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Nash v. Akinbayo

United States District Court, D. Delaware

September 13, 2019

ANTHONY A. NASH, et al., Plaintiffs,
KOLAWOLE AKINBAYO, et al., Defendants.

          Anthony A. Nash, New Castle, Delaware; Jose Santiago, Morris Community Correctional Center, Dover, Delaware; and Reggie Folks, Howard R. Young Correctional Institution, Wilmington, Delaware. Pro Se Plaintiffs.

          Carla Anne Kingery Jarosz, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware. Counsel for Defendants Kolawole Akinbayo, Perry Phelps, and Steven Wesley.

          Dana Spring Monzo, Esquire, and Karine Sarkisian, Esquire, White & Williams, Wilmington, Delaware. Counsel for Defendant Connections CSP, Inc.



         Plaintiffs Anthony Nash (“Nash”), Jose Santiago (“Santiago”), and Reggie Folks (“Folks”) (collectively “Plaintiffs”), all former or current inmates at the Howard R. Young Correctional Institution (“HRYCI”) in Wilmington, Delaware, commenced this action on May 3, 2018, pursuant to 42 U.S.C. § 1983[1] against State Defendants HRYCI Warden Kolawole Akinbayo (“Warden Akinbayo”), former Delaware Department of Correction (“DOC”) Commissioner Perry Phelps (“Phelps”), and former HRYCI Warden and former Bureau of Prisons Chief Steven Wesley (“Wesley”) (collectively “State Defendants”)[2] as well as medical Defendant Connections CSP, Inc. (“Connections”). (D.I. 2). Plaintiffs filed an Amended Complaint on May 24, 2018 and it is the operative pleading.[3] (D.I. 10). The Court has jurisdiction pursuant to 28 U.S.C. § 1331. Before the Court are Defendants' motions to dismiss, opposed by Nash and Santiago (D.I. 54, D.I. 57); Nash's motion for leave to proceed in forma pauperis (D.I. 67); Nash's motion for class certification opposed by Defendants (D.I. 68); and Santiago's request for counsel (D.I. 74).

         I. BACKGROUND

         The Amended Complaint raises unlawful conditions of confinement and medical needs claims at the HRYCI as well as “any state law claims.” (D.I. 10 ¶ 1). The matter was filed as a proposed class action with Nash as the proposed class representative. (Id. ¶¶ 14-20). Since the filing of this action, Nash has been released from prison and Santiago has been transferred to the Morris Community Correctional Center in Dover, Delaware. (D.I. 56, D.I. 84). According to the web-site VINE-LINK, Folks is now housed at the James T. Vaughn Correctional Center (“JTVCC”) in Smyrna, Delaware, but he has not advised the Court of his transfer there. See (last visited Sept. 10, 2019).

         Plaintiffs, all of whom were housed in Dorm One of the Key North Program at HRYCI, allege they were confined with inmates who were medically cleared, but suffered from contagious and fatal illnesses such as tuberculosis, hepatitis and/or AIDs. (D.I. 10 ¶ 26). The Amended Complaint alleges that inmates, such as Nash, were forced to sleep within 20 feet of 12 toilets and 15 showers that were often used throughout the night with frequent overflows on the floor described as “replete with fetid waste contaminated with HIV, hepatitis, and other contagious diseases found in blood and fecal matter.” (Id. ¶ 27).

         The Amended Complaint describes Dormitories One and Two as each containing 100 bunks, zero tables for eating, communal showers with faulty drainage so inmates are forced to stand in pools of contaminated water, and with toilets that sometimes back up. (Id. ¶¶ 28-31). Plaintiffs allege that the frequent flooding, cool temperatures, and lack of adequate ventilation resulted in a damp air climate in which visible toxic mold thrives on metal ventilation air ducts, metal ceilings, and overhead pipes. (Id. ¶¶ 32, 34). The Amended Complaint alleges that Nash became severely ill because of the exposure.[4] (Id. ¶ 32). Plaintiffs allege the black mold, dust, and bacteria fill the ventilation system and air ducts, and the toxic mold is so prevalent throughout the dorms that it has become airborne and can be ingested merely by breathing. (Id. ¶¶ 32, 34). Plaintiffs allege that nearly every inmate housed in Dormitory One, including Nash, became ill with breathing and other issues. (Id. ¶ 32). Plaintiffs allege that they “have observed a pattern of indifference” to their medical needs. (Id. ¶ 37). Plaintiffs alleges that when Nash became ill, he was seen by medical staff on an unknown date, told he was suffering from allergies, and given a nasal spray. (Id.).

