United States District Court, M.D. Pennsylvania
June 14, 2005.
BERNARD SCOTT, Plaintiff,
R.N., TRACY MOONEY, ET AL., Defendants.
The opinion of the court was delivered by: THOMAS VANASKIE, Chief Judge, District
Plaintiff Bernard Scott, an inmate presently housed at the
Greene State Correctional Institution ("SCI-Greene"), Waynesburg,
Pennsylvania, commenced this civil rights action under
42 U.S.C. § 1983 on May 31, 2005. Scott, who proceeds pro se, claims that
while housed at his former institution, SCI-Mahanoy, he was
assaulted by corrections staff, denied medical care for his
injuries, given a false misconduct and placed in a "hard cell"
where he was deprived of clothing and other necessities,
including his legal materials. Scott was then transferred to
SCI-Greene where he continues to be held in Restricted Housing
Unit ("RHU"). Scott contends that the retaliatory harassment
continues at SCI-Greene by order of the "correctional staff at
SCI-Mahanoy. Scott claims all the alleged events occurred in
retaliation for his past filing of institutional grievances and
lawsuits. He seeks monetary and injunctive relief. He names the following SCI-Mahanoy employees as defendants: Tracy
Mooney, R.N., Corrections Officer ("CO") Griffith, and CO
Although the Complaint is not altogether clear, Scott appears
to be asserting First Amendment retaliation, access to courts,
denial of visitation privileges, and cruel and unusual punishment
claims. Having examined the pro se pleading by the inmate
plaintiff as required under 28 U.S.C. § 1915 and
28 U.S.C. § 1915A, Scott's access to courts and visitations claims will be
dismissed without prejudice for his failure to state a viable
claim. I will direct service of the complaint for litigation of
the Eighth Amendment claims against the named SCI-Mahanoy
Scott alleges that on March 16, 2004, he was housed in
SCI-Mahanoy's RHU. On that day unnamed corrections officers came
to his cell to advise him he had a medical appointment with an
institutional physician, Dr. Modery. He was handcuffed behind his
back and removed from his RHU cell. Scott alleges that, contrary
to RHU policy, Scott's cell movement was not videotaped. Scott
claims that he was taken to the RHU's triage room where he was
physically assaulted by COs Griffith and Shovlin and Nurse
Mooney. Plaintiff asserts he was assaulted in retaliation for
past grievances and lawsuits filed against unidentified
corrections staff. Scott alleges that after the attack he was
denied medical care for his injuries and placed in a "hard cell"
completely naked and without any personal hygiene items for an unspecified period of time. During his stay in the "hard cell",
Scott purportedly was denied law library visits, exercise, and
visitation. His request for an inmate grievance form was also
denied. Plaintiff was also denied access to his legal materials
to "prevent [him] from communicating to the state federal and
criminal courts." (Dkt. Entry 1, Exh. 1.)
On April 29, 2004, Scott was transferred from SCI-Mahanoy to
SCI-Greene. He claims that he is "still being retaliated against
by the correctional staff . . . at SCI-Greene by the order's
[sic] of the correctional staff at SCI Mahanoy." (Dkt. Entry 1.)
He claims he "[has] been forced into a position to file a 1983
against some of the corrections officials in this prison S.C.I.
Greene I have been falsely locked down since 12/27/02." (Dkt.
Entry 1.) None of the named defendants is an employee at
III. STANDARD OF REVIEW.
A complaint filed in forma pauperis may be dismissed if it is
determined that the action is frivolous, malicious, fails to
state a claim on which relief may be granted or seeks monetary
relief against a defendant who is immune from such relief. See
28 U.S.C. § 1915(e)(2)(B). An action by an incarcerated person
that seeks relief against a government employee must be screened
to determine if dismissal is warranted on the same grounds. See
28 U.S.C. § 1915A. In applying these statutory screening
requirements, a court employs the standard used to analyze
motions to dismiss under Fed.R.Civ.P. 12(b)(6). Thus, the
truth of the plaintiff's factual allegations is assumed. White
v. Napoleon, 897 F.2d 103, 106 (3d Cir. 1990). The court must decide "whether under any reasonable
reading of the pleadings, plaintiff may be entitled to relief."
Simon v. Cebrick, 53 F.3d 17, 19 (3d Cir. 1995). Pro se
pleadings are to be construed liberally, Haines v. Kerner,
404 U.S. 519, 520 (1972), and pro se litigants are to be granted
leave to file a curative amended complaint "even when a plaintiff
does not seek leave to amend," unless such an amendment would be
inequitable or futile. Alston v. Parker, 363 F.3d 229, 235 (3d
Cir. 2004). However, a complaint that sets forth facts which
affirmatively demonstrate that the plaintiff has no right to
recover is properly dismissed without leave to amend. Grayson v.
