United States District Court, D. Delaware
plaintiff, Kendall Maurice Smith, III ("Smith"), an
inmate at the James T. Vaughn Correctional Center
("VCC") in Smyrna, Delaware, filed this lawsuit
pursuant to 42 U.S.C. § 1983 alleging violations of his
constitutional rights. (D.I. 3, 11.) He appears pro
se and was granted permission to proceed in
forma pauperis pursuant to 28 U.S.C. § 1915. He has
also filed a request for counsel. (D.I. 8.)
alleges that he suffered for a number of years from an
extreme delay and denial of medical care. He explains that in
2013, he was seen by an optometrist who examined him. Smith
was later given a pair of prescription eyeglasses. However,
the new glasses did not correct his vision, and he was not
able to see properly. Smith complained to the nurse who urged
him to wait to allow his eyes to adjust to the new
eyeglasses. He waited, but his eyes did not adjust.
submitted a sick call slip and was seen by a nurse in August
2014 who tested and examined Smith. The nurse indicated that
Smith should again see an optometrist so that he could be
properly prescribed a new pair of eyeglasses. Smith submitted
a sick call slip on March 29, 2016, and was seen by a nurse.
Smith alleges that it was not until June 14, 2016, when he
was finally seen by an optometrist and provided new
eyeglasses a few weeks later.
August 2014 and June 2016, Smith submitted the following
grievances complaining about the optometrist/eyeglasses
Grievance 290794, submitted September 13,
2014, was investigated by Deborah Snow ("Snow") who
requested an optometric evaluation for Smith. Smith did not
sign off on the grievance because his requests remained
Grievance 321826, submitted November 2,
2015, raised the same eyeglasses and optometrist issues.
Investigator Lisa Ulsh ("Ulsh") who requested that
Smith be seen for vision testing. On December 9, 2015, the
matter was heard by grievance committee members Katrina
Burley ("Burley"), Stacie Collins-Young
("Collins-Young"), Penny Davis-Wipf
("Davis-Wipf), and Adina Negoita ("Negoita").
The committee denied the grievance on the grounds that Smith
had not submitted a sick call slip. Plaintiff did not appeal.
Grievance 334538, submitted April 10, 2016,
complaining that Grievance 321826 was denied in error and
asking that it be granted, that he had been charged a $4.00
medical fee and that he had yet to see an optometrist or
receive newly prescribed eyeglasses. Ulsh investigated the
matter, but the grievance remained unresolved. The grievance
committee, consisting of Laura Brackett
("Brackett"), Burley, Collins-Young and Davis-Wipf
heard the matter on May 6, 2016, but they did not grant
Smith's request for an optometric evaluation and new
eyeglasses. Smith appealed. Grievance 334538 was upheld on
the fee charge and denied on all other issues.
alleges that the defendants former Delaware Department of
Correction ("DOC") Commissioner Robert Coupe
("Coupe"), DOC Correctional Healthcare Services
Bureau Chief Marc Richman ("Richman"), John/Jane
Doe medical director ("Director Doe"), and
John/Jane Does Grievance Committee members and investigators
are either directly or indirectly responsible for the more
than two-year delay and denial of medical treatment, and are
responsible for further damage to Smith's vision and
caused mental discomfort. He seeks compensatory and punitive
damages, as well as injunctive relief.
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 Smith 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