Free MEMORANDUM in Support - District Court of Delaware - Delaware

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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 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF HER MOTION TO DISMISS THE COMPLAINT BACKGROUND The Complaint in this pro se prisoner civil rights action was filed on January 16, 2007 against various State and medical defendants. [D.I. 2]. Pursuant to this Court's order dated May 7, 2007, certain claims and defendants were dismissed from the action without prejudice. [D.I. 9]. On July 9, 2007, an Answer to the Complaint was filed on behalf of Defendant Governor Ruth Ann Minner ("Governor Minner"). [D.I. 24]. Governor Minner has moved to dismiss the complaint. This is Governor Minner's Memorandum and Points of Authorities in support of her Motion to Dismiss. FACTS During the time period relevant to this cause of action, Plaintiff William Joseph Webb, Jr. ("Plaintiff") was an inmate incarcerated at Delaware Correctional Center ("DCC") in Smyrna, Delaware. His claims concern the medical care he received at DCC. Governor Minner is mentioned just twice in the Complaint.

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First, Plaintiff alleges that on March 11, 2005, Dr. Ali ordered ultrasound testing of Plaintiff's legs. D.I. 2 at ¶ 1. According to Plaintiff, Dr. Ali then denied the request for the ultrasound testing, and the procedure was not performed at that time. Plaintiff claims that the test was not performed in order to save money for Defendant First Correctional Medical. Id. Plaintiff next states that "In the approximity [sic] of November or December, 2005, Plaintiff had His Sister go the Hearings held in Dover where . . .Governor Ruth Ann Minner became officially aware that Plaintiff was being denied medical care to save money." Plaintiff does not specify what hearing he is referencing and does not explain how Governor Minner became aware that he "was being denied medical care to save money." Plaintiff does indicate that, shortly after the hearings, he received the requested testing. Id. In his second reference to Governor Minner, Plaintiff asserts: "After numerous newspaper articles about the serious denial of medical care at State of Delaware's Correctional Institutions where Plaintiff is housed, Defendants First Correctional Medical, Correctional Medical Services, Governor Ruth Ann Minner, and Commissioner Stanley Taylor were negligent in their obligations to Plaintiff to make sure that Plaintiff is receiving adequate medical care after they were aware that Plaintiff was not receiving medical care that Hee [sic] needed and still needs without deliberate indifference until He is released from prison/while under their care." D.I. 2 at ¶3. Again, Plaintiff does not explain the factual basis of his allegation that Governor Minner knew that he was not receiving medical care.

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Plaintiff asserts that the alleged denial of medical care constituted cruel and unusual punishment by all of the Defendants. He seeks compensatory and punitive damages and injunctive relief. ARGUMENT I. STANDARD FOR MOTION TO DISMISS. Pursuant to Federal Rule of Civil Procedure 12(b)(6), the court may, upon a party's motion, dismiss an action for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). When reviewing a Rule 12(b)(6) motion, the court must accept as true all factual allegations contained in the complaint as well as all reasonable inferences that may be drawn from those allegations and view them in the light most favorable to the nonmoving party. See Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478, 483 (3d Cir. 1998). "A complaint should be

dismissed only if, after accepting as true all of the facts alleged in the complaint, and drawing all reasonable inferences in the plaintiff's favor, no relief could be granted under any set of facts consistent with the allegations of the complaint." Id. For the reasons stated herein, Governor Minner is entitled to dismissal of the Complaint with prejudice because Plaintiff has failed to state a claim upon which relief can be granted.

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II.

GOVERNOR MINNER WAS NOT DELIBERATELY INDIFFERENT TO PLAINTIFF'S SERIOUS MEDICAL NEEDS. Plaintiff is arguing that the Governor of the State of Delaware should have taken

some action with respect to his medical treatment in prison. allegations in the Complaint nor the case law support this claim.

However, neither the

To state a violation of the Eighth Amendment right to adequate medical care, a prisoner "must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). A defendant is deliberately indifferent only where he or she has the required mental state. Williams v. First Correctional Medical, 377 F. Supp. 2d 473, 476 (D. Del. 2005). That is, a defendant can be held liable only where "the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837 (1994). Plaintiff is, in effect, arguing that Governor Minner knew that he was not receiving medical care, but failed to act to remedy the situation. However, he does not explain exactly what Governor Minner knew or how she came to acquire the information. He mentions hearings in Dover, but he does not specify a date. He does not allege that Governor Minner was present during the hearing in question. He does not claim that any information about his circumstances was presented at the hearing. Plaintiff also references newspaper articles about medical care at Delaware correctional facilities. However, he does not claim that he was specifically mentioned in any of the articles.

