United States District Court, M.D. Pennsylvania
William W. Caldwell United States District Judge
se plaintiff, Johnny Collins, an inmate at the Mahanoy State
Correctional Institution (SCI-Mahanoy), in Frackville,
Pennsylvania, filed this 42 U.S.C. § 1983 action,
alleging that Records Supervisor J. Wiekrykas, Superintendent
John Kerestes and Chief Grievance Officer Dorina Varner
violated his Eighth Amendment and due-process rights by
delaying the commencement of one of his criminal sentences.
(ECF No. 1, Compl.) As relief he seeks compensatory and
punitive damages. He has also filed a motion to proceed
in forma pauperis, 28 U.S.C. § 1915.
reasons that follow, Collins' motion to proceed in
forma pauperis (ECF No. 2) will be granted, but his
Complaint will be dismissed pursuant to 28 U.S.C. §
1915(e)(2)(b)(ii) for failure to state a claim on which
relief may be granted. He will not be granted leave to file
an amended complaint as an amended complaint would be futile.
Standard of Review for Screening
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).
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.
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
Allegations of the Complaint
January 15, 2003, Collins was found guilty of Receiving
Stolen Property and Driving under a Suspended License.
See Commonwealth v. Collins, CP-22-CR-2607-2002 (Pa.
Ct. Com. Pl. Dauphin Cnty.). He was sentenced on May 7, 2003.
(Id.) He received a term of sixty months'
imprisonment and credit for time running from July 22, 2002,
to May 7, 2003. (Id.) On July 8, 2004, the
Pennsylvania Superior Court affirmed his sentence.
(Id.) On July 26, 2010, Collins' motion for
postconviction relief was dismissed. (Id.) Collins
was released on Probation/Parole on April 19, 2010.
(Id.) On October 19, 2010, a detainer was issued on
this sentence. (Id.) On August 21, 2007, a parole
revocation hearing was held. (Id.) The docket entry
reflects the following notation: “Revocation Hearing
Held 8/21/12 before Judge John Cherry. Ct. 1 - T.B.R.S.P. -
CLOSE DOCKET.” (Id.)
January 10, 2007, Collins pled guilty to various drug
charges. See Commonwealth v. Collins,
CP-22-CR-09994629-2006 (Pa. Ct. Com. Pl. Dauphin
Cnty.).On January 12, 2007, Collins was sentenced
to two-and-a-half years to five years' imprisonment on
the drug charges. He was to receive credit from May 18, 2006,
to January 10, 2007. (Id.)
October 19, 2010, Collins was again arrested by the
Harrisburg Police Department on various drug charges. See
Commonwealth v. Collins, CP-22-CR-0006085-2010 (Pa. Ct.
Com. Pl. Dauphin Cnty.). On May 8, 2012, Collins was found
guilty on several of the drug charges. (Id.) On July
25, 2012, Plaintiff was sentenced to nine to eighteen
years' imprisonment followed by one year's probation.
February 25, 2013, the Pennsylvania Board of Probation and
Parole (the Board) rendered a decision to recommit Collins as
a convicted parole violator to serve eighteen months'
backtime. (ECF No. 1, Compl., p. 3). Collins alleges that on
April 11, 2011, both cases “(2607 and 4629) expired
prior to the 2/25/13 Board decision as a result of the
17½ months time credit on case No. 4629.”
October 17, 2015, Collins filed Grievance No. 592738
concerning prison staff's failure to “cure the more
than 5 year delay in the commencement of the 9 to 18 year
sentence in case No. CP-22-CR-6085-2010 for more than five
(5) years.” (Id.) The grievance was denied at
Final Review on January 14, 2016. (Id.) He names as
defendants all those ...