United States District Court, M.D. Pennsylvania
DAVID A. ADEWUMI, Plaintiff,
RANDY WITHENLE, ET AL., Defendants.
MATTHEW W. BRANN, District Judge.
David A. Adewumi, an inmate presently confined at the Centre County Correctional Facility, Bellefonte, Pennsylvania, filed this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has also submitted an in forma pauperis application (Doc. 2) as well as a Supplement to his Complaint (Doc. 7). For the reasons set forth below, Adewumi's action will be dismissed, without prejudice, as legally frivolous pursuant to the screening provisions of 28 U.S.C. § 1915.
Named as Defendants in the Complaint are Correctional Officer Randy Withenle of the Centre County, Pennsylvania Correctional Facility; Centre County District Attorney Stacy Parks Miller; Officers Eric Lesher and Detective John Aston of the Borough of State College, Pennsylvania Police Department; Pennsylvania State Troopers Gretchen Swank and Brian Wakefield. In the Supplement filed by Plaintiff, he indicates an intention to also pursue claims, including pendent state law allegations of libel, slander and defamation, against the Borough of State College Police Department; his alleged victim Terren Lesher and her mother, Lisa Lesher; a witness Elara Sakona and her parents Dean and Kathy Sakona; the State College Area School District and its Superintendent; and the State College Assembly of God Church and its Pastor Steve Silliman.
Plaintiff indicates that beginning on or about April 19, 2013 he became a suspect and was ultimately arrested and charged with the stalking and harassment of Terren Lesher, the daughter of State College Police Officer Eric Lesher and Lisa Lesher. It is alleged that the alleged victim, Detective Alston, Officer Lesher,  Lisa Lesher, Troopers Swank and Wakefield, Pastor Silliman, Elara, Kathy, and Dean Sakona,  and the Superintendent of the State College Area School District made false, malicious, libelous, and slanderous statements which led to the filing of the criminal charges. The Complaint additionally indicates Officer Lesher fabricated the charges in order to protect himself from being exposed for breaking his daughter's leg.
Plaintiff further indicates hat District Attorney Parks Miller authorized the filing of those false charges and also refused to press charges against Dean Sakona. Adewumi adds that he is scheduled to face trial for those alleged criminal offenses on or about June 13, 2014. See id. at p. 9. With respect to Correctional Officer Withenle. It is alleged that said Defendant made sexually offensive remarks to Adewumi on August 14 & 16, 2013.
As relief, Plaintiff seeks monetary damages for emotional distress caused and also asks that the Pennsylvania Inspector General be directed to conduct an investigation into his allegations. His Supplement additionally seeks a change of venue with respect to his upcoming state court prosecution.
28 U.S.C. § 1915 imposes obligations on prisoners who file civil actions in federal court and wish to proceed in forma pauperis under 28 U.S.C. § 1915, e.g., that the full filing fee ultimately must be paid (at least in a non-habeas suit) § 1915(e)(2)provides:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that (A) the allegation of poverty is untrue; or (B) the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.
A district court may rule that process should not be issued if the complaint is malicious, presents an indisputably meritless legal theory, or is predicated on clearly baseless factual contentions. Neitzke v. Williams , 490 U.S. 319, 327-28 (1989); Douris v. Middleton Township , 293 Fed.Appx. 130, 132 (3d Cir. 2008). Indisputably meritless legal theories are those "in which either it is readily apparent that the plaintiff's complaint lacks an arguable basis in law or that the defendants are clearly entitled to immunity from suit...." Roman v. Jeffes , 904 F.2d 192, 194 (3d Cir. 1990) (quoting Sultenfuss v. Snow , 894 F.2d 1277, 1278 (11th Cir. 1990)).
The United States Court of Appeals for the Third Circuit has added that "the plain meaning of frivolous' authorizes the dismissal of in forma pauperis claims that... are of little or no weight, value, or importance, not worthy of serious consideration, or trivial." Deutsch v. United States , 67 F.3d 1080, 1083 (3d Cir. 1995). It also has been determined that "the frivolousness determination is a discretionary one, " and trial courts "are in the best position" to determine when an indigent litigant's complaint is appropriate for summary dismissal. Denton, 504 U.S. at 33.
Plaintiff alleges that Correctional Officer Withenle made sexually offensive remarks to him on August 14 & 16, 2013. There is no assertion that those purported statements were accompanied by any physical abuse.
The use of words generally cannot constitute an assault actionable under § 1983. Johnson v. Glick , 481 F.2d 1028, 1033 n.7 (2d Cir.); Maclean v. Secor , 876 F.Supp. 695, 698-99 (E.D. Pa. 1995); Murray v. Woodburn , 809 F.Supp. 383, 384 (E.D. Pa. 1993) ("Mean harassment... is insufficient to state a constitutional deprivation."); Prisoners' Legal Ass'n v. Roberson , 822 F.Supp. 185, 189 (D.N.J. ...