Small v. Morgan et al

Filing 11

MEMORANDUM. Signed by Judge Sue L. Robinson on 10/08/2014. (mas)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
WARREN SMALL,
Plaintiff,

v.
WARDEN PHILIP MORGAN, et al.,
Defendants.

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) Civ. No. 14-692-SLR
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MEMORANDUM
1. Introduction. Plaintiff Warren Small ("plaintiff'), an inmate at the Howard R.
Young Correctional Institution ("HRYCI"), Wilmington, Delaware, proceeds prose 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. 3, 10)
2. Standard of Review. A federal court may properly dismiss an action sua
sponte under the screening provisions of 28 U.S.C. § 1915(e)(2)(8) and § 1915A(b) if
"the action is frivolous or malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief from a defendant who is immune from such relief."

Ball v. Famiglio, 726 F.3d 448, 452 (3d Cir. 2013); see a/so 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
1

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).

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) 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)(B)(ii) and § 1915A(b)( 1) is identical to the legal standard used
when ruling on Rule 12(b)(6) motions. Tourscher v. 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." 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) look[] 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." /d.
6. Discussion. Plaintiff alleges that defendant Warden Philip Morgan
("Morgan") "has made a DOC policy" for inmates on isolated confinement that denies
access to religious books and allows only one legal book. He further alleges that
correctional officers threatened and physical abused him and, that after being informed,
Morgan was reluctant to take action. Plaintiff alleges that Morgan allows defendant Lt.
Kenneth McMillan ("McMillan") to run disciplinary hearings unfairly and unjustly. He
alleges that defendants Robert Ryder and Morgan rubber stamp all of McMillan's
decisions.

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7. Plaintiff alleges that defendants Sgt. J. Lee ("Lee"), Officer R. Moss ("Moss"),
Officer Loy ("Loy"), Officer William ("William"), and Lt. Denise Russel ("Russel") were in
command of the quick response team and ordered and used excessive force. Plaintiff
alleges that, as a result of defendants' actions, he sustained a chipped tooth, sore
back, displaced jaw, and a headache that will not go away. Finally, plaintiff alleges that
defendant Mental Health Worker Ms. Franny ("Franny") libeled and slandered him,
along with other officers, to strip him of his dignity. Plaintiff seeks compensatory
damages. 2
8. Excessive Force. Plaintiff alleges that several defendants used excessive
force, injuring him. The core judicial inquiry when a prisoner alleges that prison officers
used excessive force against the prisoner is not whether a certain quantum of injury
was sustained, but rather whether force was applied in a good-faith effort to maintain or
restore discipline, or maliciously and sadistically to cause harm. See Wilkins v. Gaddy,
559 U.S. 34 (201 0). "In determining whether a correctional officer has used excessive
force in violation of the Eighth Amendment, courts look to several factors including:
(1) 'the need for the application of force'; (2) 'the relationship between the need and the
amount of force that was used'; (3) 'the extent of injury inflicted'; (4) 'the extent of the
threat to the safety of staff and inmates, as reasonably perceived by responsible
officials on the basis of the facts known to them'; and (5) 'any efforts made to temper

2

While the complaint states that plaintiff did not exhaust his administrative
remedies, he filed a supplement to the complaint that contains numerous grievances,
many of them exhausted. (See D.l. 10) At this juncture, the court is unable to discern
whether plaintiff exhausted all administrative remedies prior to filing his complaint as is
required by the Prison Litigation Reform Act. 42 U.S.C. § 1997e(a).

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the severity of a forceful response."' Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000)
(citing Whitley v. Albers, 475 U.S. 312, 321 (1986)).
9. While the instant complaint alleges excessive force, it does not indicate when
or where the alleged unlawful acts occurred. Nor does it describe the alleged acts by
defendants or how each defendant injured him. The excessive force claims, as they
now stand, fail to state a claim upon which relief may be granted. Therefore, the court
will dismiss the excessive force claims pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and§
1915A(B)(1 ).
10. Remaining Claims. Plaintiff attempts to raise a state claim under Delaware
that he was libeled and slandered by Franny, along with other officers. Plaintiff alleges
that McMillan runs disciplinary hearings unfairly and unjustly and that Ryder and
Morgan rubber-stamp all of McMillan's decisions, which liberally construed might allege
violations of the right to due process during the disciplinary process. Plaintiff alleges
that Morgan implemented a policy that denies access to religious books and allows only
one legal book while an inmate is in isolated confinement. Finally, plaintiff alleges that
Morgan was reluctant to take any action after he was informed plaintiff had been
threatened and abused. The foregoing claims are pled in a conclusory manner without
supporting facts in derogation of Iqbal and Twombly. Therefore, the court will dismiss
the claims for failure to state a claim upon which relief may be granted and as frivolous
pursuant to 28 U.S.C. § 1915(e)(2)(8)(i) and (ii) and § 1915A(B)(1 ).
11. Conclusion. For the above reasons, the court will: (1) deny as moot
plaintiffs motion to stay (D.I. 8); and (2) dismiss the complaint (D. I. 3, 10) as frivolous
and for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C.
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§ 1915(e)(2)(B)(ii) and§ 1915A(b)(1). 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'Dell v.
United States Gov't, 256 F. App'x 444 (3d Cir. 2007) (unpublished) (leave to amend is

proper where the plaintiff's claims do not appear "patently meritless and beyond all
hope of redemption"). A separate order shall issue.

Date: October

_j_, 2014

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