GREGORY M. SLEET, District Judge.
The plaintiff, Roque Rondon ("Rondon"), was a pretrial detainee at the Howard R. Young Correctional Institution ("HRYCI"), Wilmington, Delaware, when he filed this filed this lawsuit pursuant to 42 U.S.C. § 1983. (D.I. 2.) He has since been released. He appears pro se and was granted permission to proceed in forma pauperis pursuant to 28 U.S.c. § 1915. (D.I.6.) The court now proceeds to review and screen the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)(1).
Rondon was charged with a crime. He did not understand the charges, but it is something that he "never committed." Rondon had a "solid alibi" and was "no where near the crime scene." By the time the complaint was filed on April 3, 2013, it had taken the State almost five months to review Rondon's case and almost six months for his trial. Rondon advised the court on May 15, 2013, that he had been released from jail. Rondon alleges violations of his human rights and due process. He seeks compensatory damages.
II. STANDARD OF REVIEW
This court must dismiss, at the earliest practicable time, certain in forma pauperis and prisoner actions that are frivolous, malicious, fail to state a claim, or seek monetary relief from a defendant who is immune from such relief. See 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); 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. Phillips v. County of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008); Erickson v. Pardus, 551 U.S. 89, 93 (2007). Because Rondon proceeds pro se, 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)(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; 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 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 Rondon leave to amend his complaint unless amendment would be inequitable or futile. See Grayson v. Mayview State Hasp., 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, 129 S.Ct. 1937 (2009); Bell Atl. Corp. v. Twombly, 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." Id at 1949. When determining whether dismissal is appropriate, the court conducts a two-part analysis. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). First, the factual and legal elements of a claim are separated. Id The court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. ld at 210-11. Second, the court must determine whether the facts alleged in the complaint are sufficient to show that Rondon has a "plausible claim for relief." Id at 211. In other words, the complaint must do more than allege Rondon's entitlement to relief; rather it must "show" such an entitlement with its facts. Id. "[W]here the well-pleaded facts do not permit the court to infer more than a mere possibility of misconduct, the complaint has alleged - but it has not shown - that the pleader is entitled to relief." Iqbal, 129 S.Ct. at 1949 (quoting Fed.R.Civ.P. 8(a)(2)).
A. Eleventh Amendment Immunity
Named as a defendant is the State of Delaware. The claim fails, however, due to the State's sovereign immunity. The Eleventh Amendment of the United States Constitution protects an unconsenting state or state agency from a suit brought in federal court by one of its own citizens, regardless of the relief sought. See Pennhurst State Sch. & Hasp. v. Halderman, 465 U.S. 89 (1984); Edelman v. Jordan, 415 U.S. 651 (1974). The State has not waived its immunity from suit in federal court, see Brooks-McCollum v. Delaware, 213 F.Appx. 92, 894 (3d Cir. 2007) (unpublished), and although Congress can abrogate a state's sovereign immunity, it did not do so through the enactment of 42 U.S.C. § 1983. See Quern v. Jordan, 440 U.S. 332, 345 (1979). Moreover, the State of Delaware may not be considered "a person" under § 1983. Will v. Michigan Dep't of State Police, 491 U.S. 58, 64 (1989).
The claims against the State of Delaware will be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii) and § ...