United States District Court, D. Delaware
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.
Anne Kingery Jarosz, Deputy Attorney General, Delaware
Department of Justice, Wilmington, Delaware. Counsel for
Defendants Kolawole Akinbayo, Perry Phelps, and Steven
Spring Monzo, Esquire, and Karine Sarkisian, Esquire, White
& Williams, Wilmington, Delaware. Counsel for Defendant
Connections CSP, Inc.
NOREIKA, U.S. DISTRICT JUDGE.
Anthony Nash (“Nash”), Jose Santiago
(“Santiago”), and Reggie Folks
“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. §
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”) 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. (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).
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
https://vinelink.vineapps.com/search/persons (last visited
Sept. 10, 2019).
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).
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. (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.
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.).
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. (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
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).
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.
seek compensatory and punitive damages, equitable relief, and
injunctive relief. (Id. at Prayer for Relief).
MOTIONS TO DISMISS
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)).
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).
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).
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).
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.
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
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. 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.
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. (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.
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).
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.” (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. ¶
“[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 ...