Dickens v. Comm. Carl Danberg

KEVIN L. DICKENS, Plaintiff,

v.COMM. CARL DANBERG, et al., Defendants.

Civ. No. 10-786-LPS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

Date: June 8, 2012

Kevin L. Dickens, James T. Vaughn Correctional Center, Smyrna, Delaware, Pro Se Plaintiff.

MEMORANDUM OPINION

June 8, 2012

Wilmington, Delaware

STARK, U.S. District Judge:

I. INTRODUCTION

Plaintiff Kevin L. Dickens ("Plaintiff"), filed this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights.¹ Plaintiff is an inmate housed at the James T. Vaughn Correctional Center "(VCC") in Smyrna, Delaware. He appears pro se and has been granted leave to proceed in forma pauperis. (D.I. 13) The Court proceeds to review and screen the Complaint pursuant to 28 U.S.C. § 1915 and § 1915A.²

II. BACKGROUND

Plaintiff raises numerous claims including excessive force, failure to protect or intervene, medical needs, retaliation,³ conspiracy, and deprivation of property for alleged acts occurring from May 6, 2008 through May 10, 2010. He seeks compensatory and punitive damages as well as injunctive relief.

III. LEGAL STANDARDS

This Court must dismiss, at the earliest practicable time, certain in forma pauperis and prisoner actions that are frivolous, malicious, fail to state a claim, or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2) (in forma pauperis actions); 28 U.S.C. § 1915A (actions in which prisoner seeks redress from 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 Erickson v. Pardus, 551 U.S. 89, 93 (2007); Phillips v. County of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008). 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, 551 U.S. at 94 (internal quotation marks 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)(l), 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 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 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)(l) is identical to the legal standard used when ruling on Rule 12(b)(6) motions. See 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, 129 S.Ct. 1937 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). The assumption of truth is inapplicable to legal conclusions or to "[t]hreadbare recitals of the elements of a cause of action supported by mere conclusory statements." Iqbal, 129 S.Ct. at 1949. When determining whether dismissal is appropriate, the Court conducts a two-part analysis. See Fowler v. UPMC Shady side, 578 F.3d 203, 210 (3d Cir. 2009). First, the factual and legal elements of a claim are separated. Id. The Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Id. at 210-11. Second, the Court must determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "plausible claim for relief." Id. at 211. In other words, the complaint must do more than allege the plaintiffs entitlement to relief; rather, it must "show" such an entitlement with its facts. Id. A claim is facially plausible when its factual content allows the Court to draw a reasonable inference that the defendant is liable for the misconduct alleged. See Iqbal, 129 S.Ct. at 1949. The plausibility standard "asks for more than a sheer possibility that a defendant has acted unlawfully." Id. "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of 'entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 570).

IV. DISCUSSION

A. Statute of Limitations

Paragraphs 1, 2, 3, and 4 raise claims that occurred on May 6 and 11, 2008 and in July and August 2008. These claims are time-barred.

For purposes of the statute of limitations, § 1983 claims are characterized as personal injury actions. See Wilson v. Garcia, 471 U.S. 261, 275 (1983). Hence, in Delaware, § 1983 claims are subject to a two-year limitations period. See 10 Del. C. § 8119; Johnson v. Cullen, 925 F.Supp. 244, 248 (D. Del. 1996). Section 1983 claims accrue "when plaintiff knows or has reason to know of the injury that forms the basis of his or her cause of action." Id. Claims not filed within the two-year statute of limitations period are time-barred and must be dismissed. See Campanello v. Port Auth. of New York & New Jersey, 590 F. Supp. 2d 694, 700 (D.N.J. 2008).

The statute of limitations is an affirmative defense that generally must be raised by the defendant, and it is waived if not properly raised. See Benak ex rel. Alliance Premier Growth Fundv. Alliance Capital Mgmt. L.P., 435 F.3d 396, 400 n.14 (3d Cir. 2006); Fassett v. Delta Kappa Epsilon, 807 F.2d 1150, 1167 (3d Cir. 1986). However, when the statute of limitations defense is obvious from the face of the complaint and no development of the factual record is required to determine whether dismissal is appropriate, sua sponte dismissal under 28 U.S.C. § 1915 is permissible. See Smith v. Delaware Cnty. Court, 260 F. App'x 454, 455 (3d Cir. Jan. 10, 2008) (not published).

Plaintiffs Complaint was signed on September 12, 2010, and is postmarked September 15, 2010.⁴ In paragraphs 1 through 4, the Complaint raises claims for actions that took place on May 6 and 11, 2008, and in July and August 2008. With regard to these claims, Plaintiff filed his Complaint after the expiration of the two-year limitations period. Thus, it is evident from the face of the Complaint that the claims pled in paragraphs 1, 2, 3, and 4 are barred by the two-year limitations period. Therefore, the Court will dismiss these claims as time-barred pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(l).

B. Personal Involvement/Respondeat Superior

Plaintiff raises claims against certain defendants based upon their supervisory positions, for allegedly implementing unconstitutional policies and enforcing them. Plaintiff alleges that he spoke to Warden Perry Phelps ("Phelps") about a September 2008 beating by Sgt. Beckles ("Beckles"), and Phelps told Plaintiff "to be patient." (D.I. 2 at 6) Plaintiff alleges that instead of ordering an investigation, Phelps and Deputy Warden Pierce ("Pierce") gave Beckles a "slap on the wrist" by removing Beckles as the building sergeant.⁵

Plaintiff alleges that there is a "get Dickens" policy and that Phelps, two majors, and all of the captains and lieutenants were notified that, as part of the policy, Plaintiff could not dictateprison policy or who cuffed him and to assemble a Quick Response Team ("QRT") to assault Plaintiff when he refused to allow a particular guard to handcuff him. (D.I. 2 at ¶14) The policy was continued by Captain Hazzard ("Hazzard") and Captain Henry ("Henry"). As part of the policy, Captain Rispoli ("Rispoli") ordered area lieutenants to initiate assaults by spraying Plaintiff with mace whenever he refused a verbal order. QRT would be called "to finish" the job.

"A defendant in a civil rights action must have personal involvement in the alleged wrongs to be liable, and cannot be held responsible for a constitutional violation which he or she neither participated in nor approved." Baraka v. McGreevey, 481 F.3d 187, 210 (3d Cir. 2007). "Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence." Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). The Third Circuit has reiterated that a § 1983 claim cannot be premised upon a theory of respondeat superior and that, in order to establish liability for deprivation of a constitutional right, a party must show personal involvement by each defendant. See Brito v. United States Dep't of Justice, 392 F. App'x 11, 14 (3d Cir. Aug. 18, 2010) (not published) (citing Iqbal, 556 U.S. at 677; Rode, 845 F.2d at 1207).

"Because vicarious liability is inapplicable to § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Iqbal, 129 S.Ct. at 1948. In Iqbal, the Supreme Court emphasized that "[i]n a § 1983 suit - here masters do not answer for the torts of their servants - the term 'supervisory liability' is a misnomer. Absent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct." Iqbal, 129 S.Ct. at 1949. "Thus, when a plaintiff sues an official under § 1983 for conduct 'arising from his or her superintendentresponsibilities,' the plaintiff must plausibly plead and eventually prove not only that the official's subordinates violated the Constitution, but that the official by virtue of his own conduct...