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Howard v. Coupe

United States District Court, D. Delaware

July 10, 2019

KEVIN HOWARD, Plaintiff,
v.
ROBERT COUPE, et al., Defendants.

          Kevin Howard, James T. Vaughn Correctional Center, Smyrna, Delaware. Pro Se Plaintiff.

          Carla 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.

          MEMORANDUM OPINION

          ANDREWS, U.JB. DISTRICT JUDGE

         Plaintiff 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.

         BACKGROUND

         The Amended Complaint (D.I. 22) contains two counts. Count I is raised against legal services administrator Michael Little and alleges retaliation.[1] (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 ¶¶ 6-13).

         The 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).

         Plaintiff 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).

         On April 25, 2014, Plaintiff spoke to Deputy Warden Parker[2] 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.).

         On July 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.

         On 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).

         Plaintiff 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, 19).

         On 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.

         Plaintiff 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 ¶¶ 44-49).

         Plaintiff 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 ¶¶ 50-55).

         Plaintiff 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).

         Plaintiff commenced this action on October 31, 2017. He seeks compensatory damages as well as declaratory and injunctive relief. (Id. at 2).

         Defendants 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).

         In 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.

         MOTION TO DISMISS

         Legal Standards.

         In 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 ...


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