Free Memorandum and Order - District Court of Delaware - Delaware

Case 1:04-cv—O1480—SLR Document 13 Filed O4/27/2005 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
SEBRON E. FLEMING III, )
Plaintiff, )
v. ) Civ. No. 04-1480-SLR
POLODORA ITALIAN GRILL and )
AARON S. HOLLEGER, )
Defendants. )
MEMORANDUM ORDER
I. INTRODUCTION
Plaintiff Sebron Fleming is a pro se litigant who filed this
action pursuant to 42 U.S.C. § 1983 and requested leave to
proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (D.I. 1,
2) The court has jurisdiction over this matter pursuant to 28
U.S.C. § 1331.
II. STANDARD OF REVIEW
Reviewing complaints filed pursuant to 28 U.S.C. § 1915 is a
two step process. First, the court must determine whether
plaintiff is eligible for pauper status. On January 18, 2005,
the court granted plaintiff leave to proceed in forma pauperis.
(D.I. 8)
Once the pauper determination is made, the court must then
determine whether the action is frivolous, malicious, fails to
state a claim upon which relief may be granted or seeks monetary
relief from a defendant immune from such relief pursuant to 28

Case 1:04-cv—O1480—SLR Document 13 Filed O4/27/2005 Page 2 of 4
U.S.C. §§ 1915(e)(2)(B)—1915A(b)(1).* If the court finds
plaintiff’s complaint falls under any one of the exclusions
listed in the statutes, then the court must dismiss the
complaint.
When reviewing complaints pursuant to 28 U.S.C. §§
1915(e)(2)(B)-1915A(b)(l), the court must apply the Fed. R. Civ.
P. 12(b)(6) standard of review. See Neal v. Pennsylvania Bd. of
Probation and Parole, No. 96-7923, 1997 WL 338838, *1 (E.D. Pa.
June 19, 1997) (applying Rule 12(b)(6) standard as appropriate
standard for dismissing claim under S 1915A). Accordingly, the
court must “accept as true the factual allegations in the
complaint and all reasonable inferences that can be drawn
therefrom.” Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). Pro
se complaints are held to “less stringent standards than formal
pleadings drafted by lawyers and can only be dismissed for
failure to state a claim if it appears ‘beyond doubt that the
plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.'” Estelle v. Gamble, 429 U.S. 97,
I These two statutes work in conjunction. Section
1915(e)(2)(B) authorizes the court to dismiss an in forma
pauperis complaint at any time, if the court finds the complaint
is frivolous, malicious, fails to state a claim upon which relief
may be granted or seeks monetary relief from a defendant immune
from such relief. Section 1915A(a) requires the court to screen
prisoner in forma pauperis complaints seeking redress from
governmental entities, officers or employees before docketing, if
feasible and to dismiss those complaints falling under the
categories listed in § 1915A(b)(1).
2

Case 1:04-cv—O1480—SLR Document 13 Filed O4/27/2005 Page 3 of 4
106 (1976) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
The standard for determining whether an action is frivolous
is well established. The Supreme Court has explained that a
complaint is frivolous “where it lacks an arguable basis either
in law or fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989).2
As discussed below, plaintiff's claims have no arguable basis in
law or fact. Therefore, his complaint shall be dismissed as
frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B)-1915A(b)(1).
III. DISCUSSION
Plaintiff filed this pro se lawsuit under 42 U.S.C. § 1983
against defendant Holleger in his capacity as assistant manager
of defendant Polodoro Italian Grill. (D.I. 2) According to
plaintiff's complaint, defendant Holleger tackled plaintiff and
struck plaintiff twice with a six-foot aluminum pole. (IQ;)
Plaintiff requests compensatory damages. (Id;)
Dismissal of this lawsuit pursuant to 28 U.S.C. §§
1915(e)(2)(B)-1915A(b)(1) is appropriate because plaintiff has
failed to state a claim under 42 U.S.C. § 1983. In order to
bring suit under § 1983, plaintiff must allege that a person
acting under color of state law deprived plaintiff of his
2 Neitzke applied § I915(d) prior to the enactment of the
Prisoner Litigation Reform Act of 1995 (“PLRA”). Section
1915(e)(2)(B) is the re—designation of the former § 1915(d) under
the PLRA. Therefore, cases addressing the meaning of
frivolousness under the prior section remain applicable. See
Prisoner Litigation Reform Act of 1995, Pub. L. No. 14-134, §
804, 110 Stat. 1321 (April 26, 1996).
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Case 1:04-cv—O1480—SLR Document 13 Filed O4/27/2005 Page 4 of 4
constitutional rights. west v. Atkins, 487 U.S. 42, 48 (1988).
Plaintiff's complaint only states claims against private
individuals and entities (i.e., defendants Holleger and Polodoro
Italian Grill), against whom he cannot maintain a § 1983 claim.
Therefore, plaintiff's complaint is dismissed as frivolous
pursuant to 28 U.S.C. §§ l9l5(e)(2}(B)—1915A(b)(1).
IV. CONCLUSION
At Wilmington this ¢¥1$` day of April, 2005)for the reasons
set forth above;
IT IS ORDERED that plaintiff's complaint (D.I. 2) is
dismissed as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B)-
l9l5A(b)(l).
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