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Terry v. Dover Police Department

United States District Court, D. Delaware

November 7, 2019

ALFRED R. TERRY, Plaintiff,
v.
DOVER POLICE DEPARTMENT, et al., Defendants.

          Alfred R. Terry, Sussex Correctional Institution, Georgetown, Delaware. Pro Se Plaintiff.

          MEMORANDUM OPINION

          Andrews, U.S. District Judge.

         Plaintiff Alfred Terry, a pretrial detainee at the Sussex Correctional Institution in Georgetown, Delaware, filed this action pursuant to 42 U.S.C. § 1983.[1] (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) and§1915A(a).

         BACKGROUND

         On 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 compensatory damages.

         SCREENING OF COMPLAINT

         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 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.

         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; Wilson v. Rackmill, 878 F.2d 772, 774 (3d Cir. 1989).

         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 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 Cir. 2002).

         A 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.

         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, 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 sense." Id.

         DISCUSSION

         Eleventh Amendment Immunity.

         Plaintiff 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 ...


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