Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Rivera v. Pennsylvania Dep't of Corrections

October 13, 2010

FRANK RIVERA, PLAINTIFF,
v.
PENNSYLVANIA DEPARTMENT OF CORRECTIONS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Cathy Bissoon United States Magistrate Judge

Judge McVerry

Magistrate Judge Bissoon

REPORT AND RECOMMENDATION

I. RECOMMENDATION

For the reasons stated below, it is respectfully recommended that the complaint (Doc. 6) of Plaintiff Frank Rivera ("Plaintiff") be dismissed sua sponte for failing to state a claim for which relief may be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

II. REPORT

Plaintiff presently is incarcerated at the State Correctional Institution at Greene ("SCI-Greene"), located in Waynesburg, Pennsylvania. This lawsuit, which is brought pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983, commenced with the receipt of the complaint by this Court on December 7, 2009. (Doc. 1). Plaintiff was granted leave to proceed in forma pauperis ("IFP") on December 17, 2009. (Doc. 5). In his complaint, Plaintiff alleges that he was denied necessary medication at various periods of time between October 17, 2007, and March 20, 2008. Plaintiff also alleges that his attempts to file grievances concerning the denial of medical treatment were hampered by Defendants. The following is a summary of Plaintiff's allegations of facts that are germane to his claims.

A. Plaintiff's Factual Allegations

Plaintiff alleges that, on October 17 and 18, 2007, various Defendants denied him doses of Bentyl, a medication for which he avers he had a valid prescription. Compl. (Doc. 6), at 9. Plaintiff complained about the missed doses, but to no avail. Id. at 10. In response to this, on October 23, 2007, Plaintiff filed grievance 204918 regarding the issue.*fn1 Id.; Compl, Ex.1 (Doc. 6-1), at 4-5. This grievance was denied on its merits on November 5, 2007. (Doc. 6), at 11; (Doc. 6-1), at 6. Plaintiff filed a first level appeal, but the initial decision was affirmed. (Doc. 6), at 11; (Doc. 6-1), at 7-12. Plaintiff then filed a second level appeal on November 16, 2007, which was denied on December 3, 2007, because Plaintiff's filing failed to conform to the Department of Corrections' ("DOC") requirement that inmate grievance appeals not exceed two pages in length. (Doc. 6), at 11; (Doc. 6-1), at 17.

Plaintiff further alleges that he was denied medication by various Defendants during a second period of time, spanning from November 29, 2007, until at least December 12, 2007. (Doc. 6), at 12-14. After making repeated complaints to prison staff, and meeting with little or no success, Plaintiff filed grievance 211067. (Doc. 6), at 15; (Doc. 6-1), at 19-23. This grievance was denied during its initial review because it exceeded two pages in length, in violation of DOC policy, and because it raised matter that had been addressed in grievance 204918. (Doc. 6), at 15; (Doc 6-1), at 26. Plaintiff filed first and second level appeals of the denial, but the initial disposition of the grievance was affirmed at both levels because Plaintiff had exceeded, at the initial grievance level, the two-page limit set by the DOC. See (Doc. 6-1), at 30, 32.

Plaintiff alleges that he was again denied proper medical care on January 2, 2008, when various Defendants deliberately denied him a prescribed selenium topical application in retaliation for the past filing of grievances. (Doc. 6), at 15. Additionally, Plaintiff claims that, on the same date, various Defendants gave him a dose of Benadryl that was lower than the prescribed amount. Id. at 16. Plaintiff avers that, at this point, he complained about the denial of the topical application and the incorrect dose of Benadryl, but to no avail. Id. at 16-17. Plaintiff filed grievance 214263 with respect to these occurrences. Id. at 17; (Doc. 6-1), at 34-35. This grievance was denied on the merits. (Doc. 6), at 17-18; (Doc. 6-1), at 36. Plaintiff appealed, but was denied at both the initial review and final appeal stages because his first level appeal exceeded the DOC's two-page limit. (Doc. 6), at 18; (Doc. 6-1), at 43-44.

Finally, Plaintiff states that, on March 2, 2008, while he was out of his cell during the hour-long period of exercise that he was allowed on weekdays, various Defendants made medical distribution rounds and did not leave Plaintiff's medication in his cell.*fn2 (Doc. 6), at 18. Plaintiff alleges that this omission was intentional, and was made in retaliation for Plaintiff's past filing of grievances. Id. In response to this, Plaintiff filed grievance 222625. Id. at 18-19; (Doc. 6-1), at 45. This grievance was initially denied on the merits. (Doc. 6), at 19; (Doc. 6-1), at 47. Plaintiff appealed this denial. His first level appeal affirmed the initial decision on the merits. (Doc. 6), at 19-20; (Doc. 6-1) at 51. Plaintiff's second level appeal was rejected because Plaintiff failed to adhere to the DOC's two-page limit for that filing. (Doc. 6), at 19-20; (Doc. 6-1), at 55.

B. Standard of Review

Because Plaintiff proceeds IFP, it is necessary for this Court, pursuant to 28 U.S.C. § 1915, to examine, sua sponte, Plaintiff's claims for legal sufficiency. Specifically, § 1915 (as amended) requires the federal courts to review complaints filed by persons that are proceeding IFP, and to dismiss, at any time, any action that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). Thus, a court must dismiss, sua sponte, a complaint that lacks arguable merit in fact or law. Stackhouse v. Crocker, 266 Fed.Appx. 189, 190 (3d Cir. 2008) (citing Neitzke v. Williams, 490 U.S. 319, 325 (1989)). The standard for reviewing a complaint under this section 1915(e)(2)(B) is the same as that for determining a motion ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.