Mayview State Hospital, 293 F.3d 103, 106 (3d Cir. 2002); see
also Estelle v. Gamble, 429 U.S. 97, 107-108 (1976).
A. Scott's Challenge to his Treatment at SCI-Greene.
To state a § 1983 claim, a plaintiff must plead two essential
elements: (1) the conduct complained of was committed by a person
acting under color of state law; and (2) the conduct deprived the
plaintiff of a right, privilege, or immunity secured by the
Constitution or laws of the United States. Groman v. Township of
Manalapan, 47 F.3d 628, 638 (3d Cir. 1995); Shaw by Strain v.
Strackhouse, 920 F.2d 1135, 1141-42 (3d Cir. 1990). Furthermore,
"[a] defendant in a civil rights action must have personal
involvement in the alleged wrongs. . . . Personal involvement may
be shown through allegations of personal direction or actual
knowledge and acquiescence." Rode v. Dellarciprete,
845 F.2d 1195, 1207-08 (3d Cir. 1988). Scott clearly challenges his continued confinement in
SCI-Greene's RHU. He asserts that his treatment at SCI-Greene is
the result of orders of unnamed SCI-Mahanoy staff. This averment
will be construed liberally to refer to the named Defendants.
Thus, to the extent that Scott claims First Amendment retaliation
and Eighth Amendment cruel and unusual punishment at SCI-Greene
is attributable to "orders" of the named Defendants, this claim
survives initial screening. If, of course, Scott is unable to
show that any of the named Defendants are involved in the
conditions of confinement at SCI-Greene, they cannot be held
accountable for such conditions.
B. Scott's Access to Courts Claim.
Inmates have a right of access to the courts. Lewis v. Casey,
518 U.S. 343, 350; Bounds v. Smith, 430 U.S. 817 (1977). In
order to succeed on an access to the courts claim an inmate must
prove actual injury. Lewis, 518 U.S. at 351. Actual injury is
the loss of a non-frivolous claim that relates to a challenge,
direct or collateral, to an inmate's conviction or relates to a
challenge to the conditions of confinement. Id. at 351-54;
Tourscher v. McCullough, 184 F.3d 236 (3d Cir. 1999) ("To state
a viable claim of the denial of meaningful access to the courts,
Tourscher was required to plead facts demonstrating that the work
he performed in the prison cafeteria interfered with his ability
to prosecute his appeal.").
In the instant case, Plaintiff merely alleges that he was
denied access to his legal materials to "prevent [him] from
communicating to the state and federal and criminal courts." (Dkt. Entry 1, Exh. 1.) However, Scott has not alleged that he
suffered an actual injury and he has not alleged that any of the
named defendants were involved in the alleged denial of access to
the courts. This claim therefore must be dismissed without
C. Denial of Visitation
Scott claims that while housed in the "hard cell" at
SCI-Mahanoy he was denied visitation with family members. I note
that Scott does not allege that any of the named defendants had
any involvement in this alleged wrongdoing. Therefore, this
claim, as asserted against them, will be dismissed. However,
there is an alternate basis for dismissing this claim because
neither prisoners nor their visitors have a constitutional right
to unfettered visitation. See Kentucky Dep't of Corr. v.
Thompson, 490 U.S. 454, 460 (1989) (denying prison visitation
with mother characterized as well within ordinarily contemplated
terms of imprisonment); Flanagan v. Shively, 783 F. Supp. 922,
934 (M.D. Pa.), aff'd, 980 F.2d 722 (3d Cir. 1992), cert.
denied, 114 S. Ct. 95 (1993); Doe v. Sparks, 733 F. Supp. 227,
230 & n. 3 (W.D. Pa. 1990). An inability to receive visitors is
not atypical and unusually harsh compared to the ordinary
circumstances contemplated by a prison sentence, and thus, no due
process right is implicated. Parke v. Lancaster County Prison,
Civil No. 95-6425, slip op. at 5 (E.D. Pa. Oct. 24, 1995)
(DuBois, J.). Indeed, one's removal from society is a fundamental
incident of imprisonment and where visitation is permitted, it is often narrowly
circumscribed. See Kentucky Dep't of Corrections v. Thompson,
490 U.S. at 461. Thus, this claim is subject to
For the reasons set forth above, Scott's claims related to
access to the courts and denial of visitation will be dismissed
without prejudice. The remainder of the claims will be allowed to
proceed against the named SCI-Mahanoy defendants. An appropriate
Order is attached.