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Shaner v. Russell

United States District Court, E.D. Pennsylvania

July 17, 2019

HARVEY M. SHANER, JR., Plaintiff,
v.
KYLE RUSSELL, et al, Defendants.

          MEMORANDUM

          PADOVA, J.

         Plaintiff 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.[1]

         I. FACTS

         The 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.)[2] 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.)

         II. STANDARD OF REVIEW

         The 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.[3] 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).

         III. DISCUSSION

         "To 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.

         A. Claims Based on Denial of Grievances

         Although 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.[4] In sum, the Court will dismiss any claims based on the denial of grievances, which resolves all of Shaner's claims against the Warden.

         B. Claims Based on Threats and Harassment

         Shaner 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.[5]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 ...


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