Drummond v. Phelps

Filing 7

MEMORANDUM. Signed by Judge Gregory M. Sleet on 3/17/14. (cla, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DALLAS H. DRUMMOND, JR.,
Plaintiff,
V.

WARDEN PERRY PHELPS,
Defendant.

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Civ. No. 13-1964-GMS

MEMORANDUM

The plaintiff, Dallas H. Drummond, Jr. ("Drummond"), an inmate at the James T.
Vaughn Correctional Center ("VCC"), Smyrna, Delaware, filed this lawsuit pursuant to 42
U.S.C. § 1983. 1 (D.I. 3.) He appears prose and was granted permission to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915. (D.I. 5.) The court now proceeds to screen the
complaint pursuant to 28 U.S.C. § 1915 and§ 1915A.
I. BACKGROUND

Drummond alleges that he is provided drinking water deemed "unsafe" because of high
levels of lead or iron, it smells, and "has other bacteria's." Drummond alleges that memos have
been issued warning staff members not to drink the water. Drummond alleges that "they are
knowingly" endangering his health and safety. He seeks compensatory and punitive damages
and injunctive relief. The only person named as a defendant is Perry Phelps ("Phelps"), the
former warden ofVCC.

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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).

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) (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 ofAllegheny, 515 F .3d 224, 229 (3d Cir. 2008);

Erickson v. Pardus, 551 U.S. 89,93 (2007). Because Drummond 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).
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; 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) and§ 1915A(b)(1) 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.
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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 and 1915A, the court
must grant Drummond 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 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 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 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 Drummond has a "plausible
claim for relief." 2 !d. at 211. In other words, the complaint must do more than allege
Drummond'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

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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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misconduct, the complaint has alleged - but it has not shown - that the pleader is entitled to

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relief." Iqbal, 556 U.S. at 678 (quoting Fed. R. Civ. P. 8(a)(2)).

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III. DISCUSSION
The complaint contains no allegations directed towards Phelps. In addition, the
complaint does not indicate when the alleged constitutional violations occurred. It appears that
Phelps is named as a defendant based upon his former supervisory position at the VCC. Other
than describing his position, the complaint contains no allegations of alleged wrongdoing by
Phelps.
As is well known, 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). "Personal involvement can be shown through allegations of personal direction or
of actual knowledge and acquiescence." Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.
1988). In addition, the Third Circuit has reiterated that a § 1983 claim cannot be premised upon
a theory of respondeat superior and, that in order to establish liability for deprivation of a
constitutional right, a party must show personal involvement by each defendant. Brito v. United

States Dep't ofJustice, 392 F. App'x 11, 14 (3d Cir. 2010) (unpublished) (citing Iqbal, 556 U.S.
at 677); Rode v. Dellarciprete, 845 F.2d at 1207).
Drummond provides no specific facts how Phelps violated his constitutional rights, that
Phelps expressly directed the deprivation of Drummond's constitutional rights, or that Phelps
created policies wherein subordinates had no discretion in applying them in a fashion other than
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the one which actually produced the alleged deprivation. The allegations in the complaint do not
satisfy the Iqbal pleading requirements.
However, since it is not inconceivable that Drummond may be able to articulate a claim
against Phelps (or name alternative defendants), he will be given an opportunity to amend his
pleading. See 0 '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").
IV. CONCLUSION
For the above reasons, the complaint will be dismissed for failure to state a claim upon
which reliefmay be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and§ 1915A(b)(l).
Drummond will be given leave to amend the complaint.
An appropriate order will be entered.

N.4 q

,2014

Wilmington, Delaware

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