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Fatir v. Phelps

United States District Court, D. Delaware

May 17, 2019

AMIR FATIR, et al., Plaintiffs,
v.
COMMISSIONER PERRY PHELPS, et al., Defendants.

          Amir Fatir, Daniel Rivera, Ramazan Sahin, Brenton Smith, Jacquell Coverdale, Kenneth Yarborough, Donald Clark, Jermaine D. Laster, Deronta Person, and Robert W. Johnson, Jr., James T. Vaughn Correctional Center, Smyrna, Delaware; Malachai DeBruce, New Castle, Delaware; Antonio R. Bailey, Howard R. Young Correctional Center, Wilmington, Delaware; Colin Simms, Smyrna, Delaware; and Arthur Stratton, Magnolia, Delaware. Pro Se Plaintiffs.

          MEMORANDUM OPINION

          CONNOLLY, U.S. DISTRICT JUDGE

         I. INTRODUCTION

         Plaintiffs were convicted and sentenced inmates housed at the James T. Vaughn Correctional Center ("VCC") in Smyrna, Delaware, [1] when they filed the Complaint as a civil rights action pursuant to 42 U.S.C. § 1983[2] and a qui tarn False Claims Act action pursuant to 18 U.S.C. §§ 286-287 and 31 U.S.C. §§ 3729-3733.[3] (D.I. 1) Plaintiffs appear pro se and have been granted leave to proceed in forma pauperis.[4] (D.I. 50) The Court proceeds to review and screen the matter pursuant to 28 U.S.C. § 1915(e)(2)(b) and § 1915A(a).

         II. BACKGROUND

         On March 1, 2018, at 10:25 a.m., VCC correctional officers raided the VCC B-Annex Unit, Dorms 2 and 3, and ordered the inmates to dress and leave the dorms. (D.I. 1 at 6, ¶ V.) Plaintiffs allege that Defendants Chick ("Chick"), [5] correctional officers Enck ("Enck")[6] and Jester ("Jester"), and female officers Lieutenant Tilghman ("Tilghman") and Sergeant Everett ("Everett") ushered the inmates into the hall and ordered them to form a single file line against one of the walls. (Id. at 7, ¶ V.) Plaintiffs allege that Tilghman and Everett went to a desk at the end of the hall and began monitoring a computer screen; Enck and Jester went to a room at the opposite end of the hall, Enck entered the room; and Jester stood at the door's entrance while Chick remained in the hall and stood between Tilghman and Everett and Enck and Jester. (Id.) Plaintiffs allege that Tilghman was the superior officer of Enck and Jester and the person who controlled the strip search operation. (Id. at ¶ V.6)

         Plaintiffs allege they were called into the room, one at a time. (Id. ¶ V.1.) There, Enck "caused each [P]laintiff to strip and expose their genitals and buttocks while handing [] Jester articles of [] [P]laintiff s clothing for inspection." (Id. at ¶ V.2.) When Plaintiffs entered the room they told Enck and Jester there was a live camera feed that made it possible for viewing by other Department of Correction ("DOC") staff. (Id. at ¶ V.3.) Defendants acknowledged the camera and ordered Plaintiffs to continue stripping. (Id.) Plaintiffs allege that "[w]hile 50 men were stripped naked before live camera feeds, which were also recorded," Defendants James P. Satterfield ("Satterfield")[7] and Lt. Barlow ("Barlow"), both male, watched the men on computer screens in Satterfield's office and secondary control where Barlow worked. (Id. at ¶ 4 at Ill) Plaintiffs alleges the entire strip search lasted approximately two hours for both dorms. (Id. at¶¶ III; V.3.)

