Rosser v. Donovan et al
MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 3/10/17. (nmg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MARCUS J. ROSSER,
Civ. No. 16-381-LPS
CORPORAL J\1ATTHEW DONOVAN,
Marcus J. Rosser, James T. Vaughn Correctional Center, Smyrna, Delaware, Pro Se Plaintiff.
March 10, 2017
Plaintiff Marcus J. Rosser ("Plaintiff"), an inmate at the James T. Vaughn Correctional
Center ("VCC") in Smyrna, Delaware, filed this action alleging constitutional violations pursuant to
42 U.S.C. § 1983.1 (D.I. 1) He appears prose and has been granted leave to proceed infarma pauperis.
(D.l. 6) The Court proceeds to review and screen the complaint pursuant to 28 U.S.C. §§ 1915(e)(2)
On July 14, 2014, Plaintiff was stopped and taken into custody by New Castle County
Detective Ellis. He was taken to the New Castle County Police Department and placed in a holding
cell. Defendants Corporal Matthew Donovan ("Donovan"), Detective John Mikus ("Mikus"), and
Detective Thomas Orzechowski ("Orzechowski") entered the cell. When Plaintiff asked why he
was arrested and what was going on, Mikus told him to sit down. Plaintiff responded by stating
"not until I am told why I have been taken into custody and am I under arrest?" Plaintiff alleges
that Donovan told him he was "gonna sit down" and then punched Plaintiff in the face and took
him to the ground. Plaintiff alleges that Mikus kneed and punched him in the rib area and
Orzechowski and non-party Officer Geortler held on to the lower part of his body. Plaintiff alleges
that Mikus then cuffed his wrists so tightly that his hands went numb. Plaintiff was bleeding from
the nose and mouth and, when he spat blood on the floor, Donovan repeatedly punched him in the
face while other officers pinned him to the ground.
Pursuant to 42 U.S.C. § 1983, 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
West v. Atkins, 487 U.S. 42, 48 (1988).
Plaintiff was taken to the hospital. A New Castle County officer told him that if he told the
doctors what had happened he would be beaten upon his return to New Castle County Police
Headquarters. On April 29, 2015, Plaintiff was acquitted of charges of resisting arrest and offensive
touching. Plaintiff alleges that Defendant Supervisor Matthew D. Astfalk ("Astfalk") was put on
notice about the excessive force when he signed off on Mikus' incident report, but failed to take
disciplinary action against the officers involved. Plaintiff seeks compensatory damages. He also
requests appointment of counsel. (D.l. 5)
A federal court may properly dismiss an action sua sponte under
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) (informa
pauperis actions); 28 U.S.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. County efAl!eghe1ry, 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 deciding 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 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 a
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." Bell At!. Cotp. v. Twomb!J, 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) (internal quotation
marks omitted). 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 Cata!Jsts LLC, 765 F.3d 306,
315 (3d Cir. 2014) (citingAshm!ftv. Iqbal, 556 U.S. 662, 678 (2009) and Twomb!J, 550 U.S. at 570).
Finally, a plaintiff must plead facts sufficient to show that a claim has substantive plausibility. See ·
Johnson v. Ciry of Shelby, _U.S._, 135 S.Ct. 346, 347 (2014). A complaint may not dismissed for
imperfect statements of the legal theory supporting the claim asserted. See id. 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) take note of 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) when there are well-pleaded factual allegations, the
court should assume their veracity 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. See
Iqbal, 556 U.S. at 679 (citing 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.
Plaintiff alleges that Astfalk was put on notice of the alleged excessive force when he signed
off on the Mikus incident report. As is well established, supervisory liability cannot be imposed
under§ 1983 on a respondeat superior theory. 2 See Iqbal, 556 U.S. at 676; Monell v. Department of
Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). '"A[n individual government]
defendant in a civil rights action must have personal involvement in the alleged wrongdoing; liability
In Iqbal, the plaintiff alleged supervisory officials violated his rights because one official was
the "principal architect" of the policy, and another was "implemental" in adoption and execution of
the policy. See 556 U.S. at 669. The Supreme Court found the allegations facially insufficient. See id.
at 676 (quoting Robertson v. Sichel, 127 U.S. 507, 515-516 (1888), for proposition that "[a] public
officer or agent is not responsible for the misfeasances or position wrongs, or for the nonfeasances,
or negligences, or omissions of duty, of the subagents or servants or other persons properly
employed by or under him, in the discharge of his official duties").
cannot be predicated solely on the operation of respondeat superior."' Evancho v. Fisher, 423 F.3d at
353 (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). Purpose rather than
knowledge is required to impose liability on an official charged with violations arising from his or
her supervisory responsibilities. 3 See Iqbal, 556 U.S. at 677. "Absent vicarious liability, each
Government official, his or her title notwithstanding, is only liable for his or her own misconduct."
Here, the complaint does not allege that Astfalk had any direct or personal involvement in
the actions taken by Donovan, Mikus, or Orzechowski or that Astfalk had any knowledge of the
incident until after the fact. Therefore, Plaintiffs claim against Astfalk must be dismissed pursuant
to 28 U.S.C. §§ 1915(e)(2)(B)(i) and 1915A(b)(1), because it rests impermissibly on a theory of
Plaintiff appears to have alleged cognizable and non-frivolous excessive force/ failure to
protect claims against Donovan, Mikus, and Orzechowski. See Graham v. Connor, 490 U.S. 386
(1989) (excessive force claims arising out of arrest are analyzed under the Fourth Amendment).
Request for Counsel
Plaintiff requests counsel. (D.I. 5) A prose litigant proceeding in fa171Ja pauperis has no
constitutional or statutory right to representation by counsel.4 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
In light of Iqbal, it is uncertain whether proof of personal knowledge, with nothing more,
provides a sufficient basis to impose liability upon a supervisory official. See Bqyer v. Monroe Cnry.
Children and Youth Services, 577 F.3d 186, 190 n.5 (3d Cir. 2009).
See Mallard v. United States Dist. CoUJtfor the S. Dist. of Iowa, 490 U.S. 296 (1989) (stating
§ 1915(d) (now§ 1915(e)(1)) does not authorize federal court to require unwilling attorney to
represent indigent civil litigant, operative word in statute being "request").
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
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).
Plaintiff requests counsel on the grounds that he does not have the ability to present his own
case, he is unskilled in the law and the issues are complex, the case may
determinations, expert witnesses will be necessary, he cannot retain and afford counsel on his own
behalf, counsel would serve the best interests of justice, and his allegations if proved would establish
a constitutional violation. 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. 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 Defendants 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
For the above reasons, the Court will: (1) dismiss Defendant Matthew D. Astfalk and the
claims against him as legally frivolous, pursuant to 28 U.S.C. § 191S(e)(2)(B)(i) and§ 191SA(b)(1);
and (2) allow Plaintiff to proceed against Defendants Corporal Matthew Donovan, Detective John
Mikus, and Detective Thomas Orzechowski. The Court will deny Plaintiffs request for counsel
(D.l. 5) without prejudice to renew.
An appropriate Order follows.
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