Sykes v. Delaware State Police et al

Filing 7

MEMORANDUM ORDER. The complaint is dimissed as frivolous and plaintiff is given leave to amend. Plaintiff is given leave to file an amended complaint. If an amended complaint is not filed within thirty (30) days, then the case will be closed. Signed by Judge Sue L. Robinson on 5/5/11. (fms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
NIGEL C. SYKES,
Plaintiff,

v.
DELAWARE STATE POLICE and
SEASONS PIZZA,
Defendants.

)
)
)
)
) Civ. No. 11-147-SLR
)
)
)
)
)

MEMORANDUM ORDER
At Wilmington this Sf'day of May, 2011, having screened the case pursuant to 28
U.S.C. § 1915 and § 1915A;
IT IS ORDERED that the complaint is dismissed as frivolous pursuant to 28
U.S.C. § 1915 and § 1915A and plaintiff is given leave to amend, for the reasons that
follow:
1. Background. Plaintiff Nigel C. Sykes ("plaintiff') is a pretrial detainee held at
the Howard R. Young Correctional Center ("HRYCI"), Wilmington, Delaware. He filed
this complaint pursuant to 42 U.S.C. § 1983 alleging assault by employees of Seasons
Pizza and excessive force by Delaware State Police officers. 1 Plaintiff proceeds pro se
and has been granted leave to proceed without prepayment of fees.
2. 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

1When bringing a § 1983 claim, a plaintiff must allege that some person has
deprived him of a federal right, and that the person who caused the deprivation acted
under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

28 U.S.C. § 1915(e)(2) (in forma pauperis actions); 28 U.S.C. § 1915A (actions in which
prisoner seeks redress from a governmental defendant); 42 U.S.C. § 1997e (prisoner
actions brought with respect to prison conditions). 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. Phillips v. County of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008); Erickson v.
Pardus, 551 U.S. 89, 93 (2007). Because plaintiff proceeds pro se, his pleading is
liberally construed and his complaint, "however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551
U.S. at 94 (citations omitted).
3. An action is frivolous if it "lacks an arguable basis either in law or in fact."
Neitzke v. Williams, 490 U.S. 319, 325 (1989). Under 28 U.S.C. § 1915(e)(2)(B)(i) and

§ 1915A(b)(1), 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; Wilson v. Rackmill, 878 F.2d 772, 774 (3d Cir.
1989); see, e.g., Deutsch v. United States, 67 F.3d 1080, 1091-92 (3d Cir. 1995)
(holding frivolous a suit alleging that prison officials took an inmate's pen and refused to
give it back).
4. The legal standard for dismissing a complaint for failure to state a claim
pursuant to § 1915(e)(2)(B)(ii) and § 1915A(b)(1) is identical to the legal standard used
when ruling on Rule 12(b)(6) motions. Tourscherv. McCullough, 184 F.3d 236,240 (3d
Cir. 1999)(applying Fed. R. Civ. P. 12(b)(6) standard to dismissal for failure to state a
claim under § 1915(e)(2)(B». However, before dismissing a complaint or claims for

-2-

failure to state a claim upon which relief may be granted pursuant to the screening
provisions of 28 U.S.C. §§ 1915 and 1915A, the court must grant plaintiff leave to
amend his complaint unless amendment would be inequitable or futile. See Grayson v.
Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).
5. A well-pleaded complaint must contain more than mere labels and
conclusions. See Ashcroft v. Iqbal, _U.S._, 129 S.Ct. 1937 (2009); Bell At!. 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." Id. at 1949. When determining whether dismissal is
appropriate, the court conducts a two-part analysis. Fowler v. UPMC Shadyside, 578
F.3d 203, 210 (3d Cir. 2009). First, the factual and legal elements of a claim are
separated. Id. The court must accept all of the complaint's well-pleaded facts as true,
but may disregard any legal conclusions. Id. at 210-11. Second, the court must
determine whether the facts alleged in the complaint are sufficient to show that plaintiff
has a "plausible claim for relief."2 Id. at 211. In other words, the complaint must do
more than allege plaintiffs entitlement to relief; rather it must "show" such an
entitlement with its facts. Id. ',[W]here the well-pleaded facts do not permit the court to
infer more than a mere possibility of misconduct, the complaint has alleged - but it has

2A 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. Iqbal, 129
S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570). 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.

