United States District Court, D. Delaware
Scott O'Neal, Sussex Correctional Institution,
Georgetown, Delaware. Pro Se Plaintiff.
ANDREWS, U.S. District Judge
Wayne Scott O'Neal, an inmate at the Sussex Correctional
Institution ("SCI") in Georgetown, Delaware, filed
this action pursuant to 42 U.S.C. § 1983. (D.I. 3).
Plaintiff appears pro se and has been granted leave
to proceed in forma pauperis. (D.I. 4). The Court
proceeds to screen the Complaint pursuant to 28 U.S.C. §
1915(e)(2)(B) and §1915A(a).
suffered a shoulder injury while exercising in June 2019. He
has received some treatment and care but not an MRI or CAT
scan even though he was told they are needed. The tests were
not ordered because Defendant Dr. Sheri L McAfee-Garner has
"a protocol to meet." (D.I. 3 at 6). Plaintiff also
alleges that physical therapy was ordered but he has yet to
see a physical therapist. Finally, Plaintiff alleges that
surgery is required.
availed himself of the prison grievance system, but indicates
in the Complaint that at the time he commenced the action the
grievance process was not completed. (Id. at 8).
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);
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, 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 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. 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
the Prison Litigation Reform Act of 1996, a prisoner must
pursue all available avenues for relief through the
prison's grievance system before bringing a federal civil
rights action. See 42 U.S.C. § 1997e(a);
Booth v. Churner,532 U.S. 731, 741 n.6 (2001)
("[A]n inmate must exhaust irrespective of the forms of
relief sought and offered through administrative
avenues."). Section 1997(e) provides, "No action
shall be brought with respect to prison conditions under
section 1983 of the Revised Statutes of the United States, or
any other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such
administrative remedies as are available are exhausted."
42 U.S.C. § 1997(e). The exhaustion requirement is
mandatory. Williamsv. Beard,482 F.3d 637,
639 (3d Cir. 2007); Booth, 532 U.S. at 742 (holding
that the exhaustion requirement of the PLRA applies to
grievance procedures "regardless of the relief offered
through administrative procedures"). The ...