United States District Court, D. Delaware
Augustus Hebrew Evans, Jr., James T. Vaughn Correctional
Center, Smyrna, Delaware, Pro Se Plaintiff.
Spring Monzo, Esquire, and Karine Sarkisian, Esquire, White
& Williams, Wilmington, Delaware, Counsel for Defendants
Lezley Sexton, Christine Francis, and Dr. Herman Ellis.
Trocki Mantzavinos, Esquire, Marks, O'Neill, O'Brien,
Doherty & Kelly, P.C., Counsel for Defendants Deborah
Muscarella and Dr. Anthony Cannuli.
ANDREWS, U.S. DISTRICT JUDGE.
Augustus Hebrew Evans, Jr., an inmate at the James T. Vaughn
Correctional Center in Smyrna, Delaware, filed this action
pursuant to 42 U.S.C. § 1983 asserting constitutional
violations and raising supplemental state claims. He appears
pro se and has been granted leave to proceed in
forma pauperis. (D.I. 6). The Second Amended Complaint
is the operative pleading. (D.I. 77). Before the Court are
numerous motions filed by the parties, including motions to
dismiss filed by Defendants Deborah Muscarella, a Mental
Health Administrator, and Dr. Anthony Cannuli, and Plaintiffs
renewed motion to appoint an expert or to authorize funds to
hire same, requests for counsel, request for a scheduling
conference, and request for depositions and subpoenas. (D.I.
79, 80, 101, 102, 103, 106, 107, 114).
Second Amended Complaint alleges that Plaintiff was housed at
the Howard R. Young Correctional Institution (also known as
Gander Hill) in Wilmington, Delaware, from 2006 through 2008.
(D.I. 77 at 5). On March 30, 2007, he was examined by Dr.
Robert G. Thompson, who made recommendations for Plaintiffs
mental health care. (Id.). In April 2007, Plaintiff
was seen by Muscarella who prescribed Plaintiff psychotropic
medication (i.e., Risperdal). (Id.).
Plaintiff was transferred to the JTVCC on April 16, 2008, and
seen by Dr. Cannuli who reordered the medication.
(Id.). Plaintiff alleges he had weight gain and his
chest started to look funny after he began taking the
medication. (Id. at 6). Plaintiff was seen by a
mental health clinician who told Plaintiff the medication had
nothing to do with the changes he was experiencing.
(Id.). Plaintiff remained on the medication from
April 2008 to July 25, 2013. (Id.).
14, 2014, Plaintiff learned that Risperdal caused potentially
dangerous side effects including gynecomastia, and he
submitted a sick call slip. (Id.). When Plaintiff
was seen by a nurse, he was told that he needed to see a
specialist. (Id.). Plaintiff was seen by Dr. Sylvia
Desrosiers on several occasions, and she ordered various
medical tests. (Id.).
alleges that he was prescribed Risperdal for an off label
purpose and that Defendants were deliberately indifferent to
his mental health and medical needs. (Id. at 5-12).
He further alleges that despite his long use of the
medication, he has yet to be seen by a specialist and has not
been properly diagnosed. (Id. at 8). In addition,
Plaintiff alleges that Defendants failed to monitor and/or
establish policies to monitor mental health staff and drugs
prescribed to inmates. (Id. at 12). Finally,
Plaintiff alleges that he suffered a "serious risk of
substantial harm" while under the care of Defendants.
(Id.). Plaintiff seeks compensatory and punitive
and Dr. Cannuli have both filed motions to dismiss.
Muscarella moves for summary judgment in the alternative. The
Court will deny without prejudice as premature the motion for
summary judgment in the alternative. Both Defendants move to
dismiss the medical negligence claims raised by Plaintiff. In
addition, Muscarella moves to dismiss any claims raised
against her that are based upon respondeat superior.
reviewing a motion 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 them in the light most
favorable to the complainant, a court concludes that those
allegations "could not raise a claim of entitlement to
relief." Bell Atl. Corp. v. Twombly, 550 U.S.
544, 558 (2007).
'detailed factual allegations' are not required, a
complaint must do more than simply provide 'labels and
conclusions' or 'a formulaic recitation of the
elements of a cause of action.'" Daw's v.
Abington Mem'l Hosp.,765 F.3d 236, 241 (3d Cir.
2014) (quoting Twombly, 550 U.S. at 555). I am "not
required to credit bald assertions or legal conclusions
improperly alleged in the complaint." In re
Rockefeller Ctr. Props., Inc. Sec. Litig.,311 F.3d 198,
216 (3d Cir. 2002). A complaint may not be dismissed,