Free Response to Motion - District Court of Delaware - Delaware

Case 1:04-cv—O1334-KAJ Document 36-2 Filed 04/19/2006 Paget of2
Vllwtlaw
Slip Copy Page 1
Slip Copy, 2006 WL 47644 (D.Del.)
(Cite as: 2006 WL 47644 (D.Del.))
Only the Westlaw citation is currently available. time period from August 17, 2003 to September 20,
2003. (D.I.2) Shepherd also alleges a "violation
where security staff must inspect" packages or legal
United States District Court, mail. [al He seeks $100,000 for each free speech
D. Delaware. violation.
Donald L. SHEPHERD, Plaintiff
v. ll. STANDARD OF REVIEW
Vincent BIANCO, Warden and the Department of
Correction, Defendants. When a litigant proceeds in forma pauperts, 28
N0. Civ.A. 03-910—GMS. U.S.C. § 1915 provides for dismissal under certain
circumstances. When a prisoner seeks redress in a
Jan. 9,2006. civil action, 28 U.S.C. § 1915A provides for
Donald L. Shepherd, Wilmington, DE, pro se. screening of the complaint by the court. Both 28
U.S.C. § l9l5(e)(2)(B) and § 1915A(b)(1) provide
MEMORANDUM that the court may dismiss a complaint, at any time,
V if the action is frivolous, malicious, fails to state a
SLEET, J. claim upon which relief may be granted or seeks
monetary relief from a defendant immune from such
*1 Donald L. Shepherd ("Shepherd"), a former relief An action is frivolous if it "lacks an arguable
prisoner at the Central Violation of Probation basis either in law or in fact." Neitzke v. Williams,
Center in Smyrna, Delaware, brings this lawsuit 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d
pursuant to 42 U.S.C. § 1983. He appears pro se 338 (1989).
and was granted permission to proceed in forma
paaperis pursuant to 28 U.S.C. § 1915. (D.l.8, 13). The court must "accept as true factual allegations
The court now proceeds to review and screen the in the complaint and all reasonable inferences that
complaint pursuant to 42 U.S.C. § 1915 and § can be drawn therefrom." Nami v. Faaver, 82 F.3d
1915A. 63, 65 (3d Cir.1996)(citing Holder v. City of
Allentown, 987 F.2d 188, 194 (3d Cir.1993)).
For the reasons discussed below, the complaint is Additionally, pro se complaints are held to "less
dismissed as frivolous pursuant to 28 U.S.C. § stringent standards than formal pleadings drafted by
19l5(e)(2)(B)and§1915A(b)(1). lawyers" and can only be dismissed for failure to
state a claim when "it appears 'beyond doubt that
I. THE COMPLAINT the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief" "
Shepherd brings this class action against Warden Haines v. Kerner, 404 U.S. 519, 520-521, 92 S.Ct.
Vincent Bianco ("Warden Bianco") and the 594, 30 L.Ed.2d 652 (1972)(quoting Conley v.
Department of Correction ("DOC") alleging a Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d
deprivation of free speech and access to the courts 80 (1957)).
in violation of the First Amendment of the U.S.
Constitution. Specifically, Shepherd alleges that H1. ANALYSIS
imnates housed at the Central Violation of
Probation Center were denied envelopes for legal A. Class Action
mail and for family member correspondence for a
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Case 1:04-cv—O1334-KAJ Document 36-2 Filed O4/19/2006 Page 2 of 2
Slip Copy Page 2
Slip Copy, 2006 WL 47644 (D.Del.)
(Cite as: 2006 WL 47644 (D.Del.))
The complaint is framed as a class action. A class C. Eleventh Amendment
action can only be maintained if the class
representative "will fairly and adequately represent Shepherd also names as a defendant the DOC. The
the interests of the class." Fed.R.Civ.P. 23(a)(4). DOC is an agency of the State of Delaware.
"When confronting such a request from a prisoner, "Absent a state's consent, the Eleventh Amendment
courts have consistently held that a prisoner acting bars a civil rights suit in federal court that names the
pro se 'is inadequate to represent the interests of his state as a defendant." Laskaris v. Thornburg/1, 661
fellow inmates in a class action." ' Maldonado v. F.2d 23, 25 (3d Cir.l981) (citing Alabama v. Pugh,
Terhune, 28 F.Supp.2d 284, 299 (D.N.J.1998) 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114
(citing Caputo v. Faztver, 800 F.Supp. 168, 170 (1978)). The State of Delaware has not waived its
(D.N.J.l992)). The rationale for these holdings sovereign immunity under the Eleventh
applies with equal force in Shepherd's case. Amendment. See Ospina v. Department oj
Accordingly, Shepherd may not maintain this suit as Correction, 749 F.Supp. 572, 579 (D.Del.1991).
a class action. Additionally, as discussed below, the Hence, as an agency of the State of Delaware, the
claims raised are dismissed as frivolous. Department of Correction is entitled to immunity
under the Eleventh Amendment. See e.g. Evans v.
B. Respondeat Superior Ford C.A. No. 03- 868—KAJ, 2004 WL 2009362,
*4 (D.Del. Aug.25, 2004) (claim against DOC is
*2 Shepherd alleges that while he was housed in dismissed on the basis of Eleventh Amendment
Central Violation of Probation Center he was immunity).
denied envelopes for legal and personal use.
Shepherd seeks to hold Warden Bianco liable on Shepherd's claims against the DOC have no
the basis of his supervisory positions. arguable basis in law or in fact inasmuch as they are
immune from suit. Therefore, the claims are
Supervisory liability cannot be imposed under § frivolous and are dismissed.
1983 on a respondeat superior theory. See Monell v.
Department of Social Services of City of New Yor/rg IV. CONCLUSION
436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611
(1978); Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, For the above stated reasons, the court finds that
46 L.Ed.2d 561 (1976). In order for a supervisory the claims against the defendants are factually and
public official to be held liable for a subordinate's legally nivolous. An appropriate order will be
constitutional tort, the official must either be the entered dismissing the case.
"moving force [behind] the constitutional violation"
or e>dribit "deliberate indifference to the plight of ORDER
the person deprived." Sample v. Diecks, 885 F.2d At Wilmington this 9th day of January, 2006, for
1099, 1118 (3d Cir.1989) (citing City of Canton v. the reasons set forth in the Memorandum issued this
Harris, 489 U.S. 378, 389, 109 S.Ct. 1197, 103 date, the plaintiffs complaint is DISMISSED
L.Ed.2d 412 (1989)). without prejudice pursuant to 28 U.S.C. §
l9l5(e)(2)(B) and § 19l5A(b)(1).
There is nothing in the complaint to indicate that
Warden Bianco was the "driving force [behind]" Slip Copy, 2006WL47644 (D.Del.)
the alleged violations. Moreover, the complaint
does not indicate that Warden Bianco was aware of END OF DOCUMENT
the plaintiffs allegations and remained "deliberately
indifferent" to his plight. Sample v. Diecks, 885
F.2d at 1118. Accordingly, the claims against
Warden Bianco are dismissed inasmuch as they
have no arguable basis in law or in fact.
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