Free Motion to Dismiss for Failure to State a Claim - District Court of Delaware - Delaware

Case 1:05-cv-00067-SLR

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE WILLIAM F. DAVIS, III Plaintiff, v. STATE OF DELAWARE, ET AL ) ) ) ) ) ) ) ) ) )

C.A. No. 05-067-SLR

Defendants.

MOTION TO DISMISS Pursuant to F.R.C.P. 4(m) and 12 (b)(6), defendants First Correctional Medical ("FCM") and Deborah Muscarella, hereinafter the "FCM defendants" move the court for an order dismissing all claims in the complaint against them on the grounds that plaintiff failed to serve the FCM defendants within 120 days of filing the complaint and because the complaint fails to state a claim upon which plaintiff may recover. In support of their motion, the FCM defendants offer the following: Background 1. 2. Plaintiff is an inmate in the Delaware correctional system. Defendant FCM was the health care provider for the Delaware correctional system

from July 1, 2002 to June 30, 2005. Defendant Deborah Muscarella was an employee of FCM at the time in question. 3. Plaintiff filed his complaint on February 9, 2005. D.I. 2. FCM waived service on

July 18, 2006. D.I. 19. Deborah Muscarella waived service on July 24, 2006. D.I. 21. 4. In his complaint, plaintiff makes no allegations against either defendant FCM or

Deborah Muscarella.

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Legal Standards 5. Pursuant to F.R.C.P. 4(m), an action "shall be dismissed" as to a defendant who was

not served within 120 days of the filing of the complaint when the party on whose behalf such service was made cannot show good cause why service was not effected in the required period. 6. F.R.C.P. 8(a)(2) requires a complaint contain a short and plain statement

demonstrating that the pleader is entitled to relief. 7. There is no vicarious liability for civil rights claims. Hyson v. Correctional Medical

Services, C.A. No. 02-318 (SLR), mem. order at 2-3, Robinson, C.J. (D.Del. Feb. 6, 2003) (copy attached as Exhibit 1). Personal involvement by a defendant is required. Id., mem. op. at 3. 8. Pursuant to 18 Del. C. § 6853 (a)(1), an affidavit of merit must accompany a medical

negligence complaint filed after October 9, 2003, or "the clerk of court shall refuse to file the complaint and it shall not be docketed with the court." 9. Where the Clerk of Court or Prothonotary mistakenly accepts a medical negligence

complaint without an affidavit of merit, the defendant's remedy is a dismissal. Jackson v. First Correctional Medical Services, 380 F. Supp. 2d 387, 392 (D. Del.2005). 10. Prior to filing a civil lawsuit, an inmate must exhaust all administrative remedies.

Hyson, mem. order at 2 (citing Prison Litigation Reform Act, 42 U.S.C. §1997e(a)). 11. Under these legal standards, the FCM defendants submit that dismissal is warranted

because more than one and a half years passed since the filing of the complaint before service was perfected and because plaintiff's complaint fails to state a claim against them upon which relief could be recovered. Plaintiff Has Failed to Serve the FCM Defendants Within 120 Days 12. More than 540 days passed between the filing of the Complaint in this matter and

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service of either defendant (FCM or Deborah Muscarella). Plaintiff has not demonstrated good cause as to why the FCM defendants were not served timely. Pursuant to F.R.C.P. 4(m), the Court shall dismiss a suit where the time for service has exceeded 120 days and there has been no showing of good cause. Plaintiff has Failed to State a Claim against the FCM Defendants 13. Plaintiff has named FCM as a defendant in this matter. However, plaintiff has failed

to name FCM in any allegation in the Complaint. Furthermore even if FCM was cited in the Complaint, plaintiff cannot maintain a 42 U.S.C. § 1983 against FCM because personal involvement by a defendant is a prerequisite to filing suit. Hyson, mem. order at 3. There is no vicarious liability for civil rights actions, so the complaint fails to state a claim against FCM. Id. 14. Plaintiff's only reference to Deborah Muscarella in the complaint states, "[a]fter five

days, my pod counselor Ms. Deborah called the infirmary." This statement is one of fact and does not constitute an allegation of negligence or wrongdoing as to defendant Deborah Muscarella as required by F.R.C.P. 8(a)(2). Therefore, according to F.R.C.P 12(b)(6), Deborah Muscarella must be dismissed with prejudice as a defendant in this case. Plaintiff has Failed to File an Affidavit of Merit 15. Plaintiff's complaint was not accompanied by either an affidavit of merit or a motion

to extend the time for filing such affidavit. As such, plaintiff state law claims must be dismissed as a matter of law. Jackson, 380 F. Supp. 2d at 392. Plaintiff Failed to Exhaust Administrative Remedies 16. Plaintiff failed to exhaust all available administrative remedies prior to filing this

legal action. Plaintiff asserts that he filed a grievance and but notes that "an inmate cannot request or demand disciplinary action on staff". Plaintiff does not state the result of the grievance which

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suggests that at the time of filing, the administrative process was not complete and thus, plaintiff failed to exhaust all administrative remedies. In the absence of proof of exhaustion of all administrative remedies, plaintiff's complaint must be dismissed. Hyson, mem. order at 3. Conclusion 17. For the above reasons, the FCM defendants respectfully request that all claims against them be dismissed with prejudice.

McCULLOUGH & McKENTY, P.A. /s/ Dana Spring Monzo Daniel L. McKenty Del. Bar # 2689 Dana Spring Monzo Del. Bar # 4605 1225 N. King Street, Suite 1100 P.O. Box 397 Wilmington, DE 19899-0397 (302) 655-6749 Attorneys for FCM defendants Dated: September 11, 2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE WILLIAM F. DAVIS, III Plaintiff, v. STATE OF DELAWARE, ET AL ) ) ) ) ) ) ) ) ) )

C.A. No. 05-067-SLR

Defendants.

CERTIFICATE OF SERVICE

I, Dana Spring Monzo, do hereby certify that on this date two copies of Motion to Dismiss were served by first class mail, postage prepaid, on the following individual: William F. Davis, III SBI #162762 Delaware Correctional Center 1181 Paddock Road Smyrna, DE 19977

/s/ Dana Spring Monzo Daniel L. McKenty Del. Bar # 2689 Dana Spring Monzo Del. Bar # 4605 1225 N. King Street, Suite 1100 P.O. Box 397 Wilmington, DE 19899-0397 (302) 655-6749 Attorneys for FCM defendants Dated: September 11, 2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE WILLIAM F. DAVIS, III Plaintiff, v. STATE OF DELAWARE, ET AL ) ) ) ) ) ) ) ) ) )

C.A. No. 05-067-SLR

Defendants.

ORDER And now this __________________ day of ________________, 2006, having considered FCM Defendants' Motion to Dismiss and any opposition thereto, it is HEREBY ORDERED that FCM Defendants' Motion to Dismiss is granted.

___________________________ J.