United States District Court, E.D. Pennsylvania
A. MCHUGH, J.
Thomas Early Bailey, a prisoner incarcerated at the Berks
County Jail, brings this pro se civil action
pursuant to 42 U.S.C. § 1983, based on the conditions of
his confinement. Bailey seeks to proceed in forma
pauperis. For the following reasons, the Court will
grant Bailey leave to proceed in forma pauperis and
dismiss his Complaint without prejudice to amendment.
alleges that he is being forced to take phenobarbital twice a
day for epilepsy even though he does not have epilepsy. It
appears Bailey was told that he would be moved to the medical
unit if he refused to take the medication. Bailey alleges
that the phenobarbital affects his memory and has other side
effects, including dependency. Bailey indicates that he has
been taking phenobarbital “for years, ” but only
recently began to experience side effects from the
medication. (Compl. at 5-6.)
Complaint names Jesse Kirsh M.D. and Warden Janine Quigley as
Defendants. Bailey seeks $500, 000 from each Defendant.
STANDARD OF REVIEW
Court grants Bailey 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 Bailey
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). Indeed, “[b]ecause vicarious liability is
inapplicable to . . . § 1983 suits, a plaintiff must
plead that each Government-official defendant, through the
official's own individual actions, has violated the
Constitution.” Iqbal, 556 U.S. at 676. There
are “two general ways in which a supervisor-defendant
may be liable for unconstitutional acts undertaken by
subordinates.” Barkes v. First Corr. Med.,
Inc., 766 F.3d 307, 316 (3d Cir. 2014), reversed on
other grounds by Taylor v. Barkes, 135 S.Ct. 2042
(2015). First, a supervisor may be liable if he or she
“with deliberate indifference to the consequences,
established and maintained a policy, practice or custom which
directly caused [the] constitutional harm.”
Id. (quoting A.M. ex rel. J.M.K. v. Luzerne Cty.
Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004)
(alteration in original)). “Second, a supervisor may be
personally liable under § 1983 if he or she participated
in violating the plaintiff's rights, directed others to
violate them, or, as the person in charge, had knowledge of
and acquiesced in the subordinate's unconstitutional
has not alleged facts explaining what any of the Defendants
did or did not do to violate his rights. Although Kirsch is
identified as a doctor, the Complaint does not indicate
whether he prescribed Bailey's medication or if he is
named as a Defendant for some other reason. In other words,
Bailey has failed to allege facts explaining how the
Defendants he named-Kirsch and Quigley-were involved in or
responsible for medicating him with phenobarbital even though
he allegedly does not require that medication. As a result,
the Court will dismiss his Complaint because he has failed to
state a claim against the Defendants.
foregoing reasons, the Court will dismiss Bailey's
Complaint for failure to state a claim, pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii). The Court will give Bailey an
opportunity to file an amended complaint so he may cure the
defects in his claims. An Order follows.