Shelton v. Victoria Fire & Casualty Co Inc et al

Filing 5

MEMORANDUM OPINION - Signed by Judge Richard G. Andrews on 10/31/14. (rwc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWAR:E
SUZANNE N. SHEL TON,
Plaintiff,
Civ. No. 14-1108-RGA

v.
VICTORIA FIRE & CASUAL TY
CO., INC., et al.,
Defendants.

Suzanne N. Shelton, Smyrna, Delaware, Pro Se Plaintiff.

MEMORANDUM OPINION

J/ ,

October
2014
Wilmington, Delaware

~/;,,
ANDREWS, u1. District

udge:

Plaintiff Suzanne N. Shelton filed this action pursuant to 18 U.S.C. § 1033. 1 She
appears prose and has been granted leave to proceed in forma pauperis. (D.I. 4). The
Court proceeds to review and screen the Complaint pursuant to 28 U.S.C. § 1915(e)(2).
The scant allegations in the Complaint allege that on September 16, 2011,
Defendants Victoria Fire & Casualty Co., Inc. and JP Morgan Chase Bank engaged in
insurance fraud in Delaware, Maryland, New Jersey, and New York. Plaintiff lists
numerous physical injuries related to the alleged acts and seeks compensatory
damages and injunctive relief.
A federal court may properly dismiss an action sua sponte under the screening
provisions of 28 U.S.C. § 1915(e)(2)(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). 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 prose, her pleading is liberally construed and her complaint,

1

This criminal statute is titled "crimes by or affecting pHrsons engaged in the
business of insurance whose activities affect interstate commerce." It does not provide
for a private right of action. See Hopson v. Aguair Law OfficH, 2013 WL 163447 (W.D.
Ky. 2013). To the extent that Plaintiff seeks to impose criminal liability upon
Defendants pursuant to the criminal statute relied upon, she lacks standing to do so.
See Allen v. Administrative Office of Pennsylvania Courts, 2i'O F. App'x 149, 150 (3d
Cir. 2008); see United States v. Friedland, 83 F.3d 1531, 1539 (3d Cir. 1996) ("[T]he
United States Attorney is responsible for the prosecution of all criminal cases within his
or her district."). The decision of whether to prosecute, and what criminal charges to
bring, generally rests with the prosecutor. See United States v. Batchelder, 442 U.S.
114, 124 (1979).

"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), 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 U.S. at 327-28; Wilson v. Rackmill, 878 F.2d 772, 774 (3d Cir. 1989). 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. 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, the
Court must grant Plaintiff leave to amend her 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-pleaded 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'I Hosp., 765 F.3d 236, 241 (3d Cir. 2014) (quoting Twombly, 550 U.S. at

2

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).
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-pied
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). 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.
Here, the Complaint contains few allegations and provides only generalities
about when or where the alleged wrongful acts occurred and who committed the acts.
In addition, Plaintiff alleges fraud. A fraud claim is subject to heightened pleading
requirements. Pursuant to Rule 9(b ), a plaintiff alleging fraud must state the
circumstances of the alleged fraud with sufficient particularity to place the defendant on
notice of the "precise misconduct with which [it is] charged." Lum v. Bank of Am., 361
F.3d 217, 223-24 (3d Cir. 2004). To satisfy this standard, the plaintiff must plead or
allege the date, time and place of the alleged fraud or otherwise inject precision or
some measure of substantiation into a fraud allegation. See id. at 224.

3

Plaintiff's allegations fall far short of meeting the pleading requirements of Iqbal,
Twombly, and Rule 9(b ). For the above reasons, the Court will dismiss the Complaint

for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(ii). Plaintiff will be given leave to file an Amended Complaint to cure
any pleading defects.
An appropriate order will be entered.

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