United States District Court, D. Delaware
WAYNE H. THOMPSON, JR., Plaintiff,
LAWRENCE MCDONALD, M.D., Defendant.
H. Thompson, Sussex Correctional Institution, Georgetown,
Delaware. Pro Se Plaintiff.
ANDREWS, U.S District Judge.
Wayne H. Thompson, Jr. an inmate at Sussex Correctional
Institution in Georgetown, Delaware, commenced this action on
May 11, 2018 raising claims under 42 U.S.C. §
1983. (D.I. 3). He appears pro se and
has been granted leave to proceed in forma pauperis.
(D.I. 5). He requests counsel. (D.I. 7). The Court reviews
and screens the Complaint pursuant to 28 U.S.C. §§
1915(e)(2)(B) and 1915A(a).
alleges that from April 2013 through November 2013 he was
sexually abused by Defendant "under the disguise of
[medical] professionalism." (D.I. 3). He seeks
compensatory damages. He also requests counsel. (D.I. 7).
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).
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
Plaintiff 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.
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 U.S. at 327-28; Wilson v.
Rackmill, 878 F.2d 772, 774 (3d Cir. 1989).
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). 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 Plaintiff 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).
Rule 12(b)(6), a motion to dismiss may be granted 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.'"
Daw's v. Abington Mem'l Hosp., 765 F.3d 236,
241 (3d Cir. 2014) (quoting Twombly, 550 U.S. at
555) In addition, 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 be dismissed, however, for
imperfect statements of the legal theory supporting the claim
asserted. See Id. at 346.
reviewing the sufficiency of a complaint, a court should
follow a three-step process: (1) consider the elements
necessary to state a claim; (2) identify allegations that are
merely conclusions and therefore are not well-pleaded factual
allegations; and (3) accept any well-pleaded factual
allegations as true and determine whether they plausibly
state a claim. See Connelly v. Lane Constr. Corp.,
809 F.3d 780, 787 (3d Cir. 2016); Williams v. BASF
Catalysts LLC, 765 F.3d 306, 315 (3d Cir. 2014).
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."
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
Complaint is time-barred. Plaintiff's claims are raised
pursuant to 42 U.S.C. § 1983. For purposes of the
statute of limitations, 42 U.S.C. § 1983 claims are
characterized as personal injury actions and are also subject
to a two year limitation period. Wilson v. Garcia,
471 U.S. 261, 275 (1983); 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 Capital Mgmt. LP., 435
F.3d 396, 400 n.14 (3d Cir. 2006); Fassett v. Delta Kappa
Epsilon,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.