Howerin Jr. v. Vorous
MEMORANDUM. Signed by Judge Gregory M. Sleet on 10/14/16. (sar)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JOHN ROBERT HOWERIN, JR.,
JESSICA L. VOROUS,
) Civ. Action No. 16-394-GMS
The plaintiff, John Robert Howerin, Jr., ("Howerin"), an inmate at the Howard R. Young
Correctional Institution, Wilmington, Delaware, filed this lawsuit pursuant to 42 U.S.C. § 1983. 1
(D.I. 3.) He was incarcerated at the James T. Vaughn Correctional Center ("VCC") in Smyrna,
Delaware, when he commenced this action. Howerin appears pro se and was granted permission
to proceed informapauperis pursuant to 28 U.S.C. § 1915. (D.I. 5.) He requests counsel. (D.I.
On February 23, 2016, Howerin reported to probation in Dover, Delaware, and was
arrested by the defendant Jessica L. Vorous ("Vorous"), a probation/parole officer of the
Delaware Department of Correction. He alleges that upon his arrest he was not: ( 1) provided a
preliminary hearing; (2) notified of any hearing; (3) notified of the alleged violations; or
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).
(4) provided the right to counsel for "that preliminary hearing." (D.I. 3 at 5.) He was taken to
the VCC and had to argue with staff to obtain a bail call. Howerin alleges that he never received
any paperwork regarding the allegations or a violation summary.
Howerin met with public defender Jaime Walker ("Walker") via video conference
approximately one week later regarding the matter. Howerin alleges that Walker did not have
knowledge of the full allegations against Howerin and did not receive the paperwork on the
matter until the day of the violation of probation ("VOP") revocation hearing. Howerin alleges
that the lack of knowledge of his VOP case caused anxiety because he was unable to fully defend
himself "in a proper manner with his public defender due to the lack of information." (Id. at 6.)
Howerin alleges violations of his right to procedural due process, the 141h Amendment,
and Rule 32.1 ofthe Federal Rules of Criminal Procedure. He seeks Vorous' resignation,
compensatory damages, and dismissal of the remainder of his VOP sentence and probation.
II. ST AND ARD 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§ l 915A(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. § l 915(e)(2) (informa pauperis actions); 28 U.S.C. § l 915A (actions in which prisoner
seeks redress from a governmental defendant); 42 U.S.C. § l 997e (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. Phillips v. County ofAllegheny,
515 F.3d 224, 229 (3d Cir. 2008); Erickson v. Pardus, 551 U.S. 89, 93 (2007). Because Howerin
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).
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)(l), 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 32728; 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. 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 Howerin 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).
A well-pleaded complaint must contain more than mere labels and conclusions. See
Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). A
plaintiff must plead facts sufficient to show that a claim has substantive plausibility. See
Johnson v. City of Shelby, _U.S._, 135 S.Ct. 346, 347 (2014). A complaint may not dismissed,
however, for imperfect statements of the legal theory supporting the claim asserted. See id. at
Under the pleading regime established by Twombly 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. Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir.
2016) (internal citations and quotations omitted). 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 "contextspecific task that requires the reviewing court to draw on its judicial experience and common
To the extent that Howerin attempts to challenge his conviction and/or sentence, his sole
federal remedy for challenging the fact or duration of his confinement is by way of habeas
corpus. Freiser v. Rodriguez, 411U.S.475 (1973); see also Torrence v. Thompson, 435 F.
App'x 56 (3d Cir. 2011) (unpublished). Furthermore, 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. Humphrey, 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 explains 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." Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005).
Here, Howerin has not alleged or proven that his conviction or sentence was reversed or
invalidated as provided by Heck. Thus, to the extent Howerin seeks damages for his current
incarceration, his claim rests on an "inarguable legal conclusion" and is, therefore, frivolous.
Neitzke, 490 U.S. at 326.
Howerin alleges that he was arrested by Vorous without his full knowledge of the
allegations him and that she failed to provide him the documents to which he was entitled. A
"person's right to reasonable notice of a charge against him ... [is] basic in our system of
jurisprudence." In re Oliver, 333 U.S. 257, 273 (1948). It is well-settled that due process
requires an accused to be informed of the specific charge against him, and that reasonable notice
"sufficiently apprises the defendant of what he must be prepared to meet." Russell v. United
States, 369 U.S. 749, 763 (1962). The Supreme Court has never held that "the only
constitutionally sufficient means of providing the notice required by the Sixth and Fourteenth
Amendments is through the charging document." Hartman v. Lee, 283 F.3d 190, 195 (4th Cir.
2002). Indeed, federal courts considering the issue have held that the due process notice
requirement may be satisfied even if the indictment or information was deficient so long as the
defendant received actual notice of the charges against him and the inadequate indictment did not
lead to a trial with an unacceptable risk of convicting the innocent. See Hartman, 283 F.3d at
195. In addition, a probation officer's petition and report for revocation satisfies the written
notice requirement under Federal Rule of Criminal Procedure 32.1 in federal revocation of
supervised release proceedings, which are similar to State VOP proceedings. See United States
v. Littlejohn, 508 F. App'x 123, 128 (3d Cir. 2013) (unpublished); United States v. Barnhart, 980
F.2d 219, 223 (3d Cir. 1992). Accordingly, in order for notice to be effective, "it need only
assure that the [probationer] understands the nature of the alleged violation." United States v.
Sistrunk, 612 F.3d 988, 992 (8th Cir. 2010).
The allegations of the complaint acknowledge that Howerin received a bail hearing, he
was provided counsel and, either he or his defense counsel, received the required paperwork prior
to the VOP revocation hearing. Thus the allegations demonstrates that Howerin's due process
right of "written notice" was satisfied given that he received a copy of the "paperwork" report
prior to the 2010 VOP hearing. In addition, as the complaint indicates, counsel represented
Howerin at the VOP revocation hearing wherein it appears he was found guilty.
Howerin alleges that Vorous violated Fed. R. Crim. P. 32.1. That rule, however, is
inapplicable given that Vorous was charged in State Court. To the extent Vorous relies upon
violations of Delaware Superior Court Criminal Rule 32.1 the claim also fails. Without
belaboring the point, it is clear from his allegations that Howerin had notice of the alleged
violations, was present at the VOP hearing with counsel, and had the opportunity to be heard.
The allegations simply do not rise to the level of constitutional violations. Therefore, the
complaint will be dismissed as frivolous pursuant to pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i)
For the above reasons, the court will: (1) dismiss the complaint as frivolous pursuant to
28 U.S.C. § 1915(e)(2)(B)(i) and§ 1915A(b)(l); and (2) deny as moot the plaintiff's requests for
counsel (D.I. 6, 19). The court finds amendment futile.
An appropriate order will be entered.
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