Free Order (PLRA) Service Order (no 285's) - District Court of Delaware - Delaware

Case 1:04-cv—00329—SLR Document 6 Filed 06/16/2005 Page1 0f4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ERNEST A. CRUMP, JR., )
)
Plaintiff, )
)
v. ) Civ. No. 04—329—SLR
)
ROBERT MAY, THOMAS RYGIL, )
VINCE BIANCA and STAN TAYLOR. )
)
Defendants. )
MEMORANDUM ORDER
At Wilmington this /6w. day of June, 2005, having reviewed
plaintiff’s complaint and amended complaint,
IT IS ORDERED that plaintiff's complaint survive review
under 28 U.S.C. §§ l9l5(e)(2)(B)—19l5A(b)(1) for the reasons that
follow:
1. Having granted in forma pauperis on June 14, 2004 (D.I.
4), the court must now 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 U.S.C. §§ l9l5(e)(2)(B)—l9I5A(b)(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

Case 1:04-cv—00329—SLR Document 6 Filed 06/16/2005 Page 2 of 4
If plaintiff's complaint falls under any one of the exclusions,
the complaint will be dismissed.
2. When reviewing complaints pursuant to 28 U.S.C.
§§ 1915(e)(2)(B)—1915A(b)(1), the court must apply the standard
of review provided for in Fed. R. Civ. P. 12(b)(6). Shane v.
Fauver, 213 F.3d 113, 117 (3d Cir. 2000). According to the Third
Circuit, “if a claim is based on facts that provide no basis for
the granting of relief by the court, the claim must be
dismissed.” lg; 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
3. With this in mind, pro se complaints are reviewed under
“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, 106 (1976)(quoting
feasible, and to dismiss those complaints falling under the
categories listed in § 1915A (b)(1).
2 Neitzke applied § 1915(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. Accordingly, cases addressing the meaning of frivolousness
under the prior section remain applicable. See § 804 of the
PLRA, Pub.L.No. 14-134, 110 Stat. 1321 (April 26, 1996).
2

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Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); accord Higgins v.
Qgygr, 293 F.3d 683, 688 (Bd Cir. 2002).
4. Plaintiff alleges violations of: (1) his First Q
Amendment right to freedom to exercise religion; (2) his Fourth i
Amendment right to be free from unlawful search and seizure; and
(3) his Eighth Amendment right to personal property. (D.I. 2)
He claims his jewelry, assorted personal items, Koran and Kufi
were taken and never returned when he was transferred from Morris
Community Correctional Center to Delaware Correctional Center in
August 2002.
5. The negligent loss of an inmate’s property does not
rise to the level of a Constitutional violation. Daniels v.
williams, 474 U.S. 327 (1986). Moreover, the “unauthorized
intentional deprivation of property by a state employee does not
constitute a violation of the Due Process Clause . . . if a
meaningful postdeprivation remedy for the loss is available.
Hudson v. Palmer, 468 U.S. 517, 533 (1986). The appropriate
remedy for such claims is in State court against the responsible
individuals. To the extent plaintiff seeks relief for the taking
of his jewelry and assorted personal items, the claims are
dismissed pursuant to 28 U.S.C. §§ l9l5(e)(2)(B)—l9l5A(b)(l).
6. With respect to the taking of his Koran and Kufi, which
plaintiff claims deprived him of his First Amendment right to
exercise his religion, the claim survives frivolousness review.
3

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“The Free Exercise Clause of the First Amendment provides that
‘Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof.’” Sutton v.
Rasheed, 323 F.3d 236, 250-251 (3d Cir. 2003)(quoting U.S. CONST.
amend. I.) Incarceration, however, results in a restriction of
Constitutional protections. Fraise v. Terhune, 283 F.3d 506, 515
n. 5 (3d Cir. 2002). Such institutional restrictions and
regulations must be weighed under a four—factor test. Turner v.
Safley, 482 U.S. 78 (1987). The taking of plaintiff’s Koran and
Kufi needs to be assessed under this caselaw.
7. Pursuant to Fed. R. Civ. P. 4(c)(2) and (d)(2),
plaintiff shall submit to the court within thirty (30) days an
original United States Marshal—285 form for each of the
defendants. Failure to submit these forms may provide grounds
for dismissal of these defendants from this action pursuant to
Fed. R. Civ. P. 4(m).
6. Upon receipt of the completed United States Marshal—285
forms, the United States Marshal shall serve a copy of the signed
complaint and this order upon defendants as directed by
plaintiff. All costs of service shall be advanced by the United
States.
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