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In short, Plaintiff's Complaint fails to offer any factual support for his allegation that Governor Minner knew about his circumstances. Thus, Plaintiff cannot meet the threshold requirement for the deliberate indifference standard: he cannot show that Governor Minner knew of and disregarded "an excessive risk to [his] health or safety." Plaintiff has failed to state an Eighth Amendment claim of deliberate indifference against Governor Minner, and his Complaint must be dismissed. III. GOVERNOR MINNER HAD NO PERSONAL INVOLVEMENT IN THE ALLEGED CONSTITUTIONAL VIOLATIONS. Plaintiff cannot state a claim against Governor Minner simply by suggesting that, because she is the Governor of the State of Delaware, she had responsibility for the medical care provided to him. The Third Circuit has held that a "defendant in a civil rights action must have personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior." Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). See also Monell v. Dep't of Social Servs., 436 U.S. 658 (1978). Personal

involvement can be shown through assertions of personal direction, or actual knowledge and acquiescence. Rode, 845 F.2d at 1207. "A plaintiff must allege personal

involvement with particularity, stating the conduct, time, place, and persons responsible for the alleged civil rights violations." Joynes v. Meconi, 2006 WL 2819762, at *9 (D. Del. Sept. 30, 2006) (attached hereto as Exhibit A). See also Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005). In this case, it is clear that the Governor of the State of Delaware does not personally direct the provision of medical care to inmates. Further, Plaintiff has failed to allege knowledge and acquiescence with particularity. As noted herein, Plaintiff has not

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even explained how Governor Minner knew that he was not, as he alleges, receiving adequate medical care. Further, Plaintiff has failed to allege the necessary personal knowledge to sustain his claim against Governor Minner. In Rode, 845 F.2d 1195, plaintiff, a civilian employee of the Pennsylvania State Police, claimed that she had been subjected to retaliation arising out of racial animus. She named Pennsylvania's governor as a defendant. She alleged that the governor had personal knowledge of her harassment as the result of grievances she filed with his office. Id. at 1208. The Third Circuit rejected plaintiff's argument, stating that the allegations were insufficient to show that the governor had actual knowledge of the alleged constitutional violations. The Court stated that a contrary holding would subject a

governor to potential liability in any case where the plaintiff merely transmitted a complaint to the governor's office. Id. See also Crosby v. Georgakopoulos, 2005 WL 1514209, at *9 (D.N.J. June 24, 2005) (attached hereto as Exhibit B) (immigration detainee's claim that the District Director of Bureau of Immigration and Customs Enforcement's failure to respond to his letters was insufficient to show that the Director had actual knowledge of plaintiff's complaints). In this case, the allegations are insufficient to show that Governor Minner had actual knowledge of Plaintiff's medical status. Plaintiff references only a public hearing and newspaper articles. As a policy matter, Governor Minner should not be subjected to liability every time an issue is presented in a public forum. As the United States Supreme Court has stated, permitting "insubstantial lawsuits" against high government officials to proceed to trial would "undermine the effectiveness of government." Harlow v.

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Fitzgerald, 457 U.S. 800, 819 n. 35 (1982). Thus, in the absence of Governor Minner's personal knowledge of or involvement in the alleged constitutional violations, Plaintiff has failed to state a claim upon which relief can be granted, and the Complaint must be dismissed. IV. UNDER THE ELEVENTH AMENDMENT, GOVERNOR MINNER CANNOT BE HELD LIABLE IN HER OFFICIAL CAPACITY. "[I]n the absence of consent, a suit [in federal court] in which the State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment." Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). This preclusion extends to state officials when "the state is the real, substantial party in interest." Id. at 101 (quoting Ford Motor Co. v. Dep't of Treasury, 323 U.S. 459, 464 (1945)). "Relief sought nominally against an [official] is in fact against the sovereign if the decree would operate against the latter." Id. (quoting Hawaii v. Gordon, 373 U.S. 57, 58 (1963)). A State may waive its Eleventh Amendment immunity. However, such waiver must constitute an "unequivocal indication that the State intends to consent to federal jurisdiction that otherwise would be barred by the Eleventh Amendment." Ospina v. Dep't of Corrections, 749 F. Supp. 572, 578 (D. Del. 1990) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 n. 1 (1985)). In this case, the State of Delaware has neither consented to Plaintiff's suit nor waived its immunity. Therefore, under the Eleventh Amendment, Governor Minner cannot be held liable in her official capacity.

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WHEREFORE, for the reasons set forth herein, Defendant Governor Ruth Ann Minner respectfully requests that this Court grant her Motion to Dismiss. 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: August 23, 2007

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CERTIFICATE OF SERVICE I hereby certify that on August 23, 2007, I electronically filed Defendant Governor Ruth Ann Minner's 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 August 23, 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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