Barnes v. Short

Filing 8

MEMORANDUM OPINION reviewing and screening the 3 Complaint. Signed by Judge Richard G. Andrews on 7/25/2012. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DARRY 0. BARNES,
Plaintiff,
Civ. No. 12-629-RGA

v.

DONALD L. SHORT,
Defendant.

Darry 0. Barnes, Sussex Correctional Institution, Georgetown, Delaware. ProSe
Plaintiff.

MEMORANDUM OPINION

July~

Wilmington, Delaware

Plaintiff Darry 0. Barnes ("Plaintiff'), an inmate at the Sussex Correctional
Institution, George, Delaware, filed this action pursuant to 42 U.S.C. § 1983. He
appears prose and has been granted leave to proceed in forma pauperis. (D. I. 5.) He
also requests counsel. (D. I. 7) The Court proceeds to review and screen the
Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) and§ 1915A(b).
It appears that Plaintiff was employed by Defendant. Defendant is the owner,
operator of Atwork Personnel Service located in Seaford, Delaware. From June
through September 2011, Defendant withheld monies from Plaintiff's pay that Plaintiff
owed for child support. Defendant, however, did not forward the funds to the Division of
Child Support. Defendant was ordered to court to explain the situation, but he failed to
appear. Consequently, Plaintiff was "locked-up," lost his place to stay, and paid the
child support owed "out-of-pocket." Plaintiff seeks restitution and compensation for his
pain and suffering. (D.I. 3.)
This Court must dismiss, at the earliest practicable time, certain in forma
pauperis 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) (in
forma pauperis actions); 28 U.S.C. § 1915A (actions in which prisoner seeks redress

from governmental defendant). 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 of Allegheny, 515 F .3d 224, 229 (3d Cir. 2008). 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 U.S. at 32728.
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. 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.

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§§ 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).
A well-pleaded complaint must contain more than mere labels and conclusions.
See Ashcroft v. Iqbal, 556 U.S. 662 (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, 556 U.S. at 678. 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. /d. The Court must accept all of the complaint's well-pleaded facts as true,
but may disregard any legal conclusions. /d. at 210-11.
Second, the Court must determine whether the facts alleged in the complaint are
sufficient to show that the plaintiff has a "plausible claim for relief." Fowler, 578 F.3d at

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211. In other words, the complaint must do more than allege the plaintiffs entitlement
to relief; rather, it must "show'' such an entitlement with its facts. /d. 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, 556 U.S. at 678. The
plausibility standard "asks for more than a sheer possibility that a defendant has acted
unlawfully." /d. "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."' /d. (quoting Twombly, 550 U.S. at 570).
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. 89, 94 (2007)
(internal quotation marks omitted).
When 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). To act under "color of
state law" a defendant must be "clothed with the authority of state law." /d. at 49.
Defendant is a private individual who owns the company that employed Plaintiff. It is
evident from the pleadings that Defendant is not "clothed with the authority of state
law." See Reichley v. Pennsylvania Dep't of Agric., 427 F.3d 236, 244-45 (3d Cir.
2005); Biener v. Calio, 361 F.3d 206, 216-17 (3d Cir. 2004). Therefore, the claim
against Defendant fails as a matter of law.

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The Complaint contains allegations that have no arguable basis in law or in fact
and it will be dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B) and

§ 1915(A)(b)(1 ). Amendment of the federal claims is futile. The District Court declines
to exercise supplemental jurisdiction to the extent Plaintiff attempts to raise a state law
claim. See 28 U.S.C. § 1367(c)(3). The court will deny as moot the request for
counsel. (D.I. 7)
An appropriate order will be entered.

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