United States District Court, D. Delaware
L. Shivers, Jr., James T. Vaughn Correctional Center, Smyrna,
Delaware. Pro Se Plaintiff.
Andrews, U.S. District Judge
Dwight L. Shivers, Jr., an inmate at the James T. Vaughn
Correctional Center in Smyrna, Delaware, filed this action
pursuant to 42 U.S.C. § 1983. (D.I. 3). Plaintiff was a
pretrial detainee housed at the Sussex Correctional
Institution when he commenced this action. He appears pro
se and has been granted leave to proceed in forma
pauperis. (D.I. 5). The Court proceeds to review and
screen the complaint pursuant to 28 U.S.C. § 1915(e)(2)
and § 1915A(a).
alleges that on June 25, 2017, he discovered the mattress he
slept on was growing active mold. He informed several
correctional officers and supervisors about the problem, none
of whom did anything to correct the situation. As a result of
the mold, Plaintiff began itching and developed rashes and
bumps covering the lower half of his body and his feet. He
submitted sick call slips to see a nurse.
asked a nurse who was administering medications to check him
out and was laughed at. Plaintiff returned to his cell
untreated. By the next evening, Plaintiffs legs were bleeding
because he had been itching and scratching. That evening he
saw a nurse who told Plaintiff he would see a physician the
first thing in the morning. Plaintiff did not see a physician
for over three days. At that time, the physician told
Plaintiff the condition was probably caused by the water.
Plaintiff was given medication for the inflammation and told
to return if the medication did not work. Plaintiff returned
because the medication was ineffective, and he was given some
cream. Plaintiff alleges that he has submitted more than
three sick call slips and has not received a response. He is
in agony and has bumps all over his body. Plaintiff seeks
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 U.S. at 327-28; Wilson v.
Rackmill, 878 F.2d 772, 774 (3d Cir. 1989).
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). 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.3d103, 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.
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, 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). 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