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Doleman v. Delong

United States District Court, N.D. West Virginia

January 2, 2019


          Stamp Judge



         On November 20, 2017, the pro se plaintiff initiated this case by filing a civil rights complaint against the above-named defendants together with a Motion for Leave to Proceed in forma pauperis. On November 30, 2017, the plaintiff was granted leave to proceed in forma pauperis, and on February 5, 2018, he paid the required initial partial filing fee. On February 13, 2018, an Order was entered requiring the plaintiff to clarify his claims by filing an amended complaint. On March 19, 2018, the plaintiff filed his amended complaint. ECF No. 26. This case is before the undersigned for an initial review and report and recommendation pursuant to LR PL P2 and 28 U.SC. § 1915(e)(2) and 1915 (A).

         I. Factual and Procedural History

         A. The Complaint

         In the complaint, the plaintiff alleges that on or about October 2013, he approached several different correctional officers at the Eastern Regional Jail asking to be placed in protective custody because he was having problems on Pod A-1. The plaintiff asserts that after several written and verbal requests, he was finally placed in protective custody. However, the plaintiff maintains that two weeks later, Jim Oxford and Lt. Tate came to the segregation unit and advised him that he would be moved back to general population. The plaintiff claims that he objected repeatedly and asked them to leave him there. The plaintiff claims that Lt. Tate replied that “he could walk there or be dragged there; the decision was his.” ECF No. 26 at p. 18. The plaintiff indicates he was then placed on Pod A-4, where he was extorted and harassed again. The plaintiff alleges that on December 24, 2013, he was viciously attacked and held down by three inmates, while one of the inmates sexually abused and raped him. He maintains that he contacted the West Virginia State Police and reported the rape. He further alleges that he was taken to the Martinsburg City Hospital where rape kit was performed. The plaintiff contends that the “State Police and Correctional Officers wanted me to tell who it was that raped me, I could not tell them; I was scared for my life! I tried to explain that the people that raped me knew me and my family and had large contacts on the street.” ECF No. 26 at p. 18. In addition, the plaintiff asserts that he was denied psychological treatment because he would not identify his rapist.

         In summary, the plaintiff alleges that the various defendants were deliberately indifferent to his safety and violated his Eighth Amendment right to be free from cruel and unusual punishment and his Fourth Amendment right to due process. For relief, he seeks injunctive relief in the form of an immediate evaluation by a licensed Trauma Psychiatrist that specializes in the field of PTSD/RAPE and a discharge from his sentence and incarceration.[1] In addition, he seeks compensatory and punitive damages.

         II. Standard of Review

         Because the plaintiff is a prisoner seeking redress from a governmental entity or employee, the Court must review the complaint to determine whether it is frivolous or malicious. Pursuant to 28 U.S.C. § 1915A(b), a court is required to perform a judicial review of certain suits brought by prisoners and must dismiss a case at any time if the court determines that the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is immune from such relief.

         Courts must read pro se allegations in a liberal fashion. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, a complaint is frivolous if it is without arguable merit either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989) (superseded by statute). The Supreme Court in Neitzke recognized that:

Section 1915(d)[2] is designed largely to discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits that paying litigants generally do not initiate because of the costs of bringing suit and because of the threat of sanctions for bringing vexatious suits under Federal Rule of Civil Procedure 11. To this end, the statute accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless. Examples of the former class are claims against which it is clear that the defendants are immune from suit. . .

490 U.S. at 327.

         III. Analysis

         A. Statute ...

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