United States District Court, D. Delaware
NIGEL C. SYKES, Plaintiff,
SEASONS PIZZA, et al., Defendants
Decided April 17, 2014
Nigel C. Sykes, Plaintiff, Pro se, Smyrna, DE.
SUE L. ROBINSON, UNITED STATES DISTRICT JUDGE.
1. Introduction. Plaintiff Nigel Sykes (" plaintiff" ), an inmate at James T. Vaughn Correctional Center (" VCC" ), Smyrna, Delaware, proceeds pro se and has been granted in forma pauperis status. He filed this complaint pursuant to 42 U.S.C. § 1983 claiming violations of his constitutional rights. (D.I. 1, 12) The original complaint was dismissed and plaintiff was given leave to amend. An amended complaint was filed on February 19, 2014. (D.I. 17)
2. Standard of review. This court must dismiss, at the earliest practicable time, certain in forma pauperis and prisoner actions tat 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, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). Because plaintiff 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).
3. An action is frivolous if it " lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (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 U.S. 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).
4. 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 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).
5. A well-pleaded complaint must contain more than mere labels and conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Bell A. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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. Iqbal, 556 U.S. at 678. When determining whether dismissal is appropriate, the court must take three steps: " (1) identify the elements of the claim, (2) review the complaint to strike conclusory allegations, and then (3) look at the well-pleaded components of the complaint and evaluat[e] whether all of the elements identified in part one of the inquiry are sufficiently alleged." Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). 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 " context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.
6. Discussion. The complaint indicates that plaintiff is refiling a claim that was previously dismissed by the court without prejudice for plaintiffs failure to comply with court orders. See Sykes v. Delaware State Police, Civ. No. 11-147-SLR at D.I. 16 (Jan. 1, 2012 order dismissing case without prejudice pursuant to Fed.R.Civ.P. 4(m)). (D.I. 1) In the instant case, the original complaint was dismissed for failure to state a claim upon which relief may be granted, and plaintiff was given leave to amend. ( See D.I. 13, 14)
7. Plaintiff alleges assault, excessive force, and failure to provide medical care. He acknowledges that on November 30, 2010, he committed an armed robbery at Seasons Pizza in Stanton, Delaware. During the robbery, defendant Abdeikader Bedhief (" Bedhief" ) grabbed plaintiff from behind and, after a short struggle, unnamed defendants took the gun from plaintiff. Plaintiff alleges that Seasons Pizza employees Mauricio Carrera (" Carrera" ), Taoufiq Raha (" Raha" ), Bedhief, John McGibbon (" McGibbon" ), Misail Madariga (" Madariga" ), and Manuel Cabrera (" Cabrera" ) participated in punching, kicking and pouring hot soup over his head and/or body until he was " punched into a state of unconsciousness."  (D.I. 17)
8. Police officers Stephen Johnson (" Johnson" ), Mark Wahner (" Wahner" ), and Don Maiasano (" Maiasano" ) arrived at the scene to find plaintiff unconscious. Plaintiff was handcuffed behind his back and, when he regained consciousness, he realized that he was being tasered by Maiorano. Each time plaintiff was tasered, the taser darts were " yanked" from his back around his right shoulder blade. When Johnson escorted plaintiff to the police cruiser, he punched plaintiff ...