United States District Court, D. Delaware
plaintiff, Juan Restrepo ("Restrepo"), an inmate at
the James T. Vaughn Correctional Center ("VCC") in
Smyrna, Delaware, filed this lawsuit pursuant to 42 U.S.C.
§ 1983 alleging violation of his constitutional rights,
violations of the UCC (i.e., Uniform Commercial
Code), and violations of the Vienna Convention. (D.I. 3.) He
appears pro se and was granted permission to proceed
in forma pauperis pursuant to 28 U.S.C. § 1915.
alleges the defendants engaged in wrongful conduct from
February 2017 to date. He states that he has been diagnosed
as "severely mentally ill, " requiring treatment
and placement in a residential treatment setting as required
by law and the agreement and order entered on September 1,
2016 in Community Legal Aid Society, Inc. v. Coupe,
Civ. No. 15-688-GMS at D.I. 38 and D.I. 40 ("Civ. No.
15-688-GMS"), a case that raised issues regarding
improvement of mental health care for inmates, improving
conditions of confinement and other aspects of restrictive
housing, and reducing the length of disciplinary sanctions
and the use of other forms of restrictive housing. Restrepo
alleges that the defendant the Delaware Department of
Correction ("DOC"), by and through its Commissioner
Perry Phelps ("Phelps"), also a defendant, violated
the law and the terms of the settlement in Civ. No.
15-688-GMS. Restrepo alleges that the defendant the
State of Delaware ("State of Delaware") allowed the
defendant the Delaware Department of Justice ("DO
J") to place him in the custody of the DOC and house him
at the defendant VCC which has been under the supervision of
the defendant VCC warden Dana Metzger ("Metzger")
for several months. Restrepo alleges that none of the named
defendants stepped up to ensure the protection of his rights,
and this has resulted in a downward mental spiral.
relies upon Civ. No. 15-688-GMS as requiring the treatment of
severely mentally ill inmates held in solitary confinement at
the VCC. He alleges that beginning February 1, 2017,
treatment was stopped for all severely mentally ill inmates,
mental health conditions exacerbated, more than six months
passed, and treatment is still non-compliant with Civ. No.
15-688-GMS order. Restrepo alleges that his lack of treatment
for an extended amount of time violates the Fifth, Eighth,
and Fourteenth Amendments of the United States Constitution,
Article Six of the United States Constitution, UCC 1-306 and
1-308, and the Vienna Convention. It is Restrepo's
position that when the State of Delaware, through the DOC,
subjects an inmate like himself to an Eighth Amendment
violation, it forfeits or loses the right to any further
confinement of Restrepo who is serving a sentence following
his conviction in Criminal Action ID No.
1002011017. (D.I. 3 at 16, 17.) Restrepo contends this
Court has jurisdiction to release him for treatment.
defendants are sued in their personal capacities. Restrepo
seeks compensatory and punitive damages, declaratory relief,
arid injunctive relief in the form of an immediate and
permanent transfer (i.e., unconditional release)
from his confinement by the State of Delaware and the DOC.
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. § l997e (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 Restrepo 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 (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; 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 Restrepo leave to amend his complaint unless
amendment would be inequitable or futile. See Grayson v.
Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).
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.
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."
as defendants are the State of Delaware, the DOC, the DOJ,
and the VCC. These defendants are immune from suit. The
Eleventh Amendment of the United States Constitution protects
an unconsenting state or state agency from a suit brought in
federal court by one of its own citizens, regardless of the
relief sought. See Seminole Tribe of Fla. v.
Florida, 517 U.S. 44, 54 (1996); Pennhurst State
Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984);
Edelman v. Jordan, 415 U.S. 651 (1974). The DOC and
DOJ are agencies of the State of Delaware, and the VCC falls
under the umbrella of the DOC. The Eleventh Amendment
protects states, their agencies, and departments from suit in
federal court regardless of the kind of relief sought.
Pennhurst State School & Hosp., 465 U.S. at 100.
"Absent a state's consent, the Eleventh Amendment
bars a civil rights suit in federal court that names the
state as a defendant." Laskaris v. Thomburgh,
661 F.2d 23, 25 (3d Cir. 1981) (citing Alabama v.
Pugh, 438 U.S. 781 (1978)). Delaware has not waived its
immunity from suit in federal court; although Congress can
abrogate a state's sovereign immunity, it did not do so
through the enactment of 42 U.S.C. § 1983. See
Brooks-McCollum v. Delaware, 213 Fed.Appx. 92, 94 (3d
Cir. 2007) (unpublished). In addition, dismissal is proper
because none of the foregoing defendants are persons for
purposes of § 1983. See Will v. Michigan Dep't
of State Police, 491 U.S. 58, 71(1989); Calhoun v.
Young, 288 Fed.Appx. 47 (3d Cir. 2008) (unpublished).
the court will dismiss all claims against the State of
Delaware, the DOC, the DOJ, and the VCC pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(iii) and § 1915A(b)(2) as they are
immune from suit.
complaint is quite lengthy, but when its facts are distilled,
it is evident that Restrepo has named Phelps and Metzger as
defendants based upon their supervisory positions. It is well
established that claims based solely on the theory of
respondeat superior or supervisor liability are facially
deficient. See Ashcroft, 556 U.S. at 676-77; see
also Solan v. Ranch, 326 Fed.Appx. 97, 100-01 (3d Cir.
2009) ("[a] defendant in a civil rights action must have
personal involvement in the alleged wrongs; liability cannot
be predicated solely on the operation of respondeat
complaint alleges that the VCC is under the supervision of
Metzger. It alleges that Phelps violated the terms of the
agreement in Civ. No. 15-688-GMS, but does not allege
Phelps' personal involvement or knowledge of
Restrepo's complaints. Finally, the complaint alleges
that Phelps and Metzger violated Restrepo's
constitutional rights by allowing "the other in command
to effect such violations" and have not "stepped
up" to ensure the upholding and protection of
Restrepo's rights. (D.I. 3 at 6.) Restrepo's claims
rest impermissibly upon a theory of supervisory liability
and, therefore, the claims against Phelps and Metzger will be
dismissed as frivolous pursuant 28 U.S.C. §
1915(e)(2)(B)(i) and § 1915A(b)(1).
complaint alleges that following the February 1, 2017 prison
siege, a faction of the DOC sought violent retaliation
against any and all inmates due to false claims that the
death of Lt. Floyd was the result of treatment that severely
mentally ill inmates received as a result of Civ. No.
15-688-GMS. Restrepo alleges that because he is a severely
mentally ill inmate, he is a perfect target for retaliation.
(D.I. 3 at 9.)
for the exercise of constitutionally protected rights is
itself a violation of rights secured by the Constitution
actionable under § 1983." White v.
Napoleon,897 F.2d 103, 111-12 (3d Cir. 1990). To state
a claim for retaliation, a prisoner must allege that: (1) he
was engaged in constitutionally protected conduct, (ii) he
suffered some adverse action at the hands of prison
officials, and (iii) "his constitutionally protected
conduct was 'a substantial or motivating ...