Small v. Figliola et al

Filing 7

MEMORANDUM. Signed by Judge Sue L. Robinson on 01/26/15. (etg, )

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

)
)
)
)

v.

FIGLIOLA AND FACCIOLO, et al.,
Defendants.

) Civ. No.14-1281-SLR
)
)
)
)

MEMORANDUM
1. Introduction. Plaintiff Warren Small ("plaintiff'), an inmate at the Howard R.
Young Correctional Institution, proceeds prose and has been granted leave to proceed
in forma pauperis. He filed this complaint pursuant to 42 U.S.C. § 1983 claiming
violations of his constitutional rights. 1 (D.I. 3)
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)(B) and § 191 SA(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. § 191 SA (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

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).
1

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, 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), 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).
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)(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§§ 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).
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,

2

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 wellpleaded 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.
6. Discussion. Plaintiff was represented by defendants during a criminal
matter. He complains that defendants failed to use ordinary legal skills when
representing him. Plaintiff seeks compensatory damages and his release from prison.
7. State Actors. As private attorneys, defendants are not state actors for
purposes of§ 1983. See Polk County v. Dodson, 454 U.S. 312, 325 (1981) (holding that
public defenders do not act under color of state law); Steward v. Meeker, 459 F.2d 669
(3d Cir. 1972) (privately-retained counsel does not act under color of state law when
representing client); Thomas v. Howard, 455 F.2d 228 (3d Cir. 1972) (court-appointed
pool attorney does not act under color of state law). In addition, there are no allegations
in the complaint that give rise to a plausible inference that defendants, as private
attorneys, acted under color of state law or conspired with state actors to deny plaintiff

3

his constitutional rights. Accordingly, plaintiff cannot recover under§ 1983. See Great
Western Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 175-76 (3d Cir.

2010) (holding that "[t]o prevail on a§ 1983 claim, a plaintiff must allege that the
defendant acted under color of state law, in other words, that there was state action.");
see also Reichley v. Pa. Dep't of Agric., 427 F.3d 236, 245 (3d Cir. 2005).

8. The claims against defendants fail as a matter of law. Inasmuch as the claims
have no arguable basis in law or in fact, they will be dismissed as frivolous pursuant to
28 U.S.C. § 1915(e)(2)(B)(i) and§ 1915(A)(b)(1).
9. Conclusion. For the above reasons, the complaint will be dismissed as
frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and§ 1915A(b)(1). The court finds
amendment futile. A separate order shall issue.

UNitEDSfATDiSTRICT JUDGE
Date: January~. 2015

4