United States District Court, D. Delaware
Melendez, James T. Vaughn Correctional Center, Smyrna,
Delaware. Pro Se Plaintiff.
Spring Monzo, Esquire, White & Williams, Wilmington,
Delaware. Counsel for Defendant Monica Mills.
Andrews U.S. District Judge
Anibal Melendez, an inmate at the James T. Vaughn
Correctional Center in Smyrna, Delaware, filed this action
pursuant to 42 U.S.C. § 1983. (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
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.).
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.).
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
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. (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).
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.'" 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).
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 ...