         Plaintiffs allege Defendants knew of the problems associated with the inadequate ventilation system and painted the air ducts black in a failed attempt to mask the toxic black mold. (Id. ¶¶ 35, 36). Plaintiffs allege that all “Defendants are aware of the overcrowding, inadequate ventilation, poor plumbing, and toxic and airborne mold issues which pervade” Dormitory One. (Id. ¶ 39). Plaintiffs allege that they “fear for their future because of the highly carcinogenic poison producing mold.” (Id. ¶ 42). Plaintiffs allege they “have asthma attacks in the middle of the night and don't even have asthma.” (Id.).

         Plaintiffs allege that they sought to make complaints about the conditions, but there is “effectively, no functioning grievance process” at the HRYCI and “their cries for help have been ignored.” (Id. ¶ 38). Santiago submitted a grievance complaining about black mold. (Id. ¶ 40). The Amended Complaint alleges that Santiago was threatened with solitary confinement by non-defendant Lt. Gray if Santiago did not sign off on the grievance.[5] (Id.). Plaintiffs allege that the HRYCI has a grievance process in name only. (Id. ¶ 46). They allege that on the rare occasion when an informal resolution is reached, it is only honored until correctional officers decide to disregard or breach the agreement. (Id.)

         Count I alleges due process violations under the Fourteenth Amendment of the United States Constitution on behalf of all inmates past, present, and future, who are housed in Dormitories One and Two, for unlawful conditions of confinement, for failing to adopt necessary policies and training programs, and failing to properly supervise correctional officers assigned to HRYCI. (Id. ¶ 52). Count II alleges unlawful conditions of confinement under the Eighth Amendment of the United States Constitution on behalf of all inmates past, present, and future, who are housed in Dormitories One and Two, for failing to adopt necessary policies and training programs, and failing to properly supervise correctional officers assigned to HRYCI. (Id. ¶ 53).

         The Eighth Amendment governs claims brought by convicted inmates challenging their conditions of confinement, while the Due Process Clause of the Fourteenth Amendment governs claims brought by pretrial detainees. See Hubbard v. Taylor, 399 F.3d 150, 166 (3d Cir. 2005). It is unclear if, at the time the action commenced, Nash, Santiago, and Folks were convicted inmates or pretrial detainees.

         Plaintiffs seek compensatory and punitive damages, equitable relief, and injunctive relief. (Id. at Prayer for Relief).


         A. Legal Standard

         Because Plaintiffs proceed pro se, their pleading is liberally construed and their Amended Complaint, “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). When presented with a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), district courts conduct a two-part analysis. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). First, the Court separates the factual and legal elements of a claim, accepting “all of the complaint's well-pleaded facts as true, but [disregarding] any legal conclusions.” Id. at 210-11. Second, the Court determines “whether the facts alleged in the complaint are sufficient to show . . . a ‘plausible claim for relief.'” Id. at 211 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).

         “To survive a motion to dismiss, a civil plaintiff must allege facts that ‘raise a right to relief above the speculative level on the assumption that the allegations in the complaint are true (even if doubtful in fact).'” Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Dismissal under Rule 12(b)(6) is appropriate if a complaint does not contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570); see also Fowler, 578 F.3d at 210. A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. The Court is not obligated to accept as true “bald assertions” or “unsupported conclusions and unwarranted inferences.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997); Schuylkill Energy Res., Inc. v. Pennsylvania Power & Light Co., 113 F.3d 405, 417 (3d Cir. 1997). Instead, “[t]he complaint must state enough facts to raise a reasonable expectation that discovery will reveal evidence of [each] necessary element” of a plaintiff's claim. Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315, 321 (3d Cir. 2008) (internal quotation marks omitted). In addition, 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).

         B. Discussion

         State Defendants move to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) on the grounds that: (1) Plaintiffs have failed to exhaust their administrative remedies as is required under the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a); (2) the Amended Complaint alleges, without documentary support, that mold or toxic mold is present at the HRYCI and causes the medical symptoms complained of; (3) the claims are deficiently pled; and (4) the claims against State Defendants in their official capacities that seek monetary damages are barred by the Eleventh Amendment. (D.I. 55 ¶¶ 2-5, 16).

