Salasky v. Kemp, et al.

Filing 7

MEMORANDUM ORDER - For the above reasons, the complaint is dismissed as frivolous and for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). Plaintiff is granted leave to amend. The amended complaint shall be filed within thirty (30) days from the date of this order. Signed by Judge Sue L. Robinson on 12/18/12. (rwc)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

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) Civ. No. 12-1069-SLR
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DAVID SALASKY, II,
Plaintiff,

v.
LINDA KEMP, et aI.,
Defendants.

MEMORANDUM ORDER
At Wilmington this\'f!'day of

De~

, 201J,., having screened the case

pursuantto 28 U.S.C. § 1915 and § 1915A;
IT IS ORDERED that: (1) the complaint is dismissed as frivolous and for failure
to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915 and

§ 1915A; and (2) plaintiff is given leave to amend, for the reasons that follow:
1. Background. Plaintiff David Salasky, II ("plaintiff'), an inmate at the Howard

R. Young Correctional Institution ("HRYCI"), Wilmington, Delaware, who proceeds pro
se and has been granted in forma pauperis status, filed this complaint pursuant to 42
U.S.C. § 1983 raising classification and due process claims. 1 (D.1. 3)
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
28 U.S.C. § 1915(e)(2) (in forma pauperis actions); 28 U.S.C. § 1915A (actions in which

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).

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. Tourscher V. 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
failure to state a claim upon which relief may be granted pursuant to the screening

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provisions of 28 U.S.C. §§ 1915 and 1915A, the court must grant plaintiff leave to
amend her 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 Atl. 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
not shown - that the pleader is entitled to relief." Iqbal, 556 U.S. at 678 (quoting Fed. R.
Civ. P. 8(a)(2».
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.

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6. Classification and due process. The complaint refers in a general manner
,to classification and programs. Plaintiff alleges that he is being punished due to the
nature of his charges. In addition, he alleges that his due process rights are being
abused by staff "due to alleged changes in 'illegal' program as its punishment." (D.I. 3)
7. It is well established that an inmate does not possess a liberty interest arising
from the Due Process Clause in assignment to a particular custody level or security
classification or a place of confinement. See Wilkinson v. Austin, 545 U.S. 209, 221-22
(2005) (Constitution does not give rise to liberty interest in avoiding transfer to more
adverse conditions of confinement); Olim v. Wakinekona, 461 U.S. 238, 245 (1983);
Meachum v. Fano, 427 U.S. 215,224-25 (1976). The custody placement or
classification of state prisoners within the State prison system is among the "wide
spectrum of discretionary actions that traditionally have been the business of prison
administrators rather than of the federal courts." Meachum, 427 U.S. at 225. '''As long
as the conditions or degree of confinement to which [a] prisoner is subjected is within
the sentence imposed upon him and is not otherwise violative of the Constitution, the
Due Process Clause does not in itself subject an inmate's treatment by prison
authorities to judicial oversight.'" Hewitt, 459 U.S. at 468 (quoting Montanye v.
Haymes, 427 U.S. 236, 242 (1976». See a/so Sandin v. Conner, 515 U.S. 472, 480
(1995). Therefore, plaintiff can succeed under the Due Process Clause only if state law
or regulation has created a constitutionally-protected liberty interest in remaining free
from administrative detention. However, neither Delaware law nor Department of

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Correction regulations create a liberty interest in a prisoner's classification within an
institution. See 11. Del. C. § 6529(e).
8. The court is unable to discern from plaintiffs sparse allegations if there were
violations of his right to due process. The complaint simply fails to meet the pleadings
standards of Iqbal and Twombly. Accordingly, the court will dismiss the complaint as
frivolous and for failure to state a claim pursuant to 28 U.S.C.§ 1915(e)(2)(8) and
§ 1915A(b)(1). Since it appears plausible that plaintiff may be able to articulate a claim
against a defendant or name alternative defendants, he will be given an opportunity to
amend his complaint. See O'Dell v. United States Gov't, 256 F. App'x 444 (3d Cir.
2007) (unpublished) (leave to amend is proper where the plaintiffs claims do not
appear "patently meritless and beyond all hope of redemption").
9. Conclusion. For the above reasons, the complaint is dismissed as frivolous
and for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C.
§ 1915(e)(2)(8)(ii) and § 1915A(b)(1). Plaintiff is granted leave to amend. The
amended complaint shall be filed within thirty (30) days from the date of this order. If
plaintiff does not file an amended complaint within the time allowed, then the case will
be closed.

UNITED ST TES DISTRICT JUDGE

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