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Cotto v. Tennis

July 1, 2010


(Judge Vanaskie)



Luis Cotto, proceeding pro se, initiated this civil rights action regarding his prior confinement at the Rockview State Correctional Institution, Bellefonte, Pennsylvania (SCIRockview).*fn1 Along with his Complaint, Cotto has submitted an application requesting leave to proceed in forma pauperis.

Named as Defendants are the following SCI-Rockview officials: Superintendent Franklin Tennis; Deputy Superintendents Robert Marsh and Brian Thompson; Captain Eaton; and Correctional Officer Koleno. The Complaint, which is accompanied by numerous supporting documents, alleges that on or about July 12, 2009, Plaintiff approached CO Koleno while housed in general population at SCI-Rockview and told the officer that his life was being threatened by Latino gang members residing in different housing units because they "percieved [sic] his conviction [sexual conduct with a minor] as not one acceptable by their standards of decency." (Dkt. Entry # 1, ¶ III(3).)

Plaintiff asserts that Koleno responded by issuing him a retaliatory disciplinary charge because the Defendant "also did not like Plaintiff's conviction and crime." (Id. at ¶IV (5).) Cotto adds that this charge was unnecessary because he was asking to be placed in administrative custody.*fn2 After being found guilty of the misconduct charge, Plaintiff was sanctioned to a forty-five (45) day term of confinement in the prison's Restricted Housing Unit (RHU). Following completion of that term Cotto was placed in Administrative Custody, where he remained for a prolonged period despite sending numerous requests to Defendants seeking a transfer to a different correctional facility. He concludes that Defendants were deliberately indifferent to his needs by keeping him confined in either the RHU or Administrative Custody for over seven (7) months rather than transferring him to another facility.

Cotto further contends that on or about December 1, 2009, Deputy Superintendent Thompson engaged in retaliation by threatening another prisoner who was assisting Plaintiff in filing institutional grievances and pursuing habeas corpus relief in the courts. As relief, Cotto seeks punitive and compensatory damages.

The Complaint is currently before the Court for preliminary screening pursuant to 28 U.S.C. § 1915(e)(2)(b). For the reasons that follow, Plaintiff's action will be dismissed without prejudice.


When considering a complaint accompanied by a motion to proceed informapauperis, a district court may rule that process should not issue if the complaint is malicious, presents an indisputably meritless legal theory, or is predicated on clearly baseless factual contentions. Neitzke v. Williams, 490 U.S. 319, 327-28 (1989), Douris v. Middleton Township, 293 Fed. Appx. 130, 132 (3d Cir. 2008). Indisputably meritless legal theories are those "in which either it is readily apparent that the plaintiff's complaint lacks an arguable basis in law or that the defendants are clearly entitled to immunity from suit." Roman v. Jeffes, 904 F.2d 192, 194 (3d Cir. 1990) (quoting Sultenfuss v. Snow, 894 F.2d 1277, 1278 (11th Cir. 1990)).

Emotional Injury

Plaintiff seeks damages for "mental anguish and pain." (Dkt. Entry # 1, ¶ VI (2). Congress, however, has provided that "[n]o federal civil action may be brought by a prisoner confined in a jail, prison or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." 42 U.S.C. § 1997e(e). In Allah v. Al-Hafeez, 226 F.3d 247,250 (3d Cir. 2000), the United States Court of Appeals for the Third Circuit recognized that where a plaintiff fails to allege actual injury, § 1997e(e) bars recovery of compensatory damages. Since there are no physical injuries to Plaintiff described or alleged in the Complaint, a basis for an award of damages for mental anguish and pain has not been established.

Respondeat Superior

Three of the Defendants are Superintendent Tennis, Deputy Superintendent Marsh , and Captain Eaton. There are no allegations raised in the Complaint that any of these Defendants were involved in the acts of retaliation attributed to Koleno and Thompson. Cotto asserts only that Tennis did not take corrective action with respect to an administrative appeal from his misconduct charge, and that Tennis, Eaton, and Marsh refused to act on his requests for transfer.

A plaintiff, in order to state an actionable civil rights claim, must plead two essential elements: (1) that the conduct complained of was committed by a person acting under color of law, and (2) that said 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 ...

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