The opinion of the court was delivered by: Hon. John E. Jones III
THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:
Plaintiff Stanley E. Kocher ("Plaintiff" or "Kocher"), an inmate presently confined at the Luzerne County Correctional Facility in Wilkes Barre, Pennsylvania, initiated the above action pro se by filing a civil rights Complaint under the provisions of 42 U.S.C. § 1983. (Doc. 1.) He also has filed a Motion for leave to proceed in forma pauperis. (Doc. 2), and therefore, the Complaint presently is before the Court for screening under the provisions of 28 U.S.C. § 1915. For the reasons set forth below, the request for in forma pauperis status will be granted for the sole purpose of filing the Complaint, and the Complaint will be dismissed with prejudice for failure to state a claim upon which relief may be granted.
In his Complaint, filed on May 25, 2011, Kocher names the Luzerne County Correctional Facility and Correctional Officer Wolfe as Defendants. (Doc. 1 at 2 § III.) He alleges that, on May 11, 2011 at 8:10 a.m., he was working in Unit L-2 when another inmate spit on him. (Id. § IV ¶ 1.) Kocher went to Correctional Officer Wolfe and asked if there was some place that he could wash. (Id. ¶¶ 1-2.) Wolfe and another correctional officer Kocher does not know asked if Kocher would like to go to the Nurse's Office, and he indicated that he would. (Id. ¶ 2.)
When he was at the Nurse's Office, Kocher asked the nurses who were working if the inmate who spit on him had any medical problems, such as HIV, AIDS, Hepatitis C, et cetera. (Id. ¶ 3.) The nurses stated that they could not give out that information. (Id.)
Kocher then alleges that he is not allowed to work in the L-2 lock up area now and that he sits and worries that he might have HIV "because a lot of people say he does." (Id. at 3 ¶ 4.) Kocher also states that he feels he is being punished and that he has been losing sleep and even got on medication. (Id.) He further explains that he does not understand how a staff member correctional officer could press charges for simple assault, but he is not even being asked. (Id.) He states, "I fe[e]l my right[s] have been violated some how." (Id.)
As relief, Kocher requests that charges be brought against this inmate and explains that he would like to be compensated for pain and suffering and for money for his court fees. (Id. at 4 § V.) He also states that he would like to have the prison system know that even though he is a prisoner, he is human. (Id.)
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 factual allegations. Morrison v. Madison Dearborn Capital Partners III L.P., 463 F.3d 312, 314 (3d Cir. 2006). The controlling question is whether the complaint "alleges 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)); see also Ashcroft v. Iqbal, - - - U.S. - - - - , 129 S.Ct. 1937, 1949 (2009).
"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." Twombly, 550 U.S. 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 recover is properly dismissed without leave to amend. Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d Cir. 2002).
Preliminarily, we observe that it is apparent from the face of the Complaint that Kocher failed to exhaust administrative remedies before initiating this action. He states at the outset of his Complaint that he has not filed a grievance concerning the facts relating to his Complaint because he "felt that it would do no good and it is hard just to have one given to you." (Doc. 1 at 1 § II.) The Prison Litigation Reform Act ("PLRA") requires inmates to present their claims through an administrative grievance process before filing suit in federal court. Specifically, section 1997e(a) of Title 42 of the United States Code provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." This "exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002) (emphasis added).
"'[I]t is beyond the power of this court- or any other- to excuse compliance with the exhaustion requirement, whether on the ground of futility, inadequacy or any other basis.'" Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir. 2000) (quoting Beeson v. Fishkill Corr. Facility, 28 F. Supp. 2d 884, 894-95 (S.D.N.Y. 1998) (citing Weinberger v. Salfi, 422 U.S. 749, 766 (1975)). The PLRA "completely precludes a futility exception to its mandatory exhaustion requirement." Nyhuis, 204 F.3d at 71. The PLRA also mandates ...