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McCarty v. McGinley

United States District Court, M.D. Pennsylvania

December 1, 2017

TERRY MCCARTY, Plaintiff,
v.
WARDEN TOM MCGINLEY, C. HEDRAY, Defendants.

          MEMORANDUM

          Hon. John E. Jones III Judge

         Plaintiff, Terry McCarty (“McCarty”), a state inmate incarcerated at the State Correctional Institution at Coal Township (“SCI-Coal Township”) filed this pro se civil rights action pursuant to 42 U.S.C. § 1983, on November 29, 2017, naming as defendants Warden Tom McGinley and C. Hedray. (Doc. 1). He seeks to proceed in forma pauperis. (Docs. 2, 6).

         For the reasons set forth below, the complaint will be dismissed pursuant to 28 U.S.C. §1915(e)(2)(B)(ii).

         I. STANDARDS OF REVIEW

         Section 1915(e)(2)(B)(ii), which pertains to in forma pauperis proceedings states, in pertinent part, “the court shall dismiss the case at any time if the court determines that…the action or appeal…fails to state a claim on which relief may be granted.” 28 U.S.C. §1915(e)(2)(B)(ii). The applicable standard of review for is the same as the standard for a motion pursuant to 12(b)(6) of the Federal Rules of Civil Procedure, which provides for the dismissal of complaints that fail to state a claim upon which relief can be granted.

         “Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds the plaintiff's claims lack facial plausibility.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). Although the Court must accept the fact allegations in the complaint as true, it is not compelled to accept “unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation.” Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)). In deciding the motion, the Court may consider the facts alleged on the face of the complaint, as well as “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).

         II. ALLEGATIONS OF THE COMPLAINT

         McCarty alleges, in toto, as follows:

On or about 09/04/2017, while working in prison Kitchen, at apprx. 6:30 PM while on my knees at the sink in Dishroom #1, I was in the process of assisting another inmate, INMATE HERSHBURGER, with the proper alignment of his buttons on his pants. At about that time,
C. HEDRAY, did suddenly appear, and did surprise and startle both myself and HURSHBURGER, causing myself to leap to my feet. HEDRAY then did question me of whether I was attempting to perform oral sex (fellatio) on HERSHBURGER to which I did reply “I'm not gay.”
HEDRAY then threatened me with a misconduct report for sexual misconduct and inappropriate touching, however, no misconduct report was issued due to lack of evidence. As result, I am emotional and mentally disturbed, and was harassed by HEDRAY.

(Doc. 1, pp. 2, 3).

         He seeks monetary damages, injunctive relief, costs and attorney's fees.

         III. ...


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