United States District Court, D. Delaware
Weikel, Sussex Correctional Institution, Georgetown,
Delaware, Pro Se Plaintiff.
U.S. DISTRICT JUDGE.
Allen Weikel ("Plaintiff), an inmate at the Sussex
Correctional Institution in Georgetown, Delaware, filed this
action in October 2017. The letter/complaint was opened as a
case involving claims under 42 U.S.C. §
1983. (D.I. 1) Plaintiff appears pro se
and has been granted leave to proceed in forma
pauperis. (D.I. 8) The case was closed on February 1,
2017, after Plaintiff failed to file a payment authorization
form required by the Court. (D.I. 9) It was reopened upon
Plaintiffs motion on March 9, 2018. (D.I. 12) The Court
proceeds to review and screen the Complaint pursuant to 28
U.S.C. § 1915(e)(2)(b) and § 1915A(a).
a jury trial in 1986, Plaintiff was convicted of rape in the
first degree and assault and sentenced to life imprisonment.
See Weikel v. State, 1988 WL 5726, 538 A.2d 1114
(Del. 1988) (table). At some point he was released on parole.
In January 2015, an investigation was opened by the
Department of Family Services ("DFS") after it was
reported that Plaintiffs minor nieces were living with him.
The Complaint states that during the investigation,
Plaintiffs parole officer, Defendant Jessica Vorous
("Vorous"), was notified and asked to provide
Plaintiffs conditions of parole. Plaintiff alleges that
Vorous was biased against him because Vorous told the senior
citizen for whom Plaintiff was providing care that Vorous had
a duty to keep all sex offenders behind bars.
was notified that the DFS investigation case was dropped.
Plaintiff alleges that Vorous did not believe DFS, him, or
his family that the case was dropped. Plaintiff alleges that
he was then forced to take, and pay for, a polygraph test.
The polygraph test was administered on January 29, 2015.
Plaintiff states that he answered all questions honestly. He
alleges that once the test was finished, "the guy"
who administered the test was doing something to manipulate
the program. Plaintiff was told there was a problem with one
of the questions and was again asked the question, "have
you live[d] with a minor since your release?" Plaintiff
was allowed to go home. A few hours later, Vorous arrived
with her partner and transported him to "Smyrna
Prison" for violating his terms of parole. Plaintiff
alleges that Vorous and her partner "degraded" him
for a crime that happened 32 years ago.
contacted the Public Defender's office. He alleges that
he was denied counsel. Three months later (approximately May
2015), Plaintiff appeared before Defendant Delaware Board of
Parole ("Board of Parole"). Plaintiff and Vorous
provided testimony at the hearing. Plaintiff alleges that
Vorous lied at the hearing. Plaintiff alleges that if a
lawyer had represented him at the hearing, the attorney could
have provided evidence to prove that Vorous lied to the Board
Board of Parole voted to find that Plaintiff violated the
terms of his parole. Plaintiff alleges that the Board of
Parole abused its discretion. Plaintiff was given "a
five year hit before [he] can come back and try to get out
again." Plaintiff was placed at Level 5. He contends he
should have been placed at Level 4. Plaintiff alleges
violations of the Fifth and Sixth Amendments and denial of
federal court may properly dismiss an action stia
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) (infoma
pauperis actions); 28 U.S.C. § 1915A (actions in
which prisoner seeks redress from 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 2. pro se plaintiff. See
Phillips v. County of Allegheny, 515 F.3d 224, 229 (3d
Or. 2008); Erickson v. Pardtis, 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, 551 U.S. at 94 (citations
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)® 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 Or. 1989);
Deutscb v. United States, 67 F.3d 1080, 1091-92 (3d
Or. 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 Tourscherp.
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 his complaint
unless amendment would be inequitable or futile. See
Grayson p. 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. Abingon
Mem'l Hosp.,765 F.3d 236, 241 (3d Or. 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 ...