Resop v. Ficliola et al

Filing 18

MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 3/10/2016. (klc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
RYAN MATTHEW RESOP,
Plaintiff,

v.

: Civ. No. 15-626-LPS

SGT. ANGELINA DEALLIE, et al.,
Defendants.

Ryan Matthew Res op, James T. Vaughn Correctional Center, Smyrna, Delaware, Pro Se Plaintiff.

MEMORANDUM OPINION

March 10, 2016
Wilmington, Delaware

I.

INTRODUCTION
Plaintiff Ryan Matthew Resop ("Plaintiff"), an inmate at the James T. Vaughn Correctional

Center ("VCC") in Smyrna, Delaware, filed this action pursuant to 42 U.S.C. § 1983. (D.I. 3) He
has also filed a motion for injunctive relief. (D.I. 8) Plaintiff appears prose and has been granted
leave to proceed in fowa pauperis. (D.I. 5) Plaintiff was given leave to amend a Security Housing
Unit ("SHU") due process claim after the Court reviewed and screened the Complaint pursuant to
28 U.S.C. § 1915(e)(2)(b) and§ 1915A(b). (See D.I. 12, 13) Plaintiff filed an Amended Complaint
which the Court will screen. (D.I. 15) He has also filed a request for counsel and a motion for
reconsideration of the October 23, 2015 screening order. (D.I. 14, 17)

II.

BACKGROUND
As outlined in the October 23, 2015 screening order, Plaintiff has been allowed to proceed

with failure to protect claims against Defendants Sgt. Angelina DeAllie ("DeAllie") and Abigail E.
West ("West"). (D.I. 12, 13) The Amended Complaint attempts to cure Plaintiffs due process
pleading defects. The Amended Complaint alleges that Plaintiff was housed in SHU from July 2008
to May 2015, but the allegations are not directed toward any individual.

III.

LEGAL STANDARDS
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. Famiglio, 726 F.3d 448, 452 (3d Cir. 2013); see also 28 U.S.C. § 1915(e)(2) (injowa

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
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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. County ofAlleghe'!J, 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, 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)(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; see also Wilson

v. Rackmill, 878 F.2d 772, 774 (3d Cir. 1989); 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 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 Plaintiff
leave to amend his complaint unless amendment would be inequitable or futile. See Grqyson V.

Mqyview 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." BellAtL Corp. v. Twombfy, 550
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·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 Twomb!J,
550 U.S. at 555). In addition, a plaintiff must plead facts sufficient to show that a claim has
substantive plausibility. See Johnson v. City of Shelf?J, _U.S._, 135 S.Ct. 346, 347 (2014); see also

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint may not dismissed, however, for imperfect
statements of the legal theory supporting the claim asserted. See Johnson, 135 S.Ct. at 346.
Under the pleading regime established by Twomb!J and Iqbal, a court reviewing the sufficiency
of a complaint must take three steps: (1) note the elements the plaintiff must plead to state a claim;
(2) identify allegations that, because they are no more than conclusions, are not entitled to the
assumption of truth; and (3) assume the veracity of the well-pleaded factual allegations and then
determine whether they plausibly give rise to an entitlement to relief. See Connel!J v. Lane Const. Corp.,
809 F.3d 780, 787 (3d Cir. 2016). 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 is a "context-specific task that requires the reviewing court to
draw on its judicial experience and common sense." Id.
IV.

DISCUSSION
In the Amended Complaint, Plaintiff fails to identify any individual who allegedly violated

his right to due process. In addition, although he states that he was housed in SHU from July 2008
to May 2015, it also appears that he remains housed in SHU. It simply is not clear. It appears that
Plaintiff was housed in SHU due to safety concerns.
A civil rights complaint must state the conduct, time, place, and persons responsible for the
alleged civil rights violations. See Evancho v. Fishe1; 423 F.3d 347, 353 (3d Cir. 2005) (citing Boykins v.
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Ambridge Area Sch. Dist., 621 F.2d 75, 80 (3d Cir. 1980)). Here, there are no allegations in the
Amended Complaint directed toward any individuals. The Amended Complaint does not meet the
pleading requirements of Iqbal and Twombfy. Therefore, the Court will dismiss the claim pursuant to
28 U.S.C. § 1915(e)(2)(B)(ii) and§ 1915A(b)(1). However, since it appears plausible that Plaintiff
may be able to articulate a claim against Defendants (or name alternative defendants), he will be
given one final opportunity to amend the due process claim.

