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


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Date: July 31, 2006
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State: Delaware
Category: District Court of Delaware
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Case 1:05-cv—00624-SLR Document 41 Filed 08/01/2006 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
HARRY T. COLLINS, )
Plaintiff, )
v. ) Civil Action No. 05-624-SLR
LINDA HUNTER, WARDEN RAPHAEL )
WILLIAMS, CORRECTIONAL )
MEDICAL SYSTEMS, and )
DR. Dsaosisa, )
Defendants. )
ORDER
WHEREAS, plaintiff, Harry T. Collins, a prisoner
incarcerated at the Howard R. Young Correctional Institution
(“HRYCI”), filed his original complaint pursuant to 42 U.S.C. §
1983, on August 24, 2005 (D.I. 2);
WHEREAS, on January 6, 2006, the court issued a service
order, and additional service orders were entered by the court on
June 7, 2006 and July 26, 2006 (D.I. 13, 34, 39);
WHEREAS, service has not yet taken place for newly added
defendant Dr. Derosier, and plaintiff filed a new letter/motion
to amend the complaint (D.I. 40);
WHEREAS, the amendment contains additional allegations
against “medical” and moves to add a claim against the Sussex
Violation of Probation Center (D.I. 37), and 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 Co. v. Dribeck Importers, Inc., 133

Case 1 :05-cv—00624-SLR Document 41 Filed 08/01/2006 Page 2 of 3
F.R.D. 463, 469 (D.N.J. 1990);
WHEREAS, the Delaware Department of Correction is an agency
of the State of Delaware, and the Sussex Violation of Probation
Center, one of its facilities, is proposed as an additional
defendant;
WHEREAS, absent a state‘s consent, the Eleventh Amendment
bars a civil rights suit in federal court that names the state as
a defendant, the State of Delaware has not waived its sovereign
immunity under the Eleventh Amendment, and as an institution of
an agency of the State of Delaware, the Sussex Violation of
Probation Center is entitled to immunity under the Eleventh
Amendment, Laskaris v. Thornburgh, 661 F.2d 23, 25 (3d Cir. 1981)
(citing Alabama v. Pugh, 438 U.S. 781 (1978)); Ospina v.
Department of Corr., 749 F.Supp. 572, 579 (D.Del. 1991); See egg;
Evans v. Ford, C.A. No. 03—868—KAJ, 2004 WL 2009362, *4 (D.Del.
Aug. 25, 2004);
THEREFORE, at Wilmington this iy;;_day of ygé? , 2006,
IT IS ORDERED that:
1. Plaintiff's motion to file an amended complaint (D.I.
40) is GRANTED in part and DENIED in part. The Sussex Violation
of Probation Center IS NOT added as a defendant, the remaining
amendments are allowed, and the amended complaint is filed
instanter.
2. The clerk of the court shall cause a copy of this order
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Case 1:05-cv-00624-SLR Document 41 Filed 08/01/2006 Page 3 of 3
to be mailed to plaintiff.
3. This order shall supplement the court’s service orders
(D.I. 34, 39) dated June 7, 2006 and July 26, 2006, respectively.
4. The United States Marshal shall forthwith serve a copy
of the complaint (D.I. 2), the four amended complaints (D.I. 6,
26, 37, 40), the June 7, 2006 order (D.I. 34), the July 26, 2006
order (D.I. 39), this order, a "Notice of Lawsuit" form, the
filing fee order(s), and a "Return of Waiver" form upon
defendant(s) identified in plaintiff’s 235 forms.
UNITED STééES DISTRICT JUDGE
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