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Pollard v. Ferguson

United States District Court, M.D. Pennsylvania

May 10, 2017

WESLEY M. POLLARD, SR., Plaintiff
v.
TAMMY FERGUSON, et al., Defendants

          MEMORANDUM

          William W. Caldwell United States District Judge

         I. Introduction

         The pro se plaintiff, Wesley M. Pollard, Sr., an inmate at the Benner Township State Correctional Institution (SCI-Benner), in Bellefonte, Pennsylvania, filed this civil-rights action pursuant to 42 U.S.C. § 1983 on February 18, 2017. Pollard seeks damages for injuries he sustained when he slipped in the shower area due to a lack of “floor mats” in the area. (ECF No. 1, Compl.) Named as Defendants are the Secretary of the Pennsylvania Department of Corrections (DOC), John E. Wetzel, and the Superintendent of SCI-Benner, Tammy Ferguson. (Id.)

         This case is now before the court for a preliminary review pursuant to 28 U.S.C. § 1915. Pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), we will dismiss the complaint for failure to state a claim upon which relief may be granted, principally because Plaintiff has failed to allege a constitutional violation or claim.

         II. Standard of Review

         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 he is proceeding in forma pauperis or not, the court must screen the complaint. See 28 U.S.C. § 1915A. 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).

         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 factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)). 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).

         Finally, pro se pleadings are held to a less stringent standard than formal pleadings drafted by attorneys and are to be liberally construed. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007); Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009). 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 Philips, 515 F.3d at 245-46 (citing Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004)). However, a complaint that sets forth facts which affirmatively demonstrate that the plaintiff has no right to recover is properly dismissed without leave to amend. Grayson v. Mayview State Hospital, 293 F.3d 103, 106 (3d Cir. 2002).

         III. Background

         According to the Complaint, on June 15, 2016, Pollard slipped and fell in the drying area of the shower, injuring his left leg and knee. He put in a sick call slip and was later seen by physician, Brad Rickaball, who ordered diagnostic X-rays and pain medication. (ECF No. 1, pp. 2-3). Approximately ten days later, he learned that he had sustained a torn meniscus, and additional testing of his knee was ordered. Pollard was taken to a local hospital where he received an “E.K.G., ” and it was confirmed he had a torn meniscus. On October 25, 2016, Pollard underwent surgery for his knee. He alleges that “these shower area's (sic), in and around should have mats and better drainage. This negligence and lack of concern for [his] safety, put [him] in danger, by not providing any floor mats for these hazardous and slippery areas.” (Id., p. 4).

         Defendants are sued in their individual and official capacities. Pollard seeks monetary relief.

         Pollard notes that his administrative remedy “was rejected/dismiss[ed] for not filing timely.” (Id., p. 2). He also includes copies of his administrative remedy, appeals and the prison official's responses, including the rejection of his grievance as untimely by the Secretary's Office of Inmate Grievances and Appeals. (Id., p. 12).

         IV. Discussion

         A. Failure to State A ...


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