V.

REQUEST FOR COUNSEL
Plaintiff proceeds pro se and has been granted leave to proceed in fowa pauperis- he requests

appointment of counsel. (D .I. 14) A pro se litigant proceeding in fomta pauperis has no constitutional
or statutory right to representation by counsel. 1 See Brightwell v. Lehman, 637 F.3d 187, 192 (3d Cir.
2011); Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993). However, representation by counsel may be
appropriate under certain circumstances, after a finding that a plaintiffs claim has arguable merit in
fact and law. See Tabron, 6 F.3d at 155.
After passing this threshold inquiry, the Court should consider a number of factors when
assessing a request for counsel, including: (1) the plaintiffs ability to present his or her own case;
(2) the difficulty of the particular legal issues; (3) the degree to which factual investigation will be
necessary and the ability of the plaintiff to pursue investigation; (4) the plaintiffs capacity to retain
counsel on his own behalf; (5) the extent to which a case is likely to

turn

on credibility

determinations; and (6) whether the case will require testimony from expert witnesses. See Tabron, 6
F.3d at 155-57; accord Parham v. Johnson, 126 F.3d 454, 457 (3d Cir. 1997); Montgomery v. Pinchak, 294
F.3d 492, 499 (3d Cir. 2002).

See Mallard v. United States Dist. Court for the-S; Dist. of Iowa, 490 U.S. 296 (1989) (stating§ l915(d) -now§ 1915(e)(1) -- does not authorize federal court to require unwilling attorney to represent
·
indigent civil litigant, the operative word in statute being "request.").
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Plaintiff requests counsel on the grounds that he is unable to afford

counse~

his

imprisonment greatly limits his ability to litigate, the issues are complex and will require significant
research and investigation, he has limited law library access and limited knowledge of the law, a trial

will involve conflicting testimony and counsel will better enable Plaintiff to present evidence and
cross-examine witnesses, and he has made repeated efforts to retain counsel. Assuming, solely for
the purpose of deciding this motion, that Plaintiffs claims have merit in fact and law, several of the

Tabron factors militate against granting his request for counsel, including that, to .date, Plaintiffs
filings indicate that he possesses the ability to adequately pursue his claims. In addition, this case is
in its early stages and the parties have not yet been served. Upon consideration of the record, the
Court is not persuaded that representation by an attorney is warranted at this time. The Court can
address the issue at a later date should counsel become necessary.

VI.

MOTION FOR RECONSIDERATION
Plaintiff moves for reconsideration of the October 23, 2015 Order that screened Plaintiffs

initial complaint. (D.I. 17) Plaintiff seeks reconsideration on the grounds that the Court "just
missed or misunderstood something in his Complaint" against Defendants Anthony A. Figliola,
Gregory E. Smith, and Thomson Reuters and erroneously dismissed them as Defendants.
The purpose of a motion for reconsideration is to "correct manifest errors of law or fact or
to present newly discovered evidence." Max's Seqfood Cefe ex rel Lou-Ann, Inc. v. Quinteros, 176 F.3d
669, 677 (3d Cir. 1999). "A proper Rule 59(e) motion ... must rely on one of three grounds: (1) an
intervening change in controlling law; (2) the availability of new evidence; or (3) the need to correct
a clear error of law or fact or to prevent manifest injustice." Lazaridis v. Wehmer, 591 F .3d 666, 669
(3d Cir. 2010) (citing N River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)).
The Court finds that Plaintiff has failed to demonstrate any of grounds to warrant a reconsideration

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of the Court's October 23, 2015 Memorandum Opinion· and Order. Therefore, the Court will deny
the motion.

VII.

CONCLUSION
For the above reasons the Court will: (1) deny Plaintiff's request for counsel without

prejudice to renew (D.I. 14); (2) deny Plaintiff's motion for reconsideration (D.I. 17); (3) dismiss the
Amended Complaint (D.I. 15); and (4) give Plaintiff one final opportunity to amend the Security
Housing Unit due process claim. The Court has allowed Plaintiff to proceed against DeAllie and
West on the allegations raised against them in the original Complaint. (See D.I. 13)

An appropriate Order will be entered.

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