Gibbs v. Attorney General of the State of Delaware et al
MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 7/9/13. (cla, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
OTTO G. GIBBS,
Civ. No. 12-720-LPS
ATTORNEY GENERAL OF THE STATE
OF DELAWARE, et al.,
Otto G. Gibbs, Wilmington, Delaware, ProSe Plaintiff.
July 9, 2013
STARK, U.S. District Judge:
Plaintiff Otto G. Gibbs ("Plaintiff') filed this action pursuant to 42 U.S.C. § 1983
alleging violations ofhis constitutional rights.' At the time the complaint was filed, Plaintiff was
an inmate housed at the Howard R. Young Correctional Institution ("HRYCI") in Wilmington,
Delaware. He has since been released. 2 (D.I. 7) Plaintiff appears prose and has been granted
leave to proceed in forma pauperis. The Court proceeds to review and screen the Complaint
pursuant to 28 U.S.C. § 1915(e)(2) and§ 1915A(a).
On October 13, 1997, Plaintiff was sentenced to twenty years imprisonment after he was
convicted by a jury of unlawful sexual intercourse in the second degree. See State v. Gibbs, 2011
WL 3792823 (Del. Super. Ct. Aug. 4, 2011). In anticipation ofhis release from prison, the State
of Delaware filed a petition to have Plaintiff registered as a Tier 3 sex offender. !d. at *1. On
December 20, 2010, following an evidentiary hearing, a Superior Court Commissioner
("Commissioner") denied Plaintiffs request for a continuance to obtain counsel and granted the
State's request to register Plaintiff as a Tier 3 sex offender. !d. On March 8, 2011, the Delaware
Superior Court approved the Commissioner's ruling and Plaintiff was designated as a Tier 3 sex
'Pursuant to 42 U.S.C. § 1983, 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.
See West v. Atkins, 487 U.S. 42, 48 (1988).
A March 4, 2013 order mailed to the last address provided by Plaintiff was returned as
"undeliverable" on April 5, 2013, with no forwarding address. (See D.l. 10, 11)
offender. !d. Plaintiff alleges that the hearing was held over his objection for lack of notice and
to obtain counsel. (D.I. 3 at ,-r IV.2)
In June 2011, Plaintiff was served with a warrant and arrested at the HYRCI for failure to
register an address as a Tier 3 offender. (!d. at ,-r IV.3) Plaintiff pled guilty to the charges on
October 11, 2011, and he received a two month sentence. (!d. at Ex. Del. Super. Ct. Crim.
Docket, Crim. Action No. IN11 070652) Plaintiff alleges that he was forced into taking a guilty
plea. (D.I. 3 at ,-r IV.4) Plaintiff alleges that he did not receive notice of the hearing and was not
provided counsel. 3 (!d. at ,-r IV.5) On August 14, 2012, Plaintiff filed a Rule 61 motion raising
the following grounds for relief: (1) denial of counsel; (2) due process violations; and (3) ex post
facto and double jeopardy violations - the same grounds he now raises in the instant complaint.
(See Civ. No. 13, 455-LPS, D.I. 1 Ex) On December 4, 2012, the State Court issued a wellreasoned report and recommendation addressing all issues and summarily dismissed the Rule 61
Motion. 4 !d.
1t is not clear if this allegation is directed to the December 20, 2010 hearing held on the
issue of registering Plaintiff as a sex offender or if it is directed to the October 11, 2011 change
of plea hearing for failure to register as a sex offender. With regard to the sex registry issue, the
criminal docket does not refer to notice of the December 20, 2010 hearing and does not indicate
that Plaintiff was represented by counsel. (See D.l. 3 Ex. (!d. at Ex. Del. Super. Ct. Crim.
Docket, Crim. Action No. IN96050521R2) The criminal docket for the October 11, 2011 change
of plea hearing indicates that Plaintiff was represented by Beth D. Savitz and that the matter was
set and notice provided for an October 11, 2011 final case review. (!d. at Ex. Del Super. Ct.
Crim. Docket, Crim. Action No. IN11070652)
Plaintiff s appeal of the report and recommendation was dismissed by the Delaware
Supreme Court for lack of jurisdiction. See Gibbs v. State, 2013 WL 167200, at *1 (Del. Jan. 15,
2013). The Delaware Supreme Court did not have the authority to hear an appeal directly from a
report and recommendation of a Superior Court commissioner without intermediate review by a
Superior Court judge. See id.
