Cherricks v. University of Delaware

Filing 7

MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 3/28/11. (ntl)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE LIZA DAWN CHERRICKS, Plaintiff,

v.
UNIVERSITY OF DELAWARE, Defendant.

: Civ. No. 1O-10IS-LPS

Liza Dawn Cherricks, New Castle, Delaware, Pro Se Plaintiff.

MEMORANDUM OPINION

March 28, 2011 Wilmington, Delaware

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I. INTRODUCTION
PlaintiffLiza Dawn Cherricks ("Cherricks") of New Castle, Delaware, filed this civil action on November 23, 2010. (D.I. 2) She appears pro se and has been granted leave to proceed in forma pauperis. (D.I. 4) The Court proceeds to review and screen the Complaint pursuantto 28 U.S.c. § 1915.

II.

BACKGROUND
Cherricks alleges Defendant University of Delaware ("UD") refused to comply with her

Freedom of Information Act ("FOrA") request. Rather than comply, one of its workers hung up on her. Later she was told that she could not call or visit the UD campus.

III.

STANDARD OF REVIEW
This Court must dismiss, at the earliest practicable time, certain in forma pauperis and

prisoner actions that are frivolous, malicious, fail to state a claim, or seek monetary relief from a defendant who is immune from such relief. See 28 U .S.C. § 1915(e)(2) (informa pauperis actions). The Court must accept all factual allegations in a complaint as true and take them in the light most favorable to a pro se plaintiff. See Phillips v. County ofAllegheny, 515 F.3d 224, 229 (3d Cir. 2008); Erickson v. Pardus, 551 U.S. 89, 93 (2007). Because Cherricks proceeds pro se, her pleading is liberally construed and her Complaint, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson, 551 U.S. at 94 (internal quotation marks omitted). An action is frivolous if it "lacks an arguable basis either in law or in fact." Neitzke v.

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Williams, 490 U.S. 319, 325 (1989). Under 28 U.S.C. § 1915(e)(2)(B)(i), a court may dismiss a
complaint as frivolous if it is "based on an indisputably meritless legal theory" or a "clearly baseless" or "fantastic or delusional" factual scenario. Neitzke, 490 at 327-28; see also Wilson v.

Rackmill, 878 F.2d 772, 774 (3d Cir. 1989).
The legal standard for dismissing a complaint for failure to state a claim pursuant to

§ 1915(e )(2)(B)(ii) is identical to the legal standard used when ruling on Rule 12(b)(6) motions.
See Tourscher v. McCullough, 184 F3d 236,240 (3d Cir. 1999). However, before dismissing a
complaint or claims for failure to state a claim upon which relief may be granted pursuant to the screening provisions of 28 U .S.C. § 1915, the Court must grant Cherricks leave to amend her complaint, unless amendment would be inequitable or futile. See Grayson v. Mayview State

Hosp., 293 F 3d 103, 114 (3d Cir. 2002).
A well-pleaded complaint must contain more than mere labels and conclusions. See

Ashcroft v. Iqbal, _U.S._, 129 S.Ct. 1937 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S.
544 (2007). The assumption of truth is inapplicable to legal conclusions or to "[t]hreadbare recitals of the elements of a cause of action supported by mere conclusory statements." Iqbal, 129 S.Ct. at 1949. When determining whether dismissal is appropriate, the Court conducts a two-part analysis. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). First, the factual and legal elements of a claim are separated. See id. The Court must accept all of the Complaint's well-pleaded facts as true, but may disregard any legal conclusions. See id. at 210 11. Second, the Court must determine whether the facts alleged in the Complaint are sufficient to show that Cherricks has a "plausible claim for relief." Id. at 211. In other words,

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the Complaint must do more than allege Plaintiffs entitlement to relief; rather, it must "show" such an entitlement with its facts. Id A claim is facially plausible when its factual content allows the Court to draw a reasonable inference that the defendant is liable for the misconduct alleged. See Iqbal, 129 S.Ct. at 1949. The plausibility standard "asks for more than a sheer possibility that a defendant has acted unlawfully." Id "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of 'entitlement to relief.'" Id (quoting Twombly, 550 U.S. at 570).

IV.

DISCUSSION
Cherricks claims non-compliance with the FOIA. Section 552(a)(4)(B) of the FOIA

confers jurisdiction upon a court to enjoin an agency of the federal government from withholding agency records from a requester and to order production of documents. See 5 U.S.C. § 552(a)(4)(B). The provision, however, applies only to agencies of the government of the United States, and does not extend to state or local agencies. See Dunleavy v. New Jersey, 251 F. App'x 80,83 (3d Cir. Oct. 16,2007) (not published); Davidson v. Georgia, 622 F.2d 895, 897 (5th Cir. 1980) (FOIA has no application to state governments); Krebs v. Rutgers, the State University of

New Jersey, 797 F. Supp. 1246, 1253 (D.N.J. 1992). Because the University of Delaware is not
an agency of the federal government, the Complaint fails to state a FOIA claim. Plaintiffs remedy, ifany, lies in State court. See 29 Del. C. §§ 10001-10006.

V.

CONCLUSION
For the above reasons, the Court will dismiss the Complaint for failure to state a claim

upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B). Amendment of the Complaint is futile. An appropriate Order follows.

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