United States District Court, D. Delaware
Melendez, James T. Vaughn Correctional Center, Smyrna,
Delaware. Pro Se Plaintiff.
ANDREWS, U.S District Judge.
Anibal Melendez, an inmate at the James T. Vaughn
Correctional Center in Smyrna, Delaware, filed this action
pursuant to 42 U.S.C. § 1983. (D.I. 1). Plaintiff appears
pro se and has been granted leave to proceed in
forma pauperis. (D.I. 5). The Court screened and
reviewed the amended complaint, dismissed it, and gave
Plaintiff leave to amend. (D.I. 14, 15). Plaintiff filed a
Second Amended Complaint on October 2, 2018. (D.I. 16). The
Court screens and reviews the Second Amended Complaint
pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(a).
allegations in the Second Amended Complaint are similar to
those previously raised by Plaintiff. He alleges that on May
31, 2016, Defendant Dr. Dimico, Jr., who is employed at
Christiana Hospital, performed surgery to repair a broken eye
socket and to correct Plaintiff's double vision. (D.I. 16
at 2). The surgery was performed at Christiana Care. Two
weeks later, Defendant Dr. Dimico, Sr. provided Plaintiff
follow-up care at Christiana Hospital. (Id.). Dr.
Dimico, Sr. is also employed by Christiana Hospital.
Plaintiff was x-rayed, and the x-ray revealed the
"bottom eye lid was pinched with the hardware."
Dimico, Sr. scheduled Plaintiff to see a specialist,
Defendant Dr. Harper, to see if he would perform surgery.
(Id. at 3). Plaintiff also alleges that Dr. Harper
is the medical administrator at the VCC. (Id. at 2).
Dr. Harper scheduled Plaintiff to see Defendant Dr. Abel, a
specialist employed at the Limestone Facility, to provide
appropriate medical care. (Id.). In turn, Dr. Abel
scheduled Plaintiff to see Dr. Moore, who is also employed at
the Limestone Facility, to provide appropriate medical care.
alleges that since then he has submitted repeated sick call
requests ad filed grievances to see a physician to correct
the surgery because he continues to suffer from double vision
and that his right eye hurts because his eyelashes are
growing into it. (Id.). He alleges that Defendant
Nurse Practitioner Monica is responsible for arranging for
specialized care outside of the prison and Dr. Harper is
responsible for specialized care outside the prison.
(Id. at 4). Plaintiff alleges that two years have
passed without a response from the medical department.
(Id.). Plaintiff is in great pain and believes that
he will suffer permanent eye damage if does not undergo the
alleges that the failure of Defendants to provide adequate
care, and/or corrective surgery, and/or follow-up treatment
constitutes deliberate indifference in violation of
Plaintiff's Eighth Amendment rights to the United States
Constitution. (Id. at 4-5). Plaintiff seeks
compensatory 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). 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. Tourscherv.
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. See Ashcroft 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 dismissed, however, for imperfect
statements of the legal theory supporting the claim asserted.
See Id. at 346.
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) 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 Constr. 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)). ...