United States District Court, E.D. Pennsylvania
JEFFREY L. SCHMEHL, J.
Moore, who was formerly a prisoner in the Berks County Jail
System (“BCJS”), filed this pro se civil
rights complaint pursuant to 42 U.S.C. § 1983 (ECF No.
2) along with a Motion to Proceed In Forma Pauperis
(ECF No. 1). Because it appears that Moore is unable to
afford to pay the filing fee, the Court will grant him leave
to proceed in forma pauperis. For the following
reasons, the Complaint will be dismissed in part with
prejudice and in part without prejudice pursuant to 28 U.S.C.
§§ 1915(e)(2)(B)(i) and (ii).
alleges that during some portion of the time that he was in
custody at the BCJS from September 18 to October 18, 2018, he
was not served meat as part of his meals. Specifically, he
alleges that he informed prison officials that he did not
drink milk and requested a non-dairy diet. (ECF No. 2 at 7.)
His meals thereafter mistakenly did not contain any meats.
(Id.) He complained to a prison official who
contacted Defendant Kitchen Officer Mata. (Id.) Mata
allegedly refused his request for meat meals. (Id.)
Moore claims that his body “started to rejecting the
food I was being fed, I couldn't hold it down.”
(Id.) He claims that he had to eat his meals in his
cell near his toilet and speculates that this caused
alleges that he asked to go to medical about his reaction to
his food. His request was denied by Defendant Estes, who told
him to return to his cell. (Id.) He filed a
grievance about Estes but never received a reply.
(Id.) On October 13, 2018, he again complained about
his food, but Defendant Mata threatened that he would be
placed in administrative segregation if he continued to
contacted Defendant Jesse Kirsch PA-C in the medical
department about his meatless meals, claiming it was causing
him to starve and have headaches, but Kirsch would not help.
(Id. at 6.) Defendant Nurse Christine Satter told
Moore that there was nothing she could do for him.
(Id.) Defendant Sergeant Davis “just shrugged
his shoulders” and told him to hold on for a few more
days when Moore complained to him on October 13, 2018.
(Id.) Shortly thereafter he was placed on a normal
diet, allegedly after he filed an emergency grievance and
addressed a letter to the deputy warden, “[b]ut the
damage has been done.” (Id.) He alleges he was
“starved” and “force fed.”
(Id.) Finally, Moore alleges that Defendant Lt.
Weber failed to properly investigate his grievance.
STANDARD OF REVIEW
Court will grant Moore 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)(i) requires the Court to dismiss
the Complaint if it is frivolous. A complaint is frivolous if
it “lacks an arguable basis either in law or in fact,
” Neitzke v. Williams, 490 U.S. 319, 325
(1989), and is legally baseless if it is “based on an
indisputably meritless legal theory.” Deutsch v.
United States, 67 F.3d 1080, 1085 (3d Cir. 1995). In
addition, § 1915(e)(2)(B)(ii) requires the Court to
dismiss the 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 Moore is
proceeding pro se, the Court construes his
allegations liberally. Higgs v. Att'y Gen., 655
F.3d 333, 339 (3d Cir. 2011).
BCJS is Not a “Person” Subject to Suit Under
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).
At the outset the Court notes that Moore named the BCJS as a
Defendant in this action. This § 1983 claim is dismissed
as frivolous because a jail is not a “person”
under § 1983. Miller v. Curran-Fromhold Corr.
Facility, Civ. A. No. 13-7680, 2014 WL 4055846, at *2
(E.D. Pa. Aug. 13, 2014) (citing Mitchell v. Chester Cty.
Farms Prison, 426 F.Supp. 271 (E.D. Pa. 1976);
Lenhart v. Pennsylvania, 528 Fed.Appx. 111, 114 (3d
Cir. 2013) (“Westmoreland County Prison is not a person
capable of being sued within the meaning of §
Claims Based on Grievances
based on the handling of prison grievances fail 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). Accordingly, the facts
alleged by Moore about grievances do not give rise to a
plausible basis for a constitutional claim and will be
dismissed with prejudice. Furthermore, “an allegation
of a failure to investigate, without another recognizable
constitutional right, is not sufficient to sustain a section
1983 claim.” Graw v. Fantasky, 68 Fed.Appx.
378, 383 (3d Cir. 2003) (quotations omitted); see also
Boseski v. N. Arlington Municipality, 621 Fed.Appx. 131,
135 (3d Cir. 2015) (per curiam) (“Boseski has no
cognizable claim against a government entity for its failure
to investigate or bring criminal charges against another
individual.”). Accordingly, the claim against Defendant
Lt. Weber, based on his failure to investigate Moore's
grievance is dismissed for failure to state a plausible claim
under § 1915(e)(2)(B)(ii).
Claims Based on ...