IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE LAMAR TROWER, : Plaintiff, Vv. : Civil Action No. 19-1817-RGA DOC MEDICAL TREATMENT, et al., Defendants.
Lamar Trower, James T. Vaughn Correctional Center, Smyrna, Delaware. Pro Se Plaintiff.
MEMORANDUM OPINION
noverver | , 2019 Wilmington, Delaware
Plaintiff Lamar Trower, an inmate at the James T. Vaughn Correctional Center (“JTVCC’) in Smyrna, Delaware, filed this action pursuant to 42 U.S.C. § 1983. (D.I. 2). Plaintiff appears pro se and has been granted leave to proceed in forma pauperis. (D.1. 6). He requests counsel. (D.I. 5). The Court proceeds to screen the Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(a). BACKGROUND In 2018, Plaintiff was diagnosed with a small olecranon spur. (D.I. 2 at 5). In 2019, the Delaware Department of Correction sent Plaintiff to an outside medical provider. (/d.). Plaintiff alleges that he has two problems: (1) bone spur tendencies; and (2) if surgery is performed on the spur, he will be unable to use his left arm for six months, and he is left handed. (/d.). He alleges that he has started having the same issue in his right arm. (/d. at 6). Plaintiff also complains that he has left hand pain, and his request for an increase in pain medication has not been granted. (/d. at 5). Plaintiff alleges that Defendant Flora Atangcho hands out the medication and is not giving Plaintiff what he needs. (/d. at 6). Plaintiff has placed 18 sick call slips over the same issue and has written to Defendant Health Services Administrator Matt Wofford about the medication issue. Plaintiff seeks compensatory damages. SCREENING OF COMPLAINT A federal court may properly dismiss an action sua sponte under the screening provisions of 28 U.S.C. § 1915(e)(2)(B) and § 1915A\(b) if “the action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary
relief from a defendant who is immune from such relief.” Ball v. Famiglio, 726 F.3d 448, 452 (3d Cir. 2013). See also 28 U.S.C. § 1915(e)(2) (in forma pauperis actions); 28 U.S.C. § 1915A (actions in which prisoner seeks redress from a governmental defendant). The Court must accept all factual allegations in a complaint as true and take them in the light most favorable to a pro se plaintiff. Phillips v. County of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008); Erickson v. Pardus, 551 U.S. 89, 93 (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 v. Pardus, 551 U.S. at 94. An action is frivolous if it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). Under 28 U.S.C. § 1915(e)(2)(B)(i) and § 1915A(b)(1), a court may dismiss a complaint as frivolous if it is “based on an indisputably meritless legal theory” or a “clearly baseless” or “fantastic or delusional’ factual scenario. Neitzke, 490 U.S. at 327-28; Wilson v. Rackmill, 878 F.2d 772, 774 (3d Cir. 1989). The legal standard for dismissing a complaint for failure to state a claim pursuant to § 1915(e)(2)(B)(ii) and § 1915A(b)(1) is identical to the legal standard used when ruling on Rule 12(b)(6) motions. Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999). However, before dismissing a complaint or claims for failure to state a claim upon which relief may be granted pursuant to the screening provisions of 28 U.S.C. §§1915 and 1915A, the Court must grant Plaintiff leave to amend his complaint unless amendment would be inequitable or futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).
A well-pleaded complaint must contain more than mere labels and conclusions. See Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). A plaintiff must plead facts sufficient to show that a claim has substantive plausibility. See Johnson v. City of Shelby, 574 U.S.10 (2014). A complaint may not dismissed, however, for imperfect statements of the legal theory supporting the claim asserted. See id. at 10. A court reviewing the sufficiency of a complaint must take three steps: (1) take note of the elements the plaintiff must plead to state a claim; (2) identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth; and (3) when there are well-pleaded factual allegations, assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Connelly v. Lane Constr. Corp., 809 F.3d 780,787 (3d Cir. 2016). Elements are sufficiently alleged when the facts in the complaint “show” that the plaintiff is entitled to relief. /qgba/, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). Deciding whether a claim is plausible will be a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” /d. DISCUSSION Eleventh Amendment Immunity. DOC Medical Treatment (presumably the DOC) is an agency of the State of Delaware. The Eleventh Amendment protects states and their agencies and departments from suit in federal court regardless of the kind of relief sought. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). “Absent a state’s consent, the Eleventh Amendment bars a civil rights suit in federal court that names the state as a defendant.” Laskans v. Thornburgh, 661 F.2d 23, 25
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE LAMAR TROWER, : Plaintiff, Vv. : Civil Action No. 19-1817-RGA DOC MEDICAL TREATMENT, et al., Defendants.
