IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
December 21, 2012
WILLIAM BRANDON CUMMINGS PLAINTIFF,
SGT. SMITH, ET AL. DEFENDANTS.
The opinion of the court was delivered by: Rufe, J.
Plaintiff, a state prisoner, filed a § 1983 action against prison
officials alleging violations of his First and Eighth Amendment rights
and retaliation. The remaining Defendant, Sgt. Robert Smith, has filed
a motion to dismiss the claims against him. *fn1
Even construing Plaintiff's complaint liberally as he is
proceeding pro se , and accepting as true all facts
in the original and amended Complaints and viewing them in the light
most favorable to Plaintiff, he has failed to state a claim upon which
relief can be granted. *fn2
Plaintiff alleges that Defendant threw away some of Plaintiff's important legal papers that could have resulted in his release from prison, verbally harassed and intimidated Plaintiff when Plaintiff requested grievance forms, and sprayed mace into the cell "directly about" Plaintiff's cell as a prank, which caused Plaintiff to become ill when the mace came through a vent into Plaintiff's cell. *fn3
Plaintiff's allegations of Defendant's use of racial insults and intimidating language do not state a cause of action. Verbal harassment, even coupled with threatening language and gestures, cannot support a § 1983 claim in these circumstances, and that claim will be dismissed with prejudice. *fn4
With regard to the alleged removal of his legal papers, an inmate who alleges a violation of the right of access to the courts pursuant to the First Amendment must be able to show an actual injury. *fn5 Actual injury can be demonstrated by showing that the defendant's actions resulted in the "loss or rejection of a legal claim." *fn6 The lost or rejected legal claim must be specifically identified and meritorious. *fn7 Here, Plaintiff alleges the lost legal claim only in general terms, and the claim will be dismissed without prejudice so that Plaintiff may have the opportunity to allege a specific and meritorious claim. *fn8
Plaintiff also alleges that his Eighth Amendment rights were violated by the spraying of mace into a nearby cell. A prison official violates the Eighth Amendment when he acts with deliberate indifference to a known, objectively serious risk to a prisoner's health or safety. *fn9 The plaintiff must allege that the prison official responsible for the conditions of confinement acted with "a sufficiently culpable state of mind." *fn10 Here, Plaintiff alleges that the action was a "prank;" he has not alleged that Defendant intended, or was deliberately indifferent to, a risk to Plaintiff's health, or that such a risk was serious. *fn11 This claim will be dismissed without prejudice to allow Plaintiff a final opportunity to state a cause of action.
An order will be entered.