IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE GERONE L. WEATHERSBY, □ Plaintiff,
V. : Civ. Action No. 23-144-GBW CENTURION MANAGEMENT : CARE LLC, et al., : Defendants. :
Gerone L. Weathersby, Sussex Correctional Institution, Georgetown, Delaware, Pro Se Plaintiff.
MEMORANDUM OPINION
November 1, 2023 Wilmington, Delaware
i (hag | aioe States District Judge: I. INTRODUCTION
Plaintiff Gerone L. Weathersby, an inmate at Sussex Correctional Institution
(“SCI”) in Georgetown, Delaware, filed this action pursuant to 42 U.S.C. 3 1983.
3). He has filed two motions to amend (D.1. 8, 11). The Court will grant both
motions and read the three pleadings as one. Plaintiff appears pro se and has been
granted leave to proceed in forma pauperis. (D.I. 5). The Court proceeds to
review and screen the Complaint, as amended, pursuant to 28 U.S.C. § 1915(e)(2)(b) and § 1915A(a). II. BACKGROUND The following facts are taken from the Complaint and assumed to be true for
screening purposes. See Shorter v. United States, 12 F.4th 366, 374 (3d Cir. 2021). In April 2022, Plaintiff experienced a medical emergency, stopped breathing, and
was flown by helicopter from SCI to a hospital where he had surgery for cardiac
arrest. Thereafter, however, Defendants Centurion Management Care LLC and Dr.
Misty May never followed up with him. Although he feels healed, he feels that his
medical injury is ongoing. He seeks $5 million in damages. I. 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) 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) (quotation marks omitted); see also 28 U.S.C. § 1915(e)(2) (in forma pauperis actions); 28 U.S.C. § 1915A (civil actions filed by prisoners seeking redress from governmental entities or government officers and employees). 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. See Phillips v. County of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008). 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. 89, 94 (2007). A complaint is not automatically frivolous because it fails to state a claim. See Dooley v. Wetzel, 957 F.3d. 366, 374 (3d Cir. 2020). Rather, a claim is deemed frivolous only where it relies on an “‘indisputably meritless legal theory’ or a ‘clearly baseless’ or ‘fantastic or delusional’ factual scenario.”” Id. 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, 12 (2014) (per curiam). A complaint may not be dismissed, however, for imperfect statements of the legal theory supporting the claim asserted. See id. at 11. 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. Iqbal, 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.” Id. Plaintiff does not appear to allege an injury. Indeed, he alleges that he feels healed, but also feels that his injury is ongoing. It is unclear what this means, but it is insufficient to state a claim for deliberate indifference. Furthermore, as to Centurion, when a plaintiff relies upon a theory of respondeat superior to hold a corporation liable (rather than its employees or
agents themselves), he must allege a policy or custom that demonstrates such deliberate indifference. See Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 584 (3d Cir. 2003) (because respondeat superior or vicarious liability cannot be a basis for liability under 42 U.S.C. § 1983, a corporation under contract with the
state cannot be held liable for the acts of its employees and agents under those theories). Ultimately, to establish that Centurion is directly liable for the alleged constitutional violations, Plaintiff “must provide evidence that there was a relevant [Centurion] policy or custom, and that the policy caused the constitutional violation[s] [Plaintiff] allege[s].” Natale, 318 F.3d at 583-84. The First Amendment to the Complaint attempts to accomplish this, but only through conclusory recitations of the legal standard just discussed.
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE GERONE L. WEATHERSBY, □ Plaintiff,
V. : Civ. Action No. 23-144-GBW CENTURION MANAGEMENT : CARE LLC, et al., : Defendants. :
Gerone L. Weathersby, Sussex Correctional Institution, Georgetown, Delaware, Pro Se Plaintiff.
MEMORANDUM OPINION
November 1, 2023 Wilmington, Delaware
i (hag | aioe States District Judge: I. INTRODUCTION
Plaintiff Gerone L. Weathersby, an inmate at Sussex Correctional Institution
(“SCI”) in Georgetown, Delaware, filed this action pursuant to 42 U.S.C. 3 1983.
