Manuel v. Mears et al

Filing 15

MEMORANDUM ORDER - the court dismisses the amended complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(8)(ii) and § 1915A(b)(1). The case will proceed on the original complaint and its excessive force claims againstS. Mears and Diaz as outlined in the court's July 5, 2012 memorandum order. Signed by Judge Sue L. Robinson on 10/11/12. (rwc)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

KARL B. MANUEL,

)

)
Plaintiff,
)
)
v.
) Civ. No. 12-399-SLR
)
LIEUTENANT TRUMAN MEARS, et aI., )
)

Defendants.
)

MEMORANDUM ORDER
At Wilmington this

\~ day of October,

2012, having screened the amended

complaint pursuant to 28 U.S.C. § 1915 and § 1915A;
IT IS ORDERED that the amended complaint is dismissed as frivolous pursuant
to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1), and plaintiff may proceed against
Sharon Mears and Lauro B. Diaz, Jr. on excessive force claims as outlined in the July
5, 2012 memorandum order, for the reasons that follow:
1. Background. Plaintiff Karl B. Manuel ("plaintiff'), an inmate at the James T.
Vaughn Correctional Center ("VCC"), Smyrna, Delaware, who proceeds pro se and has
been granted in forma pauperis status, filed this case pursuant to 42 U.S.C. § 1983
alleging excessive force, the issuance of false disciplinary reports, and the inability to
participate in rehabilitative programs. 1 (D.I. 3) The court screened the original
complaint, dismissed the claims against Warden Perry Phelps ("Phelps") and Truman
Mears ("T. Mears"), and allowed plaintiff to proceed on excessive force claims against

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).

Sharon Mears ("S. Mears") and Lauro B. Diaz, Jr. ("Diaz"). (See D.1. 9) On August 6,
2012, plaintiff filed a motion to amend complaint, construed by the court as an
amended complaint. (D.1. 10) The amended complaint reinstates Phelps and T. Mears
and adds retaliation and conspiracy claims.
2. Standard of review. This court must dismiss, at the earliest practicable time,
certain in forma pauperis and prisoner actions that are frivololJs, 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) (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)

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(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)(8)(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)(8)). 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 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, 556 U.S. 662 (2009); Bell At!. Corp.

V.

Twombly,

550 U.S. 544 (2007). The assumption of truth is inapplicable to legal conclusions or to
U[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

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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
not shown - that the pleader is entitled to relief." Iqbal, 556 U.S. at 678 (quoting Fed. R.
Civ. P. 8(a)(2)).
6. Discussion. The court's memorandum order of July 5, 2012 sets forth the
facts as alleged in the original complaint. The amended complaint reiterates many of
the same allegations as those in the original complaint but includes two new claims:
retaliation and conspiracy. Plaintiffs main complaint is that he was transferred to a
more secure housing unit after being found guilty of staff assault, which in turn affected
his ability to participate in court ordered rehabilitative programs. Plaintiff alleges that he
has written Phelps, but Phelps has done nothing to rectify plaintiffs status such as
investigating the matter or holding an emergency classification hearing.
7. Plaintiff claims retaliation occurred when, after he filed a grievance following
his injury while on a work assignment at the SVOP, he was confronted by Cpl Mears.

(0.1. 10 at 4) He alleges a second occurrence of retaliation after he filed Manuel v.
Atkins, Civ. No. 10-962-SLR, which is currently pending in this court. In addition,

plaintiff alleges a "conspiratorial connection" because T. Mears is the spouse of

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, 556
U.S. at 678 (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.
III