         Connections moves for dismissal pursuant to Fed.R.Civ.P. 12(b)(6) on the grounds that: (1) Plaintiffs have failed to exhaust their administrative remedies as is required under the PLRA; (2) the authority to make decisions related to housing, conditions of confinement or grievance policies belong to the DOC, not Connections; (3) Plaintiffs have failed to plead a viable constitutional claim of deliberate indifference; and (4) Plaintiffs failed to attach an affidavit of merit as required under Delaware law for any potential medical negligence claims. (D.I. 57 at 1).

         Nash and Santiago filed oppositions to the motions. (D.I. 59, D.I. 63, D.I. 65, D.I. 71). Folks did not. Nash and Santiago argue that the Court has already screened the Amended Complaint and determined that it raised cognizable and non-frivolous claims within the meaning of 28 U.S.C. § 1915A(b) and § 1915(e)(2)(B). While this is correct, the Court takes a second look at the Amended Complaint in light of the arguments posed by Defendants in their motions to dismiss.

         Finally, to the extent Nash and Santiago attempt to amend the Amended Complaint by providing new facts and relying upon exhibits in their oppositions that were not attached to the amended Complaint, they may not do so. Plaintiffs may not amend their complaint through opposition briefs, and new facts may not be considered by the Court on the instant motions to dismiss. See Commonwealth of Pa. ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988) (citing Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984)) (“[I]t is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss.”).

         1. Administrative Remedies

         Defendants argue that dismissal is appropriate because Plaintiffs failed to exhaust their administrative remedies as required under the PLRA. In support of their motion, State Defendants submitted documents outside the pleadings. (See D.I. 55 at Exs. A, C, D, grievances submitted by Nash, Folks, and Santiago). In their oppositions, Nash and Santiago also submit documents outside the pleadings. (See D.I. 59 at Ex. A at 25-27, Boyles grievances; D.I. 71-2 at Ex. B at 15-20). As will be discussed, because resolving the issue of administrative exhaustion requires examination of factual matters well outside the pleadings, these documents are not considered.[6] Connections argues that the Amended Complaint must be dismissed as a matter of law because there are no allegations that any plaintiff submitted a grievance related to his own medical condition or treatment, let alone complete the remedies available to him.

         Both Nash and Santiago contend dismissal is not appropriate because they submitted grievances relating to inhumane conditions of confinement and the grievance officer, Cpl. Grose (“Grose”) converted all grievances into a group grievance.[7] (D.I. 59 at 3; D.I. 76 at 4). Nash and Santiago contend that, rather than allowing Nash to represent his peers, the grievance committee chose inmate Andrew Mudry (“Mudry”) who was scheduled for release and then scheduled the grievance hearing after Mudry's release. (Id.). State Defendants respond that Mudry remained housed at the HRYCI until July 20, 2018, “well after suit was filed.” (D.I. 62 at 3-4). State Defendants further argue that the assertions regarding the Mudry group grievance are invalid.

         The PLRA states that “[n]o action shall be brought with respect to prison conditions under [§ 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is considered separately for each claim brought by an inmate, and if a complaint includes both exhausted and unexhausted claims, courts will dismiss the latter but not the former. See Jones v. Bock, 549 U.S. 199, 219-20 (2007).

         As alleged in the Amended Complaint, “there is, effectively, no functioning grievance process” at the HRYCI, and Plaintiffs have been “denied access to an effective, functioning grievance process.” (D.I. 10 ¶¶ 38, 39). In addition, Plaintiffs allege that Santiago was threatened with solitary confinement “if he did not sign off on the grievance.”[8] (Id. ¶¶ 40, 46). Finally, the Amended Complaint alleges that “there is no effective grievance process in place by which . . . inmates with genuine health concerns could seek redress of their concerns.” (Id. ¶ 45).

         The “[f]ailure to exhaust is an affirmative defense the defendant must plead and prove; it is not a pleading requirement for the prisoner-plaintiff.” Small v. Camden Cty., 728 F.3d 265, 268 (3d Cir. 2013) (citing Jones v. Bock, 549 U.S. at 212, 216-17). Hence, when the failure to exhaust is raised as the basis for a motion to dismiss, dismissal is appropriate only where the failure to exhaust is ...

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