Gamache v. United States of America
Filing
6
MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 6/6/11. (ntl)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
GREGORY GAMACHE,
Plaintiff,
: Civ. No. 11-205-LPS
v.
UNITED STATES OF AMERICA,
Defendant.
Gregory Gamache, St. Charles, Missouri, Pro Se Plaintiff.
MEMORANDUM OPINION
June 6, 2011
Wilmington, Delaware
-t~~,
I,k;
STARK, U.S. District Judge:
I.
INTRODUCTION
Plaintiff Gregory Gamache ("Gamache") of S1. Charles, Missouri, filed this civil action
on March 9, 2011. (D.I. 2) He appears pro se and has been granted leave to proceed in forma
pauperis. (DJ. 4) The Court proceeds to review and screen the Complaint pursuant to 28 U.S.c.
§ 1915.
II.
BACKGROUND
Gamache filed this complaint seeking the immediate passage of a federal law to protect
citizens from the use of electronic weapons. According to the Public Access to Court Electronic
Records website, within the past five months Gamache has filed over eighty actions in numerous
other federal courts raising issues over electronic weapons.
III.
STANDARD OF REVIEW
The 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) (informapauperis
actions); 28 U.S.C. § 1915A (actions in which prisoner seeks redress from 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. See Phillips v. County ofAllegheny, 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
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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.
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; Wilson v.
Rackmill, 878 F.2d 772, 774 (3d Cir. 1989; see also Deutsch v. United States, 67 F.3d 1080,
1091-92 (3d Cir. 1995) (holding frivolous a suit alleging that prison officials took inmate's pen
and refused to give it back).
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 F.3d 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 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).
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
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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 Plaintiff has a "plausible claim for relief." 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. 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
The United States of America is the sole defendant. It is well established that an action
against the United States cannot be maintained unless the United States waives its sovereign
immunity. See United States v. Mitchell (I), 445 U.S. 535, 538 (1980). A waiver of sovereign
immunity cannot be implied but must be unequivocally expressed. See id. Moreover, "[ilt is
axiomatic that the United States may not be sued without its consent and that the existence of
consent is a prerequisite for jurisdiction." United States v. Mitchell (II), 463 U.S. 206,212
(1983). The United States of America has not waived its immunity. Accordingly, Gamache's
claim against the United States of America is barred by sovereign immunity.
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The claim has no arguable basis in law or in fact, is frivolous and, therefore, the
Complaint will be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).
V.
CONCLUSION
For the above reasons, the Court will dismiss the Complaint as frivolous pursuant to 28
U.S.C. § 1915(e)(2)(B). Amendment of the Complaint would be futile. See Alston v. Parker,
363 F.3d 229 (3d Cir. 2004). An appropriate Order follows.
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