-3-

not shown - that the pleader is entitled to relief." Iqbal, 129 S.Ct. at 1949 (quoting Fed.
R Civ. P. 8(a)(2».
6. Discussion.

Plaintiff names as defendants the Delaware State Police

("State Police") and Seasons Pizza ("Seasons Pizza"). Plaintiff alleges that on
November 30, 2010, he was robbed by an unknown person who gave him a gun and
forced him to rob a near-by Seasons Pizza. When plaintiff entered the restaurant, he
announced that he was being forced to commit a robbery. He was tackled from behind
by an employee, the gun discharged, and then other employees tackled and repeatedly
assaulted plaintiff with pots and pans. Next, plaintiff was doused with hot liquid and
kicked. He hit his head on a metal table and lost consciousness. (0.1.3)
7. When plaintiff regained consciousness, he discovered that he was
handcuffed and being tasered by the State Police. The officers escorted plaintiff out of
the restaurant. One officer punched plaintiff and another officer slammed plaintiffs
head against the trunk of the police vehicle. Plaintiff was taken to the hospital eight
hours later. He seeks compensatory damages. (0.1. 3)
8. State actor. To state a claim under 42 U.S.C. §1983, a plaintiff must allege
"the violation of a right secured by the Constitution or laws of the United States and
must show that the alleged deprivation was committed by a person acting under color of
state law." West v. Atkins, 487 U.S. 42, 48 (1988) (citing Parratt v. Taylor,451 U.S.
527,535 (1981), overruled in part on other grounds by Daniels v. Williams, 474 U.S.
327,330-31 (1986». To act under "color of state law" a defendant must be "clothed
with the authority of state law." West, 487 U.S. at 49. Seasons Pizza is a restaurant,

-4-

and its employees are private individuals who took measures to stop a robbery of the
establishment. Neither Seasons Pizza, nor its employees, are "clothed with the
authority of state law." See Reichley v. Pennsylvania Oep't of Agric., 427 F.3d 236,
244-45 (3d Gir. 2005); Biener v. Calio, 361 F.3d 206, 216-17 (3d Gir. 2004).
9. The § 1983 claims against Seasons Pizza have no arguable basis in law or in
fact and the claims are dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(8)
and § 1915(A)(b)(1).
10. Eleventh Amendment immunity. As mentioned the State Police is a
named defendant. "Absent a [S]tate's consent, the Eleventh Amendment bars a civil
rights suit in federal court that names the state as a defendant." Laskaris v.

Thornburgh,661 F.2d 23, 25 (3d Gir. 1981) (citing Alabama v. Pugh, 438 U.S. 781
(1978) (per curiam». The State of Delaware has not waived its sovereign immunity
under the Eleventh Amendment. See Rodriguez v. Stevenson, 243 F. Supp. 2d 58, 63
(D. Del. 2002).
11. In addition, the Eleventh Amendment limits federal judicial power to
entertain lawsuits against a State and, in the absence of congressional abrogation or
consent, a suit against a state agency is proscribed. See Pennhurst State School &

Hosp. v. Halderman, 465 U.S. 89, 98-100. Further, a state agency, such as the
Delaware State Police, "is not a person" subject to claims under 42 U.S.C. § 1983. See

Will v. Mich. Oep't of State Police, 491 U.S. 58, 71 (1989).
12. The State Police is immune from suit. Therefore, the court will dismiss the
claims against it pursuant to 28 U.S.C. § 1915(e){2){8) and § 1915A(b)(1}.

-5-

13. Conclusion. For the above reasons, the complaint is dismissed as frivolous
pursuant to 28 U.S.C. § 1915(e)(2)(8) and § 1915A(b)(1). However, since it appears
plausible that plaintiff may be able to articulate a claim against alternative defendants,
he will be given an opportunity to amend his pleading. See O'Dell v. United States

Gov't, 256 F. App'x 444 (3d Cir. 2007) (not published) (leave to amend is proper where
the plaintiff's claims do not appear "patently meritless and beyond all hope of
redemption"). Plaintiff is given leave to file an amended complaint. If an amended
complaint is not filed within thirty (30) days, then the case will be closed.

UNiTED STASDISTRICT JUDGE

-6-