Sykes v. Seasons Pizza et al

Filing 13

MEMORANDUM. Signed by Judge Sue L. Robinson on 1/17/14. (mdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
NIGEL C. SYKES,
Plaintiff,

v.
SEASONS PIZZA, et al.,
Defendants.

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) Civ. No. 13-1740-SLR
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MEMORANDUM
1. Introduction. Plaintiff Nigel Sykes ("plaintiff'}, an inmate at James T. Vaughn
Correctional Center ("VCC"), Smyrna, Delaware, proceeds pro se and has been
granted in forma pauperis status. He filed this complaint pursuant to 42 U.S.C. § 1983
claiming violations of his constitutional rights. 1 (D.I. 1, 12) He also requests counsel.
(D.I.11)
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
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.
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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).

Pardus, 551 U.S. 89, 93 (2007). 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 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)(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 at 327-28; Wilson v. Rackmi/1, 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)(8)(ii) and§ 1915A(b)(1) is identical to the legal standard used
when ruling on Rule 12(b)(6) motions. Tourscherv. 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)(8)). 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).

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5. A well-pleaded complaint must contain more than mere labels and
conclusions. See Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell At/. 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." /d. 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. /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 plaintiff
has a "plausible claim for relief." 2 /d. at 211. In other words, the complaint must do
more than allege plaintiff'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)).
6. Discussion. The complaint indicates that plaintiff is refiling a claim that was
previously dismissed by the court without prejudice for plaintiff's failure to comply with
court orders. See Sykes v. Delaware State Police, Civ. No. 11-147-SLR at D. I. 16 (Jan.
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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. 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." /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.

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1, 2012 order dismissing case without prejudice pursuant to Fed. R. Civ. P. 4(m)).
Therein, plaintiff alleged excessive force and failure to provide medical care. /d. at 0.1.
8. The complaint in the instant case contains no allegations. (0.1. 1) The amended
complaint states that there are new details "like names, places, and times," provides the
names of defendants, but contains no factual allegations. (0.1. 12)
7. Deficient Pleading. A civil rights complaint must state the conduct, time,
place, and persons responsible for the alleged civil rights violations. Evancho v. Fisher,
423 F.3d 347, 353 (3d Cir. 2005) (citing Boykins v. Ambridge Area Sch. Dist., 621 F.2d
75, 80 (3d Cir. 1980); Hall v. Pennsylvania State Police, 570 F.2d 86, 89 (3d Cir.
1978)). There are no allegations in the complaint directed towards any of the
defendants. Therefore, the court will dismiss the complaint 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).
8. Plaintiff, however, refers to Civ. No. 11-147-SLR, a case wherein the court
identified cognizable claims within the meaning of 28 U.S.C. § 1915A(b). Given that
plaintiff proceeds prose and seeks to refile the previously dismissed case, he will be
given leave to amend the complaint to correct his pleading defects.
9. Request for counsel. Plaintiff requests counsel on the grounds that he does
not have the funds to retain an attorney, an investigation is required, witness
statements are needed, and discovery is necessary. (0.1. 11)

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10. A pro se litigant proceeding in forma pauperis has no constitutional or
statutory right to representation by counsel. 3 See Brightwell v. Lehman, 637 F.3d 187,
192 (3d Cir. 2011); Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993). However,
representation by counsel may be appropriate under certain circumstances, after a
finding that a plaintiffs claim has arguable merit in fact and law. Tabron, 6 F.3d at 155.
11. After passing this threshold inquiry, the court should consider a number of
factors when assessing a request for counsel, including:
(1) the plaintiff's ability to present his or her own case;
(2) the difficulty of the particular legal issues; (3) the degree
to which factual investigation will be necessary and the ability
of the plaintiff to pursue investigation; (4) the plaintiffs capacity
to retain counsel on his own behalf; (5) the extent to which a
case is likely to turn on credibility determinations; and
(6) whether the case will require testimony from expert witnesses.
Tabron, 6 F.3d at 155-57; accord Parham v. Johnson, 126 F.3d 454, 457 (3d Cir.

1997); Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002).
12. Plaintiffs filings indicate that he possesses the ability to adequately pursue
his claims. Moreover, this case is in its early stages. Upon consideration of the record,
the court is not persuaded that representation by an attorney is warranted at this time.
The court can address the issue at a later date should counsel become necessary.
Therefore, the court will deny the request for counsel without prejudice to renew.
13. Conclusion. For the above reasons, the court will dismiss the complaint for
failure to state a claim upon which relief may be granted pursuant to 28 U.S.C.

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See Mallard v. United States Dist. Court for the S. Dist. of Iowa, 490 U.S. 296
(1989) (§ 1915(d) (now§ 1915(e)(1 )) does not authorize a federal court to require an
unwilling attorney to represent an indigent civil litigant, the operative word in the statute
being "request.".

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§ 1915(e)(2)(B)(ii) and§ 1915A(b)(1). Plaintiff will be given leave to amend the
complaint. Plaintiff's request for counsel will be denied without prejudice to renew. (D. I.
11) A separate order shall issue.

Dated: January

11 , 2014

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