Free Reply Brief - District Court of Delaware - Delaware

Case 1:07-cv-00031-GMS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE WILLIAM JOSEPH WEBB, JR., Plaintiff, v. FIRST CORRECTIONAL MEDICAL, et al., Defendants. ) ) ) ) ) ) ) ) ) )

C. A. No. 07-31-GMS JURY TRIAL REQUESTED

DEFENDANT GOVERNOR RUTH ANN MINNER'S REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF HER MOTION TO DISMISS THE COMPLAINT In further support of her Motion to Dismiss1, Defendant Governor Ruth Ann Minner ("Governor Minner") states as follows: In the Complaint, Plaintiff asserts that Governor Minner was aware of his medical circumstances as a prisoner incarcerated at Delaware Correctional Center ("DCC"). [D.I. 2]. He claims that she gained this knowledge at a hearing in Dover sometime in

November or December 2005. Plaintiff does not specify the date of the hearing and does not even allege that Governor Minner was present at the hearing. In the Complaint, Plaintiff states only that his sister was present at the hearing. Id. In his response to Governor Minner's Motion, Plaintiff asserts for the first time that his sister spoke on his behalf at the hearing "describing in detail most of the claims made in the Complaint." [D.I. 49]. Even assuming that Plaintiff's new allegations are properly before this Court, he has nevertheless failed to state a claim against Governor Minner.
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Because Governor Minner answered the Complaint, her Motion to Dismiss should have been entitled Motion for Judgment on the Pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. However, contrary to Plaintiff's argument, Governor Minner's Motion is not rendered "frivolous" on the basis of the title.

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Plaintiff's cause of action is based on his dissatisfaction with medical care he received at DCC. For example, he states that ultrasound testing was ordered in March 2005 by Dr. Ali, who subsequently withdrew the order. Plaintiff filed a medical

grievance, which was addressed, although not to Plaintiff's satisfaction. The ultrasound testing was performed later in 2005. [D.I. 2]. Plaintiff further claims that, in February 2005, certain unidentified nurses did not give him Tylenol for his fever. The nurses contacted a doctor, also unidentified, who ordered neither medication nor ice. Another nurse later put a heat pack on Plaintiff's leg. Id. In short, although Plaintiff alleges that the care he received was inadequate, it is clear that he was under the care of medical providers and receiving some care. However, Plaintiff, in seeking to hold Governor Minner liable, is in effect arguing that, upon hearing of his circumstances from his sister, Governor Minner should have intervened in the care he was receiving. Plaintiff offers no legal support for his novel argument that a Governor can be held liable for medical care rendered by medical providers. The Third Circuit has rejected attempts to hold non-medical prison officials liable for deliberate indifference to a prisoner's serious medical needs where the prisoner is under the care of a medical provider. This line of authority demonstrates that if a nonmedical prison official cannot be held liable in the circumstances presented here, then clearly there is no basis for imposing liability on the State's Governor. In Durmer v. O'Carroll, 991 F.2d 64, 66 (3d Cir. 1993), plaintiff filed suit against the prison warden and the commissioner of corrections on the basis that they did not

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respond to his letters to them complaining about the medical care he was receiving in the prison. The Third Circuit upheld the grant of summary judgment in favor of the warden and the commissioner: "Neither of these defendants, however, is a physician, and neither can be considered deliberately indifferent simply because they failed to respond directly to the medical complaints of a prisoner who was already being treated by the prison doctor." Id. at 69. See also Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004) ("[i]f a prisoner is under the care of medical experts . . ., a non-medical prison official will generally be justified in believing that the prisoner is in capable hands."); Parker v. Burns, 2004 WL 609333, at *3 (D. Del. March 24, 2004) (attached hereto as Exhibit A) (warden was entitled to judgment where plaintiff did not allege that he was directly involved in the medical care administered; warden could not be held liable for actions of medical provider). In this case, Governor Minner is not a prison official. She is even more removed from a prisoner's medical care than a prison warden. Plaintiff does not allege that she was directly involved in his medical care. He asserts only that because his sister made complaints about the medical care he was receiving, Governor Minner should have taken some action with respect to that care. Plaintiff's theory of recovery against Governor Minner is without legal support, and Governor Minner is entitled to judgment on all of Plaintiff's claims. Finally, Plaintiff's argument that Governor Minner is not entitled to Eleventh Amendment Immunity is without merit. This Court has consistently held that a suit against the Governor is essentially a suit against the State of Delaware, which is prohibited by the Eleventh Amendment. See Lee v. Minner, 369 F. Supp. 2d 527, 538 (D.

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Del. 2005); Gibbs v. Minner, 2007 WL 2071749, at *3 (D. Del. July 19, 2007) (attached hereto as Exhibit B). Thus, under the Eleventh Amendment, Governor Minner cannot be held liable in her official capacity. WHEREFORE, Defendant Governor Ruth Ann Minner respectfully requests that this Court dismiss the claims against her with prejudice. STATE OF DELAWARE DEPARTMENT OF JUSTICE /s/ Eileen Kelly Eileen Kelly (#2884) Deputy Attorney General 820 N. French Street, 6th Floor Wilmington, DE 19801 [email protected] (302) 577-8400 Attorney for Defendant Governor Ruth Ann Minner

DATE: September 10, 2007

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CERTIFICATE OF SERVICE I hereby certify that on September 10, 2007, I electronically filed Defendant Governor Ruth Ann Minner's Reply Memorandum of Points And Authorities In Support of Her Motion to Dismiss with the Clerk of Court using CM/ECF, which will send notification to Megan T. Mantzavinos, Esquire and Patrick G. Rock, Esquire. I hereby certify that on September 10, 2007, I have mailed by United States Postal Service, the document to the following non-registered party: William Joseph Webb, Jr.

/s/ Eileen Kelly Deputy Attorney General Department of Justice 820 N. French St., 6th Floor Wilmington, DE 19801 (302) 577-8400 [email protected]

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