United States District Court, D. Delaware
DAVID A. ALLEMANDI, a/k/a Hermione Kelly Ivy Winter, Plaintiff,
DR. MUNOZ, et al, Defendants.
A. Allemandi, a/k/a Hermione Kelly Ivy Winter, James T.
Vaughn Correctional Center, Smyrna, Delaware, Pro Se
U.S. DISTRICT JUDGE
David A. Allemandi, a/k/a Hermione Kelly Ivy Winter
("Plaintiff"),  an inmate at the James T. Vaughn
Correctional Center ("VCC") in Smyrna, Delaware,
filed this action pursuant to 42 U.S.C. §
1983. (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 §
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)
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
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 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).
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 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
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.
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.
Statute of Limitations
Complaint refers to actions beginning in 2014. Plaintiff
filed her Complaint on October 1, 2017. 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).
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)).
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.
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.
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. (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)
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).
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).