Shaw v. Pierce, Civ. No. 17-076-LPS

CourtUnited States District Courts. 3th Circuit. United States District Court (Delaware)
Writing for the CourtSTARK, U.S. District Judge
PartiesGEORGE B. SHAW, Plaintiff, v. DEPUTY WARDEN DAVID PIERCE, et al., Defendants.
Docket NumberCiv. No. 17-076-LPS
Decision Date08 September 2017

GEORGE B. SHAW, Plaintiff,

Civ. No. 17-076-LPS


September 8, 2017

George B. Shaw, James T. Vaughn Correctional Center, Smyrna, Delaware, Pro Se Plaintiff.


September 8, 2017
Wilmington, Delaware

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STARK, U.S. District Judge:


Plaintiff George B. Shaw ("Plaintiff") filed this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights.1 (D.I. 3) Plaintiff is incarcerated 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. 6) The Court proceeds to review and screen the Complaint pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(a). Also before the Court are Plaintiff's request for counsel and motion for leave to amend.2 (D.I. 5, 7)


Plaintiff filed his Complaint on January 24, 2017. (D.I. 3) A review of the Complaint reveals that it has five discrete claims, distilled by the Court as follows:

Count I: From October 20, 2014 to December 10, 2014, Plaintiff was forced to work overtime on his days off. He worked 31 days without a day off. Defendants Officer Christopher Harrington ("Harrington") and Sgt. Cornelius Lewis ("Lewis") threatened to fire Plaintiff if he did not go into work. Plaintiff was fired on December 16, 2014 for "making noise" or complaining. Harrington told Plaintiff that he shook down Plaintiff's cell and found contraband. Plaintiff alleges that Harrington never entered his cell. Plaintiff was found not guilty, but he still lost his job and his good time. Plaintiff submitted a grievance over being forced to work without receiving overtime,

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but he was not paid the back wages owed him. Plaintiff alleges that he suffered emotional distress as a result of the retaliation by Harrington and Lewis. (D.I. 3 at ¶¶ A-D; D.I. 7 at ¶ E)

Count II: On Tuesday, June 30, 2015, Plaintiff was housed in protective custody for a few weeks and then returned to his former housing status. Plaintiff alleges that the Department of Correction ("DOC") did not ask Plaintiff if he wished to be removed from protective custody, and "just got rid of it because of budget problems." (D.I. 7 at ¶ F)3

Count III: On December 15, 2015, Plaintiff received a write-up while housed in the B-Annex. When Defendant Lt. Heishman ("Heishman") tried to move Plaintiff to B-Building, Plaintiff told him that he was in fear of his life and signed a statement in this regard. Heishman told Plaintiff that they would deal with it the next day. Plaintiff felt suicidal at the time, so he was placed on suicide watch. The next day, Defendant Mental Health Director Lezly Sexton ("Sexton") had Plaintiff transferred to isolation PCO (psychiatric close observation) status, even though he was not classified to "Max." Plaintiff explains that PCO in isolation was shut down because it is unconstitutional and illegal. Plaintiff alleges that he was not offered a shower or allowed to brush his teeth from December 18 through December 31, 2015, and that he was treated like an animal by officers who work in the building including Defendants Sgt. Scott ("Scott"), Sgt. Collins ("Collins"), Cpl. Joiner ("Joiner"), Cpl. Lorea ("Lorea"), and Sgt. Robert Mock ("Mock"). Plaintiff complained to mental health about the conditions, but nothing was done. (D.I. 3 at I; D.I. 7 at ¶ H)

Count IV: Plaintiff had been on PCO watch and, on October 5, 2016, when Plaintiff's property was returned to him, his radio was missing. Plaintiff alleges that Mock took the radio, but

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did not give Plaintiff a write-up for taking it. Plaintiff was told that he would be receiving a write-up. (D.I. 3 at ¶ J)

Count V: On October 20, 2016, Mock came onto Plaintiff's tier and, multiple times, called him a "snitch" in front of 25 other inmates. Plaintiff alleges that Mock tried to put his safety at risk. Plaintiff wrote to several prison officials, including Defendants Captain Rispoli ("Rispoli") and Baynard, and requested an investigation into Mock's campaign of harassment against him. (Id. at ¶ K) On November 10, 2016, Plaintiff "had enough of Mock and his harassment." Plaintiff felt that he wanted to hurt himself and was placed on suicide watch. Plaintiff alleges that, because there was no PCO, the prison was deliberately indifferent to his safety. (Id. at ¶ L) On December 9, 2016, Plaintiff was receiving mental health treatment when Mock left his assignment at Building 18 and went to Plaintiff's cell in Building 21 to shake Plaintiff down. Plaintiff alleges that his cell looked like "a tornado came through." Plaintiff alleges that Mock and another correctional officer argued about Mock's coming to Plaintiff's building and shaking him down. (Id. at ¶ M)

Plaintiff alleges that he has suffered emotional distress as a result of the actions taken against him. He seeks compensatory and punitive damages, as well as declaratory and injunctive relief.


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); 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

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favorable to a pro se plaintiff. See 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, 551 U.S. at 94 (citations 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)(1), 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 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 an 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)(1) 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 and 1915A, the Court must grant a 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 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

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more than simply provide "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Davis v. Abington 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 Asbcroft 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 dismissed for imperfect statements of the legal theory supporting the claim asserted. See id. at 346.

Under 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 sufficiendy 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.


A. Personal Involvement

The Complaint names as defendants Warden David Pierce ("Pierce") and Commissioner Robert Coupe ("Coupe"), but there are no allegations directed towards them. It appears they are named as defendants based upon their supervisory positions. As is well-established, supervisory

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liability cannot be imposed under § 1983 on a respondeat superior theory.4 See...

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