for injunctive and declaratory relief fail as
there are no allegations of an immediate threat of harm; (4)
the Amended Complaint fails to allege Defendants'
personal involvement in the alleged wrongs committed against
Plaintiff; (5) the claims are time-barred; and (6) Defendants
are protected from suit by reason of qualified immunity.
(D.I. 26). Plaintiff did not file an opposition to the motion
to dismiss. Instead, he filed a motion for leave to file a
second amended complaint. (D.I. 30).
addition to ruling on the pending motions, the Court will
screen the Amended Complaint pursuant to 28 U.S.C. §
1915(e)(2) and § 1915A(b), which allow the Court to
dismiss a case at any time if the court determines that the
action is frivolous or malicious; fails to state a claim on
which relief may be granted; or seeks monetary relief against
a defendant who is immune from such relief.
reviewing a motion to dismiss 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