United States District Court, D. Delaware
Melissa Garcia, Elkton, Maryland, Pro Se Plaintiff.
U.S. District Judge
April Melissa Garcia ('Plaintiff *) filed this action on
November 19, 2018, alleging patent infringement. (D.I. 2) She
proceeds pro se and has been granted leave to
proceed in forma pauperis. (D.I. 4) She also
requests counsel. (D.I. 7) The Court proceeds to review and
screen the Complaint pursuant to 28 U.S.C. § 1915(e)(2).
alleges that the Remington "Epilator" electric
tweezer is her invention. She saw her invention on the shelf
at Bed Bath & Beyond "under Remington." (D.I. 2
at 4) Plaintiff alleges that she passed a lie detector test
saying she is the inventor and was made aware of several
brands having an electric tweezer under the name
"epilator." (Id.) For relief Plaintiff
wants "to prosecute to the full extent of the law."
federal court may properly dismiss an action sua
sponte under the screening provisions of 28 U.S.C.
§ 1915(e)(2)(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. Eamiglio, 126
F.3d 448, 452 (3d Or. 2013); see also 28 U.S.C.
§ 1915(e)(2) (in forma pauperis actions). 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 Phi/Zips 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, her pleading is
liberally construed and her 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).
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)®, a court may dismiss a complaint as
frivolous if it is "based on an indisputably meridess
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 Or. 1989).
legal standard for dismissing a complaint for failure to
state a claim pursuant to § 1915(e)(2)(B)(u) 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 may
be granted pursuant to the screening provisions of 28 U.S.C.
§ 1915, the Court must grant a plaintiff leave to amend
her complaint unless amendment would be inequitable or
futile. See Grayson v. Mqyview State Hosp., 293 F.3d
103, 114 (3d Cir. 2002).
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 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, ___ U.S. ___, 135 S.Ct. 346, 347 (2014). A
complaint may not be dismissed for imperfect statements of
the legal theory supporting the claim asserted. See Id
. at 346.
the pleading regime established by Twombly and
Iqbal, 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) when there are well-pleaded factual allegations, the
court should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief. See
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. See Iqbal, 556 U.S. at 679
(citing 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
the Local Rules of this Court when a case involves a patent,
"copies of the patents at issue shall be attached and
filed with the complaint." D. Del. LR 3.2. Plaintiff did
not comply with this rule. In addition, in cases involving
patents and trademarks, a plaintiff shall complete form
AO-120, Report on the Filing or Determination of an Action
Regarding a Patent or Trademark, and include it with the case
initiating document. See e.g.. Electronic Filing
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