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S. Mears and both are related to Cpl. Mears. T. Mears found plaintiff guilty during
disciplinary hearings in all but one instance. The findings, in turn, caused an increase
in plaintiffs classification points. Because of the increase in plaintiffs classification
points, he was transferred to the VCC and housed in the Security Housing Unit ("SHU").
8. Personal involvement. Plaintiff alleges that, following his complaints,
Phelps failed to investigate and change plaintiffs classification. Participation in the
after-the-fact review of a letter is not enough to establish personal involvement. See,
e.g., Brooks v. Beard, 167 F. App'x 923,925 (3d Cir. 2006) (not published) (allegations
that prison officials and administrators responded inappropriately to inmate's later-filed
grievances do not establish the involvement of those officials and administrators in the
underlying deprivation). See also Wilson v. Hom, 971 F.Supp. 943, 947 (E.D. Pa.
1997), affd, 142 F.3d 430 (3d Cir.1998) (prison officials' failure to respond to inmate's

grievance does not state a constitutional claim). Even when reading the amended
complaint in the most favorable light to plaintiff, it fails to state an actionable
constitutional claim against Phelps.
9. Retaliation. Plaintiff claims that retaliation occurred after he submitted a
grievance and after he filed a lawsuit. "Retaliation for the exercise of constitutionally

protected rights is itself a violation of rights secured by the Constitution actionable
under § 1983." White

v. Napo/eon, 897 F.2d 103, 111-12 (3d Cir. 1990). It has long

been established that the First Amendment bars retaliation for protected speech. See
Crawford-EI v. Britton, 523 U.S. 574, 592 (1998); Milhouse v. Carlson, 652 F.2d 371,
373-74 (3d Cir. 1981). Proof of a retaliation claim requires that plaintiff demonstrate (1)

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he engaged in protected activity; (2) he was subjected to adverse actions by a state
actor; and (3) the protected activity was a substantial motivating factor in the state
actor's decision to take adverse action. Anderson v. Davila, 125 F.3d 148, 160-61 (3d
Gir. 1997) (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977);
see also Allah v. Seiveriing, 229 F.3d 220 (3d Gir. 2000) (a fact finder could conclude
that retaliatory placement in administrative confinement would "deter a person of
ordinary firmness from exercising his First Amendment rights" (citations omitted).
10. Applying the retaliation standard and liberally construing the amended
complaint, plaintiff has failed to state a claim of retaliation for his exercise of a First
Amendment right. At most, he alleges that he engaged in protected activity; nothing
more. Accordingly, the court will dismiss the retaliation claim as frivolous.
11. Conspiracy. Plaintiff alleges a conspiracy based upon the familial
relationship of the Mears'. To state a conspiracy claim under § 1983, plaintiff must
show that "persons acting under color of state law conspired to deprive him of a
federally protected right." Ridgewood Bd. of Educ. V. N .E. ex rei. M.E., 172 F.3d 238,
254 (3d Gir. 1999). In addition, there must be evidence of actions taken in concert by
defendants with the specific intent to violate that right. Williams v. Fedor, 69 F. Supp.
2d 649, 665-66 (M.D. Pa.), aff'd, 211 F.3d 1263 (3d Gir. 2000). A § 1983 conspiracy
claim only arises when there has been an actual deprivation of a right. Andree v.
Ashland Cnty., 818 F.2d 1306, 1311 (7th Gir. 1987); see also Dixon v. City of Lawton,
898 F.2d 1443, 1449 (10th Gir. 1990); Perano v. Township of Tilden, 423 F. App'x 234
(3d Gir. 2011) (not published).

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12. Plaintiffs claim of a conspiracy consists of legal conclusions. Moreover,
other than to allege that the Mears are related, the claim fails to allege act taken in
concert by the Mears with the specific intent to violate plaintiffs constitutional rights.
Plaintiff has failed to state a § 1983 conspiracy claim. Therefore, the court will dismiss
the claim as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(8)(ii) and 1915A(b)(1).
13. Conclusion. For the above reasons, the court dismisses the amended
complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(8)(ii) and § 1915A(b)(1). The
case will proceed on the original complaint and its excessive force claims against
S. Mears and Diaz as outlined in the court's July 5, 2012 memorandum order.

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