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Drumgo v. Markell

United States District Court, D. Delaware

October 24, 2014

DESHA WN DRUMGO, Plaintiff,
v.
GOVERNOR JACK MARKELL, et al., Defendants.

MEMORANDUM

GREGORY M. SLEET, District Judge.

The plaintiff, DeShawn Drumgo ("Drumgo"), an inmate at the James T. Vaughn Correctional Center ("VCC"), Smyrna, Delaware, filed this lawsuit pursuant to 42 U.S.C. § 1983.[1] (D.I. 4.) At the same time he filed a motion for a preliminary injunction and temporary restraining order, which is opposed. (D.I. 1.) Drumgo appears pro se and was granted permission to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (D.I. 7.) The court proceeds to review and screen the complaint.

I. BACKGROUND

Drumgo is housed in the SHU building at the VCC. He alleges that the vents are filthy and have not been cleaned in decades, there is a gas leak, and asbestos is airborne and is coming through the vents. Drumgo has spoken to the defendants Captain Bruce Burton ("Burton")) and Lt. Natasha Hollingsworth ("Hollingsworth") and submitted grievances and written numerous letters to the defendants Delaware Governor Jack Markell ("Marken"), Delaware Department of Correction ("DOC") Commissioner Robert Coupe ("Coupe"), Cpl. Matthew Dutton ("Dutton"), Lt. Reynolds ("Reynolds"), VCC Warden Pierce ("Pierce"), C/O Lenigan ("Lenigan"), Lt. Farrington ("Farrington"), Lt. Todd Drace ("Drace"), and Major Carrothers ("Carrothers"). Drumgo alleges the foregoing conditions have caused his health to suffer.

The complaint alleges that Farrington agreed that the vents were in need of cleaning. It further alleges that Drace issued write-ups to inmates who covered the vents. Drumgo was told there was a manifold leaking gas into the heating and/or cooling system. He also alleges that Pierce has known about the asbestos for some time. Dutton denied the grievances Drumgo submitted on the issues.

Drumgo also complains that the food trays are filthy, the lights are on nineteen hours per day and flick off and on from 3:00 to 5:00 AM. He complains that when he has visitors he must appear without having had a haircut and restrained with excessive chains. Finally, he complains that his recreation is limited to three hours per week.

II. SCREENING

A. Standard 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 § 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); 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 Drumgo 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 Drumgo 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). 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. 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.

B. Discussion

1. ...


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