The opinion of the court was delivered by: Judge McClure
On January 16, 2007, Andrew Fullman, proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983. The same day, he filed an amended complaint and an application to proceed in forma pauperis. Fullman had been an inmate at the State Correctional Institution at Smithfield ("SCI - Smithfield"), but was released prior to the filing of the complaint.
Fullman's complaint names four defendants: 1) Pennsylvania Department of Corrections; 2) SCI-Smithfield; 3) J.C. Blair Memorial Hospital ("J.C. Blair"); and 4) David Russo, M.D. Specifically, Fullman alleges that he suffered from a "mycobacterium fortuitum" neck infection which defendants failed to properly treat. (Pl.'s Am. Compl., Rec. Doc. No. 2, at 1-2). Evidently, Fullman developed this infection while an inmate at SCI-Smithfield. Prison officials turned to Dr. Russo, a physician who specializes in treating infectious diseases at J.C. Blair, for help treating Fullman. Fullman alleges that Dr. Russo and J.C. Blair failed to cure his infection. Instead, they performed unnecessary surgeries and caused his infection to spread, thus causing more pain and suffering. (Id. at 2.) Fullman also alleges that he requested a different specialist to cure the infection, but SCI-Smithfield refused such a request. (Id. at 3.) Finally, Fullman states that he filed a civil action alleging medical negligence in state court, but it was eventually dismissed. (Id. at 2.) Fullman alleges that the state court dismissed the case because he was an African-American, a prisoner, and proceeding pro se. (Id.) It appears that Fullman wishes to appeal the state court's decision to dismiss the case. (Id. at 1.)
28 U.S.C. § 1915 governs proceedings filed in forma pauperis. Since it was revised in 1995 by the Prison Litigation Reform Act ("PLRA"), there is some question as to whether this section applies to nonprisoners. The question arises from the language of § 1915(a)(1), which reads:
Subject to subsection (b), any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees or security therefor, by a person who submits an affidavit that includes a statement of all assets such prisoner possesses that the person is unable to pay such fees or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant's belief that the person is entitled to redress. (emphasis added).
28 U.S.C. § 1915(a)(1) (emphasis added). Although the Third Circuit has not ruled on the issue, several district courts in the Third Circuit have considered the question of whether this revised in forma pauperis statute applies only to prisoners and have concluded that it does not. Harrison v. Shapiro, No, 97-2133, 1997 WL 197950, at * 1 (E.D.Pa 1997) (Van Artsdalen, J.); Jones v. North Atlantic Treaty Organization, No. 98-1185, 1998 WL 136511, at *1 n. 1 (E.D.Pa 1998) (Padova, J.); McAllen v. Attic Away From Home, No. 00-941, 2000 WL 1752618, at *2 n. 7 (D.Del. 2000) (Sleet, J.) Each of these courts has found the mention of the word "prisoner" to be a typographical error, and that the Congress meant the statute to read "person." We agree. The PLRA was enacted to curtail the flood of civil rights litigation arising from our nation's prisons. Santana v. United States, 98 F.3d 752, 755 (3d Cir.1996) (citing H.R. CONF. REP. NO. 104-378, 104th Cong., 2d Sess. (1996)). It would not make much sense for the PLRA to limit the ability to file in forma pauperis from anyone who meets the inability to pay requirement (which is what is was prior to the amendment) only to prisoners who meet that requirement. Furthermore, if we found that § 1915 applies to only prisoners, we would have no authorization to allow a nonprisoner such as Fullman to proceed unless he paid the filing fee. Therefore, we find that § 1915 applies to nonprisoners and prisoners alike, and therefore applies to Fullman. Therefore, § 1915(e)(2)(B) requires us to screen the complaint to determine whether the complaint is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief.
Now, for the following reasons, we will dismiss Fullman's complaint pursuant to § 1915(e)(2)(B) because he fails to state a claim upon which relief can be granted and because leave to amend would be futile.
In performing the court's screening function under 28 U.S.C. § 1915(e)(2)(B), the court will apply the standard applicable to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Weiss v. Colley, 230 F.3d 1027, 1029 (7th Cir. 2000). Under this standard, the court must view all allegations stated in the complaint as true and construe all inferences in the light most favorable to plaintiff. Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984); Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). Furthermore, the court must consider whether plaintiff is entitled to offer evidence to support the allegations in the complaint. Maio v. Aetna, Inc., 221 F.3d 472, 482 (3d Cir. 2000). A complaint should be dismissed only if the court, from evaluating the allegations in the complaint, is certain that under any set of facts relief cannot be granted. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997); Markowitz v. Northeast Land, Co., 906 F.2d 100, 103 (3d Cir. 1994). Additionally, a court may dismiss a claim where there is a "dispositive issue of law." Neitzke v. Williams, 490 U.S. 319, 326 (1989).
Fullman has brought a claim under 42 U.S.C. § 1983. In order for Fullman to prevail under 42 U.S.C. § 1983 he must establish two elements: 1) that the conduct complained of was committed by a person acting under color of state law; and 2) that the conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States. Kost v. Kozakiewicz, 1 F.3d 176, 184 (3d Cir. 1993).
As to defendants J.C. Blair Memorial Hospital and David Russo, M.D., we find that under the facts alleged, neither of these defendants can be found to have acted under color of state law. J.C. Blair is a private hospital and Dr. Russo is a private physician employed at J.C. Blair. Aside from treating ...