United States District Court, D. Delaware
plaintiff DeShawn Drumgo ("Drumgo"), a former
inmate at the James T. Vaughn Correctional Center
("VCC") in Smyrna, Delaware, now housed at SCI Coal
Township in Coal Township, Pennsylvania, filed this lawsuit
pursuant to 42 U.S.C. § 1983. He proceeds pro
se and has been granted leave to proceed in forma
pauperis. (See D.I. 12.) On May 9, 2017, the case was
closed upon Drumgo's motion to withdraw the complaint.
(See D.I. 18, 19.) Drumgo filed a motion to reopen
the case, granted by the court on November 17, 2017. (D.I.
25, 26.) The original complaint (D.I. 2) and its amendment
(D.I. 7), together, consist of the operative pleading.
(See D.I. 25.) The court now proceeds to review and
screen the complaint pursuant to 28 U.S.C. § 1915(e)(2)
and § 1915A(a).
raises claims relating to the February 2017 prison siege at
the VCC. Also named as plaintiffs are "One Hundred and
Fifteen Men & Witnesses." Drumgo was housed in
C-Building where the eighteen-hour siege took place. He
alleges that in 2016 he was classified to medium security and
wrongfully housed in C-Building. Drumgo alleges that
inadequate staffing or lack of proper staffing caused him to
be taken hostage, the VCC failed to protect him, and it
deprived him of due process because of a situation it failed
alleges he was laying face down with two other inmates
waiting to be rescued, and instead, John Doe officers rushed
the cell, stepped on his head and back and punched him.
Drumgo alleges that zip ties were placed on him very tightly
and when he stated he was not resisting he was punched in the
left side of his face and his glasses were broken. During
this time, his sneakers were taken. He was taken from the
cell and dragged and beaten from B-tier all the way to the
yard. He alleges he was punched, choked, and pepper sprayed.
He alleges that he suffered a brutal beating while zip tied
and the beating was given by the hands of the Delaware State
Police, Maryland Police, and Delaware Department of
Correction ("DOC") officers, other John Does, and
VCC officers Beale, Mitchell, and Marvel.
was walked to medical, barefoot, and wearing only
undergarments in 30 degree weather. He was seen by a nurse
and alleges that he "received no treatment." At the
time the Drumgo filed the complaint, he sought an immediate
injunction to obtain treatment for his injuries. However, the
request is moot, given that Drumgo is no longer housed at the
VCC. He also alleges that as a result of the siege he suffers
from nightmares and flashbacks and sought mental health
treatment, to no avail.
alleges that following the siege he was subjected to
unconstitutional conditions of confinement for nine days. The
conditions included deprivation of clothing, sheets,
blankets, and the basic necessities of life. He submitted
grievances to no avail. He alleges that his legal work was
taken, and he was told it was "intentionally
destroyed" along with other inmates' property. He
also alleges his personal property was taken including
photos, shower shoes, and soap.
alleges that the defendant Delaware Governor John Carney
("Carney") is responsible for: the denial of due
process; excessive force; deliberate indifference to
Drumgo's medical needs; failure to protect after invoking
security; destroying and/or depriving Drumgo of his
litigation, legal papers, and personal property; failing to
protect Drumgo from becoming a hostage held for 18 hours; not
protecting Drumgo from the beating by underlings and
authorities; not making sure he received adequate medical
care; and having Drumgo housed in "medium high"
housing when he has been classified to medium since March
alleges that the defendant Deputy Warden Parker
("Parker") is responsible for placing him in the
"war zone" when he was housed in maximum security
with no write-up, no charge, and no due process.
March 7, 2017, Drumgo amended his complaint by seeking an
emergency injunction to "restrain" continued
punishment. (D.I. 7.) Drumgo alleges violations of his right
to due process complains because he was housed for over a
month in SHU, the same as solitary confinement. He complains
that he spent 23 hours per day locked in a cell with no
radio, television, headphones, legal work sneakers, or shower
shoes. He was required to eat in his cell and was not allowed
to go to school, private mental health meetings, or
accumulate good time credits. He complains of nerve damage in
his hands, pain in his ears, and headaches resulting from the
beating he received during the prison siege.
complains that he was interviewed by an Internal Affairs
Officer and two homicide detectives and when he would not
talk to them, a corrections officer left him in an interview
room for an hour. Drumgo alleges this made it look like he
was a snitch because everyone else returned in five to ten
minutes and this placed his life and safety at risk. Finally,
Drumgo complains that he no longer has his usual contact
seeks compensatory damages and injunctive relief including
the return of his legal work and personal property.
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
Drumgo proceeds pro se, his pleading is liberally
construed and his complaint, "however in artfully
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 merciless 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, 61 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 Drumgo 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."