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Allemandi v. Munoz

United States District Court, D. Delaware

February 5, 2018

DAVID A. ALLEMANDI, a/k/a Hermione Kelly Ivy Winter, Plaintiff,
v.
DR. MUNOZ, et al, Defendants.

          David A. Allemandi, a/k/a Hermione Kelly Ivy Winter, James T. Vaughn Correctional Center, Smyrna, Delaware, Pro Se Plaintiff.

          MEMORANDUM OPINION

          STARK, U.S. DISTRICT JUDGE

         I. INTRODUCTION

         Plaintiff David A. Allemandi, a/k/a Hermione Kelly Ivy Winter ("Plaintiff"), [1] an inmate at the James T. Vaughn Correctional Center ("VCC") in Smyrna, Delaware, filed this action pursuant to 42 U.S.C. § 1983.[2] (D.I. 3) Plaintiff appears pro se and has been granted leave to proceed in forma pauperis. (D.I. 8) Plaintiff has also filed a request for counsel, two motions for a preliminary injunction, and a motion to consolidate cases. (D.I. 5, 7, 11, 12) The Court proceeds to review and screen the matter pursuant to 28 U.S.C. § 1915(e)(2)(b) and § 1915A(a).

         II. BACKGROUND

         On April 9, 2014, Plaintiff pled guilty to second degree rape and continuous sexual abuse of a child. See Allemandi v. State, No. 549, 2015 pel.) at BL-36 (appendix containing State v. Allemandi, CRA # S13-09-0783 thru 0788, ID No. 1308015125, Apr. 9, 2014 plea agreement, Apr. 9, 2014 change of plea transcript, Apr. 10, 2014 sentencing transcript). Plaintiff was housed at the Sussex Correctional Institution ("SCI") in Georgetown, Delaware, until a transfer to the VCC in August 2016. See Allemandi v. Johnson, Civ. No. 16-272-LPS at D.I. 8. Plaintiff, who identifies as a woman, has been diagnosed with gender dysphoria, and is awaiting gender reassignment surgery. Plaintiff alleges violations of her rights under the First, Fourth, Eighth, and Fourteenth Amendments of the United States Constitution, violations of the Equal Protection Clause, violations of the Delaware Constitution, and medical malpractice. (D.I. 3 at 13)

         Plaintiffs claims are not delineated, but she seems to allege that she was denied medical treatment, medical treatment was delayed, there is an inadequate grievance system, she was subjected to unconstitutional strip searches, she was treated differently from other similarly situated inmates, she was denied a prison job, she was sexually harassed, prison employees failed to protect her from rape, and she was the victim of medical malpractice.

         Plaintiff seeks injunctive relief and compensatory and punitive damages.

         III. LEGAL STANDARDS

         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) (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 pro se plaintiff. See Phillips v. County of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008); Brickson v. Pardus, 551 U.S. 89, 93 (2007). Because Plaintiff proceeds pro se, her pleading is liberally construed and her 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).

         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)(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 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 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 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 a plaintiff leave to amend the complaint unless amendment would be inequitable or futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).

         A 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." Bell Atl. Corp. v. Twombly, 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'l Hosp., 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 LLC, 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 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. See Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016). Elements are sufficiency alleged when the facts in the 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.

         IV. DISCUSSION

         A. Statute of Limitations

         The Complaint refers to actions beginning in 2014. Plaintiff filed her Complaint on October 1, 2017.[3] For purposes of the statute of limitations, § 1983 claims are characterized as personal injury actions. See Wilson v. Garcia, 471 U.S. 261, 275 (1985). In Delaware, § 1983 claims are subject to a two-year limitations period. See 10 Del. C. § 8119; Johnson v. Cullen, 925 F.Supp. 244, 248 (D. Del. 1996). Section 1983 claims accrue "when the plaintiff knew or should have known of the injury upon which its action is based." Sameric Corp. v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir. 1998).

         The statute of limitations is an affirmative defense that generally must be raised by the defendant, and it is waived if not properly raised. See Benak ex rel. Alliance Premier Growth Fund v. Alliance CapitalMgmt L.P., 435 F.3d 396, 400 n.14 (3d Cir. 2006); Fassett v. Delta Kappa Bpsilon, 807 F.2d 1150, 1167 (3d Cir. 1986). "[W]here the statute of limitations defense is obvious from the face of the complaint and no development of the factual record is required to determine whether dismissal is appropriate, sua sponte dismissal under 28 U.S.C. § 1915 is permissible." Davis v. Gauby, 408 Fed.Appx. 524, 526 (3d Cir. Nov. 30, 2010) (quoting Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006)).

