Johnson v. Connections Community Support Programs ( 2017 )


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  •       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
    MARCUS JOHNSON,                )
    )
    Plaintiff,                 )
    )
    v.                  )
    )                  C.A. No. N16C-12-217 CLS
    CONNECTIONS     COMMUNITY )
    SUPPORT PROGRAMS INC., et. al, )
    )
    Defendants.                )
    )
    )
    Submitted: June 30, 2017
    Decided: September 29, 2017
    ORDER
    Plaintiff, Marcus Johnson (“Plaintiff”) filed a civil malpractice action against
    Jane Doe #1, Jane Doe #2, Cynthia Mallee, Jami Jones, Laura Brackett, Staci
    Collins-Young, Sharon Henderson, and Connections Community Support Programs,
    Inc., (“Defendants”) on January 5, 2017. In his Complaint, Plaintiff alleges he is
    injured from the neglect of scheduling and/or re-scheduling of Plaintiff to see a
    doctor. Plaintiff claims that he has not received treatment for sleep apnea, sinus
    issues, and allergies. Plaintiff claims he filed a medical grievance on February 14,
    2016, and “Jane Doe #1” scheduled an appointment that subsequently never
    occurred. Plaintiff states that he filed a second grievance on May 14, 2016, and
    “Jane Doe #2” scheduled an appointment, which subsequently did not occur. On
    August 3, 2016, Defendants Brackett, Collins-Young, and Henderson upheld
    Plaintiff’s grievance and recommended treatment in a timely manner.
    Defendants filed a Motion to Dismiss on April 28, 2017. Defendants move to
    dismiss Plaintiff’s Complaint on three grounds: (1) improper service; (2) failure to
    state a legal claim; and (3) improper jurisdiction. Plaintiff filed this case as a civil
    malpractice action. Plaintiff alleges that Defendants “knowingly, intentionally,
    unreasonably, and with deliberate indifference and/or neglect” failed to schedule an
    appointment or ensure Plaintiff was treated for his alleges illnesses. Defendants
    argue that Plaintiff’s claims can most reasonably be construed as a claim for
    negligent administration or deliberate indifference to a serious medical need.
    A. Plaintiff’s Claims against “Jane Doe #1” and “Jane Doe #2” fail as a
    matter of law.
    Delaware law is clear that “fictitious name practice is not permitted. This is
    because there is no statute or rule specifically authorizing fictitious name practice.
    Filing a claims against ‘John Doe’ has no legal effect in this State.”1 Plaintiff’s
    claims against “Jane Doe #1” and “Jane Doe #2” are hereby dismissed. Not only
    does fictitious name practice have no legal effect, its “impossible to obtain services
    1
    Haskins v. Kay, 
    2007 WL 4662114
    , at *5 (Del. Super. Sept. 27, 2007).
    2
    of process on a non-existent person.”2 Plaintiff’s claims against Jane Doe #1 and
    Jane Doe #2 are therefore dismissed.
    B. To the extent that Plaintiff’s claims are medical negligence claims, these
    claims are dismissed along with Plaintiff’s claims for injunctive relief
    against all Defendants.
    Plaintiff’s Complaint states that he “brings this action against the Defendants
    under title 
    18 Del. C
    . § 6801(4)” due to Defendants “negligence in administration,
    hiring, and oversight.” Plaintiff also states: “Although I intend to bring healthcare
    medical negligence claims in the future, these present claims are ordinary negligence
    claims, pursuant to Del. C. Tit. 18 § 6801(4).” As this Court has held before, where
    a plaintiff seeks damages in a medical malpractice action, 
    18 Del. C
    . § 6853(a)
    requires that plaintiff submit an affidavit of merit with the complaint.3 In Delaware,
    medical malpractice claims must be “supported by an affidavit of merit. In the
    affidavit of merit, an expert witness must state reasonable grounds to believe health-
    care medical negligence was committed by each defendant.”4 There are three
    scenarios under Delaware law where the plaintiff is entitled to the rebuttable
    2
    Id.
    3
    
    18 Del. C
    . § 6853(a). See also George v. Connections Community Support
    Programs, Inc., 
    2017 WL 2981809
    , at *2 (Del. July 12, 2017).
    4
    De Roche v. Grewal, 
    2016 WL 5793721
    , at *1 (Del. Super. Ct. Oct. 4, 2016); see
    also 
    18 Del. C
    . § 6853(a)(1).
    3
    presumption of negligence, and therefore does not need the support of an affidavit
    of merit. This rebuttable presumption attaches to the following circumstances:
    (1) A foreign object was unintentionally left within the body of the
    patient following surgery;
    (2) An explosion or fire originating in a substance used in treatment
    occurred in the course of treatment; or
    (3) A surgical procedure was performed on the wrong patient or the
    wrong organ, limb or part of the patient’s body.5
    As Plaintiff’s claims do not fall within the above scenarios, and Plaintiff filed this
    action as a civil malpractice action with claims under Chapter 68 of Title 18, an
    affidavit of merit was required at the time the Complaint was filed. Additionally,
    Plaintiff seeks injunctive relief with respect to these claims against Defendants. This
    Court does not have the ability to grant Plaintiff injunctive relief.6 Therefore
    Plaintiff’s claims seeking injunctive relief are hereby dismissed.
    C. To the extent that Plaintiff plead negligent supervision and deliberate
    indifference in his Complaint, these claims fail as a matter of law.
    Defendant argues that Plaintiff’s “negligent administration” claim is
    essentially a “negligent supervision” claim, and this claim is meritless. To the extent
    that Plaintiff’s claim is a negligent supervision claim, Plaintiff has not presented
    evidence to support it. “An action for negligent supervision is based upon the
    5
    