Lamar Trower, James T. Vaughn Correctional Center, Smyrna, Delaware. Pro Se Plaintiff.
MEMORANDUM OPINION
noverver | , 2019 Wilmington, Delaware
Plaintiff Lamar Trower, an inmate at the James T. Vaughn Correctional Center (“JTVCC’) in Smyrna, Delaware, filed this action pursuant to 42 U.S.C. § 1983. (D.I. 2). Plaintiff appears pro se and has been granted leave to proceed in forma pauperis. (D.1. 6). He requests counsel. (D.I. 5). The Court proceeds to screen the Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(a). BACKGROUND In 2018, Plaintiff was diagnosed with a small olecranon spur. (D.I. 2 at 5). In 2019, the Delaware Department of Correction sent Plaintiff to an outside medical provider. (/d.). Plaintiff alleges that he has two problems: (1) bone spur tendencies; and (2) if surgery is performed on the spur, he will be unable to use his left arm for six months, and he is left handed. (/d.). He alleges that he has started having the same issue in his right arm. (/d. at 6). Plaintiff also complains that he has left hand pain, and his request for an increase in pain medication has not been granted. (/d. at 5). Plaintiff alleges that Defendant Flora Atangcho hands out the medication and is not giving Plaintiff what he needs. (/d. at 6). Plaintiff has placed 18 sick call slips over the same issue and has written to Defendant Health Services Administrator Matt Wofford about the medication issue. Plaintiff seeks compensatory damages. SCREENING OF COMPLAINT A federal court may properly dismiss an action sua sponte under the screening provisions of 28 U.S.C. § 1915(e)(2)(B) and § 1915A\(b) if “the action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary
relief from a defendant who is immune from such relief.” Ball v. Famiglio, 726 F.3d 448, 452 (3d Cir. 2013). See also 28 U.S.C. § 1915(e)(2) (in forma pauperis actions); 28 U.S.C. § 1915A (actions in which prisoner seeks redress from a governmental defendant). The Court must accept all factual allegations in a complaint as true and take them in the light most favorable to a pro se plaintiff. Phillips v. County of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008); Erickson v. Pardus, 551 U.S. 89, 93 (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 v. Pardus, 551 U.S. at 94. An action is frivolous if it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). Under 28 U.S.C. § 1915(e)(2)(B)(i) and § 1915A(b)(1), a court may dismiss a complaint as frivolous if it is “based on an indisputably meritless legal theory” or a “clearly baseless” or “fantastic or delusional’ factual scenario. Neitzke, 490 U.S. at 327-28; Wilson v. Rackmill, 878 F.2d 772, 774 (3d Cir. 1989). The legal standard for dismissing a complaint for failure to state a claim pursuant to § 1915(e)(2)(B)(ii) and § 1915A(b)(1) is identical to the legal standard used when ruling on Rule 12(b)(6) motions. Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999). However, before dismissing a complaint or claims for failure to state a claim upon which relief may be granted pursuant to the screening provisions of 28 U.S.C. §§1915 and 1915A, the Court must grant Plaintiff leave to amend his complaint unless amendment would be inequitable or futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).
