IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
DONALD DUROSS,

Plaintiff,

C.A. No. N19C-05-048 JRJ

Vv.

CONNECTIONS CSP, INC.

Nee? Nee Nee Nee” ee ee” ee” ee”

Defendant.

Date Submitted: June 21, 2019
Date Decided: September 13, 2019

ORDER

Upon consideration of the Plaintiff's Motion for Appointment of Counsel! and
Motion to Amend;? and the facts, arguments, and legal authorities set forth in
Plaintiffs Motions; statutory and decisional law; and the record in this case, IT
APPEARS THAT:

1. Plaintiff Donald DuRoss is incarcerated in Delaware. On May 7, 2019,
Plaintiff filed a Complaint against Defendant Connections CSP, Inc. (“Connections
CSP”) alleging that Connections CSP, as a provider of medical services to persons
incarcerated in Delaware, was deliberately indifferent to Plaintiff's serious medical

needs.> Plaintiff sought leave to proceed in forma pauperis, which the Court

 

' Mot. for Appointment of Counsel (“Mot. to Appoint”) (Trans. ID 63503461).
2 Mot. to Amend (Trans. ID 63566208).
3 Compl. (Trans. ID 63237557).
granted.* Thereafter, Plaintiff filed the instant Motion for Appointment of Counsel
and Motion to Amend.

2. In support of his Motion for Appointment of Counsel, the Plaintiff states:
(1) he unsuccessfully sought legal aid and is unable to afford private counsel; (2) his
case involves complex legal issues; (3) he has limited access to the prison law
library; and (4) he has limited knowledge of the law.°

3. In civil cases, Delaware courts consider requests for appointment of
counsel as a matter of due process under the Fourteenth Amendment to the United
States Constitution.© “Special and compelling circumstances” must exist for
appointment of counsel to be constitutionally required.’ The appropriate test is the
three-prong test set forth in Mathews v. Eldridge.’ The Court must consider: “(1) the
private interests at stake, (2) the government’s interest and (3) the risk that the
procedure without counsel would lead to erroneous results.”

4. The private interest at stake in this case is Plaintiffs “right to meaningful

access to the Courts.”!° This right may be satisfied by “access to an adequate law

 

* Order on Application to Proceed in Forma Pauperis (Trans. ID 63295082).

> Mot. to Appoint.

° Miller v. Taylor, 2010 WL 1731853, at *1 (Del. Super. Apr. 28, 2010) (citing Jenkins v. Dover
Police Com’r, 2002 WL 663912, at *2 (Del. Super. Apr. 5, 2002)).

" Id. (quoting Jenkins, 2002 WL 663912, at *2).

8 7d. (citing Mathews v. Eldridge, 424 U.S. 319, 321 (1976)).

? Jenkins, 2002 WL 663912, at *2 (citing Mathews, 424 U.S at 321).

'° Miller, 2010 WL 1731853, at *1.
library.”'' On this point, Plaintiff alleges that his access to the law library is limited.
However, non-specific allegations of limited access to the law library are insufficient
to show lack of meaningful access to the courts.!? The Court finds that Plaintiff has
not demonstrated that he lacks meaningful access to the Courts.

5. With regard to the second factor—the government interests at stake—the
Court does not find this factor dispositive or significant in this case.

6. With regard to the third factor—the risk that the procedure without counsel
would lead to erroneous results—Plaintiff asserts that the issues in this case are
complex and he is not skilled in the law. While a plaintiff with appointed counsel
may have a greater chance of success than a pro se litigant, that fact alone does not
establish that appointment of counsel is constitutionally required.’ On this point,
the Court notes that Plaintiffs allegations do not “set[] his case apart from the
volume of cases in which inmates allege claims of medical negligence and violation

of civil rights against prison officials or prison medical staff.”'* On the contrary,

 

'! Deputy v. Dr. Conlan, 2008 WL 495791, at *1 (Del. Super. Feb. 13, 2008).

2 See Miller, 2010 WL 1731853, at *1 (“The case law is clear that mere allegations of limits on
the amount of time an inmate can spend in the prison library are not sufficient to create a right to
appointed counsel in a civil case.”); Vick v. Dep’t of Corr., 1986 WL 8003, at *3 (Del. Super.
1986) (“The allegation that the prison library is only accessible on a very limited basis, without
greater specificity, is insufficient to defeat the State’s strong countervailing interest in maintaining
order and discipline in its penal institutions.”).

'3 See Miller, 2010 WL 1731853, at *1 (“The Court notes that a plaintiff's diminished chance of
success in the absence of appointed counsel, without more, does not outweigh the State's strong
interest in maintaining order in penal institutions.”).

