Thompson v. McDonald, M.D.

Filing 10

MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 7/24/18. (sar)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

WAYNE H. THOMPSON, JR.,
Plaintiff,
: Civ. No. 18-715-RGA

V.

LAWRENCE MCDONALD, M.D.,
Defendant.

Wayne H. Thompson, Sussex Correctional Institution, Georgetown, Delaware.
Pro Se Plaintiff.

MEMORANDUM OPINION

7f

201s
July
Wilmington, Delaware

ANDR~l/dJJ:;-zPlaintiff Wayne H. Thompson, Jr. an inmate at Sussex Correctional Institution in
Georgetown, Delaware, commenced this action on May 11, 2018 raising claims under
42 U.S.C. § 1983. 1 (D.I. 3).
proceed in forma pauperis.

He appears prose and has been granted leave to
(D.I. 5).

He requests counsel.

(D.I. 7).

The Court

reviews and screens the Complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and
1915A(a).
I.

BACKGROUND

Plaintiff alleges that from April 2013 through November 2013 he was sexually
abused by Defendant "under the disguise of [medical] professionalism." (D.I. 3).
seeks compensatory damages.
II.

He also requests counsel.

He

(D.I. 7).

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) (in forma pauperis actions); 28
U.S.C. § 1915A (actions in which prisoner seeks redress from a governmental
defendant). The Court must accept all factual allegations in a complaint as true and

1

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 West v. Atkins, 487 U.S. 42, 48 (1988).
2

take them in the light most favorable to a prose 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 pleadEid, must be held to less stringent standards than
formal pleadings drafted by lawyers ' Erickson v. Pardus, 551 U.S. at 94.
An action is frivolous if it "lacks an arguable basis either in law or in fact."
Neitzke v. Williams, 490 U.S. 319, 3~~5 (1989).

Under 28 U.S.C. § 1915(e)(2)(B)(i) and

§ 1915A(b)(1 ), a court may dismiss 2, 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 U.S. at 327-28; Wilson v. Rackmi/1, 878 F.2d 772, 774

(3d Cir. 1989).
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). 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 Grayson v. Mayview State Hosp., 293

F.3d 103, 114 (3d Cir. 2002).
Under Rule 12(b)(6), a motion to dismiss may be granted 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

3

claim of entitlement to relief."

Bell At!. Corp. v. Twombly, 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)

(quoting Twombly, 550 U.S. at 555).

In addition, a plaintiff must plead facts sufficient to

show that a claim has substantive plausibility.
_U.S._, 135 S.Ct. 346, 347 (2014).

See Johnson v. City of Shelby,

A complaint may not be dismissed, however, for

imperfect statements of the legal theory supporting the claim asserted.

See id. at 346.

When reviewing the sufficiency of a complaint, a court should follow a three-step
process:

(1) consider the elements necessary to state a claim; (2) identify allegations

that are merely conclusions and therefore are not well-pleaded factual allegations; and
(3) accept any well-pleaded factual allegations as true and determine whether they
plausibly state a claim.

See Conneliy v. Lane Constr. Corp., 809 F.3d 780, 787 (3d Cir.

2016); Williams v. BASF Catalysts LL.C, 765 F.3d 306, 315 (3d Cir. 2014).

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."

Ashcroft v. Iqbal, 556

U.S. 662, 679 (2009).

Ill.

DISCUSSION
The Complaint is time-barred.

Plaintiff's claims are raised pursuant to 42 U.S.C.

§ 1983. For purposes of the statute of limitations, 42 U.S.C. § 1983 claims are
characterized as personal injury actions and are also subject to a two year limitation
period.

Wilson v. Garcia, 471 U.S. 261, 275 (1983); see 10 Del. C. § 8119; Johnson v.

4

Cullen, 925 F. Supp. 244, 248 (D. Del. 1996). Section 1983 claims accrue "when the

plaintiff knew or should have known of the injury upon which its action is based."
Sameric Corp. v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir. 1998).

The statute of limitations is an affirmative defense that generally must be raised
by the defendant, and it is waived if not properly raised.

See Benak ex rel. Alliance

Premier Growth Fund v. Alliance Capital Mgmt. L.P., 435 F.3d 396, 400 n.14 (3d Cir.

2006); Fassett v. Delta Kappa Epsilon, 807 F.2d 1150, 1167 (3d Cir. 1986). "[W]here
the statute of limitations defense is obvious from the face of the complaint and no
development of the factual record is required to determine whether dismissal is
appropriate, sua sponte dismissal under 28 U.S.C. § 1915 is permissible."

Davis v.

Gauby, 408 F. App'x 524, 526 (3d Cir. 2010) (quoting Fogle v. Pierson, 435 F.3d 1252,

1258 (10 th Cir. 2006)).
In the Complaint, the last act complained of occurred in November 2013, yet
Plaintiff did not file his Complaint until May 7, 2018. 2

It is evident from the face of the

Complaint that the claims are barred by the two-year statute of limitations, having been
filed approximately two and one-half :fears after the statute of limitations expired.
Therefore, the Court will dismiss the Complaint as legally frivolous pursuant to 28

2

The computation of time for complaints filed by prose inmates is determined
according to the "mailbox rule." A prisoner's filing is deemed filed as of the date it is
delivered to prison officials for mailingi to the Court. See Houston v. Lack, 487 U.S. 266
(1988); Burns v. Morton, 134 F.3d 109, 112 (3d Cir. 1998); Gibbs v. Decker, 234 F.
Supp. 2d 458, 463 (D. Del. 2002).
Here, Plaintiff's Complaint was signed on May 7, 2018. Therefore, the
Complaint was delivered to prison authorities for mailing on or after May 7, 2018, the
date it was signed and earliest date possible that it could have been delivered to prison
officials for mailing.
5

U.S.C. § 1915(e)(2)(B)(i) and § 191 ~iA(b)(1 ). While I suspect that amendment of the
claims would be futile, there is no harm in giving Plaintiff a chance to try.
IV.

CONCLUSION
For the above reasons, the Court will:

(1) dismiss the Complaint as legally

frivolous as time-barred pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i) and 1915A(b)(1 ); and
(2) dismiss as moot Plaintiff's request for counsel (D.I. 7).
amended complaint.
An appropriate order will be entered.

6

Plaintiff may file an