Damiani v. Delaware State Police Troop 2 et al

Filing 18

MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 7/12/13. (cla, )

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE
PABLO A. DAMIANI,
Plaintiff,

v.

Civ. No. 12-1637-RGA

DELAWARE STATE POLICE
TROOP 2, et aI.,
Defendants.

Pablo A. Damiani, James T. Vaughn Correctional Center, Smyrna, Delaware, Pro Se
Plaintiff.

MEMORANDUM OPINION

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July
Wilmington, Delaware

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Plaintiff Pablo A. Damiani, an inmate at the James T. Vaughn Correctional
Center, Smyrna, Delaware, filed this action pursuant to 42 U.S.C. § 1983. He appears
pro se and has been granted leave to proceed in forma pauperis (D.1. 7). The Court
dismissed the original Complaint and gave Plaintiff leave to amend his excessive force
claims. Deliberate indifference to medical needs and unlawful search and seizure
clams were dismissed with prejudice. The Court proceeds to review and screen the
Amended Complaint pursuant to 28 U.S.C. § 1915(e)(2)(b) and § 1915A(a).
The Amended Complaint names twenty-one defendants. The allegations
contained therein are similar to those in the original complaint. On December 6,2010,
Plaintiff's vehicle was stopped by members of a joint ATF task force composed of
several plainclothes officers. Plaintiff followed orders and placed his hands on the
driver's side window when one of the o'fficers busted the passenger's side front window
with a tire iron while Plaintiff was being cuffed. Plaintiff was "violently ripped from the
vehicle, thrown to the pavement and beaten and kicked" by the unknown officers. Next,
Plaintiff was handcuffed behind his back, pulled to the side of the road and assaulted a
second time until a marked police vehicle arrived and transported him to Delaware
State Police Troop 2.
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 a 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)(8)(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 327-28.
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. 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.

§§ 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

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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 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 plaintiff's
entitlement to relief; rather, it must "show" such an entitlement with its facts. Id. 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." 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. (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). Plaintiff has once
again named municipal defendants. A plaintiff seeking to recover "from a municipality
under § 1983 must (1) identify an allegedly unconstitutional policy or custom,

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(2) demonstrate that the municipality, through its deliberate and culpable conduct, was
the "moving force" behind the injury alleged; and (3) demonstrate a direct causal link
between the municipal action and the alleged deprivation of federal rights. Board of the
Gnty. Gomm'rs v. Brown, 520 U.S. 397,404 (1997). This rule also applies to police·

departments. See Gouden v. Duffy, 446 F.3d 483,499-500 (3d Gir. 2006) (citing
Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 791 (3d Gir. 2000». Plaintiff has

alleged no facts to support a claim that policies or customs of the municipal defendants
caused the injuries of which he complains. Therefore, the claims against the municipal
defendants will be dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and

§ 1915A(b)(1).
The Amended Complaint only mentions one defendant by name - Detective
Casey Bouldin. Other defendants are mentioned in exhibits to the Amended Complaint.
The Amended Complaint alleges that Bouldin handcuffed Plaintiff and held onto the
cuffs until Plaintiff was removed from the vehicle. Plaintiff alleges that he was violently
removed from the vehicle through the driver's side door and thrown face down onto the
pavement. (0.1. 15 at 6) Once Plaintiff was removed from the vehicle, the troopers
took custody of Plaintiff. (Id. at 51)1 Detective Gary Potts reported that Plaintiff was
forced to the ground, physically held, and restrained. (ld. at 24)2 Potts, along with
others, used his body weight to restrain Plaintiff. (ld.)3 Medical records dated

1 The citation is to the electronically-filed copy, in which the relevant portion appears to be
redacted. The hard copy version can, however, can be read through the black-lining.

2

See footnote one.

3

See footnote one.

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December 6, 2010, indicate that Plaintiff was "in a fight" and sustained multiple facial
abrasions and a contusion to the left knee with tenderness and swelling. (0.1. 16 at 1)
Liberally construing the Amended Complaint, as the Court must, and taking into
consideration the Amended Complaint's exhibits, the Court finds that Plaintiff has
adequately alleged excessive force claims against two Defendants: Detective 80uldin
and Detective Potts.
With regard to the remaining defendants, the Amended Complaint and exhibits
do not contain allegations that rise to the level of constitutional violations. Many of the
individual defendants are not mentioned in the Amended Complaint, or its exhibits,
other than to list their names. See Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005)
("A[n individual government] defendant in a civil rights action must have personal
involvement in the al/eged wrongdoing ...."). It appears that some defendants are
named based upon their supervisory positions. However, it is well-established that a
§ 1983 claim cannot be premised upon a theory of respondeat superior. Ashcroft v.

Iqbal, 556 U.S. 662, 677 (2009). Finally, the Court dismissed with prejudice unlawful
search and seizure claims, yet it appears that Plaintiff attempts to reinstate the claims
as certain defendants named in the Amended Complaint and its exhibits had no
involvement other than in this dismissed claim. For these reasons, the Court will
dismiss as frivolous the claims against the remaining individual defendants pursuant to
28 U.S.C.§ 1915(e)(2)(8)(i) and § 1915A(b)(1).
An appropriate order will be entered.

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