Fithian v. Williams

Filing 9

MEMORANDUM OPINION - Signed by Judge Richard G. Andrews on 6/18/14. (rwc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DANIEL D. FITHIAN,
Plaintiff,

v.

: Civ. No. 14-277-RGA

DEPARTMENT OF CORRECTION and :
OFFICER 0. WILLIAMS,
Defendants.

Daniel D. Fithian, Howard R. Young Correctional Institution, Wilmington, Delaware, Pro
Se Plaintiff.

MEMORANDUM OPINION

J"6.

June
2014
Wilmi gton, Delaware

ANDREWS~i~w
Plaintiff Daniel D. Fithian, an inmate at the Howard R. Young Correctional
Institution, Wilmington, Delaware, filed this action pursuant to 42 U.S.C. § 1983. (D.I.
3). He appears prose and has been granted leave to proceed in forma pauperis. (D.I.
5, 7). The Court proceeds to review and screen the Complaint pursuant to 28 U.S.C.
§1915(e)(2)(B) and§ 1915A(a).
Plaintiff alleges that in February and March of 2011, Defendant Officer 0.
Williams sexually harassed him and touched him inappropriately. Williams admitted to
others that he was harassing Plaintiff. Approximately two years later, on May 18, 2013,
Williams made harassing comments to Plaintiff. Plaintiff alleges that since then, there
have been two other incidents of harassment by Williams. Plaintiff seeks compensatory
damages.
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).
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. 89, 94 (2007) (citations
omitted).

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 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 must take three steps: "(1) identifyD the elements of the claim,
(2) review[] the complaint to strike conclusory allegations, and then (3) lookD at the
well-pleaded components of the complaint and evaluat[e] 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.

2

Plaintiff names as a defendant the Delaware Department of Correction. The
Eleventh Amendment of the United States Constitution protects an unconsenting state
or state agency from a suit brought in federal court by one of its own citizens,
regardless of the relief sought. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54
(1996); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984); Edelman v.
Jordan, 415 U.S. 651 (1974). Hence, as an agency of the State of Delaware, the DOC

is entitled to immunity under the Eleventh Amendment. See, e.g., Evans v. Ford, 2004
WL 2009362, *4 (D. Del. Aug. 25, 2004) (dismissing claim against DOC, because DOC
is state agency and DOC did not waive Eleventh Amendment immunity). The claim
against the DOC has no arguable basis in law or in fact inasmuch as it is immune from
suit. The claim, therefore, is frivolous and will be dismissed pursuant to 28 U.S.C.

§§ 1915(e)(2)(B)(i) and 1915A(b)(1).
In addition, Plaintiff's claims of sexual harassment in 2011 are time-barred. 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 of 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 rel. 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

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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) (quoting Fogle v. Pierson, 435 F.3d 1252,
1258 (10 1h Cir. 2006)).
Here, Plaintiff complains of acts that occurred in 2011. However, he did not file
his complaint until February 2014. Hence, it is evident from the face of the Complaint
that the sexual harassment claims that occurred in 2011 are barred by the two year
limitations period. Because the 2011 claims are time-barred, they will be dismissed as
frivolous pursuant to 28U.S.C.§1915(e)(2)(8)(i) and§ 1915A(b)(1).
Finally, Plaintiff alleges Williams made harassing comments occurred on May
18, 2013 and that he continued to harass Plaintiff on two other unidentified subsequent
dates. Verbal abuse of a prisoner, even of the lewd variety, is not actionable under 42
U.S.C. § 1983. Aleem-Xv. Westcott, 347 F. App'x 731 (3d Cir. 2009). See also

Prisoners' Legal Ass'n v. Roberson, 822 F. Supp. 185, 189 (D.N.J. 1993) (verbal
harassment does not violate inmate's constitutional rights). Plaintiff's May 18, 2013
claim of harassing comments is not cognizable under§ 1983. With regard to the
remaining claims that harassment occurred on two other occasions, the Complaint does
not identify the type of harassment that allegedly occurred and, therefore, fails to state
a claim upon which relief may be granted. Accordingly, the Court will dismiss the claims
as frivolous and for failure to state a claim upon which relief may be granted pursuant
to 28 U.S.C. §§ 1915(e)(2)(8)(i) & (ii) and 1915A(b)(1).

4

With regard to the two incidents of harassment that occurred after May 18, 2013,
it appears plausible that Plaintiff may be able to articulate a claim against Williams.
Therefore, Plaintiff will be given an opportunity to amend his pleading as to those
claims. See O'Dell v. United States Gov't, 256 F. App'x 444 (3d Cir. 2007).
For the above reasons, the Complaint will be dismissed as frivolous and for
failure to state a claim upon which relief may be granted pursuant to 28 U.S.C.

§§ 1915(e)(2)(B)(i) and (ii) and 1915A(b)(1). Plaintiff will be given leave to file an
amended complaint only as to the two incidents of harassment that allegedly occurred
subsequent to May 18, 2013.
An appropriate order will be entered.

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