The opinion of the court was delivered by: Judge Vanaskie
Plaintiff Kelly F. Ruta, currently confined at the Luzerne County Correctional Facility ("LCCF") in Wilkes-Barre, Pennsylvania, seeks to bring this action in forma pauperis pursuant to 42 U.S.C. § 1983, alleging he was physically and verbally assaulted by Counselor Joe Morris. Along with his complaint, Ruta submitted a motion to proceed in forma pauperis*fn1 and a request for appointment of counsel.
The complaint is presently before the Court for preliminary screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A to determine whether it should be dismissed as frivolous or malicious, for failure to state a claim upon which relief may be granted. After reviewing Ruta's complaint, I am of the opinion that this case should be dismissed, without prejudice, but that Ruta should be given leave to amend his patently deficient complaint with respect to his claims of physical abuse. Ruta's request for counsel will be dismissed without prejudice.
Ruta alleges that on the morning of October 2, 2007, he was called to the command center to meet with Lt. Pugh about possible harassment charges being filed against him as a result of a telephone call Ruta made the night before. (Dkt. Entry 1, Complaint.) Upon returning to his housing unit, Counselor Morris told Ruta that he "won't be getting any more phone calls." (Id.) Counselor Morris then called Ruta out of the housing area and proceeded to take [Ruta] into a clothing storage area with Lt. Pugh, CO Shaw and CO Posluzsny present. . . .
At this time [Ruta] was verbaly [sic] assaulted by Counselor Morris then he began to provoke [Ruta] to fight him by pushing [Plaintiff], poking [Ruta] in the face, and then finaly [sic] by asking [Ruta] to do something to him. (Id.) Ruta stated that he was not stupid and would not be provoked. Ruta feels he "was assaulted both pysicaly [sic] and verbally." (Id.) Ruta seeks only injunctive relief, to wit, that "Counselor Morris [be] reprimanded and the counselor system investigated." (Id.)
Under 28 U.S.C. § 1915(e)(2)(B)(ii), a federal court must dismiss a case filed in forma pauperis if the court determines that the complaint "fails to state a claim on which relief may be granted." In applying this statutory requirement here, we rely on the standard employed to analyze motions to dismiss under Fed. R. Civ. P. 12(b)(6), which authorizes dismissal of a complaint on basically the same ground, "failure to state a claim upon which relief can be granted." Thus, in reviewing the legal sufficiency of Plaintiff's complaint, the Court must accept the truth of the Plaintiff's factual allegations, Morrison v. Madison Dearborn Capital Partners III L.P., 463 F.3d 312, 314 (3d Cir. 2006). A complaint "only" has to plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007)(rejecting the "no set of facts" language from Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do." Id. at 1964-65 (citation omitted). To survive a motion to dismiss, the factual allegations in the complaint "must be enough to raise a right to relief above the speculative level." Id. at 1965.
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, 108 (3d Cir. 2002).
A. Screening of the Complaint
Plaintiff claims that Counselor Morris (1) verbally and (2) physically assaulted him. Initially I note that Ruta's allegations of verbal assault do not rise to the level of a constitutional violation. Mere words spoken to a prisoner by a correctional officer, even when those words are harsh, do not amount to a violation of the prisoner's civil rights by the officer. Johnson v. Glick, 481 F.2d 1028, 1033 n.7 (2d Cir.1973); Collins v. Cundy, 603 F.2d 825, 827 (10th Cir.1979)(verbal harassment by threatening to hang an inmate is not sufficient to state a constitutional deprivation under § 1983). "Standing alone, simple verbal harassment does not constitute cruel and unusual punishment, deprive a prisoner of a protected liberty interest or deny a prisoner equal protection of the laws." Dewalt v. Carter, 224 F.3d 607, 612 (7th Cir.2000). Accordingly, Ruta's claim of verbal assault fails to state a cognizable claim.
Next, I will construe Ruta's claim that Counselor Morris pushed and poked him as a claim of excessive use of force in violation of the Eighth Amendment. Under the Eighth Amendment, the use of excessive force against prisoners may constitute cruel and unusual punishment. Hudson v. McMillian, 503 U.S. 1, 5 (1992). Even though a plaintiff need not allege a serious injury to state a claim, the Eighth Amendment does not protect against de minimis or reasonable uses of force. Id. at 7, 9-10. "[T]here is no constitutional violation for 'de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind.'" Brooks v. Kyler, 204 F.3d 102, 107 (3d Cir. 2000) (quoting Hudson, 503 U.S. at 9-10). The "use of wanton, unnecessary force resulting in severe pain," however, is actionable. Id. at 109. In addition, ...