Free MEMORANDUM in Support - District Court of Delaware - Delaware

Case 1 :04-cv—00193-SLR Document 66-6 Filed 11/23/2005 Page 1 Bti§e2 of4
1/Mestlaw
Not Reported in F.Supp.2d Page 1
Not Reported in F.Supp.2d, 2004 WL 2009369 (D.Del.)
(Cite as: Not Reported in F.Supp.2d)
C malicious, fails to state a claim upon which relief
Briefs and Other Related Documents may be granted or seeks monetary relief from a
Only the Westlaw citation is currently available. defendant immune from such relief pursuant to 28
United States District Court,D. Delaware. U.S.C. §§ l915(e)(2)(B)-l915A(b)(l). FNI If the
Darryl M. EVANS, Plaintiff, Court finds Evans' complaint falls imder any one of
v. the exclusions listed in the statutes, then the Court
DIVISION OF PROBATION AND PAROLE, must dismiss the complaint.
Mike Records, John Huff, and Kurt Hudson,
Defendants.
No. Civ.A. 03-869—KAJ. FN1. These two statutes work in
conjunction. Section 191 5(e)(2)(B)
Aug. 25, 2004. authorizes the court to dismiss an in forma
pauperfs complaint at any time, if the court
tinds the complaint is frivolous, malicious,
Darryl M. Evans, Smyrna, DE, pro se. fails to state a claim upon which relief may
be granted or seeks monetary relief from a
MEMORANDUM ORDER defendant immune from such relief.
Section l915A(a) requires the court to
JORDAN, J. screen prisoner in forma pauperis
complaints seeking redress from
I. STANDARD OF REVIEW governmental entities, officers or
employees before docketing, if feasible
*1 Plaintiff Darryl M. Evans ("Evans"), SBI # and to dismiss those complaints falling
205832, is a pro se litigant who was incarcerated at under the categories listed in § 1915A
the Central Violation of Probation Center (“CVOP" (b)(l).
) in Smyrna, Delaware at the time he filed this
complaint. Evans filed this action pursuant to 42 Vl/"hen reviewing complaints pursuant to 28 U.S.C. §
U.S.C. § 1983 and requested leave to proceed in § 19l5(e)(2)(B)-19l5A(b)(l), the Court must apply
forma pauperis pursuant to 28 U.S.C. § 1915. the standard of review set forth in Fed.R.Civ.P.
12(b)(6). See Neal v. Pennsylvania Bd. of Prob. &
Reviewing complaints filed pursuant to 28 U.S.C. § Parole, No. 96-7923, 1997 WL 338838 (E.D.Pa.
1915 is a two step process. First, the Court must June 19, 1997)(applying Rule 12(b)(6) standard as
detemiine whether the Evans is eligible for pauper appropriate standard for dismissing claim under §
status. The Court granted Evans leave to proceed in 1915A). Accordingly, the Court must "accept as
forma pauperis on September 26, 2003, and true the factual allegations in the complaint and all
determined that Evans had no assets with which to reasonable inferences that can be drawn therefrom."
pay an initial partial filing fee. Nonetheless, the Nami v. Fauver, 82 F.3d 63, 65 (3d Cir.1996). Pro
Court ordered Evans to file an authorization form se complaints are held to "1ess stringent standards
within thiity days, or the complaint would be than formal pleadings drafted by lawyers and can
dismissed. Evans filed the authorization form on only be dismissed for failure to state a claim if it
October 8, 2003. appears ‘beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would
Once the pauper determination is made, the Court entitle him to relief" ’ Estelle v. Gamble, 429 U.S.
must then determine whether the action is frivolous, 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)
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(quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 someone from the Department of Correction
S.Ct. 99, 2 L.Ed.2d 80(l957)). notarize his motion. (Id.) Evans requests $300,000
for "mental anguish, mental cruelty, discrimination
The United States Supreme Court has held that § and providing false information." (Id.) On
l915(e)(2)(B)'s term "frivolous" when applied to a September 26, 2003, Evans filed a motion for
complaint, "embraces not only the inarguable legal appointment of counsel. (D.I.6) On October 8,
conclusion, but also the fanciful factual allegation? 2003, Evans filed a second motion for appointment
Neitzke v. Pldilfams, 490 U.S. 319, 325, 109 S.Ct. of counsel. (D.I.8) Because the Court finds that
1827, 104 L.Ed.2d 338 (1989). FN2 Consequently, Evans' complaint is frivolous, the motions for
a claim is frivolous within the meaning of § appointment of counsel shall be denied as moot.
l915(e)(2)(B) if it "lacks an arguable basis either in
law or in fact." Id. As discussed below, Evans'
claim has no arguable basis in law or in fact, and B. Analysis
shall be dismissed as frivolous pursuant to 28
U.S.C. §§ 19l5(e)(2)(B)-1915A(b)(1). 1. Evans' Access to the Courts Claim
FN2. Neirzke applied § l9l5(d) prior to *2 To the extent that Evans is alleging that Huff
the enactment of the Prisoner Litigation Records and Hudson have violated his right to
Reform Act of 1995 (PLRA). Section access the courts, his claim must fail. Prisoners
19l5(e)(2)(B) is the re—designation of the possess the constitutional right of meaningful access
former § l9l5(d) under the PLRA. to the courts. See Bounds v. Smith, 430 U.S. 817,
Therefore, cases addressing the meaning of 821, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977).
frivolous under the prior section remain However, the right does not mean Evans is entitled
applicable. See § 804 of the PLRA, to have Probation Officers notarize motions for him
Pub.L.No. 14-134, 110 Stat. 1321 (April at his convenience. See Lewis v. Casey, 518 U.S.
