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Fleming v. Bowen

July 26, 2007

RONALD L. FLEMING, PLAINTIFF
v.
WARDEN DENNIS BOWEN, CAPTAIN JOHN DARYMON, CO KEVIN CARROLL, CO JARRETT SMITH, AND MEDICAL STAFF - JOHN DOE 1, 2, 3 & 4, DEFENDANTS



The opinion of the court was delivered by: Magistrate Judge Smyser

Judge Munley

ORDER

On June 7, 2007, the plaintiff, a prisoner proceeding pro se, commenced this 42 U.S.C. § 1983 action by filing a complaint.

The complaint names as defendants: Dennis Bowen, the Warden of the York County Prison; Captain John Darymon; Corrections Officer Kevin Carroll; Corrections Officer Jarrett Smith; and Medical Staff - John Doe 1, John Doe 2, John Doe 3 and John Doe 4.

The plaintiff alleges that on April 4, 2007, he was incarcerated in the York County Prison. He alleges that due to a gunshot wound he has a badly injured leg. He alleges that a bullet is lodged behind his calf, that his right femur was broken and that he has a rod with screws in his leg. The plaintiff alleges that due to his injures he was housed in the medical department of the prison.

The plaintiff alleges that on April 29, 2007, he attended morning yard in the medical courtyard. He alleges that another inmate approached him and asked him why he had told defendants Carroll and Smith and another officer that he was going to hit that inmate in his colostomy bag. He alleges that he told the inmate that the officers were lying and trying to start a fight. He alleges that the inmate then hit him on the top of the head with his fist. He alleges that his crutches fell and that he fell to the ground causing him extreme pain.

The plaintiff alleges that after the assault defendant Darymon handcuffed him, was disrespectful to him, told him that he would be made out to be the aggressor and that he would be locked up and placed on suicide watch. The plaintiff alleges that he was placed on suicide watch for over twenty four hours and that he was provided with no medical assistance.

The plaintiff alleges that after he was assaulted by the inmate he was given an evaluation by a John Doe defendant in the medical department but that he received no treatment. The plaintiff also alleges that after the assault he filed a grievance regarding defendants Carroll, Smith and Darymon. The plaintiff alleges that he was moved in a wheelchair by defendants Carroll and Smith into a small room across from the medical department and that defendants Carroll and Smith began smacking him, pulling his ear and telling him to keep his mouth shut about the incident. The plaintiff alleges that he screamed for a white shirt and that defendant Darymon came in and witnessed that he was upset and screaming. He alleges that he was then escorted by wheelchair by defendants Darymon and Smith to the Behavior Adjustment Unit (BAU). He alleges that he was given a false misconduct for assaulting the other inmate and placed in the BAU for thirty days.

The plaintiff alleges that he was placed on suicide watch for over 24 hours by defendant Darymon. He alleges that he was forced to lay face down by defendant Smith and others to have his handcuffs removed. He alleges that he was stripped of his clothing and that the he was pushed face down by defendant Smith and then called a pussy. He alleges that defendant Darymon was present.

The plaintiff alleges that from April 29, 2007 until May 13, 2007 he had to shower in the BAU with no handicap accessible equipment - until a medical note was issued for a shower chair. He allege that on May 27, 2007 he fell face first while showering and was unconscious. He alleges that he was taken to the medical department but given poor treatment.

By an Order dated June 20, 2007, we reviewed the complaint pursuant to 28 U.S.C. § 1915A. We stated:

This is a 42 U.S.C. § 1983 action. "Section 1983 imposes civil liability upon any person who, acting under the color of state law, deprives another individual of any rights, privileges, or immunities secured by the Constitution or laws of the United States." Shuman v. Penn Manor School Dist., 422 F.3d 141, 146 (3d Cir. 2005). Section 1983 "does not create any new substantive rights but instead provides a remedy for the violation of a federal constitutional or statutory right." Id. "To state a claim under § 1983, a plaintiff 'must allege both a deprivation of a federally protected right and that this deprivation was committed by one acting under color of state law.'" Woloszyn v. County of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005)(quoting Lake v. Arnold, 112 F.3d 682, 689 (3d Cir. 1997)).

We conclude that the complaint fails to state a 42 U.S.C. § 1983 claim upon which relief may be granted against defendant Bowen and the John Doe medical staff defendants.

The complaint fails to state a claim upon which relief can be granted against defendant Bowen because the plaintiff has not alleged that defendant Bowen was personally ...


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