Drumgo v. Radcliff et al

Filing 8

MEMORANDUM. Signed by Judge Gregory M. Sleet on 1/15/13. (mdb)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELA WARE

DESHAWN DRUMGO,
Plaintiff,

v.
C/O RADCLIFF, et al.,
Defendants.

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) Civ. Action No. 12-1204-GMS
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MEMORANDUM
The plaintiff, DeShawn Drumgo ("Drumgo"), an inmate at the James T. Vaughn
Correctional Center ("VCC), Smyrna, Delaware, filed this lawsuit on September 25,2012. (D.1.
3.) He proceeds pro se 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 and § 1915A.

I. BACKGROUND
Drumgo filed his complaint alleging violations of his constitutional rights pursuant to 42
U.S.C. § 1983. He also raises supplemental state claims.!

II. 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) (informapauperis
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

!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),

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 ofAllegheny, 515 F.3d 224, 229 (3d Cir. 2008);
Erickson v. Pardus, 551 U.S. 89, 93 (2007). Because Drurngo 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).
An action is frivolous ifit "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, 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).
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 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 provisions of28 U.S.C. § 1915, the court must grant Drurngo 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).

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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 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 ofa

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 Drumgo has a "plausible
claim for relief."2 Id. at 211. In other words, the complaint must do more than allege Drumgo's
entitlement to relief; rather it must "show" such an entitlement with its facts. !d. "(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)).

III. DISCUSSION
Counts One, Two and Three are time-barred. Drumgo filed the instant complaint in
September 2012. Count One alleges that Drumgo's constitutional rights were violated on March
16, March 18, and May 20, 2010; Count Two alleges that Drumgo's constituitonal rights were

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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violated on March 2, and April 23, 2010; and, Count Three alleges Drumgo's constituitonal
rights were violated on July 16,2010.
For purposes of the statute of limitations, § 1983 claims are characterized as personal
injury actions. Wilson v. Garcia, 471 U.S. 261, 275 (1983). In Delaware, § 1983 claims are
subject to a two-year limitations period. See 10 Del. C. § 8119; Johnson v. Cullen, 925 F .Supp.
244, 248 (D. Del. 1996). Section 1983 claims accrue "when the plaintiff knew or should have
known of the injury upon which its action is based." Sameric Corp. v. City o/Philadelphia, 142
F.3d 582, 599 (3d Cir. 1998).
The statute of limitations is an affirmative defense that generally must be raised by the
defendant, and it is waived if not properly raised. See Benak ex reI. Alliance Premier Growth
Fund v. Alliance Capital Mgmt. L.P., 435 F.3d 396, 400 n.14 (3d Cir. 2006); Fassett v. Delta
Kappa Epsilon, 807 F.2d 1150, 1167 (3d Cir. 1986). "[W]here the statute of limitations defense
is obvious from the face of the complaint and no development of the factual record is required to
determine whether dismissal is appropriate, sua sponte dismissal under 28 U.S.C. § 1915 is
permissible." Davis v. Gauby, 408 F. App'x 524, 526 (3d Cir. 2010) (not published) (quoting
Fogle v. Pierson, 435 F.3d 1252, 1258 (10 th Cir. 2006)).
It is evident from the face of the complaint that the claims in Counts One, Two, and

Three were not timely filed and are time-barred. Therefore, the court will dismiss Counts One,
Two, and Three as frivolous pursuant 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)(1).

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IV. CONCLUSION
For the above reasons, the court will dismiss Counts One, Two and Three of the
complaint as time-barred pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)(1). Drumgo
may proceed on Counts Four and Five of the complaint.
An appropriate order will be entered .

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<JGv\. 15"

,2013
Wilmington, Delaware

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