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Melendez v. Harper

United States District Court, D. Delaware

December 19, 2019

ANIBAL MELENDEZ, Plaintiff,
v.
DR. HARPER, et al., Defendants.

          Anibal Melendez, James T. Vaughn Correctional Center, Smyrna, Delaware. Pro Se Plaintiff.

          Dana Spring Monzo, Esquire, White & Williams, Wilmington, Delaware. Counsel for Defendant Monica Mills.

          MEMORANDUM OPINION

          Andrews U.S. District Judge

         Plaintiff Anibal Melendez, an inmate at the James T. Vaughn Correctional Center in Smyrna, Delaware, filed this action pursuant to 42 U.S.C. § 1983.[1] (D.I. 1). Plaintiff appears pro se and has been granted leave to proceed in forma pauperis. (D.I. 5). Before the Court is Defendant Monica Mill's motion to dismiss, and Plaintiff's motion to compel discovery, motion for leave to file an amended complaint, and request for entry of default. (D.I. 27, 36, 41, 42). The motion to dismiss has been fully briefed.

         BACKGROUND

         Plaintiff filed a Second Amended Complaint on October 2, 2018. (D.I. 16). The Court screened and reviewed it and Plaintiff was allowed to proceed against Mills and Dr. Harper. (D.I. 17, 18). Plaintiff alleges that on May 31, 2016, he underwent surgery at Christiana Care to repair a broken eye socket and to correct his double vision. (D.I. 16 at 2). Plaintiff received follow-up care at Christiana Hospital two weeks later and an x-ray revealed the "bottom eye lid was pinched under the hardware." (Id.).

         Plaintiff was scheduled to see Dr. Harper, a specialist and the medical administrator at the JTVCC, to see if he would perform surgery. (Id. at 2-3). Dr. Harper scheduled Plaintiff to see a specialist at the Limestone Facility to provide whatever necessary care was needed. (Id.).

         Plaintiff alleges that, since then, he has submitted repeated sick call requests and filed grievances to see a physician to correct the surgery as he continues to suffer from double vision and he has right eye pain because his eyelashes are growing into it. (Id.). He alleges that both Mills and Dr. Harper are responsible for arranging for specialized care outside of the prison. (Id. at 4). Plaintiff alleges that two years have passed without a response from the medical department. (Id.). Plaintiff is in great pain and believes that he will suffer permanent eye damage if he does not undergo the surgery. (Id.). Plaintiff alleges the failure of Defendants to provide adequate care, and/or corrective surgery, and/or follow-up treatment constitutes deliberate indifference in violation of his Eighth Amendment rights to the United States Constitution. (Id. at 4-5). Plaintiff seeks compensatory damages and injunctive relief.

         On April 4, 2019, Plaintiff moved for leave to amend and his motion was granted. (See D.I. 23, 25). In the motion, Plaintiff explained that he had determined that Dr. Harper is Lori Jones. His motion described Jones' alleged acts. Plaintiff was given until May 13, 2019 to file an amended complaint. (See D.I. 25). Plaintiff never filed an amended complaint. As a result, the Court entered an order on June 3, 2019, noted that Plaintiff had failed to file an amended complaint, advised that the Second Amended Complaint at D.I. 16 is the operative pleading, ordered Mills to answer or otherwise plead, and gave Plaintiff until on or before June 24, 2019 to properly identify Dr. Harper and to provide an address for his or her service.[2] (See D.I. 26). Plaintiff did not identify Dr. Harper or provide an address for service. Mills filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). (D.I. 27).

         MOTION TO DISMISS

         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.'" Davis 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, "for imperfect statement of the legal theory supporting the claim asserted." Johnson v. City of Shelby, 574 U.S. 10, 10 (2014).

         A complainant must plead facts sufficient to show that a claim has "substantive plausibility." Id. That plausibility must be found on the face of the complaint. Ashcroft v. Iqbal,556 U.S. 662, 678 (2009). "A claim has facial plausibility when the [complainant] pleads factual content that allows the court to draw the reasonable inference that the [accused] is liable for the misconduct alleged." Id. Deciding whether a claim is plausible will be a "context-specific task ...


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