         After the search, Plaintiffs were allowed to dress and were ushered to the common dining area located across the hall from the area where Plaintiffs had been searched. (Id. at ¶ V.5.) Plaintiffs spoke to Tilghman regarding the strip search, asked why she had ordered it and allowed them to be stripped naked in front of a camera, and told her they wished to exercise their rights to call the Prison Rape Elimination Act ("PREA")[8] hotline and report they were victims of sexual abuse. (Id. at ¶¶ V.6., 7., 9.) Tilghman responded that they did not have to because the information had already been reported and all that would happen is that Plaintiffs would be sent to mental health. (Id. at ¶ V.10.) Tilghman told Plaintiffs it was their right to speak to an outside PREA advocate, she left the area, and returned to tell Plaintiffs she had contacted Shift Commander Satterfield. (Id. at ¶ V.13.) Tilghman instructed Plaintiffs "not to contact the PREA hotline because 'the matter is already being handled.'" (Id.)

         Plaintiffs contacted the PREA hotline and "believed they were contacting an 'outside PREA advocate' unassociated with the DOC." (Id. at ¶ V.16.) Plaintiffs allege they encountered Defendant Guard No. 1 Jane Doe ("Doe"), a hostile DOC employee, who initially ordered Plaintiffs to call individually and, after two calls, advised Plaintiffs if they continued to call she would not be able to write any reports because she needed at least 15 minutes to write each report. (Id.) Plaintiffs allege that Doe refused to provide her name and would not state whether she was affiliated with the DOC as an employee. (Id. at ¶ V.17.) After Plaintiffs made their PREA reports, they were taken to the medical unit for a two minute interview with nurses and a mental health staff member employed by Connections ("Connections"), the DOC medical contract provider. (Id. at ¶ V.18.) Plaintiffs allege a Connections' mental health staff member confirmed that Doe is a DOC employee. (Id. at ¶ V.2O.) Plaintiffs filed grievances regarding the matter and allege the DOC ignored them. (Id. at ¶ V.21.)

         Plaintiffs allege that PREA, 34 U.S.C. § 30302(8), "calls for federal expenditures via grants provided to the states and dispensed through the State Attorneys Generals" and requires that Defendants meet "specific protocols and standards," found at 28 C.F.R. Part 115, and audits conducted "to assure the monies allocated are spent according to the terms of the Act." (Id. at 4 at ¶ III.) Plaintiffs allege that Defendants "systematically and deliberately syphoned off [] PREA funding, failed to enact PREA's protocols, falsified documents and stole [] federal funds to use them for personal or other intended use." (Id.)

         All Plaintiffs seek compensatory and punitive damages. (Id. at 19-20 at ¶ VII.) Plaintiffs Amir Fatir ("Fatir") and DeBruce seek 25 percent of the qui tam action or settlement of the False Claims Act civil claim. (Id. at 20 at ¶ VII.)

         III. LEGAL STANDARDS

         A 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 Clr. 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. See Phillips v. County of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008); Erickson v. Pardus, 551 U.S. 89, 93 (2007). Because Plaintiffs proceed pro se, their pleading is liberally construed and their 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)(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; see also Wilson v. Rackmill, 878 F.2d 772, 774 (3d Cir. 1989); Deutsch v. United States, 67 F.3d 1080, 1091-92 (3d Cir. 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 Tourscher v. 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 can 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 v. 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. Abington Mem'l Hosp., 765 F.3d 236, 241 (3d Cir. 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 substantive plausibility. See Johnson v. City of Shelby, 574 U.S. 10 (2014). A complaint may not be dismissed for imperfect statements of the legal theory supporting the claim asserted. See id. at 10.

         A 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). 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." Id.

         IV. DISCUSSION

         A. False Claims Act

         Plaintiffs allege that Defendants Perry Phelps ("Phelps"), Dana Metzger ("Metzger"), Jane Brady ("Brady"), Robert Coupe ("Coupe"), Carl Danberg ("Danberg") Steven Wesley ("Wesley"), Lt. Sennett ("Sennett"), Terrell Taylor ("Taylor"), Christopher Cessna ("Cessna"), Bruce Burton ("Burton"), Philip Parker ("Parker"), Deputy Warden Scarborough ("Scarborough"), Senato ("Senato"), [9] Michael S. Jackson ("Jackson"), Joyce Talley ("Talley"), and Mike Deloy ("Deloy") failed to comply with various provisions of PREA, 28 C.F.R. §§ 115.31, 115.32, 115.33, 115.51, 115.53, and 115.93 and, in doing so, fraudulently claimed the monies available from the United States government and used the money for illegal and fraudulent purposes, all in violation of the False Claims Act. (See D.I. 1 at Counts 1, 2, 3, 4, 5, 21)

