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Weikel v. Vourus

United States District Court, D. Delaware

August 14, 2018

ALLEN WEIKEL, Plaintiff,
v.
JESSICA VOROUS, et al., Defendants.

          Allen Weikel, Sussex Correctional Institution, Georgetown, Delaware, Pro Se Plaintiff.

          MEMORANDUM OPINION

          STARK, U.S. DISTRICT JUDGE.

         I. INTRODUCTION

         Plaintiff 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.[1] (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).

         II. BACKGROUND

         Following 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.

         Vorous 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.

         Plaintiff 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 of Parole.

         The 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 counsel.

         III. LEGAL STANDARDS

         A 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 omitted).

         An 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 back).

         The 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 Cir. 2002).

         A 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 ...


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