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HOLLY v. RAPONE

August 31, 1979

Oscar HOLLY
v.
Warden Thomas RAPONE et al.



The opinion of the court was delivered by: DAVIS

MEMORANDUM AND ORDER

This is a civil rights action *fn1" brought by Oscar Holly, Pro se, against Thomas Rapone, Warden, Delaware County Prison, and various other supporting prison personnel. The plaintiff alleges the denial of his constitutional liberties by the defendants under color of state law. Holly seeks declaratory relief *fn2" to prevent the retaliation by prison officials against him for initiating this suit and money damages *fn3" of $ 465,000 for the alleged violations of his eighth and fourteenth amendment rights. The plaintiff has requested and the court has granted him, permission to proceed In forma pauperis. However, I have decided to dismiss the action as irreparably frivolous pursuant to 28 U.S.C. § 1915(d).

 Procedural History

 This case comes before me with an interesting and rather unusual procedural history. On March 21, 1978, the plaintiff and a fellow-prisoner, Charles M. Cataleno, filed a Pro se civil rights complaint in this Court. *fn4" That complaint was referred to Magistrate Edwin E. Naythons, who recommended that the motion to proceed In forma pauperis be granted. The defendants thereupon moved for dismissal and discovery proceeded. Because it became difficult to find an attorney willing to accept appointment to represent plaintiffs in that action, the case proceeded slowly. Finally, on February 13, 1979, Frederick M. Krieger, Esquire, of the law firm of Morgan, Lewis and Bockius, was appointed counsel for the plaintiffs.

 On April 20, 1979, Mr. Krieger informed the court that Holly had disappeared and, therefore, requested a severance of the cases. *fn5" This was done on May 18, 1979, and Holly's case was dismissed without prejudice in accordance with Rule 41(b) of the Federal Rules of Civil Procedure.

 On May 31, 1979, Holly petitioned the Court to reinstate his lawsuit. For procedural convenience, I denied the petition and instructed the plaintiff to file a new complaint. It is this new complaint that is now before me.

 Facts

 This complaint was drafted without the assistance of counsel and must, therefore, be held to a less stringent standard than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972). I have accepted, as I must, the allegations of the complaint as true, Miree v. DeKalb County, 433 U.S. 25, 97 S. Ct. 2490, 53 L. Ed. 2d 557 (1977), and have construed the complaint liberally in a light most favorable to the plaintiff. Jennings v. Shuman, 567 F.2d 1213, 1216 (3d Cir. 1977). Additional facts have also been taken from the uncontested "Answers of Defendants to Plaintiff's Interrogatories" filed in the earlier action. *fn6"

 On December 27, 1977, the plaintiff was arrested for an alleged violation of the Pennsylvania Criminal Code. As Holly was unable to secure bail, he was committed to the Delaware County Prison at 8:00 P.M. Upon his arrival, Holly informed the Intake Officer that he was a heroin addict, that his "last shot of dope" had been at 12:00 P.M. that day, and that he required a doctor. The plaintiff added that his drug involvement could be verified by checking his criminal record and by calling drug programs that he "at one time or another was involved with." In response to the plaintiff's request, the Intake Officer, who is not a defendant in this action, informed Holly that there was no methadone program for drug addicts, but that the plaintiff would be seen by paramedics.

 Holly states that on December 28, 1977, he suffered from vomiting, profuse perspiration, severe body pains, and "became disarranged mentally." The Intake Officer denied his request to contact either Warden Rapone or a prison doctor because of the hour of the day, 8:00 P.M.

 Instead, on December 29, 1977, less than 48 hours after his confinement, the plaintiff was given a physical examination at the prison hospital by a defendant paramedic, Frank Green. As a result of the examination, Holly was given the non-prescription drugs, Mylanta and Vistaril, for his withdrawal symptoms. He was told by the paramedic that methadone could only be prescribed by a doctor and that the plaintiff would be placed on the doctor's waiting list. By January 2, 1978, the plaintiff had regained his appetite.

 On the same day, January 2, 1978, Holly complained of headaches and requested an eye examination. This request was a prerequisite for the replacement of his eyeglasses, allegedly damaged during his arrest. On January 24, 1978, Holly fell on ice-covered steps, allegedly, as a direct result of the absence of eyeglasses. Later that day, the plaintiff was examined by paramedic Green. Although Holly requested that x-rays be taken, the paramedic instead prescribed hot soaks and Tylenol for muscle strain and contusions. The plaintiff complains that he could not apply the hot soaks to himself and that, as a result, he sustained permanent injury to his back.

 Discussion

 The plaintiff has not stated a claim upon which declaratory or injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202 can be granted. The facts and pleadings have not satisfied the required standard of "deliberate indifference to serious medical needs of prisoners" in order to sustain the eighth and fourteenth amendment claims of ...


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