         Fatir and DeBruce seek statutory proceeds of the qui tarn action or settlement of the claim under 31 U.S.C. § 3730(d)(1). This section of the False Claims Act provides:

(d) Award to qui tarn plaintiff.-(1) If the Government proceeds with an action brought by a person under subsection (b), such person shall, subject to the second sentence of this paragraph, receive at least 15 percent but not more than 25 percent of the proceeds of the action or settlement of the claim, depending upon the extent to which the person substantially contributed to the prosecution of the action. Where the action is one which the court finds to be based primarily on disclosures of specific information (other than information provided by the person bringing the action) relating to allegations or transactions in a criminal, civil, or administrative hearing, in a congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation, or from the news media, the court may award such sums as it considers appropriate, but in no case more than 10 percent of the proceeds, taking into account the significance of the information and the role of the person bringing the action in advancing the case to litigation. Any payment to a person under the first or second sentence of this paragraph shall be made from the proceeds. Any such person shall also receive an amount for reasonable expenses which the court finds to have been necessarily incurred, plus reasonable attorneys' fees and costs. All such expenses, fees, and costs shall be awarded against the defendant.

31 U.S.C. § 3730(d)(1).

         Section 3730(b) permits an individual to bring a suit on behalf of the United States based on violations of 31 U.S.C. § 3729, which enumerates seven separate ways of making a false claim. The Complaint does not indicate under which of the seven subsections Plaintiffs proceed. See 31 U.S.C. § 3729(a)(1).

         As noted, the False Claims Act provides that a private individual, known as a relator, "may bring a civil action for a violation of section 3729 for the person and for the United States Government... in the name of the Government." 31 U.S.C.§ 3730(b)(1). "[A]lthough qui tarn actions allow individual citizens to initiate enforcement against wrongdoers who cause injury to the public at large, the Government remains the real party in interest in any such action." Minotti v. Lensink, 895 F.2d 100, 104 (2d Cir. 1990). The qui tarn relator stands in the shoes of the government and is not acting on his own behalf. See Stoner v. Santa Clara Cty. Office of Educ, 502 F.3d 1116, 1126 (9th Cir. 2007). Plaintiffs are not qualified to represent the interests of the United States given that they proceed pro se and none are licensed attorneys. See United States ex rel. Gunn v. Shelton, 2013 WL 5980633, *2 (D. Del. Nov. 12, 2013).

         Fatir and DeBruce, as relators, may not proceed pro se as a matter of law. See Id. Therefore, Counts 1, 2, 3, 4, 5, and 21 will be dismissed as legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and § 1915A(b)(1).

         B. Prison Rape Elimination Act

         Plaintiffs attempt to assert PREA claims based upon their dissatisfaction with prison officials' handling of their PREA complaints. (See D.I. 1 at Counts 1, 2, 3, 4, 5, 13, 14, 15, 16, 17, 18, and 21) In Counts 1 through 5 and 21, Plaintiffs allege that Defendants failed to comply with PREA through their actions and/or inactions. In Counts 13 through 18, Plaintiffs invoke the First, Fourth, Fifth, Sixth, and Fourteenth Amendments and allege constitutional violations in a conclusory manner while at the same time they allege the failure of prison officials comply with PREA.

         PREA does not provide a private right of action and, therefore, Plaintiffs are prohibited from asserting a claim pursuant to PREA. See Gonzaga Univ. v. Doe,536 U.S. 273, 283-85 (2002); Bowens v. Employees of the Dep't of Com, 2015 WL 803101, at *1 n.1 (E.D. Pa. Feb. 26, 2015); Washington v. Folino, 2013 WL 998013, at *4 (W.D. Pa. Feb. 28, 2013) (violations of PREA do not create a private cause of action); see also Henry v. CO #2 ...


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