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Gibbs v. Attorney General of State

United States District Court, Third Circuit

July 9, 2013

OTTO G. GIBBS, Plaintiff,

Otto G. Gibbs, Wilmington, Delaware, Pro Se Plaintiff.


LEONARD P. STARK, District Judge.


Plaintiff Otto G. Gibbs ("Plaintiff') filed this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights.[1] At the time the complaint was filed, Plaintiff was an inmate housed at the Howard R. Young Correctional Institution ("HRYCI") in Wilmington, Delaware. He has since been released.[2] (D.I. 7) Plaintiff appears prose and has been granted leave to proceed in forma pauperis. The Court proceeds to review and screen the Complaint pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(a).


On October 13, 1997, Plaintiff was sentenced to twenty years imprisonment after he was convicted by a jury of unlawful sexual intercourse in the second degree. See State v. Gibbs, 2011 WL 3792823 (Del. Super. Ct. Aug. 4, 2011). In anticipation of his release from prison, the State of Delaware filed a petition to have Plaintiff registered as a Tier 3 sex offender. Id. at *1. On December 20, 2010, following an evidentiary hearing, a Superior Court Commissioner ("Commissioner") denied Plaintiffs request for a continuance to obtain counsel and granted the State's request to register Plaintiff as a Tier 3 sex offender. Id. On March 8, 2011, the Delaware Superior Court approved the Commissioner's ruling and Plaintiff was designated as a Tier 3 sex offender. Id. Plaintiff alleges that the hearing was held over his objection for lack of notice and to obtain counsel. (D.I. 3 at ¶ IV.2)

In June 2011, Plaintiff was served with a warrant and arrested at the HYRCI for failure to register an address as a Tier 3 offender. ( Id. at ¶ IV.3) Plaintiff pled guilty to the charges on October 11, 2011, and he received a two month sentence. ( Id. at Ex. Del. Super. Ct. Crim. Docket, Crim. Action No. IN11070652) Plaintiff alleges that he was forced into taking a guilty plea. (D.I. 3 at ¶ IV.4) Plaintiff alleges that he did not receive notice of the hearing and was not provided counsel.[3] ( Id. at ¶ IV.5) On August 14, 2012, Plaintiff filed a Rule 61 motion raising the following grounds for relief: (1) denial of counsel; (2) due process violations; and (3) ex post facto and double jeopardy violations - the same grounds he now raises in the instant complaint. ( See Civ. No. 13, 455-LPS, D.I. 1 Ex) On December 4, 2012, the State Court issued a well-reasoned report and recommendation addressing all issues and summarily dismissed the Rule 61 Motion.[4] Id.

Plaintiff alleges that 11 Del. C.§ 4120(a) and/or (c) provides insufficient procedural protections, violates the Due Process Clause, Ex Post Facto and Double Jeopardy Clauses, and the right to equal protection. Plaintiff alleges that: (1) § 4120 does not provide for adequate notice of commencement of an evidentiary hearing; (2) pursuant to § 4120, the Commissioner denied Plaintiff's request for counsel over objections and notice; (3) the language in§ 4120 creates a legitimate expectation that other petitioners similarly situated were afforded counsel at the sentencing hearing; and (4) application of the statute to Plaintiff decades after he was sentenced violates the Ex Post Facto clause.

Plaintiff seeks declaratory relief that 11 Del. C. § 4120 violated his constitutional rights as well as "removal" of the October 11, 2011 guilty plea.


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 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 prose plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93 (2007); Phillips v. County of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008). Because Plaintiff proceeds prose, his pleading is liberally construed and his Complaint, "however in artfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson, 551 U.S. at 94 (internal quotation marks 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 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). 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 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 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). When determining whether dismissal is appropriate, the Court conducts a two-part analysis. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). First, the factual and legal elements of a claim are separated. See id. The Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. See id. at 210-11. 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." Iqbal, 556 U.S. at 678. Second, the Court must determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "plausible claim for relief." Fowler, 578 F.3d at 211. In other words, the complaint must do more than allege the plaintiffs entitlement to relief; rather, it must "show" such an entitlement with its facts. Id. A claim is facially plausible when its factual content allows the Court to draw a reasonable inference that the defendant is liable for the misconduct alleged. See Iqbal, 556 U.S. at 678. The plausibility ...

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