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George v. Pennsylvania Dep't of Corrections

November 9, 2010

KEITH HOWARD GEORGE, PLAINTIFF
v.
PENNSYLVANIA DEPARTMENT OF CORRECTIONS, ET AL., DEFENDANTS



The opinion of the court was delivered by: Judge Caputo

MEMORANDUM

I. Introduction

Plaintiff, Keith Howard George, a prisoner incarcerated at the Dallas State Correctional Institution (SCI-Dallas), in Dallas, Pennsylvania, filed a pro se civil rights action on June 24, 2009, alleging various prison staff members were deliberately indifferent to his serious medical needs and violated his rights under Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132, et seq., when they failed to grant him a permanent single cell status due to his medical disability, Benign Muscular Fasciculation Syndrome.*fn1 (Doc. 1, Compl.) On March 11, 2010, the Court granted the Dr. Bohinski's and the correction defendants' motions to dismiss due to Mr. George's failure to state a claim against either set of defendants. (Doc. 21, Order.) Plaintiff, however, was granted leave to file an amended complaint. Id.

Mr. George filed an Amended Complaint on March 22, 2010, naming the following DOC employees as defendants: Robin Lucas; Laurie Samulesich and Dorina Varner. (Doc. 22, Am. Compl.) The DOC defendants filed a Motion to Dismiss the Amended Complaint on April 6, 2010, and a supporting brief on April 16, 2010. The time for Mr. George to file a response to the defendants' motion to dismiss has passed without him filing an opposition brief or seeking an enlargement of time to do so.

For the reasons set forth below the defendants' motion to dismiss will be granted and the Amended Complaint dismissed with prejudice.

II. Standard of Review

Fed. R. Civ. P. 12(b)(6) authorizes the dismissal of a complaint for "failure to state a claim upon which relief can be granted." Under Rule 12(b)(6), we must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)). While a complaint need only contain "a short and plain statement of the claim," Fed. R. Civ. P. 8(a)(2), and detailed factual allegations are not required, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed.2d. 929 (2007), to survive a motions to dismiss a complaint has to plead "enough facts to state a claim to relief that is plausible on its face." Id. at 570, 127 S.Ct. 1955 at 1974. "[M]ore than labels and conclusions" are required. Twombly, 550 U.S. at 555, 127 S.Ct. at 1964-65. Rule 8 demands "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, U.S.,, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements" are insufficient to state a claim. Id. at, 129 S.Ct. at 1950. "[L]abels and conclusions" are not enough, Twombly, 550 U.S. at 555, 127 S.Ct. at 1964-65, and a court "'is not bound to accept as true a legal conclusion couched as a factual allegation.'" Id., 127 S.Ct. at 1965 (quoted case omitted).

In resolving the motion to dismiss, the Court conducts "a two-part analysis." Fowler, 578 F.3d at 210. First, we separate the factual elements from the legal elements and disregard the legal conclusions. Id. at 210 -11. Second, we "determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a " 'plausible claim for relief' " Id. at 211 (quoted case omitted). In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to "show" such an entitlement with its facts. Phillips, 515 F.3d at 234 - 235.

Finally, we note that pro se pleadings are held to a less stringent standard than formal pleadings drafted by attorneys and are to be liberally construed. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007); Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009). 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. See Phillips, 515 F.3d at 245 - 246 (citing 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, 106 (3d Cir. 2002).

III. Background

In his Amended Complaint, Mr. George alleges that Robin Lucas, in her official position as a reviewer of an administrative grievance, "failed to correct or overturn proven claims of deliberate indifference to 'medical disability'... single cell (Z-Code) accommodation was denied." (Doc. 22 at CM/ECF pp. 2-3.)*fn2 His claim against Dorina Varner, the "final administrative review person" in the DOC's administrative grievance process, is identical to that asserted against Robin Lucas. Id. at p. 3. Finally, Mr. George asserts that Laurie Samulesich, in her official capacity as records clerk, "failed to supply Plaintiff with documents requested, thus, hindering [his] ability to bring this matter to the Court." Id. at p. 3.

Mr. George did not file a brief in opposition to defendants' motion to dismiss.

III. Discussion

A. Lack of Personal Involvement of ...


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