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Drumgo v. Kuschel

United States District Court, D. Delaware

November 24, 2014

SGT. WILLIAM KUSCHEL, et al., Defendants.


GREGORY M. SLEET, District Judge.

The plaintiff, DeShawn Drumgo ("Drumgo"), an inmate at the James T. Vaughn Correctional Center, Smyrna, Delaware, filed this lawsuit pursuant to 42 U.S.C. § 1983.[1] (D.I. 3.) He appears pro se and was granted permission to proceed in for ma pauperis pursuant to 28 U.S.C. § 1915. (D.I. 6.) The court proceeds to review and screen the complaint pursuant to 28 U.S.C. § 1915(e)(2) and§ 1915A(b).


Drumgo alleges sexual harassment/assault, failure to protect/intervene, and retaliation in violation of the First, Eighth, and Fourteenth Amendments to the United States Constitution. Drumgo alleges that on May 29, 2014, as he was walking out of the chowhall, the defendant C/O VanGorder ("VanGorder") pointed him towards the defendant Sgt. William Kuschel ("Kuschel"). Drumgo alleges that Kuschel conducted a pat and frisk in an inappropriate sexual manner that included groping Drumgo's legs until he reached Drumgo's penis and then he aggressively fondled Drumgo which resulted in the skin of the penis rupturing. Drumgo alleges that VanGorder and the defendants C/O Hutchins ("Hutchins"), C/O Ingrem ("Ingrem"), and C/O Abernathy ("Abernathy"), all of whom were present during the incident, did nothing but laugh. He further alleges that VanGorder failed to stop the assault and failed to prepare an incident report. Drumgo submitted a sick call slip to medical and to mental health for the physical injury and for nightmares and sleeplessness that resulted from the incident.

Drumgo also submitted grievances over the issue and states that, in the past, he had submitted a similar grievance when Kuschel caressed his nipples and buttocks. Following the most recent incident, Drumgo spoke to VanGorder who told him that she and the staff were aware of Kushcel's "illicit sexual searches." He also spoke to Ingrem who told Drumgo that the defendant Lt. Wallace ("Wallace) had warned Kuschel about his conduct. In addition, Drumgo spoke to the defendant C/O Levin ("Levin") who referred to Kuschel's conduct as "illicit sexual searches." Drumgo spoke to Hutchins who said, "under no circumstances will I do what he does" (apparently referring to Kuschel). Drumgo approached Wallace, who was with Kuschel, and reported to him that he was sexually assaulted. Drumgo complains that Wallace did not prepare an incident report and alleges that Wallace made it known that he supported his officer's searches. Drumgo alleges that all of the foregoing officers were aware that Kuschel sexually assaults inmates, but they failed to intercede or help him, and found it funny and laughed during the incident.

Following the incident Drumgo was interviewed by the defendant internal affairs officer Lt. Stanley Baynard ("Baynard") who had Drumgo transferred to Building #21. Drumgo alleges this is the second time that he was transferred for filing a grievance against Kuschel for his conduct and sexual assault. When he arrived at his new cell, he discovered there was no electricity. Drumgo asked the defendant Sgt. Austin ("Austin") to tum on the electricity, and Austin replied, "what, you think their [sic] isn't any retribution for filing complaints about sexual assault. You continue on with your grievances, we always win."

Drumgo sues the defendants in their individual and official capacities. He seeks compensatory and punitive damages, as well as injunctive relief in the form of a transfer to a different prison facility.


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) (informa 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 prose, 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)(l), 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


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