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Marsden v. Palakovich

November 22, 2010


The opinion of the court was delivered by: Padova, J.


Pro se Plaintiff George Marsden brings this action in forma pauperis against John A. Palakovich, the warden of the State Correctional Institute at Camp Hill, Pennsylvania ("SCI Camp Hill"); Dr. Koierowski, a doctor at the State Correctional Institute at Graterford, Pennsylvania ("SCI Graterford"); and Michael Wenerowicz, the warden of SCI Graterford, pursuant to 42 U.S.C. § 1983, alleging that he has not received the cancer treatment he requires since he was transferred from SCI Graterford to SCI Camp Hill. Plaintiff seeks compensatory and injunctive relief. Currently before the Court are Plaintiff's request for a temporary restraining order and request for appointment of counsel. We have conducted the screening required by 28 U.S.C. § 1915A, and conclude, for the following reasons, that Koierowski and Wenerowicz should be dismissed as Defendants to this action, that venue is inappropriate in this district, and that this action should be transferred to the United States District Court for the Middle District of Pennsylvania.


Plaintiff is presently incarcerated by the Commonwealth of Pennsylvania at the State Correctional Institute at Camp Hill, Pennsylvania. (Am. Compl. ¶ 2.) He suffers from Non-Hodgkin's Lymphoma. (Id. ¶ 16*fn2 and Ex. A.) He is a patient of Rajesh Thirumaran, M.D., and was supposed to be treated with Rituxan on September 23, 2010; September 30, 2010; October 7, 2010; and October 14, 2010. (April 30, 2010 Letter from Dr. Thirumaran.) Plaintiff was examined by Dr. Koierowski at SCI Graterford on August 23, 2010 and transferred to SCI Camp Hill on September 1, 2010. (Pl. Grievance No. 335559, 10/12/10 letter to Bill Adolph, letter from Marsen to Thirumaran.) He has not received any of his Rituxan treatments. (Pl. Grievance No. 335559.)

The Amended Complaint asserts one claim against all Defendants for cruel and unusual punishment in violation of the Eighth Amendment. (Am. Compl. ¶ 15.) Plaintiff seeks compensatory damages of $3,500,000 against each Defendant and punitive damages of $3,500,000 against each Defendant. (Id. ¶¶ 19-20.) Plaintiff recently filed a document entitled "Injunction A Temporary Restraining Order" in which he asks the Court to issue a preliminary injunction. Although neither the Amended Complaint nor Plaintiff's request for an injunction state the specific injunctive relief he seeks, we assume that Plaintiff wants the Court to Order Warden Palakovich to ensure that he receives the Rituxan treatments ordered by Dr. Thirumaran.


Plaintiff is a prisoner of the Commonwealth of Pennsylvania and seeks redress from officers and employees of governmental entities. We are thus required to review his Amended Complaint, "as soon as practicable after docketing...." 28 U.S.C. § 1915A(a). "On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint -- (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A(b). We review the sufficiency of the pleadings under § 1915A using the same standard applicable to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See Walker v. Hensley. Civ. A. No. 08-685, 2009 WL 5064357, at *4 (E.D. Pa. Dec. 23, 2009) ("The legal standard for dismissing a complaint for failure to state a claim pursuant to... Section 1915A is identical to the legal standard used when ruling on a Rule 12(b)(6) motion." (citations omitted)).

When considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), we look primarily at the facts alleged in the complaint and its attachments. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). We take the factual allegations of the complaint as true and draw all reasonable inferences in favor of the plaintiff. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (citing Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). Legal conclusions, however, receive no deference, and the court is "not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986) (citations omitted) (cited with approval in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

A plaintiff's pleading obligation is to set forth "a short and plain statement of the claim," Fed. R. Civ. P. 8(a)(2), which gives the defendant "'fair notice of what the... claim is and the grounds upon which it rests.'" Twombly, 550 U.S. at 555 (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). The "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (citing Twombly, 550 U.S. at 556). In the end, we will dismiss a complaint if the factual allegations in the complaint are not sufficient "to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555 (citing 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216, at 235-36 (3d ed. 2004)).


A. Plaintiff's Eighth Amendment Claim

Plaintiff has brought his claims pursuant to 42 U.S.C. § 1983, which provides, in pertinent part, as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.... 42 U.S.C. § 1983. "Section 1983 provides remedies for deprivations of rights established in the Constitution or federal laws. It does not, by its own terms, create substantive rights." Kaucher v. Cnty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (footnote omitted) (citing Baker v. McCollan, 443 U.S. 137, 145 n.3 (1979)); see also City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985) (stating that Section 1983 "creates no substantive rights; it merely provides remedies for deprivations of rights established elsewhere" (citing Baker, 443 U.S. at 140, 144 n.3)). Consequently, in order to state a claim for relief pursuant to Section 1983, "a plaintiff must demonstrate the defendant, acting under color of state law, deprived him or her of a right secured by the Constitution or the laws of the United States." Kaucher, 455 F.3d at 423 (citing Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999), and Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995)).

The Amended Complaint alleges that the Defendants' failure to provide him with necessary treatment for his Non-Hodgkin's Lymphoma violates ...

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