United States District Court, M.D. Pennsylvania
WESLEY M. POLLARD, SR., Plaintiff
TAMMY FERGUSON, et al., Defendants
William W. Caldwell United States District Judge
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.)
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.
Standard of Review
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. §
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
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).
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).
are sued in their individual and official capacities. Pollard
seeks monetary relief.
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).
Failure to State A ...