United States District Court, D. Delaware
Turner, James T. Vaughn Correctional Center, Smyrna,
Delaware, Pro Se Plaintiff.
Michael F. McTaggart, Deputy Attorney General Deputy,
Delaware Department of Justice, Wilmington, Delaware. Counsel
for Defendant Warden David Pierce.
U.S. District Judge
Lee Turner ("Plaintiff) filed this action pursuant to 42
U.S.C. § 1983, alleging violations of his constitutional
rights. (D.I. 2) Plaintiff is incarcerated at the
James T. Vaughn Correctional Center ("VCC") in
Smyrna, Delaware. He appears pro se and has been
granted leave to proceed in forma pauperis. (D.I. 8)
Plaintiff has filed a motion for injunctive relief and a
request for counsel. (D.I. 6, 10) The Court proceeds to
review and screen the Complaint pursuant to 28 U.S.C. §
1915(e)(2) and § 1915A(a).
suffered three injuries to his shoulder and received surgery
by an outside orthopedic surgeon. Following the April 18,
2016 surgery, Plaintiff recovered in the VCC infirmary for
approximately 16 days. When Plaintiff was seen at his
follow-up appointment, he was prescribed pain medication and
physical therapy was ordered to start immediately. Plaintiff
alleges that Defendant Connections CSP
("Connections") was given specific instructions
that Plaintiff receive physical therapy twice weekly.
was discharged from the infirmary on May 4, 2016, and was
told by Defendant Dr. Ellis ("Dr. Ellis") that he
would be housed in SHU, that his medication would be changed
due to his housing assignment, and that he would have to do
the physical therapy himself because "we have no
physical therapist." (D.I. 2 at 3) Plaintiff was
transferred to SHU and never received physical therapy. He
submitted grievances over the matter.
20, 2016, Plaintiff presented to the Christiana Gate
Rehabilitation Center for a post-op consult with extreme
pain, lack of mobility, limited range of motion, stiffness
and weakness. Plaintiff was told that physical therapy was
most important for a full recovery. Plaintiff alleges that he
must wear a brace due to the effects of the failure to
seeks injunctive relief and compensatory and punitive
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 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. See Phillips v.
County of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008);
Erickson v. Pardus, 551 U.S. 89, 93 (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, 551
U.S. at 94 (citations omitted).
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 an inmate's pen and refused to give it
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
deciding Rule 12(b)(6) motions. See 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 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 a ...