Plaintiff alleges that 11 Del. C.§ 4120(a) and/or (c) provides insufficient procedural
protections, violates the Due Process Clause, Ex Post Facto and Double Jeopardy Clauses, and
the right to equal protection. Plaintiff alleges that: ( 1) § 4120 does not provide for adequate
notice of commencement of an evidentiary hearing; (2) pursuant to § 4120, the Commissioner
denied Plaintiff's request for counsel over objections and notice; (3) the language in§ 4120
creates a legitimate expectation that other petitioners similarly situated were afforded counsel at
the sentencing hearing; and (4) application of the statute to Plaintiff decades after he was
sentenced violates the Ex Post Facto clause.
Plaintiff seeks declaratory relief that 11 Del. C. § 4120 violated his constitutional rights
as well as "removal" of the October 11, 2011 guilty plea.
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) (in forma pauperis
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 prose plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93 (2007); Phillips v.
County ofAllegheny, 515 F .3d 224, 229 (3d Cir. 2008). Because Plaintiff proceeds prose, 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, 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) and§ 1915A(b)(l), 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 32728; see also Wilson v. Rackmill, 878 F.2d 772, 774 (3d Cir. 1989); 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) and§ 1915A(b)(l) 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 of28 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 Hasp., 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 Atl. Corp. v. Twombly, 550 U.S. 544 (2007). 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 ofthe complaint's wellpleaded facts as true, but may disregard any legal conclusions. See id. at 210-11. The
assumption oftruth 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.
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 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).
Personal Involvement/Respondeat Superior·
Plaintiff names as defendants the Attorney General of the State ofDelaware ("Attorney
General"), Warden Phil Morgan ("Morgan"), and the Delaware State Police Chief for New
Castle County Delaware ("State Police Chief'). The complaint, however, contains no allegations
directed towards these Defendants.
"A defendant in a civil rights action must have personal involvement in the alleged
wrongs to be liable, and cannot be held responsible for a constitutional violation which he or she
neither participated in nor approved .... " Baraka v. McGreevey, 481 F.3d 187,210 (3d Cir.
2007) (internal quotation marks and citations omitted). "Personal involvement can be shown
through allegations ofpersonal direction or of actual knowledge and acquiescence." Rode v.
Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). In order to establish liability for deprivation
of a constitutional right, a party must show personal involvement by each defendant. See Brito v.
United States Dep 't ofJustice, 392 F. App'x 11, 14 (3d Cir. Aug. 18, 2010) (citing Iqbal, 556
U.S. at 677; Rode, 845 F.2d at 1207).
"Because vicarious liability is inapplicable to § 1983 suits, a plaintiff must plead that
each Government-official defendant, through the official's own individual actions, has violated
the Constitution." Iqbal, 556 U.S. at 676. In Iqbal, the Supreme Court emphasized that "[i]n a
§ 1983 suit- here masters do not answer for the torts of their servants- the term 'supervisory
liability' is a misnomer. Absent vicarious liability, each Government official, his or her title
notwithstanding, is only liable for his or her own misconduct." Iqbal, 556 U.S. at 677. "Thus,
when a plaintiff sues an official under § 1983 for conduct 'arising from his or her superintendent
responsibilities,' the plaintiff must plausibly plead and eventually prove not only that the
official's subordinates violated the Constitution, but that the official by virtue of his own conduct
and state ofmind did so as well." Dodds v. Richardson, 614 F.3d 1185, 1198 (10 1h Cir. 2010).
The factors necessary to establish a § 1983 violation will vary with the constitutional provision at
Under pre-Iqbal Third Circuit precedent, "[t]here are two theories of supervisory
liability," one under which supervisors can be liable if they "established and maintained a policy,
practice or custom which directly caused [the] constitutional harm," and another under which
supervisors can be liable if they "participated in violating plaintiff's rights, directed others to
violate them, or, as the person[ s] in charge, had knowledge of and acquiesced in [their]
subordinates' violations." Santiago v. Warminster Twp., 629 F.3d 121, 129 n.5 (3d Cir. 2010)
(internal quotation marks omitted). "Particularly after Iqbal, the connection between the
supervisor's directions and the constitutional deprivation must be sufficient to demonstrate a
plausible nexus or affirmative link between the directions and the specific deprivation of
constitutional rights at issue." !d. at 130.