A well-pleaded complaint must contain more than mere labels and conclusions. See Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). A plaintiff must plead facts sufficient to show that a claim has substantive plausibility. See Johnson v. City of Shelby, 574 U.S.10 (2014). A complaint may not dismissed, however, for imperfect statements of the legal theory supporting the claim asserted. See id. at 10. A court reviewing the sufficiency of a complaint must take three steps: (1) take note of the elements the plaintiff must plead to state a claim; (2) identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth; and (3) when there are well-pleaded factual allegations, assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Connelly v. Lane Constr. Corp., 809 F.3d 780,787 (3d Cir. 2016). Elements are sufficiently alleged when the facts in the complaint “show” that the plaintiff is entitled to relief. /qgba/, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). Deciding whether a claim is plausible will be a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” /d. DISCUSSION Eleventh Amendment Immunity. DOC Medical Treatment (presumably the DOC) is an agency of the State of Delaware. The Eleventh Amendment protects states and their agencies and departments from suit in federal court regardless of the kind of relief sought. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). “Absent a state’s consent, the Eleventh Amendment bars a civil rights suit in federal court that names the state as a defendant.” Laskans v. Thornburgh, 661 F.2d 23, 25
(3d Cir. 1981). Delaware has not waived its immunity from suit in federal court; although Congress can abrogate a state’s sovereign immunity, it did not do so through the enactment of 42 U.S.C. § 1983. See Brooks-McCollum v. Delaware, 213 F. App’x 92, 94 (3d Cir. 2007). In addition, dismissal is proper because DOC Medical is not a person for purposes of § 1983. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71(1989); Calhoun v. Young, 288 F. App’x 47 (3d Cir. 2008). Accordingly, the Court will dismiss the claims against DOC Medical Treatment pursuant to 28 U.S.C. § 1915(e)(2)(B)(ilil) and § 1915A(b)(2) as it is immune from suit. Medical Needs. Plaintiff disagrees with the medical care provided him. He would like an increase in pain medication and he does not wish to undergo recommended surgery. Plaintiff has failed to state an Eighth Amendment claim. Although “[a]cts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs” constitute cruel and unusual punishment under the Constitution, Estelle v. Gamble, 429 U.S. 97, 106 (1976), merely negligent treatment does not give rise to a constitutional violation, Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004). The allegations indicate that Plaintiff has received treatment, albeit not to his liking. Because his allegations amount to “mere disagreement as to the proper medical treatment,” they are insufficient to state a plausible constitutional violation. /d. (cleaned up); see also Norris v. Frame, 585 F.2d 1183, 1186 (3d Cir. 1978) (“Where the plaintiff has received some care, inadequacy or impropriety of the care that was given will not support an Eighth Amendment claim.”).
The Complaint fails to state a claim upon which relief may be granted. Therefore, it will be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). However, because it appears plausible that Plaintiff may be able to articulate a claim against a defendant or name alternative defendants, he will be given an opportunity to amend his pleading. See O’Dell v. United States Govt, 256 F. App’x 444 (3d Cir. 2007). REQUEST FOR COUNSEL Plaintiff seeks counsel on the grounds that he does not have the ability to present his case, he is unskilled in the law and the issues are complex, the case may turn on credibility determinations, expert witnesses will be necessary, he cannot attain and afford counsel on his own behalf, and counsel will serve the best interests of justice. (D.I. 5). A pro se litigant proceeding in forma pauperis has no constitutional or statutory right to representation by counsel.' See Brightwell v. Lehman, 637 F.3d 187, 192 (3d Cir. 2011); Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993). However, representation by counsel may be appropriate under certain circumstances, after a finding that a plaintiff's claim has arguable merit in fact and law. Tabron, 6 F.3d at 155. After passing this threshold inquiry, the Court should consider a number of factors when assessing a request for counsel. Factors to be considered by a court in deciding whether to request a lawyer to represent an indigent plaintiff include: (1) the merits of the plaintiff's claim; (2) the plaintiff's ability to present his or her case
‘See Mallard v. United States Dist. Court for the S. Dist. of lowa, 490 U.S. 296 (1989) (§ 1915(d) (now § 1915(e)(1)) does not authorize a federal court to require an unwilling attorney to represent an indigent civil litigant, the operative word in the statute being “request.”).
considering his or her education, literacy, experience, and the restraints placed upon him or her by incarceration; (3) the complexity of the legal issues; (4) the degree to which factual investigation is required and the plaintiff's ability to pursue such investigation; (5) the plaintiff's capacity to retain counsel on his or her own behalf; and (6) the degree to which the case turns on credibility determinations or expert testimony. See Montgomery v. Pinchak, 294 F.3d 492, 498-99 (3d Cir. 2002); Tabron, 6 F.3d at 155-56. The list is not exhaustive, nor is any one factor determinative. Tabron, 6 F.3d at 157. At this point, | cannot find that Plaintiff's claims have arguable merit in fact and law. The case is in its early stages, and there is no operative pleading. Disputes about whether or not to have surgery and the level of pain medication prescribed do not usually allege a constitutional violation. Therefore, the Court will deny Plaintiff's request for counsel without prejudice to renew. CONCLUSION For the above reasons, the Court will: (1) deny without prejudice to renew Plaintiff's request for counsel (D.I. 2); and (2) dismiss DOC Medical Treatment and the Complaint for failure to state a claim upon which relief may be granted and based upon immunity from suit pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and (iii) and § 1915A(b)(1) and (2). Plaintiff will be given leave to file an amended complaint. An appropriate Order will be entered.