United States District Court, D. Delaware
Jermaine Layton Carter ("plaintiff"), an inmate at
the James T. Vaughn Correctional Center, 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 and has
filed several amendments and motions to supplement or to
amend. (D.I. 1, 3, 9, 10, 11)
Standard of Review.
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 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
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
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
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). 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, however, for imperfect
statements of the legal theory supporting the claim asserted.
See Id. at 346.
Under 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.
Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d
Cir. 2016) (internal citations and quotations omitted).
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."
alleges that he "suffers from an imminent danger of
serious physical injury" because he has not been placed
in protective custody despite his repeated requests. He
alleges that protective custody is necessary because inmates
on his housing unit have labeled him as a serial rapist,
snitch, and homosexual. Plaintiff has complained to several
prison officials, but none of them has responded to his
requests to place him on protective custody. Defendant Perry
Phelps was not among the individuals to whom plaintiff
complained. Plaintiff seeks injunctive relief to ensure his
placement in protective custody, to ensure that he is not
housed with inmates of a violent background, and a policy
establish an Eighth Amendment violation based on a failure to
prevent harm, an inmate must show (1) that he was
incarcerated under conditions posing a substantial risk of
serious harm, and (2) that a prison official was deliberately
indifferent to his safety. Farmer v. Brennan, 511
U.S. 825, 834 (1994). "Deliberate indifference" is
a subjective standard. See Id. at 837. A prison
official must know of and disregard an excessive risk to
inmate health or safety. Id. In Farmer, the
Supreme Court did not address "[a]t what point a risk of
inmate assault becomes sufficiently substantial for Eighth
Amendment purposes." Farmer, 511 U.S. at 834
n.3. Here, the allegations are that plaintiffs request to
transfer him to protective custody have been ignored, despite
his vulnerability to attack. See e.g., Hamilton v.
Leavy, 117 F.3d 742, 747-48 (3d Cir. 1997) (issue of
fact on question of official's knowledge of risk where
inmate had a history of being assaulted, had been labeled a
"snitch, " and was placed in the general population
despite a recommendation to the contrary); Fletcher v.
Phelps, 639 F.App'x 85 (3d Cir. 2015) (unpublished)
(fact issue remained whether sergeant took reasonable steps
to protect prisoner after reporting his fear of assault).
is the only named defendant, although plaintiff refers to
other prison officials in his complaint. "A defendant in
a civil rights action must have personal involvement in the
alleged wrongdoing; liability cannot be predicated solely on
the operation of respondeat superior. Personal involvement
can be shown through allegations of personal direction or of
actual knowledge and acquiescence." Rode v.
Dellarciprete,845 F.2d 1195, 1207 (3d Cir. 1988).
Plaintiff's complaint makes no mention of Phelps other
than to name him as a defendant and does not allege facts
that, if proven, would show his personal involvement.
Accordingly, the court will dismiss the complaint for failure
to state a claim upon which relief may be granted pursuant to
28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
However, because it appears that plaintiff may be able to
articulate a claim against defendant or name alternative
defendants, he will be given an ...