UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

DAVID S. LEVINE, :

:

Plaintiff : No. 4:CV-05-1373

:

vs. : (Complaint Filed 07/08/05)

:

: (Judge Muir)

CHARLES ERICKSON, : 

Superintendent, et al., :

:

Defendants :

ORDER

July 12, 2005

Background

On July 8, 2005, David S. Levine, an inmate presently

confined in the Retreat State Correctional Institution, Hunlock

Creek (“SCI-Retreat”), Pennsylvania, filed this pro se civil

rights action pursuant to 42 U.S.C. § 1983. Plaintiff names the

following SCI-Retreat employees as defendants: Superintendent

Charles Erickson, Activities Director Edward Salerno, and

Activities Specialists David Popson, Mack Daugherty and Raymond

Starzynski. Along with his complaint, plaintiff submitted an

application requesting leave to proceed in forma pauperis under

28 U.S.C. § 1915. The Prison Litigation Reform Act (the "Act"),

Pub. L. No. 104-134, 110 Stat. 1321 (April 26, 1996) imposed new

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1. Section 1915(e)(2) provides:

(2) Notwithstanding any filing fee, or any portion

thereof, that may have been paid, the court shall dismiss

the case at any time if the court determines that (A) the

allegation of poverty is untrue; or (B) the action or

appeal (I) is frivolous or malicious; (ii) fails to state

a claim on which relief may be granted; or (iii) seeks

monetary relief against a defendant who is immune from

such relief. 

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obligations on prisoners who file suit in federal court and wish

to proceed in forma pauperis under 28 U.S.C. § 1915, e.g., the

full filing fee ultimately must be paid (at least in a nonhabeas suit). Also, a new section was added which relates to

screening complaints in prisoner actions.1

The complaint will now be reviewed pursuant to the screening

provisions of the Act. For the reasons set forth below, the

instant complaint will be dismissed, without prejudice, as

legally frivolous pursuant 28 U.S.C. § 1915(e)(2)(B)(i).

When considering a complaint accompanied by a motion to

proceed in forma pauperis, a district court may determine that

process should not be issued if the complaint is malicious,

presents an indisputably meritless legal theory, or is

predicated on clearly baseless factual contentions. Neitzke vs.

Williams, 490 U.S. 319, 327-28 (1989); Wilson vs. Rackmill, 878

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2. Indisputably meritless legal theories are those "in which

it is either readily apparent that the plaintiff's complaint

lacks an arguable basis in law or that the defendants are

clearly entitled to immunity from suit." Roman vs. Jeffes,

904 F.2d 192, 194 (3d Cir. 1990) (quoting Sultenfuss vs. Snow,

894 F.2d 1277, 1278 (11th Cir. 1990)). Clearly baseless

factual contentions describe scenarios "clearly removed from

reality." Id.

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F.2d 772, 774 (3d Cir. 1989).2 "The frivolousness determination

is a discretionary one," and trial courts "are in the best

position" to determine when an indigent litigant's complaint is

appropriate for summary dismissal. Denton vs. Hernandez, 504

U.S. 25, 33 (1992).

The plaintiff alleges that on June 24, 2004, he was injured

while doing his ab work-out in the prison yard. Specifically,

he states that the lower part of the machine that he was working

on “popped up in the air” and he “fell back on the ground

approximately 3 to 4 feet” and that “the (T) shape from the

machine hit [him] in the face”, causing “major injuries to [his]

left eye”, resulting in twenty-one stitches. (Doc. No. 1,

complaint). He claims that his left bicep was “black and blue

and darkish purple in color.” Id. Levine states that the

machine “had a popsicle stick inside the hole with black

electrical tape around the hole, so [he] could not notice that

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the machine needed a pin for the (T)shape leg supporter” and

that “instead of having the proper metal pin, the popsicle stick

and black electrical tape was used to alter the machine.” Id.

Levine files the instant action in which he states that

“each named in this complaint are being sued in their individual

and [official] capacities, negligence, physical injuries, pain

and suffering and unsafe conditions of inspection, procedure.”

Id. For relief, plaintiff seeks compensatory and punitive

damages, as well as, injunctive relief. 

Discussion

A plaintiff, in order to state a viable § 1983 claim, must

allege that the conduct complained of was committed by a person

acting under color of state law and that said conduct deprived

the plaintiff of a right, privilege, or immunity secured by the

Constitution or by laws of the United States. E.g., Cohen vs.

City of Philadelphia, 736 F.2d 81, 83 (3d Cir.), cert. denied,

469 U.S. 1019 (1984). A defendant's conduct must have a close

causal connection to plaintiff's injury in order for § 1983

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3. The Martinez court explained: "Although a § 1983 claim has

been described as 'a species of tort liability,' Imbler vs.

Pachtman, 424 U.S. 409, 417 [(1976)], it is perfectly clear

that not every injury in which a state official has played

some part is actionable under that statute." Id.

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liability to attach. Martinez vs. California, 444 U.S. 277, 285

(1980).3

The fundamental principles of Eighth Amendment analysis

reveal that “only ‘the unnecessary and wanton infliction of

pain’ constitutes cruel and unusual punishment forbidden by

[that Amendment].” Ingraham vs. Wright, 430 U.S. 651, 670

(1977) (citations omitted). Accord Whitley vs. Albers, 475 U.S.

