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Evans v. Sexton

United States District Court, D. Delaware

July 11, 2019

LEZLEY SEXTON, et al., Defendants.

          Augustus Hebrew Evans, Jr., James T. Vaughn Correctional Center, Smyrna, Delaware, Pro Se Plaintiff.

          Dana Spring Monzo, Esquire, and Karine Sarkisian, Esquire, White & Williams, Wilmington, Delaware, Counsel for Defendants Lezley Sexton, Christine Francis, and Dr. Herman Ellis.

          Megan Trocki Mantzavinos, Esquire, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C., Counsel for Defendants Deborah Muscarella and Dr. Anthony Cannuli.



         Plaintiff 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).


         The 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.).

         On June 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.).

         Plaintiff 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 damages.

         Muscarella 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.


         Legal Standards.

         In 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).

         "Though '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, however, ...

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