26,1996). 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996).
Rather, the State must enable Evans to prepare a
II. DISCUSSION complaint and put his grievance before the court.
See Id. at 360. Furthermore, in order to prevail on
A. The Complaint this claim, Evans must allege that he suffered an
actual injury. See Id. at 351. An actual injury means
that Evans was unable to put before a court, an
Evans alleges that on August 13, 2003, he asked to arguable legal claim relating to his conviction,
see John Huff ("Huff’) to have a motion notarized, sentence or conditions of confinement. See Id. at
but Huff was not available. Evans further alleges 354.
that on August 15, 2003, he asked to see Mike
Records ("Rec0rds"), because Huff was not Although Evans alleges that he was told that he
available. Evans alleges that on August 27, 2003, could not iile an unnotarized motion in the Family
Kurt Hudson ("Hudson") told him to file his motion Court, he has not alleged that his motion was
in Family Court with a notation “no notary available. retumed, or that he suffered any adverse
" (D.I. 2 at p. 3a) Evans further alleges that on consequences. Consequently, Evans' claim that
August 29, 2003, he mailed the motion to the Huft] Records and Hudson have violated his right to
Family Court. Evans also alleges that on August 29, access the courts has no arguable basis in law or in
2003, he called the Family Court and was told that fact. Therefore, this claim shall be dismissed as
the court would not accept the motion without a frivolous pursuant to 28 U.S.C. §§ l9l5(e)(2)(B)-
notary. Evans alleges that he spoke to Lt McDonald 1915A(b)(1).
("McDonald”) who told Evans that if the motion
was retumed, McDonald would arrange to have
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2. Sovereign and Eleventh Amendment Immunity could bring for damages. Specifically, § 1997e(e) of
the PLRA, entitled "Limitati0n on Recovery,"
Evans has not included specific allegations in his provides:
complaint against the Division of Probation and No Federal civil action may be brought by a
Parole. Nonetheless, his claims against it must fail. prisoner confined in a jail, prison, or other
To state a claim under 42 U.S.C. § 1983, Evans correctional facility, for mental or emotional injury
must allege "the violation of a right secured by the suffered while in custody without a prior showing of
Constitution or laws of the United States and must physical injury,
show that the alleged deprivation was committed by
a person acting under color of state law.“ West v. The Third Circuit has held that "[u]nder§ 1997e(e),
Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 however, in order to bring a claim for mental or
L.Ed.2d 40 (1988) (citing Parrott v. Taylor, 451 emotional injury, suffered while in custody, a
U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 prisoner must allege physical injury." Allah v.
(1981) (overruled in part on other grounds not Al-Hafeez, 226 F.3d 247, 250 (3d Cir.2000).
relevant here by, Daniels v. Williams, 474 U.S. 327, Section 1997e(e) limits recovery of compensatory
330-31, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)). " damages, but does not bar prisoners from seeking
[T]he Supreme Court has held that neither a State nominal damages or punitive damages to vindicate
nor its officials acting in their official capacities are constitutional rights. See ia'., at 251; Doe v. Delie,
‘persons‘ under § 1983." Ospina v. Dep't of 257 F.3d 309, 314 (3d Cir.200l). Therefore, to the
Corrections, State of Delaware, 749 F.Supp. 572, extent that Evans is seeking compensatory damages,
577 (D.Del.1991)(citing Wills v. Michigan Dep? of his claim is barred by § 1997e(e). Furthermore,
State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 Evans cannot recover nominal or punitive damages
L.Ed.2d 45 (1989). Furthermore, "[a]bsent a state's because the Court has determined that his claim is
consent, the Eleventh Amendment bars a civil rights frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B)—
suit in federal court that names the state as a l9l5A(b)(1).
defendant? Laskaris v. Thornburg/1, 661 F.2d 23,
25 (3d Cir.l98l) (citing Alabama v. Pugh, 438 U.S. NOW THEREFORE, this 25th day of August,
781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (per 2004, IT IS HEREBY ORDERED that:
cariam )). The Division of Probation and Parole is
an agency of the State of Delaware. The State of 1. Evans' Motions for Appointment of Counsel (D.I.
Delaware has not waived its sovereign immunity 6; D.I.8) are DENIED as MOOT.
under the Eleventh Amendment. See Ospina v.
Dep? of Corrections, 749 F .Supp. at 579. 2. Evans' complaint is DISMISSED as frivolous
Consequently, Evans' claim against the DOC has no pursuant to 28 U.S.C. §§ 19l5(e)(2)(B)-
arguable basis in law or in fact. Therefore, Evans' l915A(b)(l).
claim against the DOC is frivolous and shall be
dismissed pursuant to 28 U.S.C. §§ l9l5(e)(2)(B)- D.Del.,2004.
l9l5A(b)(l). Evans v. Division of Probation and Parole
Not Reported in F.Supp.2d, 2004 WL 2009369
(D.Del.)
3. Absence of Physical Injury Required by §
l997e(e) Briefs and Other Related Documents (Back to top)
*3 Evans does not allege that he suffered any · l:03CV00869 (Docket) (Sep. 10,2003)
physical injury as a result of not having his motion
notarized. Nonetheless, he requests that the Court END OF DOCUMENT
order the defendants to compensate him for "false
information? (Id.) When Congress enacted the
PLRA, it limited the types of law suits prisoners
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