The opinion of the court was delivered by: MASTERSON
Plaintiff seeks leave to proceed in this Civil Rights action in forma pauperis. Invoking the Civil Rights Act of 1871, 42 U.S.C. § 1983, and its jurisdictional implementation, 28 U.S.C. § 1343(3), the plaintiff is seeking $50,000 in damages from each of the defendants.
Plaintiff essentially complains that he received improper or inadequate medical treatment while he was incarcerated. He alleges that Warden Jennings is liable for transferring the plaintiff to the State Correctional Institution at Dallas, Pennsylvania which, like the institution at West Chester, allegedly lacked the facilities to handle a patient with plaintiff's malady (ulcers). While at Dallas (where defendant Johnston is the Superintendent, and defendant Lakotos the attending physician), the plaintiff alleges that he went without proper treatment until he was finally transferred to the State Correctional Institution at Philadelphia approximately five months later.
The law is clear that an essential element of an actionable civil rights complaint is the establishment of a constitutional deprivation. While we recognize that there may be cases where an inmate's complaint of improper or inadequate medical treatment depict conduct so cruel or unusual to approach a violation of the Eighth Amendment's stricture against cruel and unusual punishment, we do not think that this is such a case. Plaintiff's claim here amounts to no more than an averment that the facilities at Dallas are inferior to those at Philadelphia in providing him the care he requires. As such, the plaintiff has failed to properly alleged a constitutional deprivation
and has merely alleged an action sounding in tort. Gittlemacker v. Prasse, 428 F.2d 1 (3rd Cir. June 12, 1970). Accordingly, plaintiff's petition for leave to proceed in forma pauperis as to this claim is denied.
And now, this 23d day of June, 1970, it is hereby ordered that plaintiff's petition for leave to proceed in forma pauperis is denied in part;
It is further ordered that the plaintiff shall have twenty (20) days to amend his complaint to state with particularity:
(1) how was he prejudiced, if at all, by the restriction on receiving incoming mail during his ten day stay at the Chester County Medical Center;
(2) who imposed and/or enforced such restriction;
(3) what specific constitutional deprivations, if ...