Free Order on Motion to Amend/Correct - District Court of Delaware - Delaware

Case 1 :06-cv—00349-GIVIS Document 49 Filed 02/12/2008 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
THOMAS R. MILLER, )
Plaintiff, g
v. ) Civ. Action No. 06--349-GMS
DR. MAGGIE BAILEY, and FIRST )
CORRECTIONAL MEDICAL, INC., )
Defendants. )
O R D E R
Pr L\ .2
At Wilmington this ll day of , 2008,
IT IS ORDERED that:
1. Background. The plaintiff, Thomas R. Miller ("Miller” ), is an inmate at the
Delaware Correctional Center (“DCC"). He filed this lawsuit pursuant to 42 U.S.C. § 1983
alleging that the defendants are deliberately indifferent to his serious medical needs. More
particularly, he alleges that he was over-medicated with iron pills and was not monitored while
taking the pills resulting in the onset of acid reflux disease. Miller also alleges that Zantac is
indicated for his condition but, for a time, he was "cut off" from the medication. Miller tiled his
original complaint on May 25, 2006, followed by amendments to the complaint on January 8,
2007, and May 3, 2007. (D.I. 2, 17, 22.)
2. Motion to Amend/Correct. Mil1er’s motion to amend/correct is denied as the
proposed amendment is futile and frivolous. (D.I. 30) Miller seeks to amend his complaint to
reinstate as a defendant the former warden at DCC, Thomas Carroll ("Carroll"). Carroll was
dismissed as a defendant because the complaint did not contain any allegations against him and

Case 1:06-cv—OO349-G|\/IS Document 49 Filed O2/12/2008 Page 2 of 4
did not allege any personal involvement by Carroll. (D.I. 12.) He also wishes to add as
defendants "top officials of DCC" as "overseers of the administration." The proposed claims
include breach of contract by medical vendors, Carroll, and top officials of DCC, conspiracy in
violation of Del. Code Ann. tit. 11, § 513, and fraud.
3. "After amending once or after an answer has been filed, the plaintiff may amend only
with leave of the court or the written consent of the opposing party, but ‘leave shall be freely
given when justice so requires."’ Shane v. Fauver, 213 F.3d 113, 1 15 (3d Cir. 2000) (quoting
Fed. R. Civ. P. l5(a)). Amendment, however, is not automatic. See Dover Steel Co., Inc. v.
Harford Accident and Indem., 151 F.R.D. 570, 574 (E.D. Pa. 1993). The court has discretion to
deny leave to amend when there exists undue delay, bad faith, dilatory motive or undue prejudice
to the opposing party, or when the amendment would be futile. See F oman v. Davis, 371 U.S.
178, 182 (1962); In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997).
Futility of amendment occurs when the complaint, as amended, does not state a claim upon
which relief can be granted. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434
(3d Cir. 1997). Additionally, if the proposed amendment "is frivolous or advances a claim or
defense that is legally insufficient on its face, the court may deny leave to amend." Harrison
Beverage C0. v. Dribeck Importers, Inc., 133 F.R.D. 463, 469 (D.N J. 1990).
4. The proposed amendment is frivolous and also advances claims that are legally
insufficient on their face. For example, Miller is not a party to the contracts entered into by the
medical providers and the Department of Correction and, therefore, lacks standing to raise a
breach of contract claim. See Bishop v. Murphy, No. Civ. A. 05A-05-002 MMJ, 2006 WL
-2-

Case 1:06-cv—OO349-Gl\/IS Document 49 Filed 02/12/2008 Page 3 of 4
1067274 (Del. Super. Ct. Apr 10, 2006). The statute under which Miller alleges conspiracy, Del.
Code Arm. tit. 11, § 513, is a criminal statute and fails to state a claim. Finally, the proposed
amendment fails to state a claim for fraud. The elements of common law fraud are: (1) a false
representation, usually one of fact, made by the defendant; (2) the defendant’s knowledge or
belief that the representation was false or made with reckless indiflerence to the truth; (3) an
intent to induce the plaintiff to act or refrain from acting; (4) the plaintiffs action or inaction
taken in justifiable reliance on the representation; and (5) damage to the plaintiff as a result of
such reliance. Stephenson v. Capano Dev., Inc., 462 A.2d 1069, 1074 (Del. Super. Ct. 1983).
5. Motion for Default Judgment. Miller’s motions for default judgment against the
defendant First Correctional Medical, Inc. ("FCM") are denied. (D.l. 31, 42.) FCM executed its
waiver of service on July 31, 2007, and its answer was due on October 1, 2007. (D.l. 36.) It
belatedly filed an answer on December 17, 2007. (D.l. 44.) Entry of default judgment is a two-
step process. Fed. R. Civ. P. 55(a), (b). A party seeking to obtain a. default judgment must first
request that the clerk of the court "enter . . . the defau1t" of the party that has not answered the
pleading or "otherwise defend.[ed],” within the time required by the rules or as extended by court
order. Fed. R. Civ. P. 55(a). Even if default is properly entered, the entry of judgment by default
pursuant to Rule 55(b)(2) is within the discretion of the trial court. Hritz v. Woma Corp., 732
F.2d 1178, 1180 (3d Cir. 1984). The court exercises its discretion and will not enter judgment by
default against FCM.
6. Motion to Dismiss. The defendant, Correctional Medical Services, Inc.’s (“CMS")
motion to dismiss pursuant to 18 Del. C. § 6853 is denied as moot. (D.I. 35.) On December 18,
-3-

Case 1:06-cv—OO349-G|\/IS Document 49 Filed O2/12/2008 Page 4 of 4
2007, the court entered an order dismissing all claims against the defendant, CMS. (D.I. 45.)
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