Perdue v. City of Wilmington, DE et al

Filing 7

MEMORANDUM - Signed by Judge Sue L. Robinson on 3/27/14. (rwc) Modified on 3/27/2014 (fms).

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

DAVID PERDUE,
Plaintiff,

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)

)

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v.
) Civ. Action No. 14-044-SLR
)
CITY OF WILMINGTON, DELAWARE, )
et aI.,
)
)

)

Defendants.

MEMORANDUM
1. Introduction. Plaintiff David Perdue ("plaintiff"), proceeds pro se and has
been granted in forma pauperis status. He filed this complaint for violations of the
Fourth, Fifth, and Fourteenth Amendments to the United States Constitution, the
Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., 28 C.F.R. 35.130, the Fair
Housing Act, 42 U.S.C. § 3601, et seq., 24 C.F.R. 100.500, and 42 U.S.C. § 1983 and

§ 1985 all in relation to condemnation of property where he resided. (D.1. 2)
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). 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), 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) 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)(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 of 28
U.S.C. § 1915, 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).
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

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conclusory statements." Iqbal, 556 U.S. at 678. When determining whether dismissal
is appropriate, the court must take three steps: "(1) identify[] the elements of the claim,
(2) review[] the complaint to strike conclusory allegations, and then (3) 100k[J at the
well-pleaded components of the complaint and evaluat[eJ whether all of the elements
identified in part one of the inquiry are sufficiently alleged." Malleus v. George, 641
F.3d 560, 563 (3d Cir. 2011). Elements are sufficiently alleged when the facts in the
complaint "show" that the plaintiff is entitled to relief. Iqbal, 556 U.S. at 679 (quoting
Fed. R. Civ. P. 8(a)(2». Deciding whether a claim is plausible will be a "context-specific
task that requires the reviewing court to draw on its judicial experience and common
sense." Id.
6. Allegations in the Complaint. Named as defendants are the City of
Wilmington ("City of Wilmington"), Wilmington Fire Chief Anthony Goode ("Goode"),
Wilmington Department of Licenses & Inspections Commissioner Jeffrey Starkey
("Starkey"), Delmarva Power and Light Company ("Delmarva"), Legal Services Corp.
("Legal Services"), United Way of Delaware ("United Way"), CEO of the Delaware
Human Relations Commission Ramona Fullwood ("Fullwood"),1 and City of Wilmington
employee Jessica Ramos-Valesquez ("Ramos"). Plaintiff alleges that he is disabled by
reason of mental illness. He is affiliated with the Disabled, Disadvantaged Delawareans
also known as the 3D Foundation ("3D"), and lived on property owned by 3D located at
1028 West Third Street in Wilmington, Delaware.

1Fullwood is improperly named. The Director of the Delaware Division of Human
Relations is Romona Fullman. See http://statehumanrelations.delaware.gov/
director.shtm!.

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7. On May 22,2013, the house was emptied by Goode and Starkey. Goode
"forced" Delmarva to shut off the utilities. Plaintiff alleges that defendants' actions were
not justified and that he "remained homeless." He seeks compensatory and punitive
damages, and injunctive relief to lift the condemnation and to desist condemnations
without just cause.
8. Discussion. The complaint, as it now stands, fails to state a claim upon
which relief may be granted. While not clear, it appears that the real property in issue
was condemned for municipal code violations given that plaintiff alleges that Goode and
Starkey "emptied the house." However, the complaint is silent on the condemnation
process or if there was an appeal of the condemnation. In addition, while the City of
Wilmington, Legal Services, the United Way, Fullwood, and Ramos are named as
defendants, there are no allegations directed towards them.2 In addition, plaintiff
alleges in a conclusory manner discrimination based upon a disability. Finally, the
complaint invokes numerous statutes without allegations to support causes of actions
under them. Accordingly, the court will dismiss the complaint for failure to state a claim
upon which relief may be granted. However, since it appears plausible that plaintiff may
be able to articulate a claim against the defendants (or name alternative defendants),
he will be given an opportunity to amend his pleading. See O'Del/ v. United States
Gov't, 256 F. App'x 444 (3d Cir. 2007) (unpublished) (leave to amend is proper where

2Noteworthy is that some of the statutes upon which plaintiff relies require that
the person who caused the alleged constitutional deprivation acted under color of state
law. Some of the named defendants are not state actors.
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the plaintiff's claims do not appear "patently meritless and beyond all hope of
redemption").
9. Conclusion. For the above reasons, the complaint will be dismissed for
failure to state a claim upon which relief may be granted pursuant to 28 U.S.C.

§ 1915(e)(2)(8)(ii). Plaintiff will be given an opportunity to amend the complaint. A
separate order shall issue.

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