United States District Court, D. Delaware
DONALD J. SIMMONS, Plaintiff,
WARDEN DAVID PIERCE, et al., Defendants.
Donald J. Simmons, an inmate at the James T. Vaughn
Correctional Center in Smyrna, Delaware, filed this action
pursuant to 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) The Court screens and reviews the
Complaint pursuant to 28 U.S.C. § 1915(e)(2) and §
filed this action alleging the medical system at the Delaware
Department of Correction ("DOC") does not provide
proper medical care. He complains of lack of treatment for a
shoulder condition. (D.I. 3 at ¶ 15) The Complaint
states that Plaintiff was seen by a nurse on April 17, 2015,
treated, and informed he would be seen by a provider. Later
he consulted with a physician about test results. Plaintiff
states there has been much correspondence concerning the
failure to provide medication and other issues concerning
shoulder problems. (Id. at ¶ 11).
Plaintiff alleges that when he saw a surgeon in February
2016, the surgeon informed Plaintiff that he should have been
seen nine months earlier, at the time of his initial
complaints. (Id.) Plaintiff alleges there has a
constant failure to comply with medical needs ordered by
specialists, including physical therapy, medications, and
follow-up care. (Id.) Plaintiff submitted a
grievance in June 2016 seeking physical therapy, only to be
told by medical staff on August 10, 2016, that he will
receive physical therapy. (Id.) To date, there has
been no physical therapy. Plaintiff complains that he suffers
from constant pain and other discomforts. (Id.)
Plaintiff alleges Defendants have a policy and custom in
place based on saving money rather than treating him. He
seeks punitive damages and injunctive relief.
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 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 (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 U.S. at 327-28; Wilson v.
Rackmill, 878 F.2d 772, 774 (3dCir. 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
well-pleaded complaint must contain more than mere labels and
conclusions. SeeAshcroft 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 be dismissed, however, for imperfect
statements of the legal theory supporting the claim asserted.
See Id. at 346.
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) assume the veracity of
any well-pleaded factual allegations and then determine
whether those allegations 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), when there are
well-pleaded factual allegations, 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). 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."
Statute of Limitations.
Complaint alleges unconstitutional acts occurred from April
17, 2015 through December 17, 2016. The Complaint is dated
May 29, 2018, and was received for filing on June 5, 2018.
For purposes of the statute of limitations, § 1983
claims are characterized as personal injury actions.
Wilson v. Garcia, 471 U.S. 261, 275 (1983). In
Delaware, § 1983 claims are subject to a two-year
limitations period. 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).
"Although the statute of limitations is an affirmative
defense, sua sponte dismissal is appropriate when
'the defense is obvious from the face of the complaint
and no further factual record is required to be
developed.'" Daw's v. Gauby, 408
Fed.Appx. 524, 526 (3d Cir. 2010) (quoting Fogle v.