Dunbar v. White et al
MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 3/13/15. (mas, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MICHAEL R. DUNBAR,
: Civ. No. 14-124S-LPS
MARSHA]. WHITE, et ai.,
Michael R. Dunbar, Howard R. Young Correctional Institution, Wilmington, Delaware, Pro Se
March 13, 2015
STARK, U.S. District Judge:
Plaintiff Michael R. Dunbar ("Plaintiff'), an inmate at the Howard R. Young Correctional
Institution in Wilmington, Delaware, fIled this action pursuant to 42 U.S.C § 1983. He also raises
supplemental State tort claims. Plaintiff appears pro se and has been granted leave to proceed in forma
pauperis. (D.l. 9) The Court proceeds to review and screen the Complaint pursuant to 28 US.C
§ 1915(e)(2)(b) and § 1915A(a). (SeeD.I.1)
Plaintiffs allegations concern his underlying criminal convictions. 1 A criminal matter was
scheduled for January 2007. Plaintiff contends that he wanted to go to trial and show that he had
turned himself in for questioning. However, he signed a document that waived his preliminary
hearing; he alleges that he was mislead into signing the document. Plaintiff alleges that Defendant
Public Defender Dean DelCollo ("DeICollo") was not present to protect his rights at the hearing.
Plaintiff appealed the matter, and alleges that the case was never heard by the Delaware Supreme
There was a special hearing with Defendants Deputy Attorneys General Marsha J. White
("White'') and Cari VanDyke ("VanDyke"), as well as Public Defenders DelCollo and Tyler K.
10n October 8, 2008, Plaintiff pled guilty but mentally ill to manslaughter as a
lesser-included offense of murder in the flrst degree. On December 12, 2008, he was sentenced to
fIfteen years at Level V suspended after fIve years for decreasing levels of supervision. On June 28,
2012, Plaintiff was convicted of violating probation ("VOP") and was resentenced to ten years at
Level V suspended for fIve years at Level III. On August 31, 2012, Plaintiff was again found guilty
of VOP and was resentenced to nine years and six months at Level V suspended for nine years and
six months at Level IV Crest, suspended after successful completion for four years at Level III. On
May 30, 2013, the August 31, 2012 VOP sentence was modifIed by removing the Level IV Crest
component and placing Plaintiff on Level III probation. On October 31, 2013, Plaintiff was found
guilty of his third VOP and resentenced to nine years and six months at Level V suspended upon
successful completion of Level V Key for four years at Level IV Crest, suspended upon successful
completion for four years at Level III aftercare. See Dunbar lJ. State,91 A.3d 561 (DeL 2014) (table).
O'Connell ("O'Connell"). An August 21,2008 letter indicated that Plaintiff was "now competent to
stand triaL" During this time, Plaintiff was in the Delaware Psychiatric Center ("DPC"). Plaintiff
entered into a plea agreement but questions why it took so long to offer him a plea, why he
continued under doctors' care when he wanted to proceed to trial, and why bail was not set.
Plaintiff remained in the DPC and was not sentenced until December 2009. Plaintiff contends that
Defendants held the indictment over his head to ensure his cooperation. He alleges that Defendants
lacked proof in his case and takes exception to his convictions and sentences. Fie seeks
compensatory damages for the time he has served and asks the Court to review his plea agreement.
A federal court may properly dismiss an action sua sponte under the screening provisions of
28 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. ramiglio, 726 F.3d 448, 452 (3d Cit. 2013); see also 28 U.S.c. § 1915(e)(2) (in forma
paupens actions); 28 US.c. § 1915A (actions in which prisoner seeks redress from 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. See Phillips v. Coun!y rifAllegheny, 515 F.3d 224,229 (3d Cit. 2008);
ErickJ'on v. ParduJ, 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 la·wyers." Erickson, 551 U.S. at 94 (citations omitted).
An action is frivolous if it "lacks an arguable basis either in law or in fact." Neitzke
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.
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 § 1915A(b)(1) is identical to the legal standard used when ruling on Rule
12(b)(6) motions. See TOttrschertJ. 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 Plaintiff
leave to amend his complaint unless amendment would be inequitable or futile. See Grqyson
MqylJiew 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 AtL Cop.
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'l Hosp., 765 F.3d 236, 241 (3d Cir. 2014) (quoting Twombfy,
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 il. BASF Catafysts LLC, 765 F.3d 306,
315 (3d Cir. 2014) (citing Ashcroft v. Iqbal, 556 U.S. 662,678 (2009) and Twombfy, 550 U.S. at 570).
To determine whether a complaint meets the pleading standard as set forth in Twombfy 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 1). Lni, 696 F.3d 352,
365 (3d Cit. 2012) (internal citations omitted) (citing Iqbal, 556 U.S. at 679; Argueta 11. Ullited States
Immigratioll and Customs Ellforcement, 643 F.3d 60, 73 (3d Cit. 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.
