United States District Court, D. Delaware
ALFRED R. TERRY, Plaintiff,
DOVER POLICE DEPARTMENT, et al., Defendants.
R. Terry, Sussex Correctional Institution, Georgetown,
Delaware. Pro Se Plaintiff.
Andrews, U.S. District Judge.
Alfred Terry, a pretrial detainee at the Sussex Correctional
Institution in Georgetown, 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. 6). The Court screens and reviews
the Complaint pursuant to 28 U.S.C. § 1915(e)(2)
August 22, 2018, Plaintiff fled from police officers and hid
under a school bus. (D.I. 1 at 6). Plaintiff alleges that he
was tracked and then attacked by Defendant K-9 Reeko, who
belongs to Defendant Cpl. Figuerora. (Id.).
Plaintiff alleges that Reeko was not adequately trained and,
as a result, Reeko bit Plaintiff first in the face before
Reeko redirected his attack to Plaintiffs upper arm.
(Id.). Plaintiff alleges that unnamed officers
assisted Reeko in the arrest. (Id.). Plaintiff
alleges that he was compliant and not resisting even though
his arm was still in Reeko's mouth. (Id.).
Plaintiff alleges that after he was prone and handcuffed,
unnamed officers continued to allow Reeko to "carry on
with his use of force." (Id. at 7). Plaintiff
alleges that, at this point, he was subjected to excessive
and unreasonable force. (Id.). Plaintiff seeks
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).
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);
Eṅckson 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."
Eṅckson 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. 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. 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, 574 U.S. 10 (2014). A complaint may not
dismissed, however, for imperfect statements of the legal
theory supporting the claim asserted. See Id. at 10.
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)). 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
has named the Delaware State Police as a defendant. The
Delaware State Police is an agency of the State of Delaware.
The Eleventh Amendment protects states and their agencies and
departments from suit in federal court regardless of the kind
of relief sought. Pennhurst State School & Hosp. v.
Halderman,465 U.S. 89, 100 (1984). "Absent a
state's consent, the Eleventh Amendment bars a civil
rights suit in federal court that names the state as a
defendant." Laskaris v. Thornburgh, 661 F.2d
23, 25 (3d Cir. 1981). Delaware has not waived its immunity
from suit in federal court; although Congress can abrogate a
state's sovereign immunity, it did not do so through the
enactment of 42 U.S.C. § 1983. See Brooks v.
McCollum v. Delaware,213 Fed.Appx. 92, 94 (3d Cir.
2007). In addition, dismissal is proper ...