         Plaintiff complains of acts taken by numerous Defendants that began in 2014 and appear to have occurred prior to October 1, 2015. For example, the Complaint refers to acts taken by Defendants SCI Guard Charles ("Charles"), Dr. Potter ("Dr. Potter"), Chaplain Roy Russell ("Russell"), Therapist Pamela ("Therapist Pamela"), Counselor Heather Hamlett ("Hamlett"), and Internal Affairs Sgt. Hubb ("Hubb"). It is evident from the face of the Complaint that all claims that accrued prior to October 1, 2015 are barred by the two-year limitations period.

         Because the foregoing actions are time-barred the Court will dismiss the § 1983 claims that occurred prior to October 1, 2015 as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)(1). Charles, Russell, Therapist Pamela, Hamlett, and Hubb will be dismissed as defendants as these are the only claims raised against them.[4]

         B. Grievances

         As alleged in the Complaint, the majority of the named defendants had some type of involvement in the grievance submitted by Plaintiff and the grievance process. Plaintiff alleges that her grievances were ignored unprocessed, returned for filing as mental health issues, and denied or delayed (sometimes, or regularly, in a sexual demeaning manner) by Defendants Peter Osinubi ("Osinubi"), Dr. Munoz ("Dr. Munoz"), Lezley Sexton ("Sexton"), Adrian Harewood ("Harewood"), Arkava Smith ("Smith), Nurse Pamela Magee ("Magee"), Jefferson Fort ("Fort"), Katrina Burley ("Burley"), Laura L. Brackett ("Brackett), Stacie Collins-Young ("Collins"), Penny I. Davis-Wipf ("DavisO Matthew Dutton ("Dutton"), Terrell M. Taylor II ("Taylor"), Matthew Wofford ("Wofford"), and Pamela.[5] (D.I. 3 at 26) She also alleges that her grievances have been in limbo for six months at the final level, without response, and this has been caused by Defendants Brackett, Paul Harvey ("Harvey"), Bruce Burton ("Burton"), Teddy Tyson ("Tyson"), former VCC Warden David Pierce ("Pierce"), VCC Warden Dana Metzger ("Metzger"), Sgt. Atherholt ("Atherholt"), Sgt. Forkum ("Forkum"), Kelly Embert ("Embert"), James Scarbourgh ("Scarbourgh"), SCI Warden G. R. Johnson ("Johnson"), Sgt. Stinger ("Stinger"), Lt. Harrison ("Harrison"), Sgt. Warfield ("Warfield"), Paul Gauthier ("Gauthier"), Timothy Martin ("Martin"), Lead Job Lt. Stacie Seacourt ("Seacourt"), Sgt. Quileen ("Quileen"), Guard Charles ("Charles"), Sgt. Cain ("Cain"), Dr. Uniaz ("Dr. Uniaz"), and Capt. Boone ("Boone"). (Id. at 46)

         The filing of prison grievances is a constitutionally protected activity. See Robinson v. Taylor, 204 Fed.Appx. 155, 157 (3d Cir. Nov. 7, 2006). To the extent that Plaintiff bases her claims upon her dissatisfaction with the grievance procedure or denial of her grievances, the claims fail because an inmate does not have a "free-standing constitutional right to an effective grievance process." Woods v. First Con. Med, Inc., 446 Fed.Appx. 400, 403 (3d Cir. Aug. 18, 2011) (citing Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991)). Notably, the denial of grievance appeals does not in itself give rise to a constitutional claim, as Plaintiff is free to bring a civil rights claim in District Court. See Winn v. Department of Con., 340 Fed.Appx. 757, 759 (3d Or. July 28, 2009) (citing Flick v. Alba, 932 F.2d at 729).

         Plaintiff cannot maintain a constitutional claim based upon her perception that her grievances were not properly processed, that they were denied, or that the grievance process is inadequate. Therefore, the Court will dismiss all grievance claims as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and § 1915A(b)(1).

         C. ...


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