The judges named as defendants have judicial immunity. Judges are absolutely immune
from suits for monetary damages and such ilIununity cannot be overcome by allegations of bad faith
or malice. See Mireles t). IPaco, 502 U.S. 9, 11 (1991). Furthermore, judicialimmunity can only be
overcome if the judge has acted outside the scope of his judicial capacity or in the "complete
absence of all jurisdiction." !d. at 11-12. The Complaint contains no allegations that Superior Court
Judges Jerome O. Herlihy ("Herlihy"), Susan Del Pesco ("Del Pesco"), or Andrea L. Rocanelli
("Rocanelli") acted outside the scope of theit judicial capacities, or in the absence of any jurisdiction.
They are immune from suit and will be dismissed pursuant to 28 e.s.c. § 1915(e)(2)(B)(iii) and
Public Defenders DelCollo and O'Connell are not state actors. 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. See IPest v. Atkim, 487 U.S. 42,48
(1988). Public defenders do not act under color of state law when performing a lawyer's traditional
functions as counsel to a defendant in criminal proceedings. See Polk Counry 1). Dodsoll, 454 U.S. 312
(1981). Hence, Plaintiff's claims against the Public Defenders fail as a matter oflaw, and they will he
dismissed as frivolous pursuant to 28 U.S.c. § 1915(e)(2)(B)(i) and
Deputy Attorneys General \'Vhite and VanDyke have prosecutorial immunity. The acts
complained of by Plaintiff occurred during the prosecution of his criminal cases. Prosecutors
should not be encumbered by the threat of civil liability while performing judicial or quasi-judicial
functions. See Odd fJ. Malone, 538 F.3d 202, 208 (3d Cit. 2008). Moreover, prosecutors acting within
the scope of theit duties in initiating and pursuing a criminal prosecution are immune to suit under
§ 1983. See Imbler fJ. Pachtman, 424 U.S. 409, 410 (1976). The acts of which Plaintiff complains fit
squarely within the realm of official prosecutorial duties. See id. at 430 (activities intimately
associated ,"vith the judicial phase of the criminal process - casting prosecutor as advocate rather
than administrative or investigative officer - trigger absolute immunity). White and VanDyke enjoy
immunity from § 1983 liability, and the claims against them will be dismissed pursuant to 28 U.S.c.
§ 1915(e)(2)(B)(iii) and § 1915A(b)(2).
To the extent that Plaintiff attempts to challenge his comriction and/or sentence, his sole
federal remedy for challenging the fact or duration of his confinement is by way of habeas corpus.
See Preiser v. Rodriguei,) 411 U.S. 475 (1973); see a/Jo Torren/:e
Thompson, 435 F. App'x 56 (3d Cit.
2011). A plaintiff cannot recover under § 1983 for alleged wrongful incarceration unless he proves
that the conviction or sentence has been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such determination, or called into question by
a federal court's issuance of a writ of habeas corpus. See Heck v. Humphrry, 512 U.S. 477, 487 (1994).
In Heck, the Supreme Court held that where success in a § 1983 action would implicitly call into
question the validity of conviction or duration of sentence, the plaintiff must first achieve favorable
termination of his available state or federal habeas remedies to challenge the underlying conviction
or sentence. Considering Heck and summarizing the interplay between habeas and § 1983 claims,
the Supreme Court has explained that "a state prisoner's § 1983 action is barred (absent prior
invalidation) - no matter the relief sought (damages or equitable relief) - no matter the target of the
prisoner's suit (state conduct leading to conviction or internal prison proceedings)
if success in
that action would necessarily demonstrate the invalidity of the confinement or its duration."
Dotson, 544 U.S. 74,81-82 (2005).
Here, Plaintiff has not alleged or proven that his convictions or sentences have been
reversed or invalidated. To the extent he seeks damages for his current incarceration, the claim is
legally frivolous and will be dismissed pursuant to 28 U.s.c.
§ 1915(e)(2)(B)(i) and § 1915(A)(b)(1).
For the above reasons, the Complaint will be dismissed as legally frivolous and based upon
Defendants' immunity pursuant to 28 U.S.c. §§ 1915(e) (2) (B) (i) and (iii) and 1915A(b)(1) and (2).
Because the Complaint fails to state a federal claim, the Court declines to exercise jurisdiction over
Plaintiffs supplemental state law claims. See 28 U.S.c. § 1367; De Asencio 1). 1)son roods, Inc., 342
F.3d 301, 309 (3d Cit. 2003). The request for counsel (D.I. 10) will be denied as moot.
An appropriate Order will be entered.
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