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Makenson v. Luzerne County Correctional Facility

United States District Court, M.D. Pennsylvania

August 22, 2014

MICHAEL MAKENSON, Plaintiff,
v.
LUZERNE COUNTY CORRECTIONAL FACILITY ET AL., Defendants.

MEMORANDUM

MATTHEW W. BRANN, District Judge.

Background

Michael Makenson filed his pro se civil rights action pursuant to 42 U.S.C. § 1983 regarding his prior confinement at the Luzerne County Correctional Facility, Wilkes-Barre, Pennsylvania. The docket indicates that Plaintiff is presently residing in Haiti. See Doc. 35. Service of the Complaint was previously ordered.

By Memorandum and Order dated July 31, 2014, this Court granted a motion to dismiss filed by Defendant Medical Director Gunnar Kosek, D.O. See Docs. 36 & 37. Remaining Defendants are the Luzerne County Prison, and two prison officials: Acting Warden Major Larson; and Registered Nurse (RN) George Mrochko.[1] Presently pending is a motion to dismiss filed by Defendant Mrochko. See Doc. 29. The unopposed motion is ripe for consideration.

While incarcerated at the Luzerne County Prison on July 8, 2013, Makenson allegedly slipped and fell on a wet floor while en route to use the telephone. His fall resulted from slippery surface purportedly caused by a leak in a wall near the phone area. Plaintiff states that following his mishap he was transported to a local hospital where x-rays and an MRI test revealed that he had suffered multiple bruises to his lower back, neck, left hip and left shoulder.[2] See Doc. 1, ¶ IV. After being prescribed medication for his injuries, the Plaintiff was transferred back to the prison.

When Makenson refused to authorize a co-payment for his medication on July 9, 2013, the Complaint contends that the prisoner was given a disciplinary charge and subjected to a racial slur by RN Mrochko.[3] Makenson indicates that he refused to pay for his medication which is identified in his accompanying exhibits as being Motrin because payment is not required "when the jail is at fault." Id. at p. 4. The Complaint seeks injunctive relief and compensatory damages.[4]

Discussion

Defendant Mrochko claims entitlement to entry of dismissal on the grounds that: (1) being subjected to a racial slur does not sert forth a viable civil rights claims; and (2) requiring an inmate to make a co-payment for medication is constitutionally acceptable. As noted earlier, the motion is unopposed.

Standard of Review

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of complaints that fail to state a claim upon which relief can be granted. When ruling on a motion to dismiss under Rule 12(b)(6), the court must "accept as true all factual allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff." Kanter v. Barella , 489 F.3d 170, 177 (3d Cir. 2007)(quoting Evancho v. Fisher , 423 F.3d 347, 350 (3d Cir. 2005)).

A plaintiff must present facts that, if true, demonstrate a plausible right to relief. See Fed.R.Civ.P. 8(a)(stating that the complaint should include "a short and plain statement of the claim showing that the pleader is entitled to relief"); Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007). This requirement "calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of" the necessary elements of the plaintiff's cause of action. Id. at 556. A complaint must contain "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal , 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Iqbal , 129 S.Ct. at 1949. Legal conclusions must be supported by factual allegations and the complaint must state a plausible claim for relief. See id. at 1950.

"Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, at 555. The reviewing court must determine whether the complaint "contain[s] either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." Id. at 562; see also Phillips v. County of Allegheny , 515 F.3d 224, 234 (3d Cir. 2008)(in order to survive a motion to dismiss, a plaintiff must allege in his complaint "enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s]" of a particular cause of action). Additionally, pro se pleadings are to be construed liberally, Haines v. Kerner , 404 U.S. 519, 520 (1972).

Racial Slur

Plaintiff alleges that on July 9, 2013, RN Mrochko called him a "black monkey" when he refused to pay a co-payment for ...


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