3). He has filed two motions to amend (D.1. 8, 11). The Court will grant both
motions and read the three pleadings as one. Plaintiff appears pro se and has been
granted leave to proceed in forma pauperis. (D.I. 5). The Court proceeds to
review and screen the Complaint, as amended, pursuant to 28 U.S.C. § 1915(e)(2)(b) and § 1915A(a). II. BACKGROUND The following facts are taken from the Complaint and assumed to be true for
screening purposes. See Shorter v. United States, 12 F.4th 366, 374 (3d Cir. 2021). In April 2022, Plaintiff experienced a medical emergency, stopped breathing, and
was flown by helicopter from SCI to a hospital where he had surgery for cardiac
arrest. Thereafter, however, Defendants Centurion Management Care LLC and Dr.
Misty May never followed up with him. Although he feels healed, he feels that his
medical injury is ongoing. He seeks $5 million in damages. I. 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) 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) (quotation marks omitted); see also 28 U.S.C. § 1915(e)(2) (in forma pauperis actions); 28 U.S.C. § 1915A (civil actions filed by prisoners seeking redress from governmental entities or government officers and employees). 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. See Phillips v. County of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008). 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. 89, 94 (2007). A complaint is not automatically frivolous because it fails to state a claim. See Dooley v. Wetzel, 957 F.3d. 366, 374 (3d Cir. 2020). Rather, a claim is deemed frivolous only where it relies on an “‘indisputably meritless legal theory’ or a ‘clearly baseless’ or ‘fantastic or delusional’ factual scenario.”” Id. 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, 12 (2014) (per curiam). A complaint may not be dismissed, however, for imperfect statements of the legal theory supporting the claim asserted. See id. at 11. 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. Iqbal, 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.” Id. Plaintiff does not appear to allege an injury. Indeed, he alleges that he feels healed, but also feels that his injury is ongoing. It is unclear what this means, but it is insufficient to state a claim for deliberate indifference. Furthermore, as to Centurion, when a plaintiff relies upon a theory of respondeat superior to hold a corporation liable (rather than its employees or
agents themselves), he must allege a policy or custom that demonstrates such deliberate indifference. See Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 584 (3d Cir. 2003) (because respondeat superior or vicarious liability cannot be a basis for liability under 42 U.S.C. § 1983, a corporation under contract with the
state cannot be held liable for the acts of its employees and agents under those theories). Ultimately, to establish that Centurion is directly liable for the alleged constitutional violations, Plaintiff “must provide evidence that there was a relevant [Centurion] policy or custom, and that the policy caused the constitutional violation[s] [Plaintiff] allege[s].” Natale, 318 F.3d at 583-84. The First Amendment to the Complaint attempts to accomplish this, but only through conclusory recitations of the legal standard just discussed.
As to Defendant May, a defendant in a civil rights action “cannot be held responsible for a Soustitaranal violation which he or she neither participated in nor approved”; personal involvement in the alleged wrong is required. Baraka v. McGreevey, 481 F.3d 187, 210 (3d Cir. 2007); see also Polk County v. Dodson, 454 U.S. 312, 325 (1981) (holding that liability in a § 1983 action must be based
on personal involvement, not respondeat superior). Such involvement may be “shown through allegations of personal direction or of actual knowledge and acquiescence.” Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005). “Allegations of participation and acquiescence . . . must be made with appropriate particularity.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988); see also Parkell v. Danberg, 833 F.3d 313,330 (3d Cir. 2016). To the extent that Plaintiff has alleged an injury, he has failed to allege Defendant May’s personal involvement. Accordingly, the Court will dismiss the Complaint for failure to state a claim
upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). However, since it appears plausible that Plaintiff may be able to articulate a claim, he will be given an opportunity to amend his pleading. See O'Dell v. United States Gov't, 256 F. App’x 444, 445 (3d Cir. 2007) (unpublished) (leave to amend is proper where the plaintiffs claims do not appear “patently meritless and beyond all hope of redemption”).
IV. CONCLUSION For the above reasons, the Court will: (1) grant Plaintiff's motions to amend; and (2) dismiss the Complaint pursuant 28 U.S.C. § 1915(e)(2)(B)@i) and § 1915A(b)(1). Plaintiff will be given leave to file an amended complaint. An appropriate order will be entered.