312, 319 (1986). The Supreme Court in Whitley taught: “To be

cruel and unusual punishment, conduct that does not purport to

be punishment at all must involve more than ordinary lack of due

care for the prisoner’s interests or safety....” Id. Negligence

or inadvertence alone do not constitute a constitutional

deprivation. Id.; Davidson vs. O'Lone, 474 U.S. 344 (1986).

Quoting Rhodes vs. Chapman, 452 U.S. 337 (1981), the Supreme

Court stated in Wilson vs. Seiter: 

The Constitution, we said, ‘does not mandate

comfortable prisons,’. . . and only those deprivations

denying the ‘minimal civilized measures of life’s

necessities’. . .sufficiently grave to form the basis

of an Eighth Amendment violation.

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501 U.S. 294, 298 (1991). 

Applying the above principles to the instant case, the Court

concludes that not only does Levine fail to allege any personal

involvement on behalf of the named defendants, but he fails to

assert the violation of any federal right. The complaint

asserts that plaintiff fell from a neglected exercise machine.

However, mere negligence resulting in such an accident does not

rise to the level of a constitutional violation under either the

Fourteenth or the Eighth Amendment and, accordingly, is not

cognizable in a § 1983 action. See Daniels vs. Williams, 474

U.S. 327, 332 (1986)(“We think the actions of prison custodians

in leaving a pillow on the prison stairs, . . . are quite remote

from the concerns [of the Due Process Clause] just discussed.

Far from an abuse of power, lack of due care suggests no more

than a failure to measure up to the conduct of a reasonable

person. To hold that injury caused by such conduct is a

deprivation within the meaning of the Fourteenth Amendment would

trivialize the centuries-old principle of due process of law.”);

Williams vs. Bricker, 1996 WL 94811 (E.D. Pa.)(“Plaintiff’s

allegations against defendant Bricker for allowing the staircase

to exist in an unsafe condition constitutes, at best, a

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4. To the extent that Levine states any state-law claims,

pursuant to 28 U.S.C. § 1367(c)(3), we decline to exercise

supplemental jurisdiction over them. Those claims will be

dismissed without prejudice to any right the plaintiff may

have to pursue them in state court. In so holding, the Court

expresses no opinion as to the merits of any such claims. 

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negligence claim. While an act of negligence may give rise to

a state tort claim, negligent conduct is not actionable under §

1983.” (internal citations omitted)). Accordingly, we find

that defendants’ conduct, at best, constituted negligence and,

as such, does not implicate the plaintiff's constitutional

rights under §19834. 

Moreover, to the extent that plaintiff names Superintendent

Erickson, Activities Director Salerno and Activities Specialists

Popson, Daugherty and Starzynski as defendants, claims brought

under § 1983 cannot be premised on a theory of respondeat

superior. Rode vs. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.

1988). Rather, each named defendant must be shown, via the

complaint's allegations, to have been personally involved in the

events or occurrences which underlie a claim. See Rizzo vs.

Goode, 423 U.S. 362 (1976); Hampton vs. Holmesburg Prison

Officials, 546 F.2d 1077 (3d Cir. 1976). As explained in Rode:

A defendant in a civil rights action must have

personal involvement in the alleged wrongs. . . .

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[P]ersonal involvement can be shown through

allegations of personal direction or of actual

knowledge and acquiescence. Allegations of

participation or actual knowledge and acquiescence,

however, must be made with appropriate particularity.

Rode, 845 F.2d at 1207.

Based on a review of plaintiff’s complaint, it is apparent

that he is relying solely upon a theory of respondeat superior

as to the named defendants. Plaintiff fails to assert that they

had any personal involvement in actions which resulted in a

violation of his constitutional rights. In fact plaintiff

states that defendant Erickson is “responsible for the orderly

running of the state correctional institution” and “the

activities director and the specialists named are responsible

for not securing a safe environment.” (Doc. No. 1, p. 2).

Accordingly, these defendants are entitled to dismissal.

Thus, since plaintiff's complaint is "based on an

indisputably meritless legal theory" it will be dismissed,

without prejudice, as legally frivolous. Wilson vs. Rackmill,

878 F.2d 772, 774 (3d Cir. 1989). Under the circumstances, the

court is confident that service of process is not only

unwarranted, but would waste the increasingly scarce judicial

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5. The dismissal of this action does not relieve plaintiff of

the obligation to pay the full filing fee. Until the filing

fee is paid in full, the Administrative Order is binding on

the SCI-Retreat Superintendent and the warden of any

correctional facility to which plaintiff is transferred. 

resources that § 1915(d) is designed to preserve. See Roman vs.

Jeffes, 904 F.2d 192, 195 n. 3 (3d Cir. 1990).

IT IS HEREBY ORDERED THAT:

1. Plaintiff's motion to proceed in forma pauperis

(Doc. No. 2) is construed as a motion to proceed

without full prepayment of fees and costs and the

motion is GRANTED.

2. The complaint is DISMISSED without prejudice

as frivolous pursuant to 28 U.S.C. §

1915(e)(2)(B)(i).5

3. Plaintiff's motion “preventing from

retaliation tactics” (Doc. No. 5) is

DISMISSED as moot. 

4. The Clerk of Court shall CLOSE this case.

5. Any appeal from this order will be deemed

frivolous, not taken in good faith and

lacking probable cause. 

 s/Malcolm Muir

 

MUIR

United States District Judge

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