The opinion of the court was delivered by: Yvette Kane, Chief Judge Middle District of Pennsylvania
On January 21, 2010, Vernon White ("White"), an inmate at the United States Penitentiary at Lewisburg ("USP-Lewisburg"), Pennsylvania, filed this civil rights action pursuant to 28 U.S.C. § 1331. Named as the sole defendant is B.A. Bledsoe, Warden at USPLewisburg. White seeks to proceed in forma pauperis in this matter. (Doc. Nos. 2, 7.) The motions will be granted.*fn1 The complaint is presently before the Court for preliminary screening pursuant to 28 U.S.C. § 1915(e)(2)(B). For the reasons that follow, White will be directed to file an amended complaint in this action.
I. Allegations of the Complaint
The "Statement of Claim" section in White's complaint reads, in its entirety, as follows:
I was designated to the SMU Program at Lewisburg USP. During this process I had the right to file an appeal over the decision. I did and the BOP's original deadline was Sept. 19, 2009. A request for more time was granted with the deadline being moved to August 9, 2009. I didn't receive a response, so my next step was to file this form. By Mr. Bledsoe being the warden he is the overseer of my stay here that's why he is listed as the Defendant.*fn2
(Doc. No. 1, Compl. at 2.)
White states that he is asking the Court to grant relief for him "because he is still held in this program after [his] appeal was not answered by the BOP in its set time frame." He further seeks compensatory damages "for mental stress and the unsafe conditions that he has been put in." (Id. at 3.) In addition to the complaint, he files a motion for counsel (Doc. No. 12) and a motion for medical consultation (Doc. No. 13).
28 U.S.C. § 1915 imposes obligations on prisoners who file civil actions in federal court and wish to proceed in forma pauperis. Section 1915(e)(2) provides:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that (A) the allegation of poverty is untrue; or (B) the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief. (Emphasis added.) Federal Rule of Civil Procedure 12(b)(6) allows a defendant, in response to a complaint, to file a motion to dismiss a claim or claims for "failure to state a claim upon which relief can be granted . . . ." Section 1915(e)(2)(B)(ii) provides this ground for summary dismissal of a complaint (before service) - - failure to state a claim under Rule 12(b)(6) principles. A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the claims alleged in the complaint. Under Fed. R. Civ. P. 12(b)(6), the court must accept as true the factual allegations in the complaint, and construe any inferences to be drawn from the allegations in Plaintiff's favor. See Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007)(quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). "The assumption of truth does not apply, however, to legal conclusions couched as factual allegations or to '[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.'" Marangos v. Swett, No. 08-4146, 2009 WL 1803264 (3d Cir. June 25, 2009)(citing Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S.Ct. 1937, 1949-50 (2009). In considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must contain enough "facts to state a claim to relief that is plausible on its face" Iqbal, 129 S.Ct. at 1949 (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007), and the factual allegations "must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555 (internal citations omitted); accord Iqbal, 129 S.Ct. at 1953. The facts plead must offer more "than an unadorned, the defendant-unlawfully-harmed-me accusation." Id., 120 S.Ct. at 1949 (internal quotations and citations omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct at 1949 (citing Twombly, 550 U.S. at 556). Further, a district court should provide leave to amend "when amendment could cure the deficiency and would not be inequitable." Grayson v. Mayview State Hospital, 293 F.3d 103, 106 (3d Cir. 2002). A complaint that does not establish entitlement to relief under any reasonable interpretation is properly dismissed without leave to amend. Id. at 106.
In the pending complaint, the only Defendant named by White is Warden Bledsoe. He states that he sues Bledsoe based upon the supervisory position he holds at the prison. It is well- established that civil rights claims cannot be premised on a theory of respondeat superior. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Rather, each named defendant must be shown, via the complaint's allegations, to have been personally involved in the events or occurrences which underlie a claim. See Rizzo v. Goode, 423 U.S. 362 (1976); Hampton v. Holmesburg Prison Officials, 546 F.2d 1077 (3d Cir. 1976). Liability cannot be based solely on the basis of a defendant's supervisory capacity, that is, there must be allegations that the official had knowledge or acquiesced in any purported acts of constitutional mistreatment. As such, any claims against Bledsoe would be subject to dismissal.
To the extent White attempts to impose liability upon some official at USP-Lewisburg because they failed to timely respond to his appeal regarding his SMU placement, he also fails to state a claim. It is well established that a prison official's failure to process grievances and appeals does not give rise to a constitutional claim. See Winn v. Dep't of Corr., 340 F. App'x 757 (3d Cir. 2009); Pressley v. Beard, 266 F. App'x 216 (3d Cir. 2008).
It also appears that Plaintiff may seek to raise due process claims with respect to his confinement in the SMU. The Court concludes that the complaint, as filed, fails to state a due process claim upon which relief may be granted. The Fifth Amendment provides that "[n]o person shall . . . be deprived of life, liberty, or property, without due process of law." U.S. Const. amend. V. A due process claim requires a two part analysis. First, the court must determine whether the interest asserted by the plaintiff is within the scope of protection of life, liberty, or property found in the Due Process Clause. Shoats v. Horn, 213 ...