14 Tq.
Plaintiff's allegations are relatively simple and straightforward.

7. The subject of the Complaint is medical care Plaintiff received for his
ulcerative colitis while incarcerated at the Howard R. Young Correctional Facility
(HRYCTI’). In short, Plaintiff alleges that, after considerable delay, he was
scheduled to receive a colonoscopy at Saint Frances Hospital in September 2018.'°
The colonoscopy was not performed as scheduled due to incomplete or improper
bowel preparation.'® When Plaintiff returned to HRYCI from the hospital, he
experienced a major flare up of his ulcerative colitis after he was not provided with
his prescribed medications.'? These circumstances were the result of the actions or
inactions of certain staff and demonstrate, according to Plaintiff, deliberate
indifference to his serious medical needs. The Court does not find that the risk of
this case proceeding without counsel, and thereby leading to erroneous results,
requires appointment of counsel.

8. For the foregoing reasons, the Court finds that Plaintiff has not
demonstrated cause for the relief sought in the Motion for Appointment of Counsel.
Therefore, the Plaintiff's Motion for Appointment of Counsel is DENIED.

9. As to Plaintiff's Motion to Amend, because Connections CSP has not

served a responsive pleading to the Complaint, Plaintiff is entitled under Superior

 

'S Attachment to Compl. § 2.
16 Id. 93-4.
1 Id 4 5-6.
Court Civil Rule 15(a) to amend the Complaint once “as a matter of course at any
time.” Therefore, the Court will grant Plaintiff's Motion to Amend as long as
Plaintiffs Complaint along with the amendments proposed in the Motion to Amend
pass muster under 10 Del. C. § 8803(b).

10. Pursuant to 10 Del. C. § 8803(b), if the Court grants an application to
proceed in forma pauperis, the Court must then conduct a review of the complaint
and determine whether the action is factually frivolous, legally frivolous, or
malicious. If the Court finds the pleadings factually frivolous, legally frivolous, or
malicious, § 8803(b) requires the Court to dismiss the action.'8

11. In his Motion to Amend, Plaintiff seeks to add various Department of
Correction (“DOC”) officials as defendants.'? Plaintiff alleges that the identified
DOC officials were grossly negligent and violated Plaintiff's constitutional rights by
failing to ensure that Plaintiff received adequate medical care.2° The Complaint,
even if amended as proposed, is not a model pleading. That said, the two legal

theories identified by Plaintiff, however imprecisely, are: (1) medical negligence;

 

'§ Under § 8803(b), a claim is factually frivolous when the factual allegations “are baseless, of
little or no weight, value or importance, not worthy of serious attention or trivial.” 10 Del. C. §
8801(4). A claim is legally frivolous when the claim is “based on an indisputably meritless legal
theory.” '* Jd. § 8801(7). And a claim is malicious when the claim is “designed to vex, injure or
harass” or if the claim is “otherwise abusive of the judicial process or which realleges pending or
previously litigated claims.” Jd. § 8801(8).

'? Mot. to Amend. §f 3-6.

0 Td.
and (2) deprivation of Plaintiff's Eighth and Fourteenth Amendment rights,”! i.e. a
42 U.S.C. § 1983 claim.

12. With regard to medical negligence, 18 Del. C. § 6853 requires a party
pleading a claim of medical negligence to submit an affidavit of merit as set forth in
§ 6853(a), except in certain limited circumstances where there is a rebuttable
inference of medical negligence. Plaintiff has not submitted an affidavit of merit,
and his allegations do not fall within the narrow grounds set forth in § 6853(e) to
establish a rebuttable inference of medical negligence. Therefore, to the extent
Plaintiff has alleged medical negligence, his Complaint is statutorily deficient, and
Plaintiff's Motion to Amend is DENIED in part.

13. With regard to the addition of DOC officials as defendants, while some
basis to dismiss pursuant to Superior Court Civil Rule 12(b)(6) may exist, the Court
does not find Plaintiff's allegations of deliberate indifference to his serious medical
needs factually or legally frivolous such that denial of Plaintiff's Motion to Amend
is appropriate at this stage of the proceedings. Therefore, except as described above
in relation to Plaintiffs claim of medical negligence, Plaintiffs Motion to Amend is

GRANTED in part.

 

*! The Eighth Amendment to the United States Constitution prohibits the infliction of cruel and
unusual punishments. The Eighth Amendment is made applicable against the States by the
Fourteenth Amendment. See Estelle v. Gamble, 429 U.S. 97, 101-02 (1976) (citing Robinson v.
California, 370 U.S. 660 (1962)).
IT IS SO ORDERED.

 

Original to Prothonotary:
cc: Donald DuRoss