The Third Circuit has recognized the potential effect that Iqbal might have in altering the
standard for supervisory liability in a § 1983 suit but, to date, has declined to decide whether
Iqbal requires narrowing of the scope ofthe test. See Santiago, 629 F.3d at 130 n.8; see also
Argueta v. United States Immigration and Customs Enforcement, 643 F.3d 60 (3d Cir. 2011)
("To date, we have refrained from answering the question of whether Iqbal eliminated- or at
least narrowed the scope of- supervisory liability because it was ultimately unnecessary to do so
in order to dispose of the appeal then before us."). Hence, it appears that, under a supervisory
theory ofliability, and even in light of Iqbal, personal involvement by a defendant remains the
touchstone for establishing liability for the violation of a plaintiff's constitutional right. 5 See
Williams v. Lackawanna Cnty. Prison, 2010 WL 1491132, at *5 (M.D. Pa. Apr. 13, 2010).
Facts showing personal involvement of the defendant must be asserted; such assertions
may be made through allegations of specific facts showing that a defendant expressly directed the
deprivation of a plaintiff's constitutional rights or created such policies where the subordinates
had no discretion but to act in a fashion which actually produced the alleged deprivation; e.g.,
supervisory liability may attach if the plaintiff asserts facts showing that the supervisor's actions
were "the moving force" behind the harm suffered by the plaintiff. See Sample, 885 F.2d at
"'Supervision' entails, among other things, training, defining expected performance by
promulgating rules or otherwise, monitoring adherence to performance standards, and responding
to unacceptable performance whether through individualized discipline or further rulemaking."
Sample v. Diecks, 885 F.2d 1099, 1116 (3d Cir. 1989). "For the purpose of defining the standard
for liability of a supervisor under § 1983, the characterization of a particular aspect of
supervision is unimportant." !d. at 1116-17.
1117-18; see also Iqbal, 556 U.S. at 677-87; City of Canton v. Harris, 489 U.S. 378 (1989).
Plaintiff provides no facts describing how the foregoing Defendants allegedly violated his
constitutional rights, that they expressly directed the deprivation of his constitutional rights, or
that they created policies leaving subordinates no discretion but to act in a fashion which actually
produced the alleged deprivation. Plaintiff has alleged no facts to support personal involvement
by any of the foregoing Defendants. Accordingly, the Court will dismiss as frivolous all claims
against them pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and§ 1915A(b)(1).
To the extent that Plaintiff attempts to challenge his conviction and/or sentence, his sole
federal remedy for challenging the fact or duration of his confinement is by way of habeas
corpus. See Preiser v. Rodriguez, 411 U.S. 475 (1973); see also Torrence v. Thompson, 435 F.
App'x 56 (3d Cir. June 3, 2011 ). A plaintiff cannot recover under § 1983 for alleged wrongful
incarceration unless he proves that his conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal authorized to make such
determination, or been called into question by a federal court's issuance of a writ ofhabeas
corpus. See Heck v. Humphrey, 512 U.S. 477,487 (1994).
In Heck, the Supreme Court held that where success in a § 1983 action would implicitly
call into question the validity of conviction or duration of sentence, the plaintiff must first
achieve favorable termination ofhis available state or federal habeas remedies to challenge the
underlying conviction or sentence. Considering Heck and summarizing the interplay between
habeas and§ 1983 claims, the Supreme Court has explained that,"a state prisoner's § 1983 action
is barred (absent prior invalidation)- no matter the relief sought (damages or equitable relief), no
matter the target of the prisoner's suit (state conduct leading to conviction or internal prison
proceedings) - if success in that action would necessarily demonstrate the invalidity of the
confinement or its duration." Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005).
Here, Plaintiff has not alleged nor proven that his conviction or sentence was reversed or
invalidated as provided by Heck. Therefore, the Court will dismiss the claim as frivolous
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and§ 1915A(b)(l).
For the above reasons, the Court will dismiss the Complaint as frivolous pursuant to 28
U.S.C. § 1915(e)(2)(B)(i) and§ 1915A(b)(l). Amendment ofthe Complaint is futile.
An appropriate Order follows.
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