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McCarthy v. Ebbert

United States District Court, M.D. Pennsylvania

April 24, 2017

JOHN J. McCARTHY, Plaintiff
v.
WARDEN EBBERT, et al., Defendants

          MEMORANDUM

          William W. Caldwell United States District Judge

         I. Introduction

         The pro se plaintiff, John J. McCarthy, a former federal inmate, filed the above-captioned civil-rights action while he was incarcerated. (ECF No. 1, Compl.) McCarthy has filed an Amended Complaint (ECF No. 4) and a motion for leave to proceed in forma pauperis (ECF No. 5). Plaintiff alleges several conditions-of-confinement claims stemming from his stay at the United States Penitentiary in Lewisburg, Pennsylvania (USP Lewisburg).

         McCarthy names only Warden Ebbert and “John Doe Agents” as defendants in his Amended Complaint. (ECF No. 4). The Amended Complaint is before the court for preliminary screening pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e)(2)(B). Upon screening the complaint, the court will grant McCarthy's motion to proceed in forma pauperis but dismiss the Amended Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) due to Plaintiff's failure to state a claim upon which relief may be granted against the named defendant warden.

         However, McCarthy will be granted leave to file a second amended complaint specifically identifying the conduct of the warden showing his personal involvement with civil-rights violations against Plaintiff. In a second amended complaint, Plaintiff shall also identify those USP Lewisburg officials and/or medical professionals who allegedly violated his constitutional rights by failing to protect him from assault, those who used excessive force against him, those who denied him medical/mental health care, and those who interfered with his legal mail. The second amended complaint shall be sufficiently specific as to time and place and allege the conduct of each defendant that violated Plaintiff's rights.

         II. Standard of Review for Screening Pro Se In Forma Pauperis Complaints

         When a litigant seeks to proceed in forma pauperis, without the prepayment of fees, 28 U.S.C. § 1915 requires the court to screen the complaint. Likewise, when a prisoner seeks redress from a government defendant in a civil action, whether proceeding in forma pauperis or not, the court must screen the complaint. See 28 U.S.C. § 1915A(a). Both 28 U.S.C. § 1915(e)(2)(B) and § 1915(A) give the court the authority to dismiss a complaint if it is frivolous, malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)(i)-(iii); 28 U.S.C. § 1915A(b)(1)-(2); Ball v. Famiglio, 726 F.3d 448, 452 (3d Cir. 2013).

         A complaint is frivolous if it lacks an arguable basis either in law or fact. See Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003)(citing Neitzke v. Williams, 490 U.S. 319, 327-28, 109 S.Ct. 1827, 1832-33, 104 L.Ed.2d 338 (1989)). In deciding whether the complaint fails to state a claim on which relief may be granted, the court employs the standard used to analyze motions to dismiss under Fed.R.Civ.P. 12(b)(6). See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). Under Rule 12(b)(6), we “must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009)). The court may also rely on exhibits attached to the complaint and matters of public record. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007).

         A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief . . .” Fed.R.Civ.P. 8(a)(2). A complaint is required to provide “the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Phillips v. Cty. of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007)).

         To test the sufficiency of the compliant, the court “must take three steps.” Connelly v. Lane Constr. Corp., 809 F.3d 780, 787 (3d Cir. 2016). First, a court must “take note of the elements a plaintiff must plead to state a claim.” Id. (internal quotations and brackets omitted). Second, the court must identify allegations that are merely legal conclusions “because they . . . are not entitled to the assumption of truth.” Id. While detailed factual allegations are not required, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007)). Third, a court should assume the veracity of all well-pleaded factual allegations and “then determine whether they plausibly give rise to an entitlement to relief.” Connelly, 809 F.3d at 787 (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. at 1949).

         A complaint filed by a pro se plaintiff must be liberally construed and “held ‘to less stringent standards than formal pleadings drafted by lawyers.'” Fantone v. Latini, 780 F.3d 184 (3d Cir. 2015)(citing Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972)); see also Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007). Yet, even a pro se plaintiff “must allege sufficient facts in their complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir.2013) (citation omitted). 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. See Estate of Lagano v. Bergen Cnty. Prosecutor's Office, 769 F.3d 850, 861 (3d Cir. 2014).

         III. Allegations of the Amended Complaint

         “For a year and a half the defendants” have denied McCarthy protection from assault by other inmates because of his legal activities. (ECF No. 4, ¶ 2). Plaintiff claims he was assaulted six separate times while in the institution. After “most” of the assaults the “defendants” refused to document the event or provide him medical care for his injuries. (Id.)

         He adds that staff have told inmates he is a “rat” so his cellmate would assault him. (Id., ¶ 13). In one instance, where staff knew inmate Roman beat his cellie to death, SIA Sussanne Heath and Counselor Reese “and others” placed Roman in the same cell as McCarthy. ...


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