    18 Del. C
    . § 6853(e).
    6
    See Martin v. Widener University School of Law, 
    1992 WL 153540
    , at *5 (Del.
    Super. June 4, 1992).
    4
    employer’s negligence in failing to exercise due care to protect third parties from the
    foreseeable tortious act of an employee.”7 Additionally, the “employer is liable for
    negligent hiring or supervision where the employer is negligent in giving improper
    or ambiguous orders or in failing to make proper regulations, or in the employment
    of improper persons, thus creating an unreasonable risk of harm to others.”8
    Plaintiff’s complaint lacks any evidence to support this contention. The test for
    sufficiency of a complaint challenged by a Rule 12(b)(6) motion to dismiss is
    whether a plaintiff may recover under any reasonably conceivable set of
    circumstances susceptible of proof under the complaint.9              In making its
    determination, the Court must accept all well-pleaded allegations in the complaint
    as true and draw all reasonable factual inferences in favor of the non-moving party.10
    The complaint must be without merit as a matter of fact or law to be dismissed.11
    Therefore, if the plaintiff can recover under any conceivable set of circumstances
    susceptible of proof under the complaint, the motion to dismiss will not be granted.12
    7
    Matthews v. Booth, 
    2008 WL 2154391
    , at *3 (Del. Super. May 22, 2008).
    8
    
    Id. 9 Spence
    v. Funk, 
    396 A.2d 967
    , 968 (1978); see Cambium Ltd. v. Trilantic Capital
    Partners III L.P., 
    2012 WL 172844
    , at *1 (Del. Jan. 20, 2012) (citing Cent. Mortg.
    Co. v. Morgan Stanley Mortg. Capital Holdings LLC, 
    27 A.3d 531
    , 537 (Del. 2011)).
    10
    Ramunno v. Cawley, 
    705 A.2d 1029
    , 1034-36 (Del.1998); Nix v. Sawyer, 
    466 A.2d 407
    , 410 (Del. Super. Ct.1983).
    11
    Diamond State Tel. Co. v. University of Delaware, 
    269 A.2d 52
    (Del.1970).
    12
    
    Ramunno, 705 A.2d at 1034
    ; see Cambium, 
    2012 WL 172844
    , at *1 (citing Cent.
    
    Mortg., 27 A.3d at 537
    ).
    5
    Plaintiff has not presented evidence to infer that the employer failed to exercise due
    care to protect him from foreseeable tortious acts of an employee, or that there was
    a tortious act in general. Rather, Plaintiff’s complaint is that the Defendants failed
    to schedule an appointment with the “provider.” However, as Plaintiff states, his
    grievance was upheld by the board, and the board directed that he be scheduled for
    an appointment in a timely matter. To the extent that Plaintiff plead negligent
    supervision, these claims are dismissed against all Defendants. Similarly, Plaintiff
    has not demonstrated a proper claim for deliberate indifference to Plaintiff’s rights.
    “Deliberate indifference to serious medical needs of prisoners constitutes the
    ‘unnecessary and wanton infliction of pain’.”13 “To succeed with a deliberate
    indifference claim, an inmate must make two showings: (1) from an objective
    standpoint, the medical need must be sufficiently serious; and (2) the prison official
    must have the culpable state of mine of ‘deliberate indifference’ towards the
    inmate’s health.”14 Similarly, “to demonstrate deliberate indifference, plaintiff must
    prove that prison officials knew of, and disregarded, an excessive risk to inmate
    health. Plaintiff must show that defendants were ‘both [ ] aware of facts from which
    the inference could be drawn that a substantial risk of serious harm exists, and . . .
    also [drew] the inference.”15
    13
    Estelle v. Gamble, 
    429 U.S. 97
    , 104 (1976).
    14
    Deputy v. Conlon, 
    2010 WL 4056147
    , at *2 (Del. Super. Sept. 23, 2010).
    15
    
    Id. 6 Plaintiff
    does not plead facts to justify a deliberate indifference claim against
    Defendants. Plaintiff’s Response states that Defendants failed to schedule Plaintiff
    for a follow up or prescribe medication for his alleged ailments. These allegations
    do not meet the standard for a deliberate indifference claim. Plaintiff has not shown
    that the medical claim is sufficiently serious or that the prison officials had the
    culpable state of mind. Because Plaintiff’s claims are dismissed, the Court does not
    need to address Defendants’ insufficient service of process claim. Additionally, On
    April 12, 2017, Plaintiff filed a Motion for Protection from Abuse and/or Restraining
    Order. This Court lacks jurisdiction to grant such relief.16
    For the aforementioned reasons, Defendants’ Motion to Dismiss is hereby
    GRANTED.
    IT IS SO ORDERED.
    /s/ Calvin L. Scott
    Judge Calvin L. Scott, Jr.
    16
    See Wilson v. Danberg, 
    2010 WL 3432647
    , at *2 (Del. Super. Aug. 5,
    2010)(“[P]laintiffs may not seek injunctive relief, i.e., a temporary restraining order
    and/or injunction because this Court lacks jurisdiction to grant such.”).
    7