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Oliver v. Beard

August 19, 2010

CHARLES V. OLIVER, PLAINTIFF,
v.
JEFFREY A. BEARD, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge McClure

MEMORANDUM

I. INTRODUCTION

Plaintiff Charles V. Oliver ("Plaintiff" or "Oliver"), an inmate presently confined at the State Correctional Institution at Retreat ("SCI Retreat") in Hunlock Creek, Pennsylvania, initiated the above action pro se by filing a Complaint under the provisions of 42 U.S.C. § 1983. (Rec. Doc. No. 1.) Named as Defendants are Jeffrey A. Beard, Secretary of the Pennsylvania Department of Corrections ("DOC"); James J. McGrady, Superintendent of SCI Retreat; the Reverend W. James Pall, a Facility Chaplain Program Director for the DOC assigned to the State Correctional Institution at Dallas ("SCI Dallas") in Dallas, Pennsylvania; Joseph Zakarakus, an Intelligence/Security Captain at SCI Dallas; Paul Miller, an Intelligence/Security Lieutenant at SCI Dallas; and Chris Putnam, Unit Manager of C and D Blocks at SCI Dallas.

Oliver alleges that, while he was confined at SCI Dallas, Defendants were deliberately indifferent in violation of the Eighth Amendment by knowingly placing his childhood abuser in his cell and in sending his laundry bag to the F-block to negotiate with prison gangs, thereby creating unsafe conditions. (Id. at 7.) He also alleges that Defendants administratively transferred him to SCI Retreat in retaliation for the filing of a criminal complaint, which resulted in the loss of his job, and that Defendants Zakarakus and Pall verbally insulted him. (Id.)

Plaintiff has requested leave to proceed in forma pauperis (see Rec. Doc. No. 2), and therefore, the Complaint is before the Court for screening pursuant to 28 U.S.C. § 1915. For the reasons set forth below, Plaintiff's request to proceed in forma pauperis will be granted; his Eighth Amendment claim regarding the placement of his childhood abuser in his cell will be permitted to go forward; he will be directed to amend his Eighth Amendment claim regarding his laundry bag to include factual allegations to support the claim; his retaliation claim and claims regarding verbal insults will be dismissed with prejudice for failure to state a claim upon which relief may be granted; Defendants Beard and McGrady will be dismissed as parties; Plaintiff's claim for compensatory damages arising out of his failure to protect claim will be dismissed with prejudice; and Plaintiff's claim for injunctive relief will be dismissed as moot.

II. ALLEGATIONS OF COMPLAINT

Plaintiff sets forth his four (4) legal claims on the seventh page of his Complaint. (Rec. Doc. No. 1 at 7 ¶ 13.) The first of his claims is that Defendants knowingly placed his childhood abuser in his cell with him thereby creating unsafe conditions. (Id. ¶ 13 (A).) Plaintiff includes factual allegations in support of this claim earlier in his Complaint. He alleges that, on August 12, 2008, Defendants Pall, Putnam, Zakarakus, and Miller placed inmate Charles J. Montione in Plaintiff's cell at SCI Dallas even though they were aware that Montione had abused Plaintiff when he was a child by injecting him with a dirty hypodermic syringe that resulted in Plaintiff being infected with hepatitis. (Id. at 2 ¶ 8.) Plaintiff claims that, after Montione was placed in his cell, he asked Montione to make a request to the officer in charge to be moved, and that he did so, but Montione was not moved from his cell. (Id.) Plaintiff alleges that, at the time they placed Montione in his cell, Defendants Pall, Putnam, Zakarakus, and Miller all were aware of the childhood abuse he had suffered at the hands of Montione. (Id. at 4.) Plaintiff alleges that he was moved from th cell with Montione to a different cell on February 5, 2009. (Id. at 5.)

Plaintiff's second legal claim is that "Defendants knowingly sent my laundry bag to F-block for purpose of negotiations with prison gangs for a contract of discrimination," thereby creating unsafe conditions. (Rec. Doc. No. 1 at 7 ¶ 13 (B).) Plaintiff does not provide any facts in support of this apparent Eighth Amendment claim in the section of his Complaint containing factual allegations.

Plaintiff's third legal claim is that, after a criminal complaint was filed, Defendants administratively transferred Plaintiff knowing that it would result in the loss of his job. (Id. at 7 ¶ 13(C).) In the section of his Complaint containing factual allegations, Plaintiff alleges that he was transferred to SCI Retreat as retaliation by Defendants Pall and Zakarakus to hurt him mentally and physically, to block his access to the courts, and to keep him from his higher paying job. (Id. at 6.)

In his last two legal claims, Plaintiff alleges that Defendant Zakarakus sent another officer to tell Plaintiff that he and his mother, who he identifies as Queen Noor of Jordan, are "nothing but Palestinian rock throwers" and that Defendant Pall refers to Queen Noor as the "Big Witch." (Id. at 7 ¶ 13 (D), (E).) In the section of his Complaint containing factual allegations, Plaintiff alleges that Defendant Zakarakus allegedly sent an officer to Plaintiff to deliver this verbal insult after Plaintiff wrote a letter to Luzerne County District Attorney Jackie Musto Carroll in July 2009 requesting the opportunity to file a criminal complaint for a number of crimes he believed had occurred at SCI Dallas. (Id. at 5.) Plaintiff does not specify when Defendant Pall called Queen Noor the "Big Witch," but merely asserts that he calls her that generally. (Id.)

In his prayer for relief, Plaintiff requests a declaration that the acts and omissions he has described violate his Constitutional rights; a preliminary and permanent injunction to direct Defendants to stop trying to have Montione housed in the same cell as Plaintiff; compensatory and punitive damages in the amount of $1,000,000 each; a jury trial on all issues; reimbursement of his costs in pursuing this lawsuit; and any additional relief this Court deems just, proper, and equitable. (Id. at 8.)

III. LEGAL STANDARD

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 reviewing the legal sufficiency of a complaint, the Court must accept the truth of the plaintiff's allegations. Morrison v. Madison Dearborn Capital Partners III L.P., 463 F.3d 312, 314 (3d Cir. 2006). A complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp v. Twombly, 550 U.S. 544, 570 (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 555 (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.

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 ...


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