United States District Court, W.D. Pennsylvania
WILLIE J. BURNS, Plaintiff
ERIE COUNTY PRISON, et al., Defendants
PARADISE BAXTER UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
RICHARD A. LANZILLO UNITED STATES MAGISTRATE JUDGE
JUDGE'S REPORT AND RECOMMENDATION
hereby recommended that the motion for leave to proceed
in forma pauperis [ECF No. 1] be GRANTED.
further recommended that this action be dismissed as legally
frivolous in accordance with 28 U.S.C. § 1915(e).
Plaintiff's motion for leave to proceed in forma
Willie J. Burns (“Plaintiff”) initiated this
pro se civil rights action by filing a motion for
leave to proceed in forma pauperis. In his motion,
Plaintiff states that he is unable to pay the filing fee
associated with this case. Based upon this averment, it
appears that Plaintiff is without sufficient funds to pay the
costs and fees of the proceedings. Accordingly, his motion
for leave to proceed in forma pauperis should be
Assessment of Plaintiff's Complaint
been granted leave to proceed in forma pauperis,
Plaintiff is subject to the screening provisions in 28 U.S.C.
§ 1915(e). Among other things, that statute requires
the Court to dismiss any action in which the Court determines
that the action is “frivolous or malicious; fails to
state a claim upon which relief may be granted; or seeks
monetary relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2); Muchler v.
Greenwald, 624 Fed.Appx. 794, 796-97 (3d Cir. 2015). A
frivolous complaint is one which is either based upon an
indisputably meritless legal theory (such as when a defendant
enjoys immunity from suit) or based upon factual contentions
which are clearly baseless (such as when the factual scenario
described is fanciful or delusional). Neitzke v.
Williams, 490 U.S. 319, 327 (1989). The determination as
to whether a complaint fails to state a claim upon which
relief may be granted is governed by the same standard
applicable to motions to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure. D'Agostino v. CECOM
RDEC, 436 Fed.Appx. 70, 72 (3d Cir. 2011) (citing
Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir.
complaint, Plaintiff, a pre-trial detainee confined at the
Erie County Prison, alleges that the Pennsylvania Superior
Court mailed him an order related to an ongoing criminal
appeal on May 21, 2019, but he did not receive the order
until June 5, 2019. ECF No. 1-2 at 2. Because the order
directed him to file something within ten days, this delay
could “possibly” have jeopardized his appeal.
Id. at 6. Plaintiff implies that Defendant Gregory
Little, the corrections officer who received the mail in
question, may have intentionally withheld his mail, although
no substantive allegations to this effect appear in the
complaint. Id. at 2.
7, 2009, Plaintiff filed a grievance concerning the mail
delay. ECF No. 6. Defendant Michael Holman denied the
grievance, issuing the following response:
We have no control over when the mail arrives and you were
told this by your counselor, therefore, this is nothing more
than a harassing communication. Any further harassing
communications  may result in a misconduct. The item
arrived on the 5th of June and that is when you