United States District Court, D. Delaware
MARCUS J. ROSSER, Plaintiff,
CORPORAL MATTHEW DONOVAN, et al., Defendants.
J. Rosser, James T. Vaughn Correctional Center, Smyrna,
Delaware, Pro Se Plaintiff.
W.S. District Judge
Marcus J. Rosser ("Plaintiff'), an inmate at the
James T. Vaughn Correctional Center ("VCC") in
Smyrna, Delaware, filed this action alleging constitutional
violations pursuant to 42 U.S.C. § 1983. (D.I. 1) He
appears pro se and has been granted leave to proceed
in forma pauperis. (D.I. 6) The Court proceeds to
review and screen the complaint pursuant to 28 U.S.C.
§§ 1915(e)(2) and 1915A(a).
14, 2014, Plaintiff was stopped and taken into custody by New
Castle County Detective Ellis. He was taken to the New Castle
County Police Department and placed in a holding cell.
Defendants Corporal Matthew Donovan ("Donovan"),
Detective John Mikus ("Mikus"), and Detective
Thomas Orzechowski ("Orzechowski") entered the
cell. When Plaintiff asked why he was arrested and what was
going on, Mikus told him to sit down. Plaintiff responded by
stating "not until I am told why I have been taken into
custody and am I under arrest?" Plaintiff alleges that
Donovan told him he was "gonna sit down" and then
punched Plaintiff in the face and took him to the ground.
Plaintiff alleges that Mikus kneed and punched him in the rib
area and Orzechowski and non-party Officer Geortler held on
to the lower part of his body. Plaintiff alleges that Mikus
then cuffed his wrists so tightly that his hands went numb.
Plaintiff was bleeding from the nose and mouth and, when he
spat blood on the floor, Donovan repeatedly punched him in
the face while other officers pinned him to the ground.
was taken to the hospital. A New Castle County officer told
him that if he told the doctors what had happened he would be
beaten upon his return to New Castle County Police
Headquarters. On April 29, 2015, Plaintiff was acquitted of
charges of resisting arrest and offensive touching. Plaintiff
alleges that Defendant Supervisor Matthew D. Astfalk
("Astfalk") was put on notice about the excessive
force when he signed off on Mikus' incident report, but
failed to take disciplinary action against the officers
involved. Plaintiff seeks compensatory damages. He also
requests appointment of counsel. (D.I. 5)
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
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 p. 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.
McCulhugh, 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 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
complaint may be dismissed only if, accepting the
well-pleaded allegations in the complaint as true and viewing
them in the light most favorable to the plaintiff, a court
concludes that those allegations "could not raise a
claim of entitlement to relief." BellAtl. Corp. v.
Twomblj, 550 U.S. 544, 558 (2007). Though "detailed
factual allegations" are not required, a complaint must
do more than simply provide "labels and
conclusions" or "a formulaic recitation of the
elements of a cause of action." Davis v. Abington
Mem'lHosp., 765 F.3d 236, 241 (3d Cir. 2014)
(internal quotation marks omitted). In addition, a complaint
must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.
See Williams v. BASF Catalysts T J, C)
765 F.3d 306, 315 (3d Cir. 2014) (citing Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) and Twombly,
550 U.S. at 570). Finally, a plaintiff must plead facts
sufficient to show that a claim has substantive plausibility.
See Johnson v. City of Shelby, ___ U.S.
___, 135 S.Ct. 346, 347 (2014). A complaint may not
dismissed for imperfect statements of trie legal theory
supporting the claim asserted. See Id. at 346.
the pleading regime established by Twombly and
Iqbal, a court reviewing the sufficiency of a
complaint must take three steps: (1) take note of the
elements the plaintiff must plead to state a claim; (2)
identify allegations that, because they are no more than
conclusions, are not entitled to the assumption of truth; and
(3) when there are well-pleaded factual allegations, the
court should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief. See
Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d
Cir. 2016). Elements are sufficiently alleged when the facts
in die complaint "show" that the plaintiff is
entitled to relief. See Iqbal, 556 U.S. at 679
(citing 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.