Drummond v. Iwaskowicz et al
MEMORANDUM - Signed by Judge Gregory M. Sleet on 1/30/15. (rwc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DALLAS H. DRUMMOND, JR.
PATRICK J. IWASKOWICZ, et al.,
) Civ. Action No. 14-976-GMS
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 informa
pauperis pursuant to 28 U.S.C. § 1915. (D.I. 7.) On November 18, 2014, the court reviewed,
screened, and dismissed the original complaint. (See D.I. 12, 13.) Drummond was given leave
to amend the false disciplinary report/due process claim. Drummond filed an amended
complaint (D.I. 14) on December 10, 2014, followed by a motion to amend the complaint (D.I.
15) on December 16, 2014. The court will grant the motion to amend and will refer to the
pleading as the proposed second amended complaint.
Drummond names as defendants Sgt. Patrick J. Iwaskowicz ("Iwaskowicz"), the
correctional officer who authored the disciplinary report at issue, reinstates Warden Pierce
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).
("Pierce) and the VCC (both of whom were previously dismissed as defendants by the court) and
Officer Walstrum ("Walstrum") who was working on the tier during the events at issue.
The amended complaint, filed December 10, 2014 is identical to the original complaint,
except that it contains exhibits. Therein, Drummond alleges that he was wrongfully accused by
one inmate, of the assault of another inmate. The inmate who was assaulted on June 25, 2014,
stated that he did not know who hit him, but that he saw Drummond once he swung around and
turned forward. The weapon used in the assault was found in a cell other than Drummond's.
Drummond alleges that he was falsely charged "inside the institution" with assault. The
proposed second amended complaint alleges that during the disciplinary hearing, Drummond was
not provided representation as he requested, his witness was overlooked and was not considered,
and he was denied the right to confront his accuser. Drummond was found guilty and appealed.
Warden Pierce denied the appeal on the following grounds: "Due to the offender's
history there is a viable belief that he did indeed strike the victim with the broom despite what
the witness stated." Drummond alleges that he lost the ability to earn good time credits because
he was actively enrolled in high school education classes, he was placed in isolation for thirty
days, and he is now housed in a supermax prison that houses death row inmates and inmates with
double life sentences. Drummond indicates that he has forty months left on his sentence and his
out date is in 2018.
Drummond seeks compensatory and punitive damages, removal of the disciplinary
infraction from his inmate file, and a transfer to population or to the Sussex Correctional
II. STANDARD OF REVIEW
A federal court may properly dismiss an action sua sponte under the screening provisions
of28 U.S.C. § 1915(e)(2)(B) 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 also 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 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 § l 915A(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)(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 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 complaint may be dismissed only if, accepting the well-pkaded allegations in the
complaint as true and viewing them in the light most favorable to the plaintiff, a court concludes
that those allegations "could not raise a claim of entitlement to relief." Bell At!. Corp. v.
Twombly, 550 U.S. 544, 558 (2007). Though "detailed factual allegations" are not required, a
complaint must do more than simply provide "labels and conclusions" or "a formulaic recitation
of the elements of a cause of action." Davis v. Abington Mem '!Hosp., 765 F.3d 236, 241 (3d
Cir. 2014) (quoting Twombly, 550 U.S. at 555). In addition, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face. See
Williams v. BASF Catalysts LLC, 765 F.3d 306, 315 (3d Cir. 2014) (citing Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) and Twombly, 550 U.S. at 570).
To determine whether a complaint meets the pleading standard as set forth in Twombly
and Iqbal, the court must: (1) outline the elements a plaintiff must plead to a state a claim for
relief; (2) peel away those allegations that are no more than conclusions and thus not entitled to
the assumption of truth; and (3) look for well-pled factual allegations, assume their veracity, and
then "determine whether they plausibly give rise to an entitlement to relief." Bistrian v. Levi,
696 F.3d 352, 365 (3d Cir. 2012) (internal citations omitted) (citing Iqbal, 556 U.S. at 679;
Argueta v. United States Immigration and Customs Enforcement, 643 F.3d 60, 73 (3d Cir.
2011)). The last step is "a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense." Iqbal, 556 U.S. at 679.
A. Eleventh Amendment
The Eleventh Amendment to the United States Constitution provides VCC immunity
from this suit. See Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100 (1984);
Green v. Howard R. Young Corr. Inst., 229 F.R.D. 99, 102 (D. Del. 2005). Accordingly, the
claim against the VCC is legally frivolous and will be dismissed pursuant to 28 U.S.C.
§ 1915(e)(2)(B) and§ 1915A(b)(l).
B. Respondeat Superior
The complaint names Pierce as a defendant, apparently because he denied Drummond's
appeal. However, the a right to appeal disciplinary convictions is not within the narrow set of
due process rights delineated in Wolffv. McDonnell, 418 U.S. 539, 556-57 (1974). See Garfield
v. Davis, 566 F. Supp. 1069, 1074 (E.D. Pa. 1983); Greer v. DeRobertis, 568 F. Supp. 1370
(N.D. Ill. 1983). The procedural due process claim against Pierce is not a cognizable § 1983
claim under the holding of Wolff, and therefore, it will be dismissed as legally frivolous pursuant
to 28 U.S.C. § 1915(e)(2)(B)(i) and§ 1915A(b)(l).
C. False Disciplinary Report
The main thrust of Drummond's complaint is that he received a false disciplinary
infraction charging him with assault, that he was housed in isolation for thirty days as a result of
the false charge, and that he lost the ability to earn good time credits.2 The filing of false
disciplinary charges does not constitute a claim under § 1983 so long as certain procedural
requirements are satisfied such as holding a hearing and proving the inmate opportunity to rebut
the charges. Crosby v. Piazza, 465 F. App'x 168, 172 (3d Cir. 2012) (unpublished) (citing Smith
v. Mensinger, 293 F .3d 641, 653-54 (3d Cir. 2002)).
Drummond alleges that Iwaskowicz authored a false disciplinary report and that
Walstrum was working on the tier on the day in question. The attachments provided by
Drummond indicate that he received a disciplinary hearing. Drummond alleges that he was not
provided representation as he requested, his witness was overlooked and was not considered, and
he was not allowed to confront his accuser in violation of his procedural due process rights. The
proposed second amended complaint does not, however, indicate who allegedly violated
Drummond's rights, but it is clear from the allegations that it was not Iwaskowicz or Walstrum.
Accordingly, the due process claims against Iwaskowicz or Walstrum will be dismissed
as legally frivolous pursuant to 28 U.S.C. §1915(e)(2)(B)(ii) and§ 1915A(b)(l). However,
because it appears plausible that Drummond may be able to articulate a claim against alternative
defendants, he will be given one final opportunity to amend the false disciplinary report/due
process claim. See 0 'Dell v. United States Gov 't, 256 F. App'x 444 (3d Cir. 2007)
The Due Process Clause does not guarantee an inmate the right to earn good-time
credits. See Shockley v. Hosterman, 2007 WL 1810480, at *3 (D. Del. June 22, 2007); AbdulAkbar v. Department of Corr., 910 F. Supp. 986, 1003 (D. Del.1995), ajf'd,l l l F.3d 125 (3d
For the above reasons, the court will grant the motion for leave to amend. (D.I. 15.) In
addition, all defendants and the amended complaints 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 ). Drummond will be given one final opportunity to amend the
complaint to state a false disciplinary report/due process claim.
An appropriate order will be entered.
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