United States District Court, E.D. Pennsylvania
HARVEY M. SHANER, JR., Plaintiff,
KYLE RUSSELL, et al, Defendants.
Harvey M. Shaner, Jr., a prisoner incarcerated at the Lehigh
County Jail, brings this pro se civil action
pursuant to 42 U.S.C. § 1983, based on allegations that
his constitutional rights have been and continue to be
violated during his incarceration. The Court denied
Shaner's Motion for Leave to Proceed In Forma
Pauperis without prejudice because he failed to include
a certified copy of his prisoner account statement for the
six-month period prior to lodging his Complaint as required
by 28 U.S.C. § 1915(a)(2). (ECF No. 4.) The Court gave
Shaner time to return with his paperwork, which he did. (ECF
No. 5.) He also filed an Amended Complaint. (ECF No. 6.) For
the following reasons, the Court will grant Shaner leave to
proceed in forma pauperis, dismiss certain claims,
and give Shaner leave to file a second amended complaint as
to certain claims.
Amended Complaint names as Defendants Warden Kyle Russell,
Investigator Cliff Knappenberger, and Lt. Brian Dugan. Shaner
articulates the following factual basis for his claims:
I've been verbal [sic] harassed and have been threatened
in writing. I've also been threatened with physical harm
by the two mentioned. The investigator has blocked me from
being able to talk to my girlfriend, my son and also my
daughter which 1 do not have a court order against them. They
are blocking contact for no reason. The harassment continues
to get worse.
(Am. Compl. ECF No. 6 at 4.) Shaner indicates that he filed a
grievance "to stop the harassment and [to] allow contact
to [his] family," that the grievance was denied, and
that the Warden denied his appeal. (Id. at 3.) As
relief, Shaner seeks $500, 000 from each Defendant and a
"temporary injunction to stop the abuse."
(Id. at 4.)
STANDARD OF REVIEW
Court grants Shaner leave to proceed in forma
pauperis because it appears that he is incapable of
paying the fees to commence this civil action. Accordingly, 28
U.S.C. § 1915(e)(2)(B)(ii) applies, which requires the
Court to dismiss the Amended Complaint if it fails to state a
claim. Whether a complaint fails to state a claim under
§ 1915(e)(2)(B)(ii) is governed by the same standard
applicable to motions to dismiss under Federal Rule of Civil
Procedure 12(b)(6), see Tourscher v. McCullough, 184
F.3d 236, 240 (3d Cir. 1999), which requires the Court to
determine whether the complaint contains "sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face." Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted).
Conclusory allegations do not suffice. Id. As Shaner
is proceeding pro se, the Court construes his
allegations liberally. Higgs v. Att 'y Gen., 655
F.3d 333, 339 (3d Cir. 2011).
state a claim under § 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of
the United States, and must show that the alleged deprivation
was committed by a person acting under color of state
law." West v. Atkins, 487 U.S. 42, 48 (1988).
"A defendant in a civil rights action must have personal
involvement in the alleged wrongs." See Rode v.
Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). For
the following reasons, Shaner has only stated a plausible
basis for a claim against Defendant Knappenberger for
restricting contact with his girlfriend and children.
Claims Based on Denial of Grievances
unclear, the only apparent basis for Shaner's claim
against the Warden is the fact that the Warden denied
Shaner's appeal of his grievance. This claim fails
because "[p]rison inmates do not have a constitutionally
protected right to a grievance process." Jackson v.
Gordon, 145 Fed.Appx. 774, 777 (3d Cir. 2005) (per
curiam); see also Caldwell v. Beard, 324 Fed.Appx.
186, 189 (3d Cir. 2009) (per curiam). If Shaner intended to
assert any other claim against the Warden, that claim is not
apparent from the Amended Complaint. In sum, the Court will
dismiss any claims based on the denial of grievances, which
resolves all of Shaner's claims against the Warden.
Claims Based on Threats and Harassment
has not stated a constitutional claim based on his sparse and
conclusory allegations of threats and harassment. Verbal
threats and harassment, although distasteful, do not amount
to a constitutional violation.See Ledcke v. Pennsylvania
Dep't of Corr.,655 Fed.Appx. 886, 888-89 (3d Cir.
2016) (per curiam) (detainee's "claims of verbal
harassment fail[ed] as a matter of law"); McBride v.
Deer,240 F.3d 1287, 1291 n.3 (10th Cir. 2001)
("[A]cts or omissions resulting in an inmate being
subjected to nothing more than threats and verbal taunts do
not violate the Eighth Amendment"); Higgs v.
Suey, Civ. A. No. 07-5158 RMB, 2008 WL 699594, at *5
(D.N.J. Mar. 12, 2008) ("Allegations that prison
personnel have used threatening language and gestures also
are not cognizable claims under § 1983."); cf.
